Proceedings of the Standing Senate Committee on
Energy, the
Environment and Natural Resources
Issue 20 - Evidence, August 24, 1999 (afternoon meeting)
OTTAWA, Tuesday, August 24, 1999
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-32, respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development, met this day at 1:37 p.m. to give consideration to the bill.
Senator Ron Ghitter (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we will continue our deliberations on Bill C-32.
Senator Spivak: I have more questions on clause 65, Mr. Chairman.
Before lunch, we were talking about the difference between the committee report and the amendments that were made to the bill. It is my understanding that industries, in particular the Friday Group, lobbied to have certain amendments to the virtual elimination provisions of Part 5 of the bill. I do not believe that that is a secret; in fact, it is well known. Clause 65(3) was amended to remove the steps needed to achieve virtual elimination of the substance.
The other clauses of this bill that deal with virtual elimination include clauses 77(2), 77(4), 79(1), 91(2), and 91(4). After the committee dealt with the bill, clause 77(4) included virtual elimination. However, the wording after the house report stage was:
...the implementation of virtual elimination under subsection 65(3)$
When we turn to proposed subsection 65(3), we see that it deals with taking steps to achieve virtual elimination. It goes on to state that the minister shall take into account any factor or information provided for in section 91, including, but not limited to, environmental or health risks and any other relevant social, economic or technical matters.
I am in possession of a memo that states that if you change that it will be impossible to achieve virtual elimination. Deleting all mention of virtual elimination in the operational sections of Part 5 would create an internal contradiction that would make implementation of virtual elimination impossible. For example, it would become impossible for the minister to propose virtual elimination of a substance.
I wish to know your comments on this. As well, I would like to know which industries lobbied for these particular amendments. Obviously, they had in mind that virtual elimination could not be achieved that easily.
Mr. Lerer: Mr. Chairman, with respect to the second question, a coalition of industries lobbied the government in this regard.
I believe that you will hear from many of those industry sectors when they are before you as witnesses. I am not sure that I or any of my colleagues could name all the industry sectors, but most certainly you will hear representations from a significant portion of the industries concerned with the bill over the course of the next couple of days.
With respect to the quote that you have, perhaps my colleague Mr. Mongrain could be helpful.
Senator Spivak: Could I just get back to the original question? My understanding is that some of the industry groups did deal with the deputy minister. Is that correct? In the normal course, would lobbyists deal with the deputy minister?
Mr. Lerer: People who had specific interests in the bill, whether they were from industry, from environmental organizations, or whatever, met with officials of the department. I believe that some of them also had the opportunity to meet with the minister. Would it be normal, in dealing with a piece of legislation, that one would meet with the minister to make one's interest known, or with the deputy minister, or even as far down in the bureaucracy as the director general of the CEPA office? The answer is yes.
Senator Spivak: I am not talking about "anyone with an interest" or any industry on its own. I am talking about registered lobbyists, which I assume was what was happening. I know of one.
Mr. Lerer: I was present at some of those meetings. They involved people who wanted to express a point of view on the bill, industry representatives, environmental representatives and others. Whether they are, in fact, registered lobbyists, I have no knowledge.
Senator Spivak: Good. I would like you to go through the amendments that talk about the implementation of virtual elimination. Go back to subclause 65(3), which says that the minister must take into account all these things, and tell me, to the best of your knowledge, why those were amended after the report stage. What was the reasoning?
Mr. Mongrain: Mr. Chairman, I can comment on the memo read into the record by the honourable senator. The words sound very familiar to me because I believe I wrote it.
Senator Spivak: You wrote it, saying it was impossible to achieve virtual elimination?
Mr. Mongrain: Let me explain, Mr. Chairman.
The industry proposal was to delete. This is a very different amendment than what was done at report stage. The industry umbrella group's proposal was to delete the words "virtual elimination" from all of the clauses outlined by Senator Spivak, including subclauses 77(2) and 77(4). What industry wanted was a phrase in the clause that stated that the minister shall propose implementation of proposed subsection 65(3). That is what industry was after; that is what they were pushing for.
After our analysis, we realized that if all mention of virtual elimination in the operational clauses of the bill were removed the definition would therefore be meaningless because there would be no operational link or no mechanism to implement it. This is why the amendments retain the phrase "virtual elimination." It is because virtual elimination is the goal. That is why the memo says that if the words "virtual elimination" were deleted from the operational clauses of the bill it would create internal contradiction and make it difficult to achieve virtual elimination. I am paraphrasing myself.
That is the distinct difference, and it is very important to recognize that what industry was proposing is not what occurred at report stage amendments.
Senator Spivak: Why, then, was it changed from virtual elimination to the implementation under subclause 65(3), which talks about relevant social, economic, or technical matters?
Mr. Mongrain: It is the implementation of virtual elimination under proposed section 65(3).
It links back to subclause 65(3). If you look at subclause 65(3), it talks about taking into consideration environmental or health risks, as you have pointed out, and social, economic, and technical matters. Subclause 65(3) also sets out, front and centre, in the very first phrase, that it is to apply when the level of quantification has been specified on a list. If you read up, as opposed to reading down, it is apparent that the level of quantification is front and centre as the ultimate objective and that the provisions to consider social, economic, and technical matters are linked to the operational sections. Essentially, that is all it does. It links those requirements. However, the ultimate objective remains and is in fact reinforced by the statement with respect to when the level of quantification has been specified. Then, as you move up through clause 65, you see what is meant by the level of quantification.
Senator Spivak: I am still not entirely clear why you had to change the wording. One refers to the goal, and the other to the implementation. In terms of the implementation, there are what I regard as constraints, because not only do you have to look at the environmental or health risk, but you must look at all these other things. Is that after you prescribe the quantity of the substance that may be released? Is it before? If it is before, there are all those other factors that you must take into account. It strikes me as being similar to the precautionary principle, where you look at economic factors before you make the decision.
Mr. Mongrain: Mr. Chairman, there are two numbers relevant to the implementation of virtual elimination. The first number is the level of quantification. That is as close as we can get to zero in scientific terms. It is what we cannot measure; it is below what can be measured. That is the first number, and it is a technical determination. It is a determining the technology for measurement for the particular media, for the particular substance. That is set irrespective of social, economic, and technical matters. It is the ultimate objective. That is the level of quantification.
Senator Spivak: You are talking about subclause 65(3)?
Mr. Mongrain: Yes.
Senator Spivak: And how in that sentence is that clear?
Mr. Mongrain: It states:
When the level of quantification for a substance has been specified on the List referred to in subsection (2)...
That is the first number.
Senator Spivak: Okay.
Mr. Mongrain: That number is set irrespective of social, economic, or technical matters. It is a scientific determination, essentially.
The second number -- and this is not different from Bill C-32 when it was introduced at the house committee -- is set after consideration of social, economic, and technical matters, as well as the environmental or health risks. It is set by the Ministers of Health and Environment. That is the regulatory number. That is the number that industry is obliged to meet. It carries the force of regulation. It could, in some instances, be the same number as the level of quantification. Where that is achievable in the short term, it makes sense. It could be the level of quantification.
In other instances, a phased-in approach over the course of 10 years may be required to get to the level of quantification. The ministers would set a series of targets to reach the ultimate objective of virtual elimination, which is this level of quantification. In other instances, we might be able to get very close, but not all the way.
I wish to remind the committee that we are talking in parts per quadrillion. These are very, very small amounts -- grains of sand on a huge beach. From an environmental perspective, if the LOQ is 50 parts per quadrillion, and it is simply not possible in today's technology to get it below 100 parts per quadrillion, that is still a very narrow gap. In other instances it may be higher, and we will continually strive for improvement.
The report stage amendments link clause 65(3) more closely to these operational sections, which is consistent with the way we intend to implement it. Whatever measures we bring forward, we are always cognizant of environmental and health risks and social, economic, and technical matters. If we shut down complete industries and towns overnight because we do not have the patience to do things properly with a phased-in approach, we are not contributing to sustainable development, which is the goal of this bill.
One of the senators mentioned that a way of lowering the level of sulphur in gasoline is to get rid of cars. That is not a reasonable approach.
Senator Spivak: Why was it important to remove that reference when taking steps to achieve virtual elimination, since virtual elimination is the goal and since you are talking about implementation? You are suggesting that you put this in because you wanted to ensure that it was implementation under clause 65(3). Why then did you take out "taking steps to achieve"?
Mr. Mongrain: What I like about it is that it links the ultimate objective right up front with the consideration of social, economic, and technical matters. "Taking steps" suggests that you will have an interim phased-in approach in all instances.
Senator Spivak: You have made the level of quantification the goal rather than virtual elimination, because virtual elimination may mean no substances, in the minds of some and in certain publications. You have made that the goal instead of taking steps to achieve the virtual elimination.
Mr. Mongrain: The level of quantification is virtual elimination, but it is below what we can measure. It is zero, for all intents and purposes.
Mr. Lerer: Mr. Chairman, it is defined in proposed section 65(1) in exactly the way my colleague has said.
The Chairman: Having read this memo, I believe that you have been less than candid with this committee. I have a very different reading of this memo. I will circulate it to members of the committee because it is an interesting memo and it reinforces some of the views we spoke of earlier relative to this.
Through amendments made after the bill came out of the committee, the government has moved the target to 65(3), which is what industry wanted. Rather than talking in terms of elimination, they wanted to talk in terms of the control of it. Every amendment that was made after report stage in the House of Commons referred to clause 65(3), which dilutes, as I was saying this morning. It is an entirely different situation.
I do not mean to be unfair to you, but this is your memo. I might add that it says here that it was approved by H. Lerer, who I assume is you.
Mr. Lerer: It is indeed.
The Chairman: Therefore, I take it that this speaks for the view of your department at the time this legislation was considered and that this memo was put together following a meeting with Richard Payton of the Canadian Chemical Producers Association. Obviously, you were responding to the demands or requests of industry.
Let me give you a clear-cut example. The memo reads:
Industry Position -- New Language for Subsection 65(3)
Subsection 65(3) needs to be redrafted as follows:
When taking steps to achieve the virtual elimination of a substance.
They did not want that. It is interesting that your comment was:
Industry's suggestion would create confusion, since substances are not "listed" for virtual elimination in Bill C-32.
It is interesting that they got that amendment. The wording is identical. They got exactly the amendment they proposed. Your comment was that it would "create confusion."
Similarly, they wanted to replace the term "virtual elimination" with "implementation of subsection 65(3)" in the operational sections in Part 5. Although you said that deleting all mention of virtual elimination would create an internal contradiction that would make implementation of virtual elimination impossible, in effect that is what they got. They got it because all of these other amendments relate to 65(3).
So when I say you have been less than candid, I have the feeling that, understanding the pressures that your department is under, these amendments, overlooking the suggestions of the House of Commons after eight months of examination, were impositions made upon you by others and that you would rather have what was there before. That is my reading of your memo. You need not answer, but you may if you wish.
Senator Hays: I would request a response to that.
Mr. Mongrain: Mr. Chairman, the important point is that deleting the words "virtual elimination" was the pith and substance of that memo, not what the amendments are here. I am trying to be as candid as possible.
The Chairman: You are doing indirectly what you did not want to do directly. You did not have to remove the words "virtual elimination," because all your subsequent amendments directed it to clause 65(3), which gets rid of elimination and talks only in terms of control.
Mr. Mongrain: Mr. Chairman, it links directly with the level of quantification. In all fairness, the definition of "virtual elimination" talks about the ultimate objective of reducing these releases to the LOQ. I believe that our analysis in the memo still stands because we were speaking to the specific wording of the industry proposals at that time.
The Chairman: So you disagree with my comment that industry really got what they wanted anyway?
Mr. Mongrain: I cannot speak for industry, but from their correspondence and interjections I believe that they would have preferred the original definition of virtual elimination.
The Chairman: They did not get that but they got something almost equally as good, I would suggest. Would you agree with me?
Mr. Mongrain: I would beg to differ, Mr. Chairman, because we have a very clear definition of virtual elimination, and that is below the level of quantification.
The Chairman: We will circulate to members of the committee this memo, which we received only recently.
Senator Hays: Mr. Chairman, just to clarify my understanding, and forgetting about whose side we are on, whether we are against industry or against the environment --
Senator Spivak: We are not against anyone.
Senator Hays: It sounds to me like you are very aggressive in terms of thinking that industry has written the agenda here.
The Chairman: Senator Hays, that is not a fair comment.
Senator Hays: Both of you are making a lot of suggestions about why this bill is the way it is. I do not think you should prevent people from phrasing and prefacing their questions in the way they choose.
Clause 65(3) has an effect, for instance, on the 12 substances that we know are inherently toxic. Nine of those have been virtually eliminated, I gather. Perhaps there is a long time frame or an indefinite time frame during which some of those substances will continue to be in existence because they are used to some good effect. I do not know whether formaldehyde is on that list. Virtually eliminating some toxic substances because of their inherent toxicity may close doors on some beneficial processes that they cause in a catalytic way. Perhaps they have some redeeming social, industrial, or environmental benefit.
Am I right in my understanding of the flexibility provided by clause 65(3) as opposed to the rigidity of deeming a substance to be toxic and banning it from Canada forever at any measurable level?
Mr. Lerer: Mr. Chairman, I will leave aside inherent toxicity. However, the scientific assessment of toxicity under this bill is purely scientific. Benefits accrued from the properties of that substance are absolutely not considered.
Consideration of any benefits accrued from the use of that chemical belong in the risk-management phase. It may be that exposure is limited because the material is contained within an industrial process. It may be that the substance is used to manufacture a consumer product but that the product itself does not contain the substance. Those kinds of considerations determine how we will manage the substance and what measures will be taken.
I would make the differentiation that the benefits that accrue because a substance is in commerce are not considered during the scientific-assessment phase. That phase contains a purely scientific determination of inherent risks and the potential for exposure to the population and the environment. Only in making risk-management judgments does one consider the benefits accrued, how the substance is contained, and how exposure can be reduced.
Senator Hays: Is there a possibility that even though a substance is found to be inherently toxic it may well be a beneficial substance?
Mr. Lerer: It may be beneficial, but if it is found to be toxic then we know that control options must be considered. The purpose of this proposed legislation is the protection of the environment and of human health.
Senator Hays: Accordingly, there are provisions in the act for regulations.
Mr. Lerer: That is right. One might argue that, in setting a regulatory release limit, such as that found in clause 65(3), no consideration should be given to economic, technological, or social considerations. If that is the argument, then the government, so far as I understand, has rejected that argument and has found that this is the responsible way to proceed.
Senator Hays: I believe I understand that now. Please excuse the rhetoric.
Senator Spivak: I wish to address Mr. Lerer's comment. We are talking here about 12 of the most persistent pollutants. There may be all kinds of beneficial aspects to the other 23,000 chemicals, but they are not under consideration here.
Correct me if I am wrong, but is that not why we are discussing such minute parts? These substances are so toxic that they must be banned; in fact, nine of them are banned. We are not relating these substances to the thousands of others that may have some accruing benefit. These substances are not deemed to have any benefit, as far as I know. These are substances that one would want eliminated from the world, if possible. Is that not accurate?
Senator Hays: We are getting into a debate.
Senator Spivak: It is not a debate. I am asking this question: Is there any benefit?
Senator Hays: I can envisage an inherently toxic substance that may have value. For example, for some reason, we have kept alive the smallpox bacteria. We read about how menacing this virus is in terms of chemical warfare; it is one of most toxic substances in the world. What is the rationale for keeping samples of it? Perhaps we may need to deal with a similar disease in the future. While its existence is subject to abuse, its virtual elimination was rejected as being unwise. I use that as an example. Is clause 65.3 intended to cover such substances, whether chemical, bacterial, or viral?
Ms Lloyd: Let us look at DDT as one substance that, years ago, was banned for use in Canada and in much of the developed world. There is no doubt that there are benefits to DDT use. That is why it is still used in certain parts of the world for malarial mosquito control. Obviously, the developed world is pushing to have that end. All these chemicals at one point showed benefits.
The virtual elimination clauses exist to handle these types of substances that are the worst in the world. Senator Spivak is correct about that. In spite of the benefits, the only control option is virtual elimination. There is no debate about that. We can affect how fast we get there, but there is no weighing of costs and benefits for this substance. It is automatically decided that the goal is virtual elimination.
Senator Hays: Then I concede to Senator Spivak.
Senator Spivak: My question goes back to the initial basis on which we began this discussion. Are we talking about phasing out the generation and use of these worst substances, or are we discussing virtual elimination as being just as good? I give the example of PCBs, dioxins, and furans, which are still being emitted, albeit in absolutely minimized quantities. That is the central question here.
Senator Hays has raised it and this is an important question. People are looking at these questions in terms of the protection of health. Should we be ridding the world of these substances entirely? Should we disallow anyone from using them? Should we be looking at virtual elimination?
We are honing in on this important issue and I would like to hear your views about these persistent organic substances. What does the international convention say about these substances?
Mr. Lerer: You have asked if we should be speaking of virtual elimination, whether we should target releases to levels that are so low they cannot be measured in the environment, or whether we should seek to simply eliminate the generation and use of these substances.
That debate has gone on, both here and in the House of Commons, for quite some time. The government position, as reflected in this bill, is that our first point of attack is against releases through virtual elimination. If that attack proves insufficient or impossible, the authority exists to ban generation and use.
The Chairman: Having said that, Mr. Lerer, the words "Whereas the Government of Canada acknowledges the need to phase out the generation and use of the most persistent" were taken out of the preamble. I take it from this legislation that it is not the intention of government to recognize the need to phase out the generation and use of the most persistent toxic substances. Otherwise, why did they take it out of the preamble?
Mr. Lerer: The preamble, as it stands now, reflects the first point of attack, which is the virtual elimination of releases. The operational sections of the bill are now reflected in the preamble and the preamble is silent about generation and use. The authority does exist in the control option section of the bill. The preamble reflects the direction that is set by the operational sections in Part 5, the toxic section.
Senator Chalifoux: I find this debate very interesting, but I was under the impression that we were reviewing the bill. I would like to get back to the bill, if you do not mind. I believe it is very important. This is a large bill and I would like to get back to the substance of it so that we can discuss it properly.
The Chairman: Senator Chalifoux, the sections that we are dealing with are the substance of the bill. You will be hearing from group after group over the next two weeks about those sections; it is very important that we have an understanding of them.
We have been through Part 5. Is there anything else on Part 5 with which members of the committee wish to deal?
Senator Spivak: This morning we discussed clause 69, wherein the offer to consult was different than the others. We were told that it was different because it was not as operational as the other sections.
However, clause 47(3), dealing with issuing guidelines, has different specifications about offers to consult. Could you comment on that?
Mr. Mongrain: The amendment in clause 47 originated out of the report stage amendments, whereas clause 69 was a result of the committee process. I believe that it has the same intent.
Senator Spivak: Therefore, I do not understand it.
Mr. Mongrain: There would have been different legislative drafters.
Senator Spivak: In other words, you do not know the answer. That is fine. I accept that.
Mr. Cameron: Perhaps I could clarify. It is because there were different authors. The amendment in clause 69 was moved by a member of the House of Commons environment committee and was passed by that committee. We mirrored the intent of that clause by putting similar language in other places. I believe there are 11 other places where we used a similar clause. However, rather than going back and changing the language of the private member who succeeded in having that motion passed by the committee in first place, we left that one alone. The Department of Justice drafters, who took the spirit and intent of the clause, drafted it in a slightly different way, and that became part of the government package of amendments at report stage.
The pith and substance of what they accomplish is not identical, but very similar.
Senator Spivak: I do not understand that, but I will take your word for it. These two clauses are very similar. They have to do with issuing guidelines. I do not understand why, when the minister has the power to issue guidelines, he or she needs to consult. At any rate, here are two absolutely similar clauses with two different methods. I accept your explanation for now.
I have other questions, but I will leave them until later.
The Chairman: Let us carry on to Part 6.
Ms Lloyd: This part is entitled "Animate Products of Biotechnology" and starts with clause 104. This part is essentially identical to the section of Part 5 that deals with new substances. Part 6 deals with living products of biotechnology.
Before a company can use, manufacture, or import a living product of biotechnology into Canada that company must notify the minister and submit a data package in accordance with the regulation. Again, Health Canada and Environment Canada assess the information and can either declare the substance to be toxic and put conditions on it or allow its use unconditionally in Canada.
The understanding under this part is that several different products of biotechnology are regulated under different federal acts. The report from the House of Commons gave the Minister of the Environment and, where appropriate, the Minister of Health, the responsibility for determining whether CEPA or other acts of Parliament apply in regulating a product of biotechnology. At report stage, that responsibility was given to the Governor in Council. It was deemed that that was an appropriate change to make because there are so many different federal acts that could apply.
The other act of Parliament must also include notification; that is, notifying the minister that they wish to manufacture, use, or import the substance. It must also include an assessment to determine whether the substance is toxic. It is then the Governor in Council who would decide whether CEPA or the other act applies.
That was the major change made in that part.
The Chairman: How do we handle genetically modified foods, which are very controversial today?
Ms Lloyd: That would be under the Food and Drug Act instead of the Feeds Act.
The Chairman: If someone wished to import genetically modified soybean into Canada, what are the steps to deal with that?
Ms Lloyd: If it is a soybean, it is a seed, so it would be the Seeds Act. The current CEPA does not state that it is the Governor in Council who does this. It is silent on who decides which act applies. There is a federal framework for the regulation of products of biotechnology. Basically, under that framework, if you have the responsibility for regulating seeds from old processes, then under new processes like biotechnology you would still be the person who would regulate seeds. If you were responsible for feeds before, regardless of the process, you would do feed.
Bill C-32 makes it slightly different. Under it, it would work that way except for an official recognition by Governor in Council as to which act would apply. Previously, it was the framework of the policy decision.
The Chairman: Are genetically modified foods regarded as animate products of biotechnology?
Ms Lloyd: Yes. They are living. Well, some of them are; they were at one point. The inanimate products of biotechnology, to make it clear, are covered in Part 5, because they are chemicals.
The Chairman: In these areas, in order to protect the monarch butterfly, et cetera, I take it that that is not dealt with under this legislation. Is that what I am hearing?
Ms Lloyd: Yes.
The Chairman: Genetically modified foods are not intended to be covered under this legislation.
Ms Lloyd: They are not intended to be, but it would act as a safety net if there were not another act in town that had notification and assessment.
Senator Spivak: As I understand it, the reason given in the new regulations for hiving off these things or exempting them from CEPA is to avoid duplication. However, I must say that there are many questions about this. I do not understand the issue of avoiding duplication because you have already said that the toxic substances are assessed by the Department of Environment and the Department of Health. Now, under the Food and Drugs Act, which is under the Department of Health, you have the environmental assessment of foods and health hived off to the Canadian Food Inspection Agency, which is under the Department of Agriculture. Is that correct?
Ms Lloyd: I do not know whether the last part is correct. I do know up until then it is.
Senator Spivak: I wish to continue with that. Under the Food and Drugs Act there is no reference to environmental assessment. I do not know about the other acts, such as the Seeds Act, the Pest Control Act, the Plant Protection Act, the Fertilizers Act. Most of these pieces of legislation were enacted before biotechnology. They had other purposes, having to do with fraud, et cetera.
The issue becomes one of how you take existing regulations and put them under legislation that does not have any reference to the environmental assessment. I understand that is done under a section of the Regulations Act. It refers to analysis, but it does not refer to environmental assessment. Some of the critics suggest that that is amendment by regulation, that it is not really appropriate. If you wanted to amend that, you ought to have done it by amending the acts. I wish to know about that part of it. What about various these various pieces of legislation and whether the regulations really flow from them, particularly the Food and Drugs Act, in which there is no mention of environmental assessment? In fact, they say in these regulations that there is no mention there.
The Canadian Food Inspection Agency functions for the promotion of biotechnology products. I believe the Krever report said that the regulator must regulate in the public interest and not for the regulated. I do not know how you can have an agency that is responsible for promotion also responsible for regulation.
The most important point here, though, is whether in fact this weakens the current regulatory framework under the CEPA 1988, under which regulations were done in 1997, not regulations for foods, drugs, and cosmetics, but for all other things. It is suggested that indeed they have been weakened. I would appreciate it, and I am sure it would benefit all members, if you could go through very carefully what the differences are. You have mentioned them briefly, but it is hard to grasp it all. What was the situation in 1988, what was the situation when the committee looked at it, and what is the situation now?
Ms Lloyd: Perhaps I could address one thing and leave it to Dr. Lerer to address the other.
I do know that on the regulations that you have been referring to, the recent ones under the Food and Drug Act, I have received numerous phone calls since those came out because many people are concerned to find out when CEPA applies. It is quite clear in this proposed act that you must have notification and you must have an assessment to determine whether it is toxic to the environment and to human health. You must have both sides. Perhaps If one act only had the human health side, then CEPA would apply because it requires you do both environment and human health. The regulations I refer to I understand are proposed regulations. They were published in the Canada Gazette. Environment Canada has numerous comments that they will be sending our colleagues in Health Canada. I believe the two departments have a memorandum of understanding that Health Canada will conduct environmental assessments, and we will be commenting on the regulations to ensure that the quality of an environmental assessment that we would expect would be delivered through those regulations.
Mr. Lerer: Mr. Chairman, I am trying to refresh my memory concerning the bill as tabled in the house, the bill at the standing committee stage, and the bill after the report stage, in terms of what is referred to as the residual.
Senator Spivak: It is claimed that this bill weakens greatly what was contained in the 1988 Canadian Environmental Protection Act, which was the original piece of legislation.
Mr. Lerer: The current CEPA is silent on who decides whether CEPA or the other act of Parliament applies. That is why there is a federal framework.
Senator Spivak: I thought that in the current act there was a current minimum standard of notification in terms of health and environmental assessment. Section 26(3)(a) states that no matter who administers the act it has to meet the same minimum notification and assessment requirements.
Mr. Lerer: There was a requirement to meet assessment and notification, yes; but it was silent as to who made that determination.
Senator Spivak: The act states that it has to meet that requirement.
Mr. Lerer: Yes, as does Bill C-32 as it is before you.
In general, in terms of what people will recognize when reference is made to the residual clauses, the bill as tabled in the house and considered by the standing committee did not change the conditions concerning notification and assessment. However, the bill as presented to the standing committee provided that the decision was in the hands of the minister of the other act, not the Minister of the Environment.
The toxic section of the bill was changed by a vote in the standing committee so as to give the Governor in Council the authority to make that decision; that is to say, not the minister responsible for the other act or the Minister of the Environment.
Concerning the biotechnology section, there was a motion accepted by the standing committee that gave the decision-making authority to decide sufficiency in terms of notification to both the Minister of the Environment and the Minister of Health. That created an inconsistency between the toxic section and the biotechnology section. Therefore, at report stage, the government introduced an amendment that made the two sections consistent, giving the exclusive authority for the decision to the Governor in Council and not to either the minister responsible for the other act of Parliament or to the ministers responsible for health and the environment.
Earlier, I mentioned sufficiency of the regulation. That was a concept introduced at the standing committee stage. The government accepted that provision and did not change it at report stage.
The bill that was presented to the standing committee on examination did not provide for the transparency of that decision. There was no requirement to declare publicly, either in the Canada Gazette or any other forum, the proposals for making a determination as to which act should apply. That transparency was reintroduced in the standing committee and was not changed at report stage.
In essence, what happened during this process was that the bill as tabled gave the authority to the minister responsible for the other act of Parliament that was under consideration. During the standing committee process dealing with the toxic section, that was changed to the exclusive authority of the Governor in Council. In the biotechnology section it became the responsibility of the Minister of Health and the Minister of the Environment. That created an inconsistency. Therefore, at report stage, the government introduced an amendment to the biotechnology section that gave that exclusive authority to the Governor in Council, just as it was outlined in the toxic section, making the two sections consistent.
Senator Spivak: Once the Governor in Council says that these regulations are sufficient, it then goes into a schedule and that is deemed sufficient; is that right?
Mr. Lerer: If the act is scheduled, that schedule is publicly available. The fact that it will be scheduled is subject to public comment, as is any regulation. It is a requirement that any regulation that is proposed be published. For example, I believe the regulation to which you are referring in the area of food and drugs is not the promulgation of the regulation but a proposal for a regulation.
Senator Spivak: I am sorry. You are absolutely correct.
Who has the responsibility for the research involving biotech products? In terms of food, drugs, and cosmetics, would it be the Minister of Agriculture? Who decides which products can be produced?
Mr. Lerer: In terms of research, I do not know of any law except Bill C-32 which is in front of you that obligates a minister of the Crown to conduct research. All research is conducted on a discretionary basis. The government does a great deal of scientific research, as does private industry, as does the university community, and as does academia.
The one exception I know of is contained in Bill C-32 and concerns endocrine-disrupting substances. To my knowledge, it is the only proposed act that obligates a minister to conduct research on a specific substance or class of substances.
Senator Spivak: At the moment, under these regulations and under other regulations, what is happening, for example, in the Department of Agriculture, is that there is no independent research but there is evaluation. What happens, then, is that the company that is putting forward the product does the research, which is then supposed to be evaluated by the specific department concerned. One of the things we found out during the rBST debate is that often it is not done in a manner that, perhaps, would satisfy everyone because there needs to be long-term studies and all of that.
For example, the Canadian Food Inspection Agency has no capacity to do this. They do not have any experience in environmental assessment. If they are regulating, does that mean that the Minister of the Environment will do that evaluation, or will it be as the regulations here are proposed, which is that it is all handled there?
Mr. Lerer: I cannot give you a definitive answer to that question. What I can tell you is that there has been a proposal put out as to how it will be handled. With such a proposal, automatically, an invitation to comment will be sent out.
I believe, in fact, that the Department of Environment is providing comments. I do not know what those are at this point in time. I do not know what the final outcome will be. What you have in front of you is a proposal for public comment and public input as to how these products will be regulated, and that is the normal process for setting out regulation.
If I may say one last thing, the many colleagues that I have in the research branch of Agriculture Canada would be very surprised to hear that there was no research capability within it.
Senator Spivak: I did not say that. I said that in the Canadian Food Inspection Agency at the moment there is no research capability to do an environmental assessment. It is not in the Food and Drugs Act.
Mr. Lerer: I do not know.
Senator Spivak: I have a more general question with regard to products of biotechnology. I want to know how they will be handled institutionally. The regulations are all under other acts. What about the research evaluation of proposals that are coming from all of these companies? We are told by the Minister of Health that there will be a huge increase in biotechnology products and that the department has to have some capability. How will this happen from the point of view of the environmental assessment? There is no mention of biological diversity, for example, in this clause, and I do not believe there is any mention of threats to biological diversity in any of the acts we are talking about. That is a key issue in terms of the convention on biological diversity. It is one the key issues with respect to biotechnology products. I am interested in how this will be handled institutionally. That is a basis of the questions of many of the environmental groups.
Mr. Lerer: You want to know how this will be handled institutionally.
Senator Spivak: Under this bill.
Mr. Lerer: The purpose of the biotechnology section of the bill that is before you was to capture those animate products of biotechnology that are not regulated under other acts of Parliament.
Senator Spivak: What is left after all these five or six other acts have been applied?
Mr. Lerer: There are animate products of biotechnology that are used in environmental remediation. There are products of biotechnology that are used in a number of other instances. The majority of products of biotechnology that we are considering now are genetically modified foods, seeds, and things of that nature, and they are regulated under other acts of Parliament. The intent of this section within Bill C-32 was to capture those -- and I cannot give you an exhaustive list -- that were not regulated under other acts of Parliament.
With respect to this bill specifically, the control options associated with it on toxic substances, whether they be animate products or chemicals, hinge on the definition of toxicity; and in the standing committee process, and not changed at report stage, was the inclusion of biological diversity within the definition of toxic.
Senator Spivak: Right. However, you are introducing a bill that addresses then, by your own words, a very minimal part of the products of biotechnology.
Mr. Lerer: That is correct.
Senator Spivak: There will be an explosion of products from these life sciences companies, and there will be all kinds of things that may affect biological diversity. Let us take the example of the terminator gene. The terminator gene is something which, when inserted into a plant, will render the plant sterile.
This whole section talks about threats to biological diversity. There can be no bigger threat -- certainly many of the farmers think so -- to biological diversity than the terminator gene. That will be handled by someone else, and yet the capability and the experience are in the Department of Environment, not under the Seeds Act, the Fertilizers Act, and so on. The Food and Drugs Act does not even mention it. Do you not think this is a peculiar situation?
Mr. Lerer: I will leave your opinion as to whether it is a peculiar situation or not. The question that you asked me was whether, for the current products that are being dealt with, which are products of biotechnology, Bill C-32 is meant to be the regulatory authority? The answer is no, it is meant to be the safety net respecting other acts of Parliament. However, through the establishment of the requirements that there be notification, that there be assessment, and that any regulation proposed demonstrate efficiency in terms of protection of the environment and human health, I believe it does help to set a standard.
Senator Spivak: Let us leave the terminator gene aside, since that is not yet a product. Let us take an existing product, say, modified canola; that is on the domestic substances list, right?
Mr. Lerer: I do not know.
Senator Spivak: That is the question I asked before, and I am still confused.
Mr. Lerer: If I recollect, the answer was that those 23,000 products that are on the domestic substances list will be evaluated and categorized under the criteria that were established before. Whether that specific thing, the terminator gene or whatever it is, is on the domestic substances list, I do not know.
Ms Lloyd: I do not think seeds are listed.
Senator Spivak: Seeds are not listed, and will not be listed?
Ms Lloyd: No.
Senator Spivak: Nor will pesticides, nor will fertilizers, nor will plants.
Mr. Lerer: Pesticides are.
Senator Spivak: Pesticides are?
Ms Lloyd: Chemical pesticides.
Senator Spivak: So they are on the under the Pest Control Products Act, right?
Mr. Lerer: Right.
Senator Spivak: They are assessed under the Department of Environment; is that correct?
Mr. Lerer: We are talking about substances that have a variety of uses. For example, there may be a substance that has an industrial application where the regulatory aspect is dealt with under Bill C-32. That substance may also have a use as a pest control product.
Senator Spivak: If its only use is that of a pest control product, it will not be listed. Or will it be listed? Which is it?
Mr. Lerer: We must double-check that.
Senator Spivak: That is important.
Mr. Lerer: I understand.
Senator Spivak: The importance revolves around who does the environmental assessment.
Senator Taylor: The chairman asked you about living organisms, and genetically modified soya seed was used as an example. Did I understand you to say that it is not a living organism?
Mr. Lerer: No. It is a living organism.
Senator Spivak: What about these new things that some call "nutri-sicles," the foods that may contain all kinds of things that will be used as drugs? Where will they be? Will they come under the Canadian Food Inspection Agency?
Mr. Lerer: Are they going to be making a claim that they are a therapeutic drug?
Senator Spivak: I do not know.
Mr. Lerer: If so, then they would come under the Food and Drugs Act.
Senator Spivak: Therefore, they will come under the Canadian Food Inspection Agency?
Mr. Lerer: I do not know. It would be under Health Canada. The Minister of Health is responsible for the administration of the Food and Drug Act.
There are a number of agencies under the authority of the Minister of Health. I cannot tell you what agency. I can tell you that the administrative responsibility for the Food and Drugs Act is clearly with the Minister of Health.
Ms Lloyd: The Canadian Food Inspection Agency has the Feeds Act, the Fertilizers Act, the Health of Animals Act, and the Seeds Acts, so it would handle any biotechnology products that came through one of those.
The Chairman: Let us move on to Part 7.
Mr. Mongrain: Mr. Chairman, I have the pleasure of describing Part 7, Controlling Pollution and Managing Wastes.
Within Part 7, eight different divisions deal with different or discrete issue areas. If it pleases the committee, I can go through each division and then stop and allow for questions. I believe these are each easily summarized in a minute or two, so I will try to be as concise as possible.
Division 1 of Part 7, which has the title "Nutrients": Essentially, nutrients within the context of Bill C-32 are substances that promote the growth of vegetation in lakes and rivers, vegetation like algae or aquatic weeds. A good example of a nutrient is phosphates in detergent; they are currently regulated under CEPA.
Some senators may recall pronouncements during the late 1960s and early 1970s that Lake Erie was dead. At that time, the regulatory authority in the Canada Water Act was used to limit the amount of phosphates in detergents. That authority was rolled into CEPA in 1988 and has remained in Bill C-32.
With these provisions, we have essentially modernized the language, to reflect an ecosystem approach, and we are looking at an entire aquatic ecosystem instead of just waters, which was the case under the existing act. In addition, the house added a clause at report stage to prevent duplication with other acts that govern other sources of nutrients. CEPA is very focussed on cleaning products and water conditioners. If you look at the provisions, it is very clear that way.
There are other types of nutrients, such as fertilizers, which in normal circumstances are regulated under the Fertilizers Act. Essentially, that covers Division 1. Are there any questions?
Senator Spivak: Regarding dry cleaning products, there is a terrible solvent that is used in all the cleaning substances. There is a method of wet cleaning now, which is far more environmentally friendly; it is water-based. The problem is the machines cost $150,000, which gets us to the issue of cost-effectiveness. If you are to make regulations here -- because this would really clean up the dry cleaning industry to a great degree -- they could not use it for everything, but they could use it for many things.
Will the precautionary principle work here? Cost-effectiveness? How will you handle this? That is a real situation. It could be done tomorrow. Many dry cleaners are doing it, but the little mom and pop shops cannot afford it.
Mr. Mongrain: I believe the substance is tetrachloroethylene. It is a toxin under CPA.
Senator Spivak: Is it on the priority substances list?
Mr. Mongrain: It was on that list and it has been assessed. I believe we have regulations under development; our intent is to regulate this substance for use in dry cleaning. It would not fall under the nutrients provisions; it does not promote the growth of vegetation or algae. It probably kills vegetation or algae and falls under Part 5, Controlling Toxic Substances.
Senator Spivak: In other words, it is not under this section?
Mr. Mongrain: Not under nutrients, no.
Senator Spivak: It says that "cleaning product" includes laundry detergents, de-greasing, commercial and industrial cleaners.
Mr. Lerer: This particular section deals with substances that are the nutrients within the environment.
Mr. Mongrain: These are nutrients that are found in detergents or water conditioners.
Senator Spivak: Then there is clause 118, which says that "Governor in Council shall not make a regulation under...". Here is the residual thing. Can you tell me what acts we are talking about under clause 118(2)?
Mr. Mongrain: The first that comes to mind, and I mentioned it in my brief presentation, is the Fertilizers Act.
Senator Spivak: These substances would be regulated under the Fertilizers Act?
Mr. Mongrain: A fertilizer would be regulated under the Fertilizers Act.
Senator Spivak: We are talking about nutrients. Are there nutrients in fertilizers?
Ms. Lloyd: That is the whole purpose.
Senator Spivak: Very well, thank you.
Would the assessment and notification be as stringent? Will the Governor in Council decide that?
Mr. Mongrain: This is not dealing with the substance as a toxic, which requires an assessment. It deals with the substance because it promotes the growth of aquatic vegetation. It is a very narrow provision; however, it is used to good effect, if we look at the changes in Lake Erie over the course of two decades.
Senator Spivak: Yes, it is very important.
Are you saying that all the phosphates that are used in laundry products, and so on, that go into all the lakes in Canada are regulated under the Fertilizers Act?
Mr. Mongrain: No, they are regulated under this proposed section.
Senator Spivak: Are most of those substances already assessed? Are they on the priority list?
Mr. Mongrain: I wish to emphasize that these are not toxins, so there is no priority substance assessment. These are other pollutants. Part 7 in general deals with other pollutants, above and beyond those that are toxic in Part 5.
Senator Spivak: My basic question is this: Have these been assessed, and are there regulations in force throughout all the lakes?
Mr. Mongrain: For example, detergents in Canada are phosphate-free now as a result of a regulation under these provisions.
Senator Buchanan: You say that these substances are not toxic?
Mr. Mongrain: These substances are not necessarily toxic as defined by the act.
Senator Buchanan: The act treats a substance as toxic if it is entering the environment or might enter the environment in a quantity or in concentrations or under conditions that have or might have an immediate or long-term harmful effect on the environment or its biological diversity. What kind of pollutants are those that Senator Spivak is referring to?
Mr. Mongrain: They are not CEPA toxins. They have not undergone the assessment. They are not on the list of toxic substances, but they could be.
Senator Buchanan: They could be. It is just that you have not assessed them yet?
Mr. Lerer: Because of the fact that those substances were causing unwanted aquatic growth in lakes and rivers, the clauses used to put those control options in place were under the nutrients division as opposed to under the section dealing with toxic substances.
Senator Hays: Under what legislation would anhydrous ammonia fall?
Mr. Lerer: Anhydrous ammonia as a fertilizer?
Senator Hays: It is nitrogen gas, basically.
Mr. Lerer: If it claims to be a fertilizer, it would be covered under the Fertilizers Act.
Senator Buchanan: In regard to gas, I believe it was in Annapolis County that two members of a family were overcome by some gases in a root cellar. They got out all right, but it could have been very bad. There was another case in which some people actually died from gases emitted from a so-called root cellar.
Mr. Lerer: My recollection is that was the off-gassing from the vegetables of nitrogen gas. What happened is that the nitrogen gas pushed out the oxygen from that room. Nitrogen is denser than oxygen. It was off-gassing from the vegetables.
Mr. Mongrain: Mr. Chairman, shall I proceed to Division 2?
The Chairman: First, by way of information, in the event of someone contravening a regulation, would clause 272 apply in terms of the punitive side, throughout the proposed legislation?
Mr. Lerer: That is correct, sir.
Mr. Mongrain: Part 7, Division 2, deals with the "Protection of the Marine Environment from Land-based Sources of Pollution." These are completely new proposed sections; they do not exist in the current legislation. They provide authority to issue non-regulatory science-based objectives, guidelines, and codes of practice. Our intent here is to help Canada implement a national program of action, which is currently under development. Consultations on a draft program finished the end of May, and the respective departments are conducting a review. This is an issue that covers different jurisdictions, different departments. It is particularly relevant to the Department of Fisheries and Oceans. Our intent here is to supplement existing federal and provincial laws in this regard.
Senator Spivak: Are these guidelines and codes of practice enforceable under the law?
Mr. Mongrain: They are non-regulatory. Thus, they are not binding.
Senator Spivak: Why? Surely, this is important if the objective is to protect the marine environment and the quality of coastal ecosystems, as well as to prevent land-based sources of marine pollution. For example, there is a great deal of runoff from farms into the St. Lawrence River.
Mr. Mongrain: There is ample authority found in the Fisheries Act, the Oceans Act, and under provincial statutes. Our intent is to supplement those.
You have asked what use is an objective, code of practice or guideline. For example, in terms of non-point sources of runoff, an ideal code of practice will show communities what they can do. Our experience with codes of practice is quite positive. People want to do the right thing. If we can show them through our research and science the way to go, they are more than willing to do so.
In other instances, a CEPA guideline or code of practice may, in part, be incorporated into a relevant provincial statute.
Senator Spivak: Does the regulation of fertilizer runoff fall under provincial jurisdiction?
Mr. Mongrain: If it is having a deleterious effect on fish, then it comes under the Fisheries Act. If it deals with the regulation of private enterprise, that is within the realm of provincial governments. It really is an interlocking jurisdictional question.
Senator Spivak: The effects of these runoffs can be as deadly as toxics in the waters. I know that is a big problem in the part of Quebec that I am talking about, as well as in every other province.
Mr. Mongrain: The Fisheries Act is there if it is impacting on fish. If it is toxic and meets the definition of toxic under CEPA, then we are into Part 5, where it can be controlled.
The Chairman: Let us assume that the minister say to an aboriginal group "I want to consult," and the aboriginal group starts consulting. What then? Assume that the consultation process goes nowhere. Does the minister not then need to have the discretion to act, if consultations are not proving effective? It seems to come to a stop there.
Mr. Mongrain: I may ask my colleague from the Department of Justice to respond to the whole idea of consultation. Consultation does not require achieving consensus. Consensus does not necessarily mean unanimity. The fact that we consult does not necessarily mean that other parties have to agree or that we have to agree with them. However, it is important to hear their views and vice versa.
The Chairman: I appreciate that. The clause states that the minister can act if the offer to consult is not accepted. What if it is accepted?
Mr. Mongrain: Then the consultations would proceed in good faith.
The Chairman: If they do not get anywhere, can the minister act?
Mr. Lerer: I would suggest, Mr. Chairman, that the minister can and would act.
These provisions say that the minister will consult with others and listen to their advice. The ultimate authority and the ultimate decision is either for the minister to make a decision or for the minister to make a recommendation to the Governor in Council as to the what the decision should be.
On a case-by-case basis, how long would a consultation take? I do not know. I guess it would depend on the subject. However, the minister would act. There is nothing in the law that would prevent the minister from acting. The 60 days refers only to once the offer to consult has been taken up.
The Chairman: I think it should say that. You say it does not have to. It says that "any time after the 60th day," the minister can act. If they refuse it, then it is silent. By implication, if he is not getting anywhere, he can act. Is that what you are saying?
Mr. Cameron: The obligation to consult is an obligation to consult in good faith. It is a two-way street. We consult with provinces, aboriginal groups, and others in good faith and expect the same from them in return. If, in your hypothetical fact situation, we get to a stalemate, a point in time where the consultations have broken down, then, as Mr. Lerer has said, there is nothing in the legislation, in my opinion, that would prevent the Governor in Council or the minister or whomever from taking the appropriate course of action at that time.
Senator Spivak: Why is it this way here and different in clause 69?
The Chairman: It was likely a different draftsman.
Senator Spivak: The intent and the concept is very different. I am just commenting; you need not answer.
Mr. Mongrain: Division 3 prohibits the disposal of wastes or any other material or their incineration in waters within Canadian jurisdiction or by a Canadian ship in international waters, unless the person has a permit approved by the minister for such disposal.
These provisions allow Canada to meet its obligations under the 1972 convention on ocean dumping. In 1996, there was a protocol added to that convention. Bill C-32 takes the provisions in the existing act and allows us to meet the obligations under the recent protocol.
I will highlight some of the advances made in this respect. The first aspect that is new to Bill C-32 is the precautionary approach taken toward ocean disposal. The current CEPA contains a list of substances that are prohibited for disposal at sea. It is a relatively short list of some very serious substances. Technically, anything else is eligible.
Bill C-32, in accordance with the requirements of the 1996 protocol, reverses this approach. It provides a list of materials that are eligible for disposal and includes items like clean dredge material, fish wastes, decommissioned ships, et cetera. Everything else is prohibited.
The second aspect that is new to Bill C-32 deals with Schedule 6 of the bill, which is a framework through which an applicant must go before receiving approval for a permit to dispose at sea. For example, the applicant must first examine efforts at re-use of the material, recycling, pollution prevention measures that might prevent the generation of the wastes, et cetera.
The third aspect of Bill C-32, an important aspect, is that it obliges the government to monitor sites, to make sure that our site-selection process is protecting the environment and human health.
There is a requirement in the bill that disposal at sea will only be approved when it is an environmentally preferable means of dealing with the waste. The whole application process is transparent. When applying for a permit, the applicant must publish in a local newspaper details as to where the application can be reviewed, and so forth. In addition, once a permit has been approved, there is a 30-day comment period during which a member of the public can file a notice of objection.
In summary, the key improvements for these provisions for disposal at sea are a greater precautionary approach, a more open and transparent process, and, finally, after-the-fact monitoring required by the statute to ensure that the marine environment and human health are protected.
The Chairman: Senator Buchanan will know about this, but what was the situation with the Irving Whale, the ship that had to be raised?
Senator Buchanan: It is in Halifax Harbour right now, cleaned up and looking great.
The Chairman: Are there powers within this bill to force someone to do that?
Senator Buchanan: That is the $64,000 question that must be answered sometime very soon. I do not know how they work this pollution control fund. The federal government are after Irving to pay it, and Irving are simply saying that it should be paid out of the pollution control fund and that they have no responsibility. How far the departments have gone on this, I do not know.
Mr. Mongrain: That whole scheme falls under the Canada Shipping Act and the ship source oil pollution fund, which I believe is around a quarter of a billion dollars now.
Mr. Lerer: Mr. Chairman, I believe the situation that you are referring to would not be classified as disposal at sea, but rather an accident at sea, a shipwreck. That is not a disposal-at-sea question.
Senator Buchanan: No, it is not.
The Chairman: Leading from there, let us assume that someone abandons a ship, it sinks, and it has toxic chemicals in it. Do you have the power to charge against that person the costs to take it out, the rehabilitation costs and the like, under this proposed legislation?
Mr. Mongrain: Abandoning the ship without a permit would be a violation, which comes with penalties in the enforcement part, hefty fines and so forth.
The Chairman: What about remediation?
Mr. Mongrain: There are also sentencing guidelines, which take into account the costs to restore the environment. I believe it is in clause 287 on page 191.
The Chairman: I do not see it there. Which subclause of clause 287?
Mr. Lerer: If I could direct your attention to subclause 287(b):
(b) an estimate of the total cost to remedy or reduce any damages caused by the commission of the offence;
and then subclause (c):
(c) whether any remedial or preventive action has been taken...
Then it continues on with the sentencing guidelines there, sir.
Mr. Mongrain: Clause 136 on page 102 provides for the Crown to recover costs to remedy a condition or mitigate damage resulting from an offence under this division.
Senator Buchanan: Another thing about the Irving Whale: Irving has always maintained that it was an act of God that the vessel went down. Also, the sinking of the vessel predates all of our environmental acts. They claim it was not an accident in which one ship hit another, but, rather, that it was an act of God. The thing just went down. That is their argument as to why they are not responsible.
Mr. Lerer: Yes, that is what they claim.
The Chairman: Spurious as it may be.
Mr. Mongrain: There are instances in the past where a permit has been granted to dispose of a ship after it has been properly cleaned and so forth. It is often used to create an artificial reef. It happens on the West Coast with old navy destroyers.
Senator Buchanan: It happened in Lunenburg, twice. One did not go down the right way. They had to drop some explosives to make it fall down the right way. It is there now. If you want to go diving, you can see it.
[Translation]
Senator Robichaud: Will this bill make dragging operations in harbors along the coast more difficult? The Kouchibouguac River in the Kouchibouguac National Park was recently dredged. The sand was simply pumped up further down the coast. Will the bill complicate this process which already takes quite a lot of time? I'm not complaining about it because I think we should do whatever we can to protect the environment.
[English]
Mr. Mongrain: This is a well-established process already. Dredge material, such as sand from a riverbed or from a harbour, actually accounts for the bulk of permits issued under this part. This part makes sure that there are no other environmentally preferable ways of disposing of the material. The port authority, for example, for harbour dredging is required to look at other means. Often, especially in the case of harbours and dredge material, this is the common-sense approach.
Senator Robichaud: With harbours, they usually find a place where it is enclosed and they let the water run through filters and so on. However, when you talk about a channel that is out in the strait, then they just displace the sand that is in the channel from here to there. Usually, it is a long process, involving a lot of people. My question is this: How will that process be changed here?
Mr. Mongrain: It really will not be changed; but we will be required to monitor those sites, to ensure they are not harming the environment.
Senator Robichaud: After the disposal?
Mr. Mongrain: After the disposal.
Senator Robichaud: And that is not the case now.
Mr. Mongrain: That is right.
Mr. Lerer: Mr. Chairman, more specifically, I do not believe that the process to obtain permission or a licence will be altered in any significant fashion. There is a requirement now, however, that, having issued that licence or permit, there is a discretionary requirement that it be monitored by officials. The question is: Will this complicate the permissions process? My answer to you is: I believe not.
The Chairman: Who is out there inspecting these kinds of things? It is one thing having the legislation, but who is out at sea? Is this just window-dressing?
Mr. Mongrain: We have a marine environment division in the department. We have inspectors. Under this bill, they become enforcement officers, based in our regional office in Halifax, who will look out for people who are illegally disposing of waste at sea.
The Chairman: Within our territorial waters, obviously. How many ships and aircraft do we have doing that?
Senator Buchanan: Do they not work in cooperation with Search and Rescue, Greenwood, and the Coast Guard?
Mr. Mongrain: Depending on the instance, we would work in cooperation with the Coast Guard. Fisheries and Oceans has patrol aircraft. I do not know how often we would call on the military.
Senator Buchanan: Some of your fellows go out on the Aurora from time to time.
Mr. Mongrain: The different departments work together. We have the personnel but perhaps not necessarily the naval fleet to deal with it. Other government agencies do assist us.
Senator Adams: What about the land? Right now, we are thinking about the future, and we expect a new national park to come in being. Questions arise about mining and recovery of gold. The only way to get to the mining site is through the park. How do we change the regulations governing those metals? According to present regulations, you cannot go through those parks to build a highway. If you cannot build a highway, then the only way to get through is with a ship. You cannot build a highway.
Mr. Mongrain: This bill would not prevent a ship from servicing a mine. It would prevent the disposal of mining wastes without a permit.
The only things permitted for disposal would be listed in Schedule 5 of the bill. Dredge material could be relevant if it is necessary to build the channel. Fish waste is not relevant. Inert or inorganic geological matter may be relevant to a mine.
Essentially, if the mine must be serviced by ship and the mining company is looking at some of their wastes that are relatively benign, not toxic wastes but essentially clean wastes, if there is no other environmentally preferable means of disposing of them, then they could apply for a permit.
Senator Adams: My concern is regarding the park. It is the only place they can get on to to build a wharf. The mine site is outside the park, and the only other way to get there would be the highway. You have no plans in the future to change the regulations to allow a highway to be built through the park?
Ms Lloyd: That is a different act.
Mr. Lerer: The Canadian Environmental Assessment Act would have something to say about the proposal to build a road in those circumstances. What their advice or decision would be, I cannot speculate. That would fall under the Canadian Environmental Assessment Act.
Mr. Mongrain: Mr. Chairman, we are up to Division 4, Fuels. The existing CEPA has some authority to control fuels. Our previous minister recently announced regulations limiting the levels of sulphur, as has been mentioned earlier in the day. We have taken that authority and once again, in our opinion, expanded and, we hope, improved the provisions.
We can set general requirements for fuels if the regulation could result in a significant reduction or prevention of air pollution. That is the test we must meet for a regulation. Bill C-32 strengthens CEPA by allowing us to control the fuel because of the impact it might have on pollution control equipment.
In addition, we have moved beyond the simple combustion phase. The existing act is simply concerned with the combustion of the fuel. We have added authority to control the fuel in instances of transfer and handling. Often, the evaporation of a fuel can contribute significantly to air pollution, so we have authority to take action there.
During the committee process in the other house, these provisions were modified to explicitly provide for the control of fuels to anticipate new engine technology such as fuel cells. In effect, we could prescribe the ingredients or the characteristics of a fuel to ensure that it is compatible with new, clean engine technology.
That, Mr. Chairman, essentially sums up our authority on fuels.
Senator Taylor: I have a question related to Divisions 4 and 5 regarding fuels for vehicles and engines. Do you have any authority to regulate that they use a different type of engine? You are talking about fuels and equipment emissions. Let us say you are using a gasoline engine when propane could be used. That would cut effluent. Perhaps you are using a diesel when you do not want benzene around a hospital or something. Is there any way to use these regulations not only regarding the fuel itself but to order that a different type of engine be used in order to minimize the pollution?
Mr. Mongrain: This is getting into the next division, but we can set a standard for that engine.
Senator Taylor: You would set the standard so that they would have to use an electrical engine, or they would have to use a propane engine?
Mr. Mongrain: That might be the extreme situation, where you set the emission standard extremely low and they have no choice. It can be done, as it is in California. We can also look at the vehicle design. I do not know how explicitly we can force the use of a different type of engine.
Senator Taylor: In evaluating fuel, it is commonly thought that electricity does not have a pollution factor. However, if you back it all the way up the line to how much pollution is generated by the original source, perhaps a diesel at the other end of town, would they take that into consideration?
Mr. Mongrain: We most certainly would.
Senator Taylor: The total environment would be taken into consideration.
Mr. Mongrain: I would hope this would be the type of considerations, and we would consider the net benefit.
Senator Taylor: If they were using it in Ontario and could blame Alberta for producing it, that would be okay, too.
Mr. Lerer: With respect to your specific concern or question, there are many other instruments that the government has available to encourage one type of engine over another, be they incentives and other mechanisms.
The Chairman: Could I chat with you about MMT?
Mr. Mongrain: No.
Ms. Lloyd: No.
Mr. Lerer: No.
The Chairman: We have warned the government in the past about their intransigencies, but they never listen to this committee.
In clause 140, the Governor in Council may make regulations respecting the concentrations or quantities of an element, component, or additive in the fuel. Does this then mean that the government can say no to MMT, which is an additive, obviously?
Mr. Mongrain: If the regulation resulted in a significant reduction or prevention of air pollution, they could do that.
The Chairman: If Ethyl Corporation said that the decision is inappropriate and that they are causing no damage to the environment, as they have said, what recourse would they have in this legislation?
Mr. Mongrain: The regulation would be developed through the normal regulatory process. Through that, we would bring the evidence that we had in our possession to bear in developing the control instrument. They would have a chance to comment on the type of evidence that we are using to support our decision to take action. They could request a board of review.
The Chairman: What clauses are you referring to, Mr. Mongrain?
Mr. Mongrain: The general regulatory authority in clause 332(2) allows for any person to provide comments or request that a board of review be established under proposed section 333.
The Chairman: If Ethyl decided to go to a board of review, is the decision of the board of review final and not appealable?
Mr. Mongrain: There is a preliminary step. It is at the discretion of the minister whether to establish the board of review. Also, the board of review provides advice, which the Governor in Council may or may not wish to accept.
The Chairman: Let me think about the fairness of that. Assume that the minister determines to do something about MMT and that Ethyl Corporation does not accept that and files its information. The minister does not accept that information and Ethyl asks for a board of review. The minister appoints the board of review, which makes recommendations to the minister, which recommendations are not binding on the minister.
Where is the natural justice in that process?
Mr. Cameron: The natural justice, Mr. Chairman, is in the opportunity to be heard. It is in the ability that we have created to allow citizens, affected regulatees, to have their day in court, so to speak, to put their objections on the record.
In many other regulatory statutes, we do not have a board of review mechanism. This creates a greater opportunity for natural justice than we have in other legislation.
The Chairman: There is no natural justice in appealing to the very person who has made the decision.
What about the precautionary principle in this area? Can Ethyl Corporation say that this is not cost-effective?
Mr. Cameron: They certainly could try, and that could be part of their submissions; however, if, following a board of review proceeding, the Governor in Council were to not accept the recommendations of the board of review and go ahead and promulgate a regulation, corporation could bring civil proceedings against the Governor in Council for having made that regulation. They could argue that their rights were infringed, that natural justice was not complied with, that one of the regulations was ultra vires because one of the procedural prerequisites had not properly been complied with. There would be a myriad of opportunities.
By creating the board of review mechanism, we have given regulatees and citizens an opportunity to put their concerns on the record, and it obligates the government to take those concerns into account when deciding whether to regulate.
The Chairman: Could you not see where this could be abused by governments? Governments have been known to do that. It seems to me that there must be some criteria that the minister must apply. Currently, the minister can just do it. There are no criteria.
Using MMT as an example again, the Department of Health in Canada said that there was insufficient evidence to warrant their recommendation. The government went ahead anyway. Governments can do those things. I see no criteria here for what the minister must consider. Am I missing something?
Mr. Cameron: The criteria that circumscribe the regulation-making power are set out in clause 140(2). That means that there must be reasonable evidence that, in the opinion of the Governor in Council, the regulation could make a significant contribution to the prevention or reduction in air pollution. "Air pollution" is a defined term, and I think that "significant contribution to the prevention, or reduction in" are words that speak for themselves.
There is a scientific threshold that must be met before the Governor in Council can proceed with making these recommendations.
The Chairman: Thank you. I did not see that section. That is very helpful.
Mr. Mongrain: From fuels we move on to engines. Currently, engine emission standards are set by Transport Canada under the Motor Vehicle Safety Act. Bill C-32 transfers this authority to CEPA.
We believe that this is a progressive step, since it makes sense to have authority for the control of fuels and engines in the same statute. The two are interlocked systems.
We have also expanded this authority from simply motor vehicles to include other types of polluting engines, such as those found in lawnmowers, generators, construction equipment, and recreational vehicles like Sea-Doos. This regulatory authority does not exist currently. There is a gap. Bill C-32 provides us with a means to close that gap and to set standards for the new engines in these vehicles or equipment.
Senator Taylor: I have a question about antique cars.
Mr. Mongrain: This only applies to new engines. It would not apply to antiques. The actual use of a vehicle falls within provincial jurisdiction. We are responsible for new vehicles coming off the assembly line meeting emission standards. Upkeep and maintenance of vehicles so that they continue to perform properly falls within provincial jurisdiction. British Columbia, for example, has an air care program through which vehicles are tested. If necessary, repairs are made.
Senator Taylor: Albertans are fond of ripping the catalytic converters off their trucks to get another 15 BHPs out of them per day. Would that still fall under provincial regulations?
Mr. Mongrain: That would be a matter for the province to regulate. If the vehicle is being produced without a catalytic converter and it did not meet our standards, then it would be our concern.
Senator Taylor: What about those that are manufactured with a catalytic converter but have it removed by the owner?
Mr. Mongrain: Once they drive it off the lot, it falls within the realm of the province.
Senator Adams: You mentioned lawnmowers. I heard something about a university making propane-powered lawnmowers. Do you know if the project has been dropped?
Mr. Mongrain: I am not aware of that research, senator. When we do come forward with standards for lawnmower engines, for example, that often drives or promotes innovation and research. One of the alternatives may be propane-driven lawnmowers. That is something that may result from regulations coming into force. I am not aware of the particular research.
Senator Adams: When we were debating MMT about five years ago, we were shown pictures of generators that are attached to diesel engines. This technology was being sold to the military.
Mr. Mongrain: Are you talking about fuel cell technology, senator?
Senator Adams: Yes. It is like an alternator that is attached to the engine. They can be used on big semi-trailers. They usually have refrigeration devices that are run on gasoline. Those companies are getting rid of gas generators and attaching generators directly to the engines. I do not know how many thousands of truck trailers are also using gas generators to run the refrigeration units on their rigs.
Mr. Mongrain: The way these regulations might apply in that situation is that the gas generator would meet an emissions standard so that it would burn cleaner. Once it is in use, it falls under the jurisdiction of the relevant province or territory.
Senator Adams: You mentioned something about Ski-Doos and gasoline emissions. Are manufacturers of Ski-Doos able to do the same thing as those who manufacture cars?
Mr. Mongrain: It will apply to new ones, once this bill is passed, if it is passed.
Senator Adams: How much will this add to the cost of such equipment? You can buy a small car here in the south for the same price as you can buy a Ski-Doo in the territories.
Mr. Mongrain: That is a good example, Mr. Chairman. These are the types of things that we will look at in setting emission standards. The engines of Ski-Doos are not regulated. They are not burning as clean as motor vehicles. However, in setting a standard, we would have to look at the costs to the north. It would be one of the factors taken into account.
Senator Adams: The problem we have in the territories is that when it is really cold gas-powered engines will not fire. Some people do not know how to make the right mix. The new machines have injection engines, which sometimes freeze. They cannot inject the oil into the engine and the engine burns out. It is a little difficult. Maybe the engineers can correct it.
Mr. Mongrain: That is not helpful when it is 40 below zero and you are far away from home base.
Senator Spivak: These regulations will also cover Sea-Doos, will they not?
Mr. Mongrain: They will cover all types of engines.
Senator Spivak: Are the emissions of such craft to be regulated in the same way as everything else? What is the standard for those emissions?
Mr. Mongrain: We would set the standard for the emission to air of the fleet of engines. This is hypothetical because, of course, the bill has not been passed. We have certainly done some preliminary thinking on the types of vehicles. It would be similar to the process for motor vehicles.
Senator Spivak: Is it emissions into the air and the water? There are exemptions here. These recreational or pleasure craft are extremely polluting.
Mr. Mongrain: This bill covers emissions to air. My colleague from the Department of Justice reminds me that the discharge of unburned fuel, essentially, would perhaps be a matter for the Fisheries Act.
Senator Spivak: Would it not be administered under this legislation?
Mr. Mongrain: This bill deals with emissions to the air.
Senator Taylor: It is my impression that the bill covers emissions, period, no matter where they are. If you exhaust the car engine under water, it will not get you by the regulations.
Senator Spivak: From what we have heard, these craft are very polluting to the water, much more so than boats.
Mr. Mongrain: Senator Spivak raises a very interesting question. The gist of this authority comes from the Motor Vehicle Safety Act, which was transferred, which deals with emissions to the air. Our intent and our thoughts all along have been for other engines and types of equipment and their emissions to the air. That is something we should probably think about. Rather than try to answer your question on the fly, we will have another look at the proposed sections.
Senator Spivak: If you did control these emissions, not to mention noise pollution, it would be greatly appreciated by many, many people in Canada, especially those on small lakes.
We are not talking about safety. I assume safety is still under the authority of the Coast Guard. We are talking about the pollution aspect.
Mr. Mongrain: There are certainly provisions in the Fisheries Act that would deal with this instance. However, as I mentioned, we will look at the question. We were proceeding on the basis of what exists under the Motor Vehicle Safety Act.
Senator Spivak: I understand.
Mr. Mongrain: It is an interesting question.
Senator Spivak: I would appreciate knowing the answer. If such an engine did put something into the water, could that be regulated as a toxic substance? Check it out.
Mr. Mongrain: If it meets the criteria of "toxic," then it can be regulated.
Mr. Mongrain: We will turn to Division 6, International Air Pollution. These provisions exist in the current act, but we have expanded upon them somewhat. I will get into the details. Essentially, they are there to address Canadian sources of pollution that contribute to air pollution in another country or that violate an international agreement that is binding on Canada.
I wish to be very clear here. They apply to the release of a substance that is a pollutant but is not on the list of toxic substances. If it is on the list of toxic substances, we use the authority in Part 5. There are substances that are of concern that are not on the list of toxic substances over which we have authority using these powers.
Before using the powers in this division, the minister must first consult with the government responsible for the area in which the pollution source is located. It could be a provincial government, a territorial government, or an aboriginal government.
If that government is unwilling or unable to act, the minister may do one of the following three things. He or she can seek Governor-in-Council approval to require pollution-prevention plans from the source or sources. This authority for pollution-prevention planning is new and is something added by the house. The minister may also recommend regulations to the Governor in Council to deal with the problem or, in an emergency solution, the minister may issue an interim order. Once again, this is new to Bill C-32.
These provisions or authorities deal with substances that are normally regulated by provinces. However, for some reason, there may be an instance where the province does not have the capacity or is unwilling to take action. If it meets the test of creating pollution in another country or puts Canada in the position of violating an international agreement that is binding, then there is authority for the federal government to step in and take action.
The Chairman: Is that constitutionally possible? It sounds like it raises many problems.
Mr. Cameron: Yes, sir, it is constitutionally valid.
Mr. Mongrain: It has stood the test of time.
The Chairman: Has it been tested in the courts?
Mr. Cameron: No, these provisions have not been tested in the courts, but it goes back to our responsibility in international affairs where a source of pollution in Canada is having an adverse effect on another nation state. As the federal government, we believe the Constitution gives us power to step in and address that source of pollution.
The Chairman: What if the Province of Ontario, industrial might that it is, ends up polluting the Arctic or Alberta? Is there any jurisdictional authority for the federal government to step in if the province refuses to do anything about it?
Mr. Cameron: If there is provincial inability, I would think the peace, order, and good government branch of authority in the Constitution would give the federal government jurisdiction to step in and address a situation where a matter in one province is causing harm on another.
The Chairman: Do you know if it has ever been done?
Mr. Cameron: It has not occurred in recent times of which I am aware. There may be some case law about interprovincial rivers and industry, but certainly not within the last decade.
The evolution of the federal constitutional jurisdiction of which I am aware comes out of the trilogy of cases, Crown Zellerbach, Oldman River and Hydro-Québec, none of which addressed that issue.
The Chairman: I have heard Senator Adams speak frequently in this committee about the problems of air pollution in the Arctic, for example, both from within Canada but more likely from beyond. Does this legislation do anything to address that concern? I take it only international treaties are the way to deal with it.
Mr. Mongrain: Mr. Chairman, in the case of United States, having these provisions and similar ones for international water pollution allows us to take advantage of some reciprocal provisions in American legislation that deal with international pollution. It may be helpful in that respect.
The Chairman: Please explain that. I do not understand it.
Mr. Mongrain: It is complicated. The U.S. Clean Air Act or Clean Water Act has provisions that, if another country grants certain rights within their legislation to deal with trans-boundary pollution issues, grant reciprocal rights.
As to the way it would unfold within CEPA, if the U.S. was concerned about trans-boundary pollution from southern Canada entering the United States, they would bring it to the attention of the federal government. Using these provisions, the federal government, through the minister who would consult with his provincial colleagues about the situation, would develop a plan of action.
If the provinces were unwilling or unable to take action, then we would have the authority here.
By having that within CEPA, we can also approach the United States, I believe, under their statutes and make similar representations. In practical terms, this forms the basis of the Canada-U.S. air quality agreements.
The Chairman: In subclause 4 on page 122, which talks about reciprocity, you are talking about situations in which we have reciprocity.
Mr. Mongrain: Subsection (4) says that where there is no reciprocity, we can still act to correct the problem, to protect the health and environment, to address the Canadian source that is having a negative impact on the health and environment of another country. We do not necessarily need reciprocity. We have taken the view that it is best to take care of it at home, whether or not the other country grants reciprocity. That is what subsection (4) is addressing.
Senator Chalifoux: I have two questions. My first question is with respect to the pollution created by industry in the United States that is affecting our water and air in Ontario. Presently, there is a fire involving 6 million tires that is creating a terrible situation in Ohio. The pollution is coming into Canada.
Is there anything in this bill that gives Canada the ability to address these issues in the United States? I have read documents that state that the pollution in our Great Lakes, pollution coming from the United States, is affecting the health of people here in Canada, and yet nothing has been done about it because we did not have the ability to do anything.
Is there anything in this bill to cover such a situation?
Mr. Mongrain: By having these provisions in this bill, we can take advantage of similar provisions in American law, but there is no means, of course, for us to force another sovereign country to take action.
There are mechanisms, fortunately, in U.S. law, of which we can take advantage. Those are not in this bill. However, because of what we have done in this bill, there are aspects of American legislation of which we can take advantage. Without these provisions, we could not access their provisions and make our representations.
Senator Chalifoux: Over 60 per cent of our rivers flow north. In Alberta, the water pollution is terrible. The Northwest Territories has created a new agency to deal with the pollution and water management, but there is nothing to address the pollution issues coming from Alberta and going into the Northwest Territories. Is there anything in this bill that can address those issues with those industries? Procter and Gamble have totally destroyed the Wapitit River. The Athabasca River and the Peace River all flow north. Is there anything in this bill to deal with industries that pollute the waters flowing into the territories?
Mr. Mongrain: The provisions in Part 5 that deal with toxic substances might be applicable. I would say that the toxics provisions are the effective tool in this legislation. This is but one tool in the federal tool box. In addition, there is the Fisheries Act.
Senator Chalifoux: We looked at that. So there is some provision here that could address that problem, because up to now, there was nothing.
Mr. Mongrain: Yes, if the substances that they are releasing are toxic.
Senator Chalifoux: They release things like bleach.
Mr. Mongrain: Chlorine is toxic.
Senator Taylor: This bill talks about point pollution, but air does not operate that way. There are airsheds and airflows that exist in the air, just as there is in water on the ground, but people do not realize that.
Let me talk about gas plants in Alberta and the concept of point sources. What do you do where you have a number of plants that are emitting pollution in the same area? Do you measure the airshed and then reverse it back and have them scream discrimination because you allowed a plant in Brampton to get away with a certain level but not the plant in Alberta? The fact is that the Brampton plant should not be allowed to be above a certain amount because its pollution adds to an already overpolluted atmosphere.
Mr. Mongrain: When we are looking at determining whether a substance is toxic or not, we look at the concentrations in the broader environment. If it is above a certain level, there is a determination that, yes, this substance is causing a problem within the broader airshed or the broader environment within Canada.
We would then look at the point sources and we would design a control instrument that would get us to an objective where the overall concentration in the environment is safe. Normally, our regulations then set a limit that a plant in Brampton has to meet, as would a plant in Regina or in Edmonton.
Senator Taylor: Let us say I move quickly, and my banker is genial, which allows me to put a refinery in a river valley in central Alberta. Then the chairman, who also has an enthusiastic banker, also comes along and wants to put up another refinery because there is a good gasoline market out there. You may say, no, Taylor has already polluted the atmosphere up to the maximum. Is the chairman left with no recourse through the legal system? How will you work it?
Mr. Mongrain: The permitting for that sort of activity is done by the province. What we are concerned about is that those facilities have to meet our regulations for emitting these toxic substances.
Senator Taylor: I am speaking now as an engineer interested in input. That is the problem that we have now. Everyone says, "I am only polluting x-amount"; but when you have a million people doing it, you have a problem. It is like flushing the toilet. A million people flushing into the river is different from two; yet, your regulation will allow all people to do the same amount of flushing.
Mr. Mongrain: If a regulation is in place and it is not doing the job of protecting the environment because there is an increase in activity and more of the substance is being produced, there is nothing stopping us from revisiting that regulation.
Senator Taylor: Have you looked at pollution credits, which are used in the Los Angeles basin, and which are traded back and forth?
Mr. Mongrain: The bill does provide authority for tradeable unit systems, economic instruments and things such as that. There is new authority in clause 326. It is feasible.
Senator Taylor: I am trying to give you every opportunity. I am friendly to you.
Mr. Mongrain: There is that flexibility if we do run into such a situation. I did not notice any unfriendliness at all, senator.
Mr. Lerer: Mr. Chairman, this is a very interesting question, an important scientific question as well as a regulatory question, which the senator has raised.
There are two aspects here. We are undertaking a new program, and the first experiment was with the pulp and paper regulations under the Fisheries Act where now the industry is required to undertake what we call environmental effects monitoring. That is a program that asks whether we are achieving the environmental results, given that we have set the following numbers for emissions or for discharge into the environment. That is number one. We are constantly examining whether we have achieved the desired result.
Also, in Bill C-32, things like caps, tradeable emissions, and things of that nature, to which the senator referred, would be enabled in clause 326 should this bill be passed. We can then use those kinds of instruments in order to deal with the question that the senator has raised. That is one of the mechanisms.
Senator Taylor: This bill will improve the chances of working out emissions trading and pollution credits?
Mr. Lerer: Yes.
Senator Taylor: It will improve from what it was?
Mr. Lerer: Yes, it will, sir.
Senator Adams: We have agreements with other countries about international air pollution. How many other countries have signed with Canada regarding air pollution agreements?
In the Arctic, we are hearing from the scientists that we have no big pollution outputs; however, we have other people's pollution dropping down on us in the cold weather. You mentioned the monitoring of the air. Can we find out what type of pollution is coming down on our land from other countries, or from other states or other parts of Canada, what the sources are? Perhaps it only comes from Canada. Can we find out which factories are producing the pollution that is coming down on us in the Arctic?
Mr. Lerer: Yes, there are backtracking studies that are done to find the source of the pollution. Very often, they are part of the protocols that are signed internationally. For example, right now, as you know, Canada is working under the auspices of the United Nations Environmental Program on persistent organic pollutants on an international protocol or international pollutants.
While that protocol has not been finalized as yet, I understand that monitoring and backtracking of plumes is very much a consideration that is going on in the negotiation of that protocol. The development of that protocol is being led by Canada. Canada initiated it back in 1995. I happened to be the file manager at that time, and the current chairman of the international negotiating committee is Dr. John Buccini, who is also a Canadian and a member of the Department of the Environment.
Senator Adams: You say you are monitoring the situation. In what areas are you able to put monitors, especially in the Arctic areas?
Mr. Lerer: If the protocol is ratified and if it did contain a monitoring provision -- I must say "if" because the protocol has not been finalized -- then our normal practice would be to finalize, in consultation with people in the north, to devise a scientific system that would allow true monitoring to take place.
The answer to your question is, even though I preface it with many "ifs" because a protocol has not been negotiated, if all of those conditions, yes, of course, we would be doing that and setting up sites in the north in consultation with northern communities.
Senator Adams: Most of the mammals are protected, such as caribou, and so are the fish. Are some of the scientists able to test whether those mammals and fish are affected by the pollution? It is not just a problem of pollution falling down on people; the mammals could also be affected by the pollution. I was up there last week and I got three or four caribou. Our family eats caribou. I do not know what is it in it these days. In the future, with the Nunavut government, for example, perhaps they can instil some monitoring for the people who are living off the land, eating the fish and caribou and whales and seals; they should be monitoring the pollution.
Mr. Lerer: You are right, senator. That monitoring is done to some extent now by the Department of Health. Whether it is sufficient is a matter of opinion. In fact, that is the very reason that Canada is entering into the UNEP negotiations, because they are the persistent organic pollutants, which bio-cumulate and, therefore, become a risk to people because they are present in food stuffs and bio-magnify food stuffs. That is one of the reasons we undertook to lead this international effort.
The answer to your question about whether that kind of monitoring does occur -- it does. It is a matter of opinion whether it is sufficient. I will leave that debate for another forum perhaps.
I believe that clause 44, in terms of information-gathering in this bill, obligates the minister to conduct monitoring efforts in a range of areas.
Senator Spivak: I take it that the federal jurisdiction over air is not shared with the provinces? Is that accurate? Are air pollution regulations shared with the provinces, or is it a totally federal head of power?
Mr. Cameron: When we talk about jurisdiction over the environment, we do not parcel it up into different media. The air is part of the environment. The environment is a shared jurisdiction with the provinces.
Senator Spivak: I know that, but air pollution crosses all boundaries.
Mr. Cameron: It is incorrect to say that air pollution is only federal or that it is only provincially shared.
Senator Spivak: What about air pollution then? Is the federal government dominant in that area in terms of pollution that crosses boundaries into the United States, for example?
Mr. Cameron: Yes, that would be a federal jurisdiction.
Senator Spivak: I am thinking of the case in which Ontario accused the United States of polluting Ontario, and the governor of New York, I believe it was, very nicely wrote back and said "you are polluting us."
You talked about reciprocity in terms of international agreements. Does the federal government have the power to enforce caps with regard to trading vis-à-vis a province like Ontario, which has been deemed to be the second-worst polluter in North America and where there is a great degree of air pollution still going across the border? What are the powers that the federal government can, under this section, employ, because this is a huge problem, both for Ontario and for the states that border Ontario?
Mr. Mongrain: I will use your particular example, the Government of Ontario.
If the Government of Ontario is unwilling or unable to take action, the Government of Canada can require the preparation of pollution-prevention plans. The Government of Canada could impose regulations or, if it is an emergency, could issue an interim order.
Senator Spivak: The Government of Canada has the ability to impose regulations, binding on all coal-fired plants, for the installation of scrubbers or the limitation of emissions, does it not?
Mr. Mongrain: If we follow the steps in the bill and Ontario is unwilling to address the problem, and it is causing a problem in the United States or another country, or a problem that puts us in violation of an international agreement, yes, we can act.
Senator Spivak: This has already happened. Ontario is seen as a threat to the eastern states in terms of air pollution. No action was initiated under the existing bill, I take it, or was it? Are there strengthened provisions in here that were not in the other bill?
Mr. Mongrain: What is new is the authority to require pollution-prevention plans. It is not as controlling an instrument as a regulation. It provides a little more flexibility.
Senator Spivak: They do not have to present the plans to you. They are just there.
Mr. Mongrain: We can ask for them. If the environmental problem is not being solved, we can go to the next step, which is regulation. Also new is the interim order power in emergency situations.
Senator Spivak: In terms of monitoring, is the federal government now monitoring the air over Ontario? In other words, how do you know there is a problem?
Mr. Lerer: Monitoring of air quality is carried out by both the federal government and the provincial government, as well as by municipalities.
Senator Spivak: But obviously the results are not good. Is the federal government taking a lead role here? I ask that because I want to know what the caps will be. What will be the process by which you will reduce the emission amounts and impose caps? How will this be implemented?
Mr. Mongrain: Through the Canadian Council of Ministers of the Environment there is an air quality framework that sets objectives. I believe that that is currently being updated and renegotiated. It covers things like sulphur dioxide emissions. This is part of the process through which the federal government works with the provinces.
Senator Spivak: But you will set caps; otherwise, there is no point in having emissions trading permits, et cetera. The emissions will be lowered, will they not?
Mr. Mongrain: One option is the authority for tradable emissions permits. There are many tools to bring about better air quality. We can take action on fuels, as we are with sulphur.
In a matter as complicated as air pollution, which has numerous sources, we all bring to the table the tools we have available. We are taking action on sulphur and gas. I understand that Ontario is taking action, as B.C. has, on vehicle emissions. As well, the federal government is working out a smog plan with the provinces for ground-level ozone.
It has not been our experience with provinces, but if there is a recalcitrant province in the future or if there is a situation where they do not have the legislative tool appropriate to the problem, we can act under Part 6 of this bill.
Senator Spivak: Do you anticipate that, if this bill is passed, you will move quickly to establish national caps in areas like this?
Mr. Mongrain: I am not sure what you mean by "national caps."
Senator Spivak: I mean caps on the amounts of pollutions that are permitted to be put into the air.
Mr. Mongrain: We do have standards. We are developing Canada-wide standards on smog in cooperation with the provinces. There is a cap in existence on sulphur dioxide.
The Chairman: Colleagues, shall we call it a day? We will have the same group back with us tomorrow afternoon. We will meet tomorrow at 9 a.m. with the minister.
Senator Taylor: Before we adjourn, I should like to get the approval of the committee for this list of presenters.
Senator Spivak: I would like to hear from a specialist in languages. We had quite a discussion this morning about whether that was an egregious deficiency in the bill. I will leave that to your discretion.
The Chairman: The steering committee will look at that and see what we can do to satisfy your concern.
Senator Taylor: I should like to move that the committee approve this list of presenters for our hearings from August 21 to September 1.
The Chairman: Is this to be a definitive list?
Senator Taylor: This is all I am asking for approval of now. Whether it is definitive or not is subject to other motions.
The Chairman: Those in favour, please so indicate.
Those opposed, please so indicate.
I declare the motion carried.
Thank you, Senator Taylor.
Senator Spivak: May I ask the witness to bring some material regarding the question about enforcement officers the next time we meet?
The Chairman: I believe they have already responded to that.
Ms Lloyd: It is in the letter.
Senator Spivak: Could you bring some material regarding the designation of authority for enforcement officers?
Mr. Lerer: We will check that.
The Chairman: I wish to thank the witnesses.
Senator Kenny: Mr. Chairman, I move:
That with respect to Bill C-32, An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development, the Committee shall follow the agreed upon schedule of witnesses and complete its examination of those witnesses no later than Wednesday, September 1, 1999;
That if any further witnesses are found to be necessary by the Committee following the completion of the said schedule of witnesses, they shall be heard no later than Thursday, September 2, 1999;
That any vote on any motion dealing with the disposition of the said Bill be held no earlier than at the completion of the hearing of all witnesses; and
That the Chair put all questions necessary to dispose of the Bill and report the Bill to the Senate no later than 12:00 o'clock noon on Tuesday, September 7, 1999.
The Chairman: I prefer that we deal with this motion tomorrow. This is the first time we have seen it.
Senator Spivak: We received notice that we would be finished by Wednesday, September 1, 1999, and that we could make arrangements to fly back in the afternoon.
Senator Taylor: This does not stop us from finishing our business on September 1.
Senator Spivak: It does if contemplates the committee finishing on September 2.
Senator Kenny: It says "no later than."
The Chairman: That means September 2.
Senator Taylor: The list of witnesses we have now only goes until September 1. This is just to give you abundant notice, if you want to hear someone else.
Senator Spivak: My schedule has already been made on the basis that we would finish by noon, September 1.
Senator Kenny: That is not a problem.
The Chairman: Is there any objection to dealing with this matter tomorrow?
Senator Spivak: I would like to deal with it tomorrow. I move that we defer it until tomorrow, Mr. Chairman.
Senator Chalifoux: Mr. Chairman, there is a motion on the floor.
The Chairman: There is a deferral motion.
The Chairman: Is it agreed that we deal with this motion before we adjourn at noon tomorrow?
Senator Hays: If everyone is here, I think we know what will happen.
The Chairman: Courtesy tells me that nothing will rise and fall about adjournment until tomorrow at noon in order to consider the matter. What is the problem here?
Senator Taylor: I want to get a date on it.
The Chairman: I understand that. However, we are seeing this for the first time now.
Senator Hays: If it is to be adjourned until tomorrow, we should deal with it at a set time.
The Chairman: Is it agreed that we deal with it at twelve o'clock tomorrow?
Senator Chalifoux: I would rather deal with it today.
The Chairman: Let us deal with Senator Spivak's motion to defer consideration of the motion until tomorrow?
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed
Some Hon. Senators: No.
The Chairman: The motion is defeated.
We will deal now with the matter. Is there any discussion?
Senator Taylor: All I can say is that it is wide open. If more witnesses are needed, we can sit up until September 7. All we are saying is that the vote will be no later that, and it will not be earlier than September 1. I think it puts a focus on our discussions. It shows the rest of the witnesses that there will not be any hurry-up votes called on them when any of our committee members are out of the room or anything else.
The Chairman: Senator Taylor, let me be hypothetical, because I really dislike motions like this. Let us assume that we go through more hearings and committee members propose 300 amendments and we cannot meet the deadline. You are imposing a time frame on the committee that the committee may not be able to maintain.
Senator Taylor: You are correct. It is a form of closure.
The Chairman: I find it unacceptable that you would impose that on this committee. If you wish to do so, you have the power to do it. I do not think it is appropriate.
Senator Taylor: In terms of the time frame, we have had July and August. The bill was referred to us in June.
The Chairman: The House of Commons took eight months to deal with this bill.
Senator Taylor: They started from scratch. We are just the inspectors inspecting the building. We did not build the edifice.
The Chairman: I am not sure of that.
Senator Spivak: We are a place of sober, second thought.
The Chairman: Frankly, I find it unseemly that you would take a piece of legislation of this magnitude and try to put this type of pressure on it.
Senator Buchanan: Why do you want to do this?
Senator Taylor: I want to have the thing finished by the time the house meets. It is that simple.
Senator Tkachuk: You mean the PMO has spoken. What about the independence of the senators?
Senator Taylor: Whether the PMO has spoken or the leader of the opposition has spoken, it does not matter. As far as this committee is concerned, we have been at this since June. We have tried to meet at other times. September 7 is when the Senate reconvenes, and we want to have it all voted on by that time.
There is nothing that will be discovered between September 7 and any other date. It is hard to convince me that we will find something out and do something that we could not have done by September 7.
The Chairman: I will not get into that debate.
Senator Taylor: I am glad.
Senator Spivak: The problem with this is not the time-frame so much, although it strikes me that it would take more than 10 days for members of this committee to understand the contents of the bill.
The fact is that you are attempting to ensure that there are no amendments.
Senator Taylor: No. You can propose any amendment you want.
Senator Spivak: Wait a minute. It is impossible to go through this bill and hear witnesses and present amendments in any coherent fashion in the time-frame you have given us. This is not a surprising development. It is a development to be totally expected. However, it makes it very clear and up front that this bill is to be referred back to the house without amendment in a short period of time. That is your choice. We cannot stop your action.
I find it, not looking at this from a partisan point of view but from the point of view of public interest of Canadians, not to be a desirable development. I am not surprised, but I am disappointed. That is all I have to say. Things will come as they will.
Senator Kenny: I would like the record to show that I tried to arrange at least five different weeks earlier in the summer for us to sit. I was advised that you had other events on.
Senator Spivak: I did.
The Chairman: As did you, Senator Kenny, during that period.
Senator Kenny: I have not interrupted you, yet, Mr. Chairman. Will you extend the same courtesy to me?
The Chairman: Yes.
Senator Kenny: Thank you. I put forward five different weeks that did not prove to be acceptable. I was advised that you had a busy schedule and you could not fit in earlier sittings.
Senator Spivak: I did.
Senator Kenny: We were left to this period of time, which is not particularly convenient for some members. Some of us would have liked very much to have started on this bill earlier. We were not given the opportunity to do that because we were accommodating other people's schedules. I want to put this on the record. You said you were disappointed that this did not start earlier.
Senator Spivak: I did not say that.
Senator Kenny: I volunteered, at least for myself, five different weeks where I was prepared to clear out my schedule and start the meetings earlier. I think it is appropriate that those listening to this or reading the record should know that some on both sides tried to start the meetings earlier.
Senator Spivak: You will recall that the steering committee set a time and agreed to a time, so we made our plans after the steering committee said that this will be the schedule. I have sat here many summers going through a bill, but this was not a summer that I could do that. It is not unusual for a bill that is presented in June to be then looked at in the fall. I have been here for a long time, and we have often done that.
I did not want to make recriminations in terms of the time-frame. I am simply suggesting that, whatever the circumstances that produced this motion, it is difficult to give the bill, as I am sure you will agree, a sober, second thought in a very short period of time. That is all I am saying. It is very difficult to do that. We will not be able to go through clause by clause at all. With a bill of 365 clauses, I do not think, even if you sat all summer, you could do that. We will not be able to go through clause by clause, but we will highlight the major points in the bill and do our best. That is it.
Senator Buchanan: I normally agree with the very reasonable Senator Kenny and the very reasonable Senator Taylor, because they are very reasonable most of the time. Today, however, they are not being reasonable.
As far as witnesses, I just made a note that we will be hearing 25 witnesses -- organizations, individuals, et cetera. That is a lot of people. It will take every day this week, and it will take days next week. We will have no opportunity to amend anything or even to propose amendments. If you propose amendments, you need to have discussions on the amendments. You have here that a vote on the motion dealing with disposition be held as soon as the last witness is heard on September 1 or September 2.
Senator Taylor: The vote will take place between the witnesses and September 7.
Senator Buchanan: How much opportunity will you have to debate it then?
Senator Taylor: That is a week, five days.
Senator Buchanan: How many clauses are in this bill? There are 356 clauses. Can we go clause by clause, propose amendments, and debate each amendment? You will probably defeat every one of them, but that is democracy, so-called. How can we debate them rationally and reasonably over that period of time?
Senator Taylor: What debating did you do today? We heard monologue for the whole hearing time.
Senator Buchanan: No, we did not. We debated many things. I do not see any sense in getting all this done by September 7.
Senator Spivak: Perhaps we should vote tomorrow. That might be an idea. What is the difference?
Senator Buchanan: Will we sit on September 7 right to the end of September?
Senator Taylor: It depends what they work out in the house. I do not know.
Senator Buchanan: That will not happen, will it, Senator Kenny.
Senator Kenny: We will sit as long as we need to.
Senator Buchanan: Then why do we have this motion?
Senator Kenny: The purpose of this motion is that I would personally like to see the business of this committee cleaned up by twelve noon on Tuesday, September 7. I believe a majority of the committee feels that way.
Senator Spivak: I am sure you are right.
Senator Adams: Senator Kenny, before we adjourned, did you say that you volunteered to get this going this summer?
Senator Kenny: Yes. I sent a copy of my letter to Senator Ghitter and to Senator Hays and to Senator Taylor, arguing that I would like to sit earlier. I was advised that that proposition did not meet with the convenience of other committee members.
The Chairman: Senator Kenny, with the greatest of respect, you are not telling the whole story. We went around to every member of the committee and asked for their summer schedules. You are not the only member of this committee. It was very difficult to get a time when everyone was available, for obvious reasons. People do plan their summers, and they do not plan on being here. The steering committee looked at those lists in terms of times when we could get the maximum number of people. We then decided we would do it at this particular time, and we made our schedules accordingly. Everyone knew that, and now we are here to do our job. To say you were available for five weeks is hardly the answer. There are other members on the committee. We determined our schedule, and we acted accordingly. Now that we are dealing with it, we are told, "Okay, do your work in 10 days."
This bill is the most complicated bill that I have seen since being in the Senate. It is a bill with immense impact on Canadians. It is a bill that affects the health of Canadians, the future of Canadians, and it cannot be taken lightly.
If we are to do our job, we cannot do it on the basis of this time-frame. If we are just here to rubber-stamp what comes from the House of Commons and to simply accept the word from above and not do our jobs, that is fair enough. I must say to you that we are not doing our job by meeting this time frame. We are not acting appropriately as senators, and we are not giving the attention to this important piece of legislation that it deserves.
As a result, if that is your decision, we will deal with it in the public arena. I am disappointed that the committee would act in this way.
Senator Kenny: We have heard your speech and your views. I want to point out that some of us were prepared to work earlier this summer. If you were not prepared to do that, that is your choice and your privilege. I was prepared to work. Other members were prepared to work. You chose not to.
The Chairman: It was not just me. There were others, on your side as well.
Senator Kenny: I said others on both sides.
The Chairman: You are leaving the wrong impression, but go ahead.
Senator Kenny: You are leaving the impression that you had no alternative but to start this week, and that is not the case. The committee could have started its work earlier. It did not. Now we are putting a reasonable time schedule forward and we are giving every opportunity to focus on the bill. I made suggestions to this committee earlier, which you rejected, that we focus on the areas of particular concern. That was not acceptable to you. I cannot help that. You made those calls. Now there is a motion before us, and I think we should move to a vote.
Senator Taylor: We should state for the record, Mr. Chairman, that in the steering committee, in which Senator Hays substituted after we had the poll that the clerk had taken, the only thing that was clear was that we could meet at this time, this week and in early September. We also said we would try to find another week. If you will check your record, I phoned and talked to you quite a number of times in July and August, actually starting in June, saying we wanted to get some hearings out of the way in July and August. Senator Spivak had given us carte blanche; however, when I called her, she said no to July and nothing until later in August. I talked to other members and I also told you that we would like to have the bill finished by the time the Senate resumed. To say now that we are trying to do this in a rush is ignoring the fact that the steering committee tried all summer to get another week in and the only people who turned me down were Senator Spivak and yourself.
The Chairman: That is not so. Senator Adams was not available. Senator Fitzpatrick was not available.
Senator Taylor: At various times they were.
The Chairman: That is the point. We are a committee here. What is the rush? Why all this unseemly haste to judgment? This legislation took four years to be prepared, eight months to go through the House, and all of a sudden we are expected to rush it through because the government wishes to prorogue and does not wish to deal with it after that. We are expected to carry on and blast it through.
Senator Taylor: If Parliament prorogues and the bill is not passed, we go back to square one.
The Chairman: No, that is not so. You do not go back to square one.
Senator Taylor: Perhaps you know more about the Constitution than I do. The bill has to be passed or it is dead.
The Chairman: We have seen circumstances in which a repeat bill has moved quickly through the other place.
Senator Taylor: There is nothing here that precludes amendments. We have two pages of witnesses. We can ask for more witnesses, but I know, from being on the steering committee that put the list together, that 80 per cent of them are singing from the same hymn book. You will not hear anything that is new. Then there is time for amendments. Whether they pass is up to normal committee procedure. There is nobody saying that you cannot make another amendment or hear another witness. We are just saying that it should be out of the way by September 7.
Senator Buchanan: Why September 7? What is the haste?
Senator Taylor: That is when the Senate gets together. It is a form of closure.
Senator Spivak: Let us be honest about it. I would prefer that you were honest.
Senator Taylor: I told you back in June that I wanted it. I told you in July and in August that I wanted it. Now you come along and say, "Senator Taylor, you must have been kidding!"
Senator Adams: Before we adjourned for the summer, you said all the committee should be here, and you were concerned that we start earlier. The last I heard, we were to start August 23. I have not heard anything since.
Senator Taylor: We were trying as a steering committee to find a date to which Senator Spivak and Senator Ghitter would agree. There was no use in coming back to you or to any other senator unless they agreed to a date. I did not arrange this with the Liberals first. Rather, as a courtesy, I went to the Opposition first and checked their dates, but I could not get any date out of them except the dates we have now.
Senator Spivak: Mr. Chairman, we should vote. This is not about legislation. This is about politics. We all know what the situation is politically. Let us vote and get it over with.
The Chairman: We have a motion, on a form of closure, in front of us. All in favour, please raise their hands. Those opposed please raise their hands.
Senator Tkachuk: Is this a recorded vote, Mr. Chairman? I want a recorded vote.
The Chairman: We will do this in alphabetical order. Those in favour will please say "yes," and those opposed will please say "no."
Senator Adams: Yes.
Senator Buchanan: No.
Senator Chalifoux: Yes.
Senator Fitzpatrick: Yes.
The Chairman: No.
Senator Hays: Yes.
Senator Kenny: Yes.
Senator Robichaud: Yes.
Senator Spivak: No.
Senator Taylor: Yes.
Senator Tkachuk: No.
The Chairman: The motion passes. We will adjourn to tomorrow morning at 9 a.m.
The committee adjourned.