Proceedings of the Standing Senate Committee on
Energy, the
Environment and Natural Resources
Issue 21 - Evidence, August 26, 1999 (morning meeting)
OTTAWA, Thursday, August 26, 1999
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-32, respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development, met this day at 9:06 a.m. to give consideration to the bill.
Senator Ron Ghitter (Chairman) in the chair.
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The Chairman: I will bring our deliberations to order. We have a very distinguished panel with us representing a very broad cross-examination of industry. Thank you very much for coming to be with us this morning.
Senator Spivak: Mr. Chairman, before the witnesses begin, I wish to raise a matter before the committee. I note in The Globe and Mail today that the minister has said that he can live with the existing CEPA. In view of that, which I think is quite a different statement than we heard previously, I wonder if the committee might reconsider its closure motion so that we can continue to examine the present bill. That would not rush us and would give us enough time to look through this very monumental bill with all of these amendments. As everyone knows, it took eight months to go through clause by clause in the House of Commons committee. We have, at most, about 10 days.
I raise that before the committee. If you would like a motion, I could move one. I simply raise it for discussion at the moment. I would not ask that this motion be voted on until the rest of the members arrive. I am not anxious to do that.
Senator Hays: The mover and the seconder of the motion are not here. Perhaps we could wait for them to comment on it. If they do not show up for some reason, I would be happy to comment.
Senator Spivak: I do not wish to proceed with this discussion until everyone arrives.
The Chairman: Perhaps we can come back to it. It would take the unanimous agreement of the committee in order to reconsider that motion. In light of what the minister has said, if he did say it, as reported in The Globe and Mail, it would certainly take away the rush. Senator Hays, as you say, Senator Kenny, as the mover of the motion, may wish to consider what the minister said yesterday. We can come back to that at a later time.
Ladies and gentlemen of the panel, how we can most effectively hear your presentation and have adequate time for discussion? In a sense, we are in your hands as to the approach you would like to take with your presentation. We want to have the maximum opportunity of understanding your position and having some dialogue.
Mr. Rodier and Mr. Paton, have you discussed how you would like to make your presentation?
Mr. Richard Paton, President and CEO, Canadian Chemical Producers' Association: Mr. Chairman, we have agreed among ourselves, and if it is agreeable with you, the Canadian Chemical Producers' Association will speak for approximately 15 minutes, and then the Mining Association will speak for about the same amount of time. That leaves you with two presentations and time for questions.
Would you prefer to ask questions after one presentation or after both presentations? We thought that it might be better to listen to both presentations. They are somewhat complementary but do not go over the same specific ground.
The Chairman: My experience with this committee would indicate that it is hard to get through any presentation without some questions and clarifications coming forward. We will try not to interrupt, but we tend to have that habit. Please be understanding if someone asks for clarification or elaboration on a particular point. We will play it a little looser, but we will try to adhere to your suggestion.
Do not feel constrained by the 15 minutes. What you have to say is important, and we have the whole morning. I want you to have every opportunity to express your positions.
Mr. Paton: Mr. Chairman, I thank you and the senators on this committee for inviting us here today to talk about this important piece of legislation. Senator Spivak used the word "monumental." That might be the correct word for this lengthy, complex piece of legislation.
I will introduce my team. We tried to bring together a combination of association staff and company people because our companies are the groups that must implement this legislation on the ground in their plants and operations.
Gordon Lloyd, Vice-President of Technical Affairs in our association, has been involved with CEPA for approximately 10 years. Claude-André Lachance from Dow Canada has been involved for approximately 13 years and was involved in the first version of CEPA that Senator Spivak mentioned earlier. Jack Soule is from DuPont Canada. Our group combines association work and companies. We have all been working, along with the Mining Association and many other associations, on CEPA for a long time and have a great deal of experience in how you actually implement legislation on the ground. That is really the challenge of this kind of legislation and of most environmental legislation today.
Contrary to press reports that speak of how industry wants to water down or gut bills, the chemistry industry, and industry generally, is responsible and wants to work with government to improve the environment. It is for that reason that the CCPA has supported revising CEPA and has supported a strong CEPA.
[Translation]
According to the responsible care program established here in Canada by the Canadian Chemical Producers' Association and since then implemented across the globe, we have demonstrated that economic and environmental criteria go hand in hand. We have documented and communicated our efforts and achievements to improve our operations.
Since 1992, for example, our member companies have indicated a reduction of 50 per cent of their emissions in the atmosphere, despite an increase of close to 20 per cent in their shipments.
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We have found ways to make our businesses more environmentally friendly and still remain competitive. That is the basis upon which much environmental policy needs to be developed today.
I will talk a little bit about the history of CEPA. The minister mentioned yesterday how long legislation seems to be taking these days. This bill seems to break every record in terms of time taken and number of amendments made at committee. It has been a long and frustrating process for many people, including industry, and the process has had some serious flaws. The House of Commons Standing Committee on Environment and Sustainable Development reviewed CEPA in 1994 and reported in 1995. The government responded in 1995 and then tabled Bill C-74, which died on the Order Paper in 1997.
Finally, Bill C-32 was introduced in 1998. Even though the bill was approved by three of the five parties at second reading stage and was discussed extensively, 500 amendments were debated at committee stage with 150 amendments being actually moved.
At third reading stage in the House of Commons, hundreds of amendments were discussed and the bill was further amended at that time.
When Bill C-32 was introduced in Parliament by the Minister of the Environment, Christine Stewart, there had already been extensive consultations with all interested stakeholders, the provinces, environmental groups and industry. When tabling the legislation, the government emphasized that Bill C-32 effectively represented the goal of sustainable development and ensured a high standard of environmental protection without compromising economic growth and social well-being. The bill also reflected the goal, agreed upon through federal-provincial harmonization agreements, of ensuring that relative jurisdictional environmental responsibilities were clear.
When Bill C-32 was introduced after this extensive consultation, CCPA believed that it was a relatively well-balanced bill, even though it was quite complex. There were positive aspects of the bill that we thought were a step toward the goal of strengthening environmental legislation. It had provisions for pollution prevention planning. It required the virtual elimination of the most persistent bioaccumulative and toxic substances. It clarified Canada's powers to implement international agreements, which is becoming more of an issue, and it had the beginnings of recognition that voluntary approaches, or what CCPA prefers to call industry responsibility programs, have a place in environmental policies.
I know that the minister mentioned yesterday that voluntary programs have a place in the scheme of implementing legislation.
However, the bill had a number of problems, and these remain in the bill as it is now before the Senate. The bill does not go far enough in tapping the potential of today's modern, non-regulatory environmental tools such as Responsible CareR, which I mentioned earlier, and ARET -- the accelerated reduction and elimination of toxics -- to achieve sustainable development objectives.
Both the mining companies and the chemical producing companies are making efforts to improve the environment in their operations. There is a time when legislation must recognize that the world has changed. Business is being more responsible, yet much legislation seems to ignore that and focus only on the low performers in terms of the environment.
We believe that the legislation is also flawed in its adoption of the U.S. legalistic approach to environmental protection in its creation of the environmental protection actions provisions, more commonly called the litigation sections of the bill. These allow citizens to sue if they believe that the government has not properly enforced the law.
One of the great strengths of the Canadian system is that we have not gone down the American route of litigation every time there is a problem. Unfortunately, this bill contains provisions that follow that route.
CCPA has also recommended several important technical improvements to the bill, which I will mention later.
Concerns that were expressed by CEPA about the bill were also expressed by many other industry associations. The concerns, unfortunately, were basically ignored by the committee. Instead, it passed 157 amendments, which systematically removed from the bill any reference to the importance of integrating environmental and economic considerations or sustainable development.
To be frank, we were quite unhappy with how that committee dealt with this bill. It showed no interest in workability implementation. It did not listen at all to the business community, not even to the most progressive elements of the business community that are committed to improving the environment. We believe that that is clearly a flaw in the process.
It was not possible, therefore, for CCPA and others in industry to support Bill C-32 when it was reported by the committee. We recommended to the government that it restore the necessary and reasonable balance that Bill C-32 originally reflected. Nearly the whole industry in Canada had serious problems with this bill, which illustrates how far the committee went in ignoring business and economic considerations.
As a group, we agreed upon 11 key areas that needed to be changed in order for Bill C-32 to be workable, implementable, and to be capable of improving the environment.
As we all know from the many press reports and all the controversy in the House of Commons, important changes were made at report stage to make the bill more workable and to partly address some of the serious problems created by the parliamentary committee's amendments. Improvements to the bill were made, some of them in the 11 areas which we identified, but only in the minority of them. However, some of them were in the most vexing areas, which would have caused serious economic damage and problems in implementing the bill.
Areas that were improved included the application of virtual elimination, clarification on pollution prevention planning, the adoption of the international definition of the precautionary principle, the use of toxic substances, the issue of residual powers, and the concept of inherent toxicity.
All of these changes made the bill more workable for companies, but also more workable for the government, which has always been a key concern of ours. With a bill this complex, the question of implementation is always a concern. All the suggestions we made were based on two criteria: first, that they would not weaken the bill in terms of the environment, and second, that they would make the bill more workable and implementable.
Our major concern has been workability, and we believe that the areas in which we pressed for improvements do not affect the strength of the bill vis-à-vis environmental objectives, notwithstanding the many press reports saying that that is not the case. There are a lot of inaccuracies in those reports.
We believe that the bill, after report stage, is somewhat improved. It will help modernize CEPA and it will address many of the environmental issues that we are facing. These improvements in the bill must to be supported by the Senate.
However, the legislation still has a number of important shortcomings that should be looked at by the Senate and corrected to make the bill more workable and to better promote sustainable development, a reference to which is hard to find in this bill.
Our specific recommendations are set out in the attachment to my remarks, which have been circulated to you. I know that a number of our points will be discussed in more detail by the Mining Association of Canada.
We think improvements can be made in the following areas: The bill should support voluntary approaches more effectively; or, as we would call them in CCPA, "industry responsibility initiatives." All kinds of studies have been done on these types of initiatives, and all those studies, including those of some environmental groups, show that, when industry accepts responsibility and undertakes these kinds of initiatives, it is a very effective way of improving environmental performance. In many cases, it is much more effective than what governments can achieve. That is not to say that voluntary approaches can be done without legislation and regulation. We support strong legislation and regulation, but we can work in harmony with that legislation and regulation, and everyone ends up better off as a result.
We think the environmental protection action provisions of the bill should be removed. The role of science and decision-making is absolutely critical and we think it needs to be clarified. We think the equivalency provisions for federal-provincial agreements need to be worked on and clarified. They are critical to how this bill operates. If you read them carefully, you will see that they are quite convoluted.
We think the virtual elimination objectives on harmful effects need to be clarified. The international pollution prevention planning powers on toxic substances should be restricted. We think that you should use an internationally consistent definition of "endocrine disrupters." The current definition, as you probably know, senators, was suggested by an environmental group and is inconsistent with the OECD definitions and will probably cause us no end of difficulty as we pursue endocrine disrupter and hormone disrupter issues on the international level.
The power to restrict exports should be aligned with Prior Informed Consent Convention provisions. Right now, they are not aligned with those provisions. We think there should be roadblocks removed for waste shipments to the United States. There are waste provisions in this bill that allow the minister to restrict the export of hazardous and non-hazardous substances. We are not quibbling with whether you can export them to Nigeria or not. However, we believe that there are many good environmental and good economic reasons for having a fairly North American approach to this matter, certainly between Canada and the United States.
Cost considerations need be to be part of decision-making on key issues. That is not to say that cost will override environmental objectives, but you cannot ignore cost in key policy decisions.
The legislation should address the release of toxic substances and not the use of toxic substances. That is something which needs to be clarified.
Finally, we feel that the virtual elimination provisions should be restricted to CEPA toxic substances.
There are many areas in which this bill could be improved, notwithstanding the fact that the bill does represent a step forward in many areas.
In conclusion, I would emphasize that the important changes that the House of Commons made at report stage to make the bill workable and to address some of the serious problems created by the committee amendments need to be maintained. Improvements in the bill that were made with respect to virtual elimination, pollution prevention planning, the precautionary principle, the use of toxic substances, residual powers and inherent toxicity need to be supported by the Senate and seen as a starting point for consideration for further improving the bill.
Thank you for inviting us to appear before your committee, Mr. Chairman. We would be happy to answer any questions that you may have.
The Chairman: Mr. Paton, it might be instructive, in due course, for the committee to go through each of those areas in detail that you have enumerated. It is one thing to say that you would like to delete the public participation sections of the bill, but then all that does is raise a bunch of questions. We may be better, in due course, to deal with each one of those areas to understand your position. I am sure you are expecting that in any event.
Honourable senators, I think we should come back to do that. I believe, if you are in agreement, that it would be advantageous to carry on with the next presenter and then, ultimately, come back to do that.
Would it be all right to do that, Mr. Paton?
Mr. Paton: That works very well, Mr. Chairman, since the mining group will talk in more detail than I have about some of those specific issues, as well as their own.
Mr. Wayne Fraser, Chair, Environment Committee, Mining Association of Canada, and Director, Environment and Plant Engineering, Hudson Bay Mining and Smelting Co: Mr. Chairman, the Mining Association of Canada appreciates the opportunity to be here before this committee. With me this morning are David Rodier, Senior Vice-President, Environment, Safety and Health, with Noranda Inc., Robert Telewiak, Vice-President, Environment, Falconbridge Limited, who is also the chair of our association's Metals Working Group, and Justyna Laurie-Lean, Vice-President, Environment and Health, Mining Association of Canada.
Our association represents the Canadian mining industry. That comprises companies engaged in mineral exploration, mining, smelting and refining. Member companies account for the majority of Canada's output of metals.
In 1998, the mining and mineral processing sector in Canada generated an estimated $26.5 billion, or 3.8 per cent of Canada's GDP; 14 per cent of the country's total exports; 55 per cent of the total freight revenue; and 69 per cent of port volumes. We invested roughly $350 million in research and development, much of which was in the environmental area.
Member companies of our association are committed to sustainable development and continuing improvement. This is documented in the annual environmental approach, which was in the package of hand-outs that we passed on to you. If I can say so myself, I believe it is a good read. If you do have the time I would suggest that you take a glance through it. It points out the commitment of the association, the commitment of the members and the gains we have made in the last number of years, particularly under voluntary programs.
Bill C-32 is complex and cumbersome. It creates some very complicated decision systems and imposes a very heavy process burden. Ms Laurie-Lean and others have, over the last period of time, worked on a simplified flow sheet, which has also been passed out to you. It shows our attempts to understand the various process steps. If there are errors in it -- and we tried to avoid those, where possible -- I believe they show the complexity of the process that is set out under the bill.
It is not clear that the cost to go through this particular flow sheet by both ourselves and by governments will be offset by significant benefits that might be achieved by these provisions.
In addition to its complexity, the bill is prescriptive in several clauses, setting out government obligations that may be unattainable or ambiguous. Thus, undoubtedly, the bill will lead to future litigation over interpretations.
For example, clause 2(1)(j) obliges the government to protect the environment "... from the risk of any adverse effects of the use and release of toxic substances, pollutants and wastes." Surely, we all realize that all human activities result in the release of some quantity of toxic substances, pollutants and wastes, and, however small in quantity, such releases do carry a risk of an adverse effect. Whenever the government regulates a release limit under the proposed CEPA, it will be open to litigation on the grounds that the remaining risk is greater than zero. Such litigation, whatever its eventual outcome, will lead to uncertainly and an unwelcoming investment climate compared with other countries.
The words "endeavour to," or other similar modifying phrases, should be inserted in clause 2(1)(j) to clarify that protection of the environment in human health is an objective to be strived for rather than a guaranteed accomplishment.
I wish to turn for a moment to the virtual elimination provisions in Bill C-32. The bill requires that substances meeting specific criteria be virtually eliminated.
The bill defines virtual elimination as reductions of releases below the limit of quantification. Virtual elimination is to be achieved by planning towards the release limits set the by the ministers after considering environmental and health risks, and social, economic or technical matters. The release limits set by ministers under clause 65(3) may be either below or above the limit of quantification. Discretion to consider all relevant factors in setting the release limit is essential for certain substances.
Let me use dioxins as an example. They are subject to virtual elimination but are not produced intentionally. They form naturally in many processes from elements present in natural materials. One of the reasons to use dioxins as an example is that the sectors that have been identified by the Canadian Council of Ministers of the Environment as the largest emitters of toxins include -- and the list is lengthy -- municipal incineration, residential wood combustion, sintering plants, the use of salt-laden wood in boilers, the operation of electric arc furnaces, the operation of any diesel-powered vehicle or equipment, and sewage sludge incineration and handling. Please note that our industry is not on the list, so I am not just defending our smelting industry.
In all these priority sectors, process conditions rather than purposeful addition of a reagent or a material are the cause of dioxin formation. The detection limit for dioxins is around 30 picograms, or 30 times 10 to the minus 12 grams or parts per trillion. It is an extremely small number per cubic metre. As measurement technology improves, and that is always being pursued, even lower concentrations will be become detectable. With every improvement in measurement technology, Canada's virtual elimination objectives will be forced lower.
There is no easy or cheap way to prevent or control dioxin formation at such low concentrations. One option may be to increase process temperatures to change the conditions, but that is not always feasible; moreover, it may damage the process that is being operated and, in any case, could or would be highly energy-inefficient. Another option may be to capture the dioxins in filters, but this again is technology that is not available for all applications and, in any case, is difficult and would leave a waste material that would then need a home or a means of disposal.
Other countries have set their dioxin standards on the basis of best available technology. The most stringent standard that we are aware of in any other country is several times higher than Canada's would be under Bill C-32. Unless a reasonable release limit is set, any source with detectable dioxins will be required to prepare a virtual elimination plan and prove that further reduction is not feasible. Investors in new projects are unlikely to successfully pass the environmental assessment process if dioxins may be detectable, as the public would be convinced that any detectable amount is dangerous. Investors in new projects with no detectable dioxins would have to consider that, at some time in the future, with lower measuring technology limits, dioxins within the process may at that time become detectable and then they would come under those provisions. Investors would see Canada as having standards several times more stringent than any other country's.
Moreover, the Canadian standards would be a moving target, changing with measurement technology and unrelated to health, environmental risks or benefits.
MAC recommends that the focus of the virtual elimination provisions in clause 65(3) be maintained and that clause 65(1) be deleted or modified, at least for substances that are produced inadvertently.
On cost effectiveness, the consideration of costs is necessary to determine whether the benefits of a contemplated action warrant the expected expenditures needed to achieve the benefit. Secondly, costs need to be considered to determine the most efficient route to a desired objective. Without consideration of cost-benefit ratios, or at least of cost, always limited resources will be wasted. It has been argued that cost effectiveness is not incorporated in other Canadian legislation and is therefore not needed in Bill C-32. However, most Canadian legislation, such as the existing CEPA, the Fisheries Act, and our enabling legislation, leaves the details of implementation to the responsible ministers. Ministers then make decisions on the basis of general government policy. In contrast, Bill C-32 is prescriptive, requiring the minister to take specific actions or decisions. It is therefore necessary also to specify what range of factors the minister must take into consideration in making the decision. Otherwise, the minister may be forced through litigation to make a decision that is obviously contrary to common-sense.
MAC therefore recommends that the requirement to consider cost effectiveness be reinstated in subclause 2(1)(a.1), subclause 2(1)(n), subclause 2(2) and subclause 47(1).
On the matter of pollution prevention planning, while MAC agrees that pollution prevention planning may be a valuable tool, we are concerned that the government may not recognize its potential cost to facilities. It would be more appropriate to include pollution prevention planning as one of the regulatory tools available to the government under clause 93. We are particularly concerned about the application of the pollution prevention planning powers in clause 56(1) to a substance released from a source in Canada, which creates, or may reasonably be anticipated to contribute to, the pollution in a country other than Canada. Since the release of nearly any substance could be anticipated to contribute to global pollution, these provisions could have very wide application.
To ensure consistent treatment with substances assessed and regulated under CEPA, and ensure a full consideration of environmental, economic, and international implications, such as reciprocity, the application of clause 56(1) should be restricted to substances on the list of toxic substances in Schedule 1.
Further, in recognition of other mechanisms that deal with transboundary pollution, consideration should be given to deleting subclause 166(1)(a) and subclause 176(1)(a).
On recycling materials, recycling obviously has important environmental and economic benefits. As with other materials in industries, reducing barriers to trade and movement of recycled materials would encourage competitiveness and efficiency. Environmentally sound recovery of metals and other recyclable materials requires economies of scale and access to sufficient supplies of post-use materials. For some processes, a plant that serves a large geographical area, such as a continent, may be necessary to ensure environmental and economic soundness. Any regulatory measures that prevent the free movement of recyclable materials are therefore injurious to sustainable development.
Bill C-32 would allow the federal government to differentiate between hazardous wastes destined for final disposal and hazardous recyclable materials destined for environmentally sound recycling facilities. However, it does not explicitly require the encouragement of recycling by facilitating international or internal trade.
Bill C-32 includes authorities for the federal government to impose a new non-tariff barrier to international trade in the form of cost recovery and to implement movement controls and cost recovery for movements within Canada. The latter authority would constitute a new barrier to internal trade within Canada, and may be, and probably is in fact, inconsistent with the agreement on internal trade. With the objective of minimizing barriers to the movement of recyclable materials and thereby encouraging recycling, MAC recommends that Division 8 of Part 7 of Bill C-32 be amended to clearly differentiate between the management and regulation of wastes destined for disposal and recyclable materials destined for recycling in an environmentally sound manner. This would be consistent with Canada's international position, and with government policy.
On the export of substances, clauses 100 through 103 have the stated intention of implementing Canada's international obligations regarding the export of banned and severely restricted substances. The drafting of subclause 100(c) appears, however, to allow the minister to control all substances that are in some way regulated by an act of Parliament, regardless of the relevance or intent of that regulation. To prevent the inadvertent creation of red tape for exporters, and to ensure consistency with the regulatory approach of other countries, subclause 100(c) should be redrafted to apply only to severely restricted substances.
With respect to the use of toxic substances, there is a fundamental disagreement among parties as to whether the control of toxic or hazardous substances should focus on their use or their release. MAC believes that any substance can be toxic or hazardous in some concentration or in some circumstance. The association therefore believes that, for greatest effectiveness and efficiency, the control of toxic substances should focus on releases. Regulatory powers in clause 93 already provide for control of use where necessary. MAC therefore recommends that the reference to use should be removed from the preamble and from clause 2.
On inherent toxicity, an inconsistency appears to be have been created in Part 5, which requires that action be taken on substances that meet certain criteria and are capable of being CEPA toxic while at the same time confining regulatory authority to substances that are toxic. Since all substances are capable under some circumstances of being CEPA toxic, such capacity is not a useful guide to government action. Clause 77(3) should therefore be modified accordingly.
Equivalency is one of the ways of avoiding overlapping between federal and provincial jurisdictions in the protection of the environment and health. The provisions in clause 10 will be greatly improved by focusing on the achievement of equivalency objectives rather than on the means by which these objectives are to be achieved. Subclauses 10(3)(a) and (b) should be amended to refer to equivalency and similarity in performance and intent.
In summary, the Mining Association of Canada is not certain that Bill C-32 as it stands will provide any improvement over the existing act in benefit to the environment or cost to the economy. In our brief, we have proposed specific changes to some areas of the bill, recognizing that the complexity of the bill makes any change difficult to incorporate. In spite of that, we feel that our proposals are the minimum alterations that must be made.
We thank you for your time and the opportunity to present our views.
Mr. Paton: I should also mention that we have provided a detailed brief, and you will see in the appendix to my remarks our specific comments on these issues. I think you have all the information before you, Mr. Chairman, and we are ready to respond to your questions.
The Chairman: Perhaps we should proceed one section at a time, going through the areas of the bill that you have mentioned. Then we can be more specific in our understanding of your presentation. Let us go through the bill and pinpoint your 11 areas and be more specific, and then we can enter into questioning on each area.
I am not sure whether the first one comes under the preamble or whether you would like to start with a discussion on cost-effective measures on clause 2. You did have comments about that.
Senator Hays: Mr. Chairman, the Canadian Chemical Producers' Association have listed their concerns in their material, perhaps in order of priority, but they do not match the divisions of the bill. I wonder if it would not be easier to follow their pattern rather than to match their pattern to the clauses of the bill. That might be easier. They start with the "voluntary approaches" issue. It is the matter of ease in following what they have told us that is the basis of my suggestion.
The Chairman: We will start on page 15 of Mr. Paton's brief with the CCPA recommendations to the Senate.
The first one, then, Mr. Paton, starts on page 15. Could we could start dealing more specifically with that one ?
Mr. Paton: Page 15 of the brief, yes.
The Chairman: We will start at 4.1. Are there any comments?
Senator Spivak: There seems to be a bit of a difference of opinion here. Mr. Fraser feels that the present bill is probably better, and this brief seems to say that the one being proposed, Bill C-32, is better. Am I correct in assuming that there is a difference of opinion here?
Mr. Fraser: Our position is that Bill C-32 is very complex. We are not sure that it does provide much benefit over the existing act. If it does go forward, it does require amendments from the form that it is in today.
Senator Spivak: Thank you. That is clear
Mr. Paton: We have the same position.
The Chairman: You are taking the same position, Mr. Paton. You are saying, if this bill is not amended within the context of many of your recommendations, that you are better off with the present bill. Would you prefer to have the present bill, as Mr. Fraser says in the MAC's submission, over the new bill, unless some amendments can be brought forward?
Mr. Gordon E. Lloyd, Vice-President, Technical Affairs, Canadian Chemical Producers' Association: I think you mean the current act versus the present bill. The point that both groups are making is that the 1988 CEPA legislation, which is currently in effect now, is, as the minister said yesterday, something that is working. We think that the current bill that is before the Senate needs to be improved in a number of areas, and those are outlined in our brief.
The Chairman: What if it is not improved? What is your position? If the Senate is unable or unwilling to make the amendments and you end up with Bill C-32, what is your position?
Mr. Lloyd: There would be a number of problems in the bill that would then not have been corrected.
The Chairman: Would you then prefer to have the 1988 legislation rather than Bill C-32?
Mr. Lloyd: We would be able to live with that. We do not know yet how significant an issue the extent of the problems in Bill C-32 and the problems that they would cause would be. We would like to see those problems corrected.
The Chairman: You are not going as far as Mr. Fraser. The Mining Association, as I understand their conclusions, are saying that they would prefer the existing act to the proposed one. That is what Mr. Fraser is telling us. You are not going that far?
Mr. Lloyd: That is fair to say.
Senator Taylor: Mr. Chairman, you are being a little unreasonable. You are giving them the choice between the electrical chair and the hangman's rope.
The Chairman: Senator Taylor, I am going on what is in writing in front of me. I want to understand it.
Senator Taylor: You can to be sure that neither of these two associations would be crazy about environmental laws.
Mr. Paton: Senator Taylor is right. We are not crazy about this legislation. There will be many problems in implementing it. We see some improvements in this legislation over the current CEPA, but, similar to the Mining Association, we do not see many benefits from this legislation over the current legislation.
Mr. Claude-André Lachance, Director, Governmental Affairs, Dow Chemical Canada: This is a very difficult question to answer, and I will try to explain why. We now have 10 or 12 years of experience with the existing CEPA. Although this legislation was formulated in a context different from today's, it has worked from the point of view of providing Canadians with a legislative framework within which substances are screened before their manufacturing or commercialization from the point of view of deciding whether they are toxic and should be regulated, on the one hand, and on the other hand from the point of view of the limited screening process for existing substances.
Since then, the Canadian government has implemented a number of policies -- pollution prevention, the toxic substances management policy, and the chlorine action plan -- all built on the CEPA framework. That has provided an approach within which we have ensured that there are reduced risks from the point of view of release of toxics into the environment. Having had 12 year's experience with the system, we know how it works.
Bill C-32 incorporates many of those "new" policies that have been developed over the years. From that point of view, we believe it is an improvement over the existing CEPA. However, over the past six years we have tried very hard to ensure that the legislation will be workable, in that it will provide a framework that we can understand and will promote both the environmental and health objectives, but it will also maintain an economic context in which we can operate -- in other words, sustainable development.
At this stage we do not know how the new CEPA will be interpreted. We do not have experience with it. It is very complex. That is why we have emphasized, over a number of years, the need for workable, clear and streamlined legislation. That is the purpose of the amendments put before the Senate by the two delegations today.
Deciding whether we prefer the existing CEPA or the new CEPA is a function of interpreting how the new CEPA would work. That is very difficult to do, because there is so much ministerial discretion and complexity built into it and it contains a number of areas that will make it difficult to work. That being said, we do believe that the amendments made at report stage in the other place have improved on the situation in which the bill was left after the committee's amendments, which in our opinion made the bill unworkable.
The Chairman: It is clear from what the minister has said that he will not accept amendments. It is clear from the closure that has been imposed on this committee that amendments will not be acceptable. We have to say to you today that Bill C-32 will be the law.
Are you happy to live with this or would you prefer to have this reconsidered, in light of some of the matters that have been raised, to make it more workable? I want to know your position, because I do not understand it right now.
Mr. Lachance: Mr. Chairman, it is not for this panel of witnesses to second-guess how the honourable Senate will deal with this legislation. You have your own rules and you have a certain amount of time to deal with it. We have come in good faith before this committee to propose ways and means to make this bill better. We believe that the amendments we have proposed will make this bill better for both the environment and the economy. In other words, it will be a better bill in terms of supporting the policy of sustainable development. How the honourable Senate will deal with the amendments we have proposed is for you to decide, not for us.
The Chairman: I understand that and I agree with it. I may be very sympathetic to some of the amendments you are proposing, but I do not think they will be accepted. Therefore, I want to know whether you prefer the existing law or Bill C-32 as it now stands. If you cannot answer that question, that is fair enough, but that is the dilemma that I and some of my colleagues face right now.
Mr. Paton: The answer will not be as clear as you would like. This bill contains some improvements, but it contains more risks for us, because, as Mr. Lachance has pointed out, it is not clear how this bill will be implemented. It is extremely complex and convoluted legislation with all kinds of dangling participles.
It is a judgment call: is this bill a lot better than the one that came back from committee? Yes, it is. Can we work with it in good faith with Environment Canada to try to improve the environment? Yes, we can. Like the minister, we are tired of an endless process and we think that the environment has paid a price because this legislation was not dealt with more quickly. We do not want to prolong the agony with this bill. So it is a judgment call. There are pros and cons on both sides. In a sense, our silence says a lot. It is amazing that we have spent five years reviewing a piece of legislation yet we cannot say today clearly that we prefer it to the 1988 legislation. That says something about where we are in terms developing environmental legislation. However, we do not want to spend the next five years doing it as well.
The Chairman: I can assure you that we do not either.
Senator Kenny: Mr. Chairman, you have been putting some fair choices to these witnesses and they have said that they believe the bill, as it eventually emerged from the House of Commons, is better than the bill that came out of committee. Other witnesses may appear before us and say that the bill that came out of committee is better than the bill that came out of the House of Commons. Therefore, in the context in which you are putting it, the question is a difficult one. We will hear from people from both ends of the spectrum. For different reasons, some will want the legislation to be stronger and would prefer to have it in the way that the committee reported it. Others believe that the bill, in the way the committee reported it, is too strong. Every time we ask the question, we will get only partial answers, as we are getting today.
I think it is also unfair to say that the motion that was put forward prohibits this committee from dealing with amendments. This committee has every right to put forward as many amendments as it chooses. There is nothing in the motion that restricts any member of this committee from proposing an amendment.
Senator Buchanan: That is not right.
Senator Kenny: Excuse me, Senator Buchanan. When you have the floor, you can tell me why I am not right. There is not a word in the motion that restricts anyone from moving an amendment, and I did not hear the minister yesterday say that this committee was prohibited from moving amendments. In fact, he went out of his way to say he would not interfere with the business of this committee or of the Senate.
It is fair for you to say that there will be no amendments, but I think it is inappropriate to attribute that to this motion or to the comments made by the minister.
The Chairman: That is a matter of interpretation. In any event, I wish to take advantage of the presence of our panellists this morning.
Senator Hays: I wish to start with the first item raised by the Canadian Chemical Producers' Association that there should be more emphasis on the voluntary approach. At the moment, we have in place such things as voluntary challenges with regard to the climate change issue, and so on. The basis of these are memorandums of understanding and guidelines. You like that, and I can understand why. How would you ensure that it works?
What is your comment on verification of the voluntary approach, providing the equivalent result of a command-and-control approach? Should there be a penalty if a voluntary system does not work? Could you elaborate, please? I know you have done so in writing in your larger brief, but perhaps for my benefit and the benefit of this committee, you could give us some answers to those questions.
Mr. Paton: The Canadian Chemical Producers' Association has a program called Responsible CareR. It is often called a "voluntary approach," but we have now started to use different language. We now call it an "industry responsibility initiative." If you were to ask 10 or 12 experts from around the world what is the most advanced industry responsibility initiative in the world, Responsible CareR would come out as No. 1. The reason it is the most advanced is that it started in 1985, in Canada, and has been adopted by 42 countries around the world. It is very rigorous. Basically, it starts with the principle that no one can join our association without adopting Responsible CareR, which has a set of principles and codes. I should mention that one of those principles is the verification by third parties every three years of our companies based on those codes.
No amount of legislation or regulation can beat companies deciding that they must be environmentally sensitive and responsible and work with their communities. You just cannot get that kind of commitment from law and regulation.
We do not believe that our program has to operate, using the word "voluntary," separate from the law or different from the law. We see legislation as providing a framework for environmental performance, and there could be regulations, but these industry responsibility initiatives have a place in good environmental policy.
Unfortunately, what seems to happen when legislation is drafted is that the focus is always on the worst performers. Thus, the legislation is built around the idea of what will happen if someone gets away with something or other. Unfortunately, what happens is that the legislation then treats everyone at the level of the lowest common denominator.
In practice, if you think about it, this lays pollution prevention planning on to companies that are already doing more and more sophisticated pollution prevention planning than any of the legislation could ever possibly imagine. However, it still lays it on us. What ends up happening is that companies that are very responsible and far in advance of where the government could be with regulations end up carrying the same baggage as everyone else.
What happens, eventually, is that government policy discourages the high performers from high performance by layering on costs and requirements. If you start adding the federal and provincial requirements together with municipal requirements, you end up with cumbersome systems and procedures that really do not help our companies achieve what they want to achieve. That is because the legislation assumes that we do not want to achieve it. However, the fact is that we do.
Many people will ask: Why does business want to achieve environmental performance and work with our communities? The answer is simple: It is good for business. It is the only way to go. Our companies build plants that last from 25 to 50 years. There are billions of dollars in investments in Alberta and other places. We do not want to have environmental problems that ruin those investments and that screw up our relations with our communities, our suppliers, our customers or our governments. You build yourself a foundation that works. Today, you build a foundation of environmental responsibility and of working in your community. That is how you do business today. If you look at the track record of DuPont and Dow, you will see that is what they do.
This legislation contains one line with the word "voluntary" in it. Usually, there is no mention of the word. A more progressive piece of legislation could clearly seek the support of the industry and encourage it to be responsible, while at the same time be tough as hell on poor performers. We think that is the way to go on good policy. The bill, unfortunately, does not do that. We are here before you telling you about all the improvements that could be made. To a large extent, we are aiming for improvements that ensure that government does not get in the way of what we are trying to do in the first place.
Senator Hays: I understand the thrust of your argument; it is that you are serving the same constituency as government, in a narrower sense, because you supply a product which they need or which they use directly or indirectly; the customer is always right, whether you are a politician or in the chemical manufacturing business. Our customers are sensitive to the environment. They want improvements. They are worried about where we are going and a product of that, in part, is this bill.
What would you do about the person who is outside your association and who is not prepared, for whatever reason, to adhere to the code? Is there a regulatory response where a voluntary approach might be taken, as you request, if the voluntary initiative by the association, or whatever sector it is, does not work?
Mr. Paton: This gets into the whole area of legislative design. Governments have not figured out how to deal with this effectively. It is a big challenge.
In our view, our association, with as rigorous a regime as we have, is more rigorous than any government could ever implement. I mean to say, the federal government will not go out to verify Dow Canada's Fort Saskatchewan site. It will not do it. However, we are doing it.
Where that is being done, you have to put some confidence in that, in legislation; you have to put something behind it. If the company is not in that association or not in that regime, the full force of the regulation of law should apply. We have an example of how we are doing that with the accelerated rate of reduction in toxic substances.
Mr. Lloyd: In terms of trying to address that same issue on a broader front, I refer to the ARET program about which we spoke earlier. It is a program for the accelerated reduction and elimination of toxics. A multi-stakeholder process identified about 117 chemical substances. Reduction challenges were set out for industry, and most of them reduced by 50 per cent and some reduced by 90 per cent. So the questions you are asking are critical to the design of something like ARET, if it would go forward.
The CCPA and a number of other associations have joined in lobbying the government on this matter. Not all of the ARET substances are tracked on the national pollutant release inventory, which is the regulatory system that the government uses to track emissions. We have lobbied Environment Canada, so far unsuccessfully, to add substances to the national pollutant release inventory, so that, through that regulatory instrument, we could track the progress of those who were participating in ARET and reducing their emissions, and, even more important, track those who were not participating in ARET.
We say that, because if you do not participate in ARET, you do not report voluntarily into ARET, but you would have to report to the national pollutant release inventory because it is a regulatory system. Therefore, we have asked, as have other groups such as the mining association, that these substances be added to the NPRI. If that were done, then there would be tools. The government would know whom they needed to go after in this kind of context. We think that some of the tools in this legislation, where they offer improvements, could be used.
Nobody has yet figured out how to tailor, at a federal level, regulations in a rifle approach to specific companies. However, the pollution prevention planning requirements that are in here could, we think, be used for that kind of purpose and be very selectively targeted at companies.
Also, the harmonization accord and the powers in the bill for the federal government to cooperate with the provincial governments are important. ARET is not just a federal program; the provinces have some ownership in it as a national program. The provinces could be encouraged to use their permitting powers to go after those identified by the national pollutant release inventory as not being participants in ARET, if they were emitting things that were causing problems. We feel there are instruments that can be used.
We would also like smarter regulations to be designed that actually could target specific areas that need targeting, rather than addressing industry broadly.
Those are the types of backstops, along with the kind of verification program that Mr. Paton talked about, which we think would give you a package where voluntary approaches could be recognized for what they are achieving; that recognition could then be incorporated into the legislation. If that were done, we would hope that there would be a number of benefits to it. Instead of an offshoot of environmental policy, it would be recognized in the law. It would be more formal.
That would also help us in our dealings with the U.S. We have concerns that, under NAFTA, some of the voluntary approaches that we have in Canada may not stand up. In other word, because they have a more legalistic approach, even if our voluntary approaches are working better and more effectively than the American legalistic ones, they may not stand up under NAFTA. They would have much more legitimacy, if they were founded in a legislative base. That is the type of thing we are talking about, and we think that the kind of teeth that you are talking about absolutely need to go along with that kind of design, and we think that can be built in.
Senator Hays: My last question is on the "responsible care" verification that you do every three years as part of that program. Of course, that must be one of its key credibility issues. Could you describe that so we have it on the record?
Mr. Paton: It is a requirement of any member company joining CCPA to join Responsible CareR. It is also, as part of that requirement, necessary to be verified within three years of joining.
We have six codes, more than 150 elements, and these are very detailed. I will give you an example. It is hard to understand how serious this is. You must have an emergency disaster plan. You must share the worst-case scenario with your community. There must be open dialogue. That is a requirement. If you do not meet the requirement, you do not pass the verification.
Imagine that a company has to go out, meet its neighbours and say, "The worst case scenario here is that this plant blows up and 50,000 people are dead." You have to share that. Why do we do that? We say it is because it is an obligation of industry to share with its community what it potentially could do to that community. It is an obligation. It is not a choice. It is not a nice thing to have to do, but it is a requirement of doing business.
Those verifications are done by a member of another company, usually an environmentalist who is often working with us on a panel, and a member of the community. They are completely independent. They write a report on that company. They decide whether they meet the ethics and the codes of Responsible CareR, and in some cases they tell you that you need serious improvements or minor improvements in order to say that you have met the requirements of Responsible CareR.
Of our 73 companies, about 50 have already done those verifications successfully. The others are being scheduled now within the three years because they have joined recently. We are just beginning round 2. These are open documents. We share those with the community advisory groups that we have. When I talk about the level of rigour here, I think I can safely say that no government would do this to this level.
Yet, when we deal with this legislation, it seems that the government is saying, "We really do not care what the Canadian Chemical Producers' Association is doing under Responsible CareR. This is the regime we have." That is a bit bothersome. Eventually, if we are not careful, it will become a disincentive to industry to be responsible. We will become like the Americans, who feel, "Since the law is so complex and I will get litigated anyway, then I will just meet the law and that is enough." Surely you do not want us to go that route, because that is not good for the environment.
Senator Spivak: I want to congratulate you on your efforts. I have looked at the ARET program and at the Responsible CareR program. They strike me as being very forward-looking. Does Responsible CareR apply to your companies internationally?
Mr. Paton: Certainly Dow is committed to Responsible CareR internationally. I can say that 42 companies have adopted Responsible CareR. There is an international chemical association for which it is a condition of membership that you belong to Responsible CareR. Companies are managing this globally. However, various countries have different approaches. Canada is generally recognized as being at the top.
Senator Spivak: I am talking about Canadian companies that operate internationally. As you know, there have been some major disasters with Canadian companies in the last few years.
Mr. David Rodier, Senior Vice-President, Environment, Safety, and Health, Noranda, Inc., Mining Association of Canada: We are a member of both associations. We became an adherent to Responsible CareR as part of our rite of passage to be a member of CCPA. We have quite an extensive sulphuric acid business in Chile and we are in the process, although its not mandated by any law, of applying and implementing Responsible CareR in Chile. I am sure that Dow and DuPont Canada have similar examples. We are way out ahead of anything in Chile.
Senator Spivak: Are you obligated under Responsible CareR to do that?
Mr. Rodier: No, that is voluntary. We are using that example because, as Mr. Paton said, it is very good business if you can manage your business to avoid problems.
Senator Spivak: I still do not completely understand. For you to be a certified member, is this mandatory?
Mr. Rodier: In Canada, we have to apply it.
Senator Spivak: But internationally you do not?
Mr. Rodier: No. This is a Canadian organization.
Senator Spivak: I would encourage you to do that. Canadian companies have had some disasters outside Canada. If you can prevent them, it will cost you a lot less.
I have another question. It strikes me that pollution prevention plans need not be revealed to government, except in certain circumstances. It is only at the minister's discretion that you are required to show those to government. I cannot understand why the plans you have now would not be recognized as pollution prevention plans. After all, volunteerism need not be in legislation. It is a contradiction to think that has to happen.
You do not have to reveal all these pollution prevention plans to government. After all, it is not as if you will be asked to duplicate things that you have already done.
Mr. Lloyd: We hope that is so.
Senator Spivak: It is at the minister's discretion. I can't see the minister, with everything else that he has to do, looking at the pollution prevention plan of every company in Canada.
Ms Justyna Laurie-Lean, Vice President, Environment and Health, Mining Association of Canada: That is an important issue. All the members with whom I have spoken believe that their internal due diligence would require them to carefully work through whatever pollution prevention planning order the minister issued and ensure that they comply with the exact letter of the law. The issue of whether the government asks for the plan to be submitted or not is irrelevant. The fact that it is not necessarily submitted does not mean that you will meet a different standard. The company, for its own due diligence defence, must ensure that its plan meets whatever the minister requires. The minister sets that out in the order.
Yes, the company will have certain plans and its own internal systems, but chances are they will not match with the requirements one on one, and there will be a great deal of paperwork involved in trying to ensure that you have a piece of paper proving you meet the letter of the law.
Senator Spivak: I understand what you are saying for due diligence, but is that to be prescribed in the regulations? I did not see it in the bill.
Ms Laurie-Lean: Due diligence is an internal company operation.
Senator Spivak: I am referring to the minister's idea of a pollution prevention plan or the strict elements of the order. Will that be by regulation, or is that somewhere in the bill?
Ms Laurie-Lean: It will be an order from the minister.
Senator Spivak: Will that be in the regulations or in the bill?
Ms Laurie-Lean: It is not regulated. It is a ministerial order.
Mr. Fraser: It is by ministerial discretion rather than by regulation. It could vary, site specifically, and it could vary from industry to industry, but it is up to the minister to determine that.
Senator Spivak: As I understand it, then, it is not in the bill.
Mr. Fraser: It might be easier if it was there in a specific regulation rather than leaving it to a discretionary matter.
Senator Taylor: My question is on voluntary efforts, which was the original question. We have strayed from there.
I do not know why any government or any law would stop you from doing something voluntarily. I do not understand that. If you want to do something better than what the law requires, nothing is stopping you. No law stops you from doing something better than the minimum set out. What did you mean by that?
Mr. Fraser: Since 1988, under voluntary programs, and none of these are regulated, our industry has reduced mercury emissions by 91 per cent, cyanide by 98 per cent, and lead by 67 per cent. We did not need a law to do that.
As an industry and as companies, we have been able to sit with our stakeholders, including provincial groups such as health and mining, with economic groups, with the local people, and with our shareholders and decide what our specific concern and operation is, what the people feel it is, and what the economics, timing and technology are. We have set out to solve the problem amongst ourselves. It is not my decision or my company's decision. We solve a problem that we believe is a priority problem, and then we get on to the next one.
Suppose that someone determines that producing dioxins at virtually undetectable levels is the problem that we in our industry must face. I have limited resources in terms of money, technology and people. I may have to spend my next five years doing that. It may not be the priority that my stakeholders would define for me, but someone someplace else, based on science or non-science, has defined that as a priority problem for me and has regulated it for me, and I have no choice. I must do that rather than doing what my stakeholders feel is the thing we should be doing.
Senator Taylor: If I follow you, you are saying nothing in the act in force in 1988 would have stopped you from reducing cyanide and those other things.
Mr. Fraser: It may have redirected our priorities.
Senator Taylor: What you want to do voluntarily you may not be able to do, because you must take the budget and meet some difficult regulatory requirements.
Mr. Fraser: That is correct.
Senator Taylor: Towards the end of the act, it mentions trading emissions or pollution credits, which is really a voluntary system of working out how to cut down emissions. This bill seems to take that into consideration, whereas the old one did not. Have you looked at that?
Mr. Fraser: We as companies have examined those kinds of questions to some extent. Emission trading programs work extremely well in fairly small regional areas. For example, in California, it makes sense to reduce emissions from a dry-cleaning operation to balance off against emissions from an oil refinery, because they are working within a small confined air shed. In Canada, with the vastness of the country, trading an emission in Southern Ontario against a credit in Northern Manitoba does not do the kind of thing that emission trading programs ought to be able to set out to do.
If you are doing international or national air shed management, for example, it is a great program. If you are looking after local and regional problems, it is much more complex and does not always work. It is a very difficult concept to bring into play in Canada.
Senator Taylor: It is an area where people can work out something voluntarily.
Mr. Fraser: It can be done voluntarily. In general, those systems work because they are driven by market force. For example, in the United States, you can buy sulphur dioxide emission permits and use them or you can buy them and rip them up.
Mr. Rodier: They are not really voluntary. Let us say you are talking about SO2 reduction. In your envelope, whatever that envelope is, you must come to an overall reduction, and then you can trade. One company may be able to get a big reduction and sell some of its reductions to other companies for whom it is economically not feasible; but it is not voluntary; it is mandated, because the state says that the overall group has to reduce.
Senator Taylor: The state just mandates the envelope. You have all kinds of room in which to work.
Mr. Rodier: You have several ways of getting to it.
Mr. Fraser: Let us say that it is determined that today 1 million tonnes of sulphur dioxide are discharged into a particular area; permits for 1 million tonnes will be distributed amongst those who require them. Two years in the future, that is reduced by 20 per cent. Now there are permits out there for only 800,000 tonnes. The company then has the choice of reducing its own emissions down to that or buying from someone else a credit that it does not use. It economically drives the solution to the cheapest-cost option, generally speaking. Environmental groups down in the U.S. very often buy those permits and destroy them, which is one way to do something to reduce it.
Mr. Rodier: It is not voluntary in the true tense. It is flexible.
Senator Nolin: In answering a question by Senator Hays, you explained a very interesting voluntary program by which you thoroughly examined the processes and procedures of your members. When did you start that?
Mr. Paton: The initiative started in 1985.
Senator Nolin: How many failed?
Mr. Paton: Most companies on the first verification have a number of areas that must be improved before they get through the verification. They usually have about a year to do that. I would say most companies initially had difficulties. The area in which they had the most difficulties was community dialogue. There are areas that are new, such as sharing the disaster scenario with your community.
As you can imagine, that is quite a little step forward for most companies.
Senator Nolin: Is this "public relations" in a very philosophical sense?
Mr. Paton: No, I cannot use the term "public relations." We are engaging the stakeholders and dealing with the critics. We are really moving from one philosophy to another here. We used to say, "This is my plant, I will run it the way I want. The community really has no business knowing what is going on inside my plant." Now we are saying that we should share our information; we should engage our stakeholders and tell them what could happen. That is a step forward.
Many of the verification processes initially revealed difficulties in those areas. Now, of our 73 companies, about 50 have gone through the verification successfully. The rest are now scheduled to go through and some are beginning the second phase. This is really quite a remarkable achievement.
Honourable senators, if you have a chance to visit one of these companies, you will be amazed at the level of dedication. In Fort Saskatchewan, every single neighbour of that Dow plant can probably tell you their individual concerns about that plant.
Senator Nolin: Are there any companies that are not members of your association -- companies that you do not want and that are operating without letting anyone look into their business?
Mr. Paton: Most chemical-producing companies are members of our association. Many joined because they wanted the discipline and the collective support that comes with Responsible CareR. We do not include all chemical producers but we include about 95 per cent of them. More are being included every day. Generally we have the market.
Senator Nolin: Do you keep track of those "black sheep" who are not part of your membership?
Mr. Paton: We send them little notes asking what defence they would have, if such and such a thing happened, and whether they could show due diligence. We have gone from about 62 to 73 members in the past 10 years. We are gradually getting to the 100 per cent market.
Senator Chalifoux: I am a neighbour of the Fort Saskatchewan chemical alley. I live west of Morinville. I was there when your company was first established. I remember the phenomenal trepidation and concern of all the surrounding communities. Over the years, and through your efforts, that concern has been allayed quite a bit.
I recall one small accident that happened a couple of years ago; it was handled wonderfully by your disaster teams. All that work was voluntary -- and one cannot legislate volunteerism. As good Canadian citizens, we all have the obligation to look after our neighbourhoods and our country. That is what your organization has done and I commend you.
I often drive by the Dow plant. I see the improvements that you have established through the years. I personally compliment you on your dedication and your diligence in looking after the environment, which is very sensitive in that area. You have done a very good job. We do not need to legislate that kind of effort. We simply do that as good Canadians.
Mr. Lachance: It is not often that we in this industry are complimented. I thank Senator Chalifoux for her comments. That Dow plant is a very large operation. It is one of five or six global sites within Dow. It is a huge investment, a huge operation in a rural context, with many neighbours who are there because of that quality of life. There are farms and small communities in the area. To make a large industrial operation operate in harmony with that rural context is a huge challenge. I thank the honourable senator for indicating that we have been somewhat successful in doing that.
There is a huge potential for bridging the gap between the community perception of the risks associated with large industrial activities and a sense of comfort for those communities that have such large industrial neighbours working beside them.
The Chairman: Just what would you like us to do to assist you? How can we come forward with amendments, when you are talking about the broad enabling powers in Bill C-32? None of my colleagues would disagree with the significance of your comments, but how would you incorporate them into Bill C-32?
Mr. Paton, could you be more specific as to what you would like us to do in that respect?
Mr. Paton: There is one line in this bill that does support the use of voluntary initiatives as a way to meet the pollution prevention planning requirements.
The Chairman: Is that line in clause 57? Is that what you are referencing?
Mr. Paton: Yes. We are very happy that that line is in the bill. We are very happy that the minister yesterday said that such an approach is desirable and that, when possible, the voluntary approach should be used. I must say that such support has not always been clear from ministers of the environment. We are encouraged.
To do much more within this bill would require re-thinking the whole philosophy of the bill. We are not making a specific recommendation on this. We are just pointing out that there is a way to think about legislation and government roles that, as the honourable senator said earlier, begins with the premise that there are responsible companies out there who want to do the right thing and that all laws need not be designed to focus on what would happen if no one cared about the environment.
Other provisions of this bill are affected in some ways, because we feel that we have basically been lumped into the mass with those who are termed "kind of irresponsible." Certainly some groups are criticizing this bill on the assumption that industry does not care, that we are trying to water down the bill and that we do not want to control toxic chemicals. That is totally and completely wrong. It is not accurate and it is not fair. The truth is exactly the opposite. Those groups have the philosophy that the bill must be more rigid, more structured, more detailed, because industry does not care and should be regulated. That is why we have made this our first point.
With or without CEPA, we will continue to do what we are doing. As with the Mining Association of Canada, the numbers will keep coming down with or without CEPA. We are quite happy to have legislation that is more workable, but the fact is that our industry will act responsibly in any case. We do not want an act that is cumbersome, detailed and hard to answer, because that gets in the way of our efforts to act responsibly.
One example of the other problem sections that we have identified is litigation. Essentially, litigation can add complexity and perhaps, in the long run, can undermine the positive work we are doing.
The Chairman: Would it be helpful if the preamble recognized the necessity for the government to act in accordance with recognizing those concerns? The preamble is presently silent in that area.
Mr. Paton: That is a good idea. The government, in the preamble, can recognize that companies are and can be responsible and that government should recognize and encourage high performance and best performance.
The Chairman: Would you find it acceptable if we were to recommend an addition to the preamble that recognizes what you have been saying?
Mr. Paton: That is a very good suggestion.
The Chairman: We will endeavour to find some wording to that effect.
Mr. Fraser: I endorse what Mr. Paton has said, along with your recommendation, Mr. Chairman. The last thing we want to see is legislated volunteerism because it cannot be legislated. As Richard said, the presumption that all things evil will happen and, therefore, we have to be slapped every time we stand up, is not correct. Responsible corporations act responsibly. Those who are not acting responsibly are not friends of ours. If they are to beat a regulation, they are probably beating the law right now. None of us accept that.
[Translation]
Senator Robichaud: In your final comments on voluntary approaches in the preamble, you stated that it would be a step in the right direction. However, you would like to see more than that, would you not?
Mr. Paton: I think that will be a step in the right direction. To do more than that would be to rethink the whole legislative approach. At this point in time, given the limitations of time, that would be a step forward. We would be very happy with that step forward.
As some senators have said, you cannot legislate volunteerism. The minister made some positive comments in that vein yesterday. As well, we have the ARET program. We do not need legislation in order to work with those things. We need more of the signals and the support. That is probably even more important. However, the preamble would help.
The Chairman: Mr. Paton, would you continue, please, by moving to clauses 22 and 28 in particular and the environmental protection actions and, perhaps, elaborate a little?
Mr. Lachance: I will not get into too many details, Mr. Chairman, since this is quite a complex topic.
First, this position has been taken consistently by all members of Canadian industry over the course of the years. It goes back a long way, including during the six years that it took to develop the new CEPA. We do not believe that using the courts to arbitrate in terms of the societal issues associated with bringing about environmental protection, which require careful consideration through the political process, is the way to go. We believe that the political forum is where those discussions need to take place. We are willing to live with the outcome of those political discussions.
Clearly, others have a different perspective, as is their right. We would not want the courts to arbitrate between those various societal objectives for, by definition, litigation limits discussion to the facts of the case. It does that in the context of an adversarial process that does not allow for bringing about the kind of discussions, dialogue, consensus and give and take that is required in terms of bringing about good environmental legislation and measures. We believe that the political process, because it is accountable for the outcome, is more amenable to bringing about those kinds of results that Canadian society wants to see.
Thus, we have a fundamental, long-standing issue associated with the right-to-sue provision. We have advocated it for a number of years.
That being said, we have a number of specific concerns with the right-to-sue provision. I should mention that this is only one of the many aspects of the citizen's participation section of the bill, some of which we support because it supports accountability in the overall process. For instance, the registry is certainly something that will allow for more transparency in terms of the various measures that are considered and actions that are to protect the environment and health of Canadians.
However, when we come to the right-to-sue provisions, if the issue is lack of enforcement by the government, then we believe that the solution is a political one. A government should enforce its laws. There have been reports by the Auditor General regarding the enforcement record of the government. There have been discussions, as well as a report by the House of Commons Committee on the Environment and Sustainable Development, along those lines. There is no question, as my colleagues on this panel have stated, that as far as responsibility is concerned, we want laws to be enforced. Laws that are not enforced are laws that become tainted. Tainted laws result in a concerned public, and a concerned public will raise concerns in terms of new laws. Eventually, it becomes a vicious circle. There is no question that laws need to be enforced. If the issue in terms of the right-to-sue provision is lack of enforcement, then there should certainly be a much stronger effort in terms of enforcing the laws.
The third concern we have with this provision is that if, at the end of the day, Parliament in its wisdom decides that citizens should be given the right to challenge non-enforcement practices by the government in terms of environmental laws, then a proper set of safeguards is needed. These are necessary so that the power that is vested with the citizenry does not result in business uncertainty, harassment and, generally speaking, in targeting good corporate citizens versus the bad ones.
A number of such safeguards are already incorporated into the legislation. I suspect you will hear from other panels that they feel that those safeguards go too far. We believe that those safeguards, as good as they are, do not go as far as those that exist in a similar set of provisions under the Ontario Environmental Bill of Rights, which was developed through a multi-stakeholder process and which seems like it has not created the problems that I have mentioned in terms of harassment or bringing about business uncertainty because of undue reliance on those right-to-sue measures.
If the committee in its wisdom decides that it wants to retain those provisions, which we believe should be removed from the bill because of what I have said, then those right-to-sue provisions should be anchored in a set of safeguards that we have outlined in our brief.
The way that the right-to-sue provision is currently couched basically means that such a measure could be taken by anyone who becomes aware of an alleged non-enforcement issue at any time over the course of the years. There is no real limit. It could be five years after you become aware, but you can become aware 30 years after the fact.
That raises a workability issue of huge magnitude. All companies have record-retention policies, and no company can be expected to retain all records forever in case there might be someone in the unforeseeable future who might become aware of something and could raise an action in the courts that would call for bringing the documents in to show that we were exercising due diligence and operating according to law. We have therefore proposed that there be an amendment to limit, in terms of time, when those actions can be taken. It can be whatever the committee will decide is wise -- five years, 10 years, whatever. We believe that it is quite important from a workability point of view because, otherwise, it will create a due diligence disconnect in terms of the ability of companies to discharge their duties of due diligence in the future.
Senator Kenny: I understand your point, Mr. Lachance. You are looking for a statute of limitations, so that once you pass that threshold, you can cease worrying about what happened five years ago or 10 years ago or whatever the cut-off period is. How do you deal with problems that develop over time and, in fact, are the result of, say, repeated exposures over time and which might take 20 years before they manifest themselves in a way that someone could claim damages? How do you balance the need you have to limit the amount of storage space you have for records and the effort it takes to maintain those files with the problem of illnesses or damages that occur as a result of repeated and continual exposures that take time to appear?
Mr. Lachance: There is nothing in what I have said that would affect in any way, shape or form current common law in terms of either product liability or personal liability. I think this is what you were alluding to in terms of either exposure in the environment or exposure to products, whereby an individual at some point would feel that he or she has a right to go to the court to claim redress. What we are dealing with in this right-to-sue provision is triggered by a situation of non-enforcement of the law. In that case, it is event-driven. There needs to be an event that creates a situation of non-compliance. The compliance issue is not one that arises over time. It is event-driven. You may have many instances of non-compliance but each one of those, up to the last one, is a non-compliance situation.
If I understand what you are describing, in terms of product or personal liability, I do not believe that there will be any effect from what we are proposing in terms of statute of limitations or what we described. We are trying to address the event-driven situations of non-compliance, for whatever reason. There are sometimes good reasons for non-compliance. The government may have decided that a compliance measure as opposed to an enforcement measure was the way to go, and a citizen, for whatever reasons, may decide that he or she wants to challenge that approach and then bring about a citizen suit that will be based on the facts of an alleged non-compliance situation. I do not believe that in this case you will be in the situation you have described.
Senator Kenny: Do not the same records serve the same purpose? Do you not have to maintain your records in any event so that someone who experiences some problems can go back to those documents? Would not the individual's case be enhanced to some extent, assuming they had been damaged or hurt, by being able to demonstrate repeated non-compliance?
Mr. Lachance: By all means, a company will maintain ongoing records, in terms of exposure, in terms of occupational health, in terms of safety, in terms of operational excellence, and so on, but it may not, on an ongoing basis and at large, maintain all records in terms of technological performance, or in terms of actual input-throughput aspects of a given substance, and so on. There is a right balance that needs to be maintained, in terms of your ability to manage your business, to have the records to do so and to show due diligence in due time, and having to keep everything on everything at all times and forever in case someone at some point might trigger a suit that will trigger the need for us to invoke a defence of due diligence.
We can leave it to the committee to decide what the balance point is. Is it five, 10, 15 or 20 years? I do not know. We are saying that it should not be open-ended, and we believe that at this point it is open-ended.
Senator Chalifoux: I am not a lawyer, nor an engineer, but I am a very concerned Canadian. Our ancestors have been keepers of the land for thousands of years. At a gold mine in Yellowknife, 380,000 tonnes of arsenic tailings are just sitting there. They have been there for 50 years. With the limitation you want in regulation, could that mine or the mine owners be charged, or would they be beyond that limitation?
Mr. Lachance: There are multiple answers to your question depending on what kind of impact we are talking about. This is a mining issue, so I will defer to the mining association. I can deal with the legal aspects. If there is a personal health issue associated with that, there is no statute of limitations that I know of that would prevent an individual whose health is affected to raise the matter and get personal redress. If there is an issue in terms of who is responsible for waste, for instance, what we are proposing would not affect that. The waste needs to be disposed of and the company is responsible for its waste forever. In my company, we ensure perpetual care for materials and practices of the past. We are only talking here of situations of non-compliance, and trying to ensure that we have a proper balance between the need for accountability and enforcement and the need for workability. Beyond that, I will go to my colleague, Mr. Fraser.
Mr. Fraser: I will speak briefly about the situation in Yellowknife. That is a unique situation. It was a gold mine, not an arsenic mine. The arsenic happened to be there and, 50 years ago, when the mine was first developed, the methods of handling arsenic were undoubtedly much different from what they are today.
Two things would happen today, and they are things that our industry and companies endorse. The first would be an environmental assessment of that project by today's standards, and it might very well determine that the mine ought not to go ahead if they could not manage the arsenic situation properly. Today's technology might very well make their approach altogether different.
The second is the question of financial assurance -- to ensure that, at the end of the day, an orderly shutdown occurs and that the money is available to do the decommissioning. In this case, the funds are not there, the company is bankrupt, and there is a problem.
We must recognize that in the case of the arsenic at Yellowknife that 50 years ago, and perhaps as recently as 15 or 20 years ago, arsenic was a widely used product for everything from wood treating to whatever else. It has been purchased by governments and private people and others and used as a product. It has become widely dispersed. Unfortunately, with an older operation operating as they did, those kinds of materials tend to be concentrated around the source. There is a waste management problem there, and it might become an environmental problem.
The gold sector of our association has been meeting with governments, attempting to define the proper approaches to a solution. I know Ms Laurie-Lean was at a meeting earlier this week, and I will ask if she has any comments.
Ms Laurie-Lean: I will try to be careful not to comment on that specific situation. Royal Oak was not a member of the Mining Association of Canada.
In the context of the "right to sue" provision, as far as I understand, the company was in compliance with the law. The storage of arsenic trioxide underground was a result of an attempt to improve the environment. Previously, the dust was dispersed in the air, and some of the surface contamination around Yellowknife is from that source. The move to storage underground was seen at the time as a positive environmental move. It has not at this time caused, as far as DIAND knows, a significant problem.
However, if the mine shuts down, it has fairly limited reserves and is economically marginal. For the future, they are exploring the possibilities of containment on site, but primarily they are looking at whether the material should be removed, recovered, and either upgraded to a product or neutralized, made inert, and then disposed of in some other way.
It does highlight many shortcomings in the area of reclamation planning and the financial assurance for reclamation, and that has been recognized by all stakeholders. There is a need for every jurisdiction to have that kind of provision through regulation. As well, in this particular instance, where the federal government has the kind of regulatory structure in place for the disposal of hazardous waste rather than for the movement of hazardous waste, that would be commensurate with what is available in the provinces.
Senator Chalifoux: This is a very good example of a worst-case scenario. All this arsenic is threatening one of the largest freshwater lakes in the world, which will in turn affect all the fish, wildlife and people living in the North. Environmental protection action in this bill and others is very important. I understand that most of the mining industry consists of very good corporate citizens who are environmentally friendly, but the bill must look at the worst-care scenario that could happen. Yes, we can identify good corporate citizens, but we also must look at the worst-case scenario.
Mr. Fraser: To come back to my opening comment on that for a moment and the fact that there is an environmental assessment act that would apply to that operation if it were to try to start operation tomorrow, I would presume that the assessment, if properly done, would identify the worst-case situation and would come to a conclusion which might very well be that this mine should not operate because they could not mitigate the damage that may occur. If they nevertheless choose to operate it, they would need to put up some astronomical reclamation fund, and they might then say, "We cannot afford to fund the eventual decommissioning, and therefore we ought not to operate."
As an industry, we recognize that there are and will be situations where, in some areas, with some mines, you just cannot operate, and we will need to walk away from those proposals. We have never suggested that we should be able to mine everywhere all the time for any product in any fashion that we see fit. That is not what we are about.
The Chairman: I must say that I share Senator Chalifoux's concern, and I have trouble agreeing with you with respect to the environmental protection actions. I am not sure what you are worried about. If you took the Yellowknife situation 30 years ago and this legislation was in force and the government was doing nothing, a citizen could come forward and file the complaint. They are not asking for damages, because damages are excluded. The only remedies are orders regarding mitigation and action by the allegedly offending party. As a result, I think those are good sections because of the public participation. Groups that are concerned about this when the government is not responding or is not aware are able to come forward under these sections to make something happen and to force the government to do it, or at least examine it, and then they can take action. Frankly, I think this is a very good piece of legislation that makes a lot of sense to me.
I am not clear as to your concern. I know you do not like having people out there looking at you all the time, but after all, you are dealing with the environment, and you are dealing with industries that are very sensitive to the environment. You had better keep your records forever when dealing in environmental matters, with or without this legislation, because someone, somewhere will sue you someday down the line when they become aware of it. Like Senator Kenny, I have trouble with that argument. I find these sections to be very acceptable.
Mr. Fraser: I was addressing the Yellowknife situation, not necessarily within the context of Bill C-32. I was suggesting that the legislation that we have today, under the existing CEPA, would probably have prevented that from taking place even today. I did not comment on whether Bill C-32 will make it better or worse. I have not looked at that within the context of its provisions. I am just saying that what happened 50 years ago and continued for a number of years is something that even today, under the existing act and not considering this bill, probably would not be allowed to occur if governments and all parties did assessments and other things correctly.
The Chairman: I do not want to get into a lengthy debate on it. I merely suggest that if the Yellowknife situation existed today and the government was not acting, which often seems to be the case, citizen groups could step forward and force that to happen. That is why I regard these sections as being useful.
Mr. Fraser: I do not disagree with that at all.
Senator Taylor: For the record, as a young mining engineer, my first job was in Yellowknife working for a man by the name of Fraser. I do not know if he is related to you. He might have been your grandfather.
People have a tendency to forget that the old giant was putting out over 50 per cent of the gold in the area, and it accounted for over half the jobs. It was the first kind of employment people had up there, white, brown or indifferent, for 40 years. That was the best technology at the time. Admittedly, now it is not, as is the situation with the Sydney Tar Ponds. Three generations later, my grand-daughter is now a mining engineer trying to repair all the damage that I did, but the fact is that we did the best we could at the time. The industry supplied jobs, and people were glad to get them, and it was thought that everything would work out. To come along with 50 years of hindsight and start jumping up and down gets a little tiresome.
Mr. Rodier: I agree with you fully. The sins of the father have a terrible habit of coming back. The chickens come home to roost.
Senator Taylor: It supplies jobs for the grandchildren.
Mr. Rodier: What we know now when designing mines will prevent much of that, but that was the old days.
Senator Taylor: I was part of the government delegation sent over last year when a mining company upset a truck going around a corner. It tipped a lot of cyanide into a creek, which killed several people. They were drinking it when they should have had proper warning not to. I tried to smooth things over and talk about regulations. Certainly it was an error, although it was the local people who made the error.
Constant vigilance is the price that we must pay. Every country must work it out. This bill goes a long way toward stopping some of those things.
Senator Spivak: I will quote from page 18 of your brief:
Finally, one would be remiss from not noting that the civil cause of action proposed in the new CEPA is a serious intrusion in what has traditionally been an area of provincial responsibility, defeating the professed intent by the Federal Government to work towards eliminating duplication and overlap with the provinces.
Could you explain what you mean by that? I would not have thought that was so.
Mr. Lachance: The enforcement of environmental laws has traditionally been done by provincial enforcement authorities. There is no question that there is an enforcement agreement that defines how this is done. However, this refers to a civil cause of action.
This is not the first time this issue has been raised. Whenever the federal government moves into a civil cause of action or redress, it gets dangerously close to moving into the constitutional authority of the provinces in terms of exclusive authority over civil rights. In that sense, it creates a potential for the overlaps and confusions of which this country is very aware and which it tries to avoid through the Constitution. We need to be very concerned about the civil aspect and to ensure that these conflicts are not created.
Senator Spivak: That is a very difficult concept to swallow. First, in terms of enforcement, this bill gives the federal government power to designate enforcement officers who, I assume, will be provincial. Second, there are all kinds of triggers. The federal government has shared responsibility for the environment. Often, environmental issues are of a global nature and only the Government of Canada can act. There are all kinds of federal triggers.
I do not understand how you can view this as an intrusion into the provinces' authority. I find that very difficult. Criminal law falls under federal powers.
Mr. Lachance: You are right that the enforcement part of the bill is couched in the criminal law power of the federal government. That is not the issue. The issue is with the civil right of action, with the action itself. There is no question that the law shall be enforced. There is no question about that.
Senator Spivak: You mean that the actual act of bringing an action is a civil right?
Mr. Lachance: That is correct.
Senator Spivak: I do not understand. Where is the intrusion? Can you pinpoint that intrusion?
Mr. Lachance: To give an illustration, I do not know that there is or that there could be a federal code of civil procedure. The actual rules under which such a right of action could be brought is problematic from the point of view of the operation of the law. I will stop there because I am getting into territory where I am not really in a position to comment further.
Senator Spivak: This is of vital importance because the Senate is not supposed to knowingly pass laws which may cause constitutional difficulties.
I do not know why you are all so worried because I think there has only ever been one action under the Ontario Bill of Rights. Many impediments could hinder a person from bringing a civil action under this bill. All kinds of things must happen before a person can actually bring that sort of action, but thank you for clarifying that.
Senator Taylor: Mr. Fraser, could you explain to me the reference in your brief to toxic substances? You say that there is disagreement over whether the control of toxic or hazardous substances should focus on their use or release.
I do not quite understand that. Do you mean released into storage or released into the atmosphere?
Mr. Fraser: In our industry specifically, we have many inputs to our processes not because they are wanted but because they come along for the ride. For example, if you produce zinc, you always have cadmium. If you produce copper, you probably have arsenic. If you produce zinc, you probably have mercury. If you produce copper, you may also have lots of gold. Some are good; some are bad.
You do not necessarily want these things in your process. There is an emphasis here on controlling the use. We could waste a great deal of time on this, whether in regard to a pollution prevention plan or whatever. We operate a smelter in Flin Flon because that is where the ore is. If we tried to produce concentrates and sell them outside of Flin Flon, it would not be economical. Trying to bring materials from outside into Flin Flon would also not be economical. As long as we mine there, we will run a smelter.
We have little choice but to address the "release" side of the process. We look at the tail end and see what we can take out. If we spend all our time on the "use" side, that does not do anything for us.
Senator Taylor: Are you saying that we should process the ore in places where we can use the poisonous by-products?
Mr. Fraser: As long as we are in Flin Flon producing zinc and copper, we will unfortunately have by-products, which we must address. This is a release issue. We must continue to face this issue in Flin Flon and we must put our time into that. We cannot talk about the "use" side because it is just not there. We do not intentionally put things like mercury or lead into our process. They exist in the process by default and we must examine their release.
Ms Laurie-Lean: This is a very controversial and ideological area. Should toxic-substance control focus on use or on release? We believe that it should focus on release. Other people believe it should be focused on use.
We begin by asking whether substances can be divided into good and bad categories and then whether we can prevent use of the bad ones. If we can reduce the whole usage, the by-products then will not be released.
We believe that almost any substance can potentially cause a problem. Therefore, it is better to focus on whether there are problems or potential problems with releases. This is a risk-based approach. We focus on the risks and the releases.
The bill contains a little bit of both perspectives. Most of the control functions focus on release of the substance but, in the preamble, there are some statements about the government preventing the use and release of certain substances. We believe that puts an unwarranted emphasis on use. Use should be addressed in the regulatory management function where you cannot control the releases.
In Rio, the term used was an unacceptable and otherwise unmanageable risk leading to a ban of a particular use. Otherwise, assessment and regulatory functions should focus on releases, not on use.
Senator Taylor: Let us take an example. One province wanted to process nickel, rather than having it shipped in from some distance. With any ore processing, there are by-products. If an ore is exported, it seems we would be setting up some economic reaction. The provinces in our country, as you know, make the money from mineral and timber rights. They thought that they would ship it to a more efficient smelter a long distance away where it could be used rather than be released. That will come into conflict with the creation of jobs at the site where they take the ore out of the ground. As far as I know, no side effects are produced when mining diamonds, although there may be something in the clay.
Are you saying that the processing has to go to where the by-product can be used?
Ms Laurie-Lean: No.
Mr. Fraser: No. That is not the agenda, by any means. We are just suggesting that in some areas, control of use is not the point.
If there are products that cannot be controlled in their use, then they should be regulated or outlawed. There are provisions to that effect in clause 93. Natural products are certainly not that. You cannot outlaw lead, for example. There will always be lead. It is just a matter of where it is being released.
Senator Taylor: In the oil and gas industry, there is a tendency to put it up a chimney. If the chimney is high enough, the pollutants will come down in the next province. There are usually many by-products that we do not want. How would you use this clause to handle that situation?
Mr. Rodier: Release would take care of that. Cadmium is almost always a by-product of zinc. Obviously, you try to refine and sell it. We are saying that we do not think the word "use" should be used there. The controls should be on the releases of cadmium and on maintaining it properly, in an environmentally sound way. The fact that it is going through the process stream is a poor use of the word "use." It is not a use; it is a stream through that has to be dealt with. It should be dealt with at the release stage. Let us say you were to ban cadmium. You would not ban the use of it because it is part of the process. You are actually extracting it.
Mr. Robert Telewiak, Chair, Mining Association of Canada, Metals Working Group, and Vice-President, Environment, Falconbridge Limited: Cadmium is not associated with nickel, but it is with zinc. I would like to give an example of how "use" and "release" are used in Europe. There is a proposal to ban nickel cadmium batteries, which account for about 3 per cent of the releases into the environment in Europe. Some 50 per cent of the releases into the environment come from cadmium, which is a minor constituent of phosphate fertilizers. It is spread on the land in the context of phosphate fertilizers, and only 3 per cent comes from nickel cadmium batteries. Yet the focus of legislation and attention is on the nickel cadmium batteries, which can be recycled. Industry is encouraging recycling programs so that it is not released. Instead of going into a waste stream, it would be recaptured. One thing about metals in general is that they can be recycled forever. Industry programs are designed to capture that and process it.
Senator Spivak: There are two issues I should like to raise. First, in the discussion about virtual elimination, I thought that we were talking about not allowing the use or production of the 12 most serious persistent organic pollutants. Are these by-products that come about in a process or are they elements that can be stopped? Dioxins and furans are regulated as a result of the regulation of the effluent from pulp mills. There are other methods to do that same process. They are so bad that we should just eliminate them, phase them out.
I thought that the goal is to reduce the use and generation of substances. The generation would cover the by-products, which result from a given activity.
I understand what you are saying, and it is a very helpful clarification of by-products whose use cannot be banned because they come about through other methods.
Let me take an example. No one needs Agent Orange. I do not know what its beneficial use is. Surely, there are a few substances out of the 23,000 that ought never to have been created.
Mr. Fraser: Perhaps I can comment on dioxin. No one that I know of anywhere in the world deliberately produces dioxins and furans. They have no value. However, they are produced. Every diesel-powered engine or every application of diesel power produces furans and dioxins. That is just the way it works. Everyone who chooses to run a fireplace or wood stove produces dioxins and furans. To virtually eliminate dioxins and furans to non-detectable levels means that we will have no more diesel engines. Basically, we will have no more fuel consumption and no more wood stoves. It just does not work.
Senator Spivak: This is not an outlandish concept. The whole point of looking at the development of hydrogen fuel cells is to get rid of the kind of things that would make the world unliveable if China were to have as many cars as we do. This is not from fairy tales; it is a very practical thing. Not only that, companies are spending millions of dollars to develop them because they realize that.
Mr. Fraser: One day we may get there. We can debate this for a long time.
Senator Spivak: The use of some things has to be banned. Let us consider dioxins and furans in pulp effluent. Other methods of bleaching can be used. In fact, pulp mills have spent billions of dollars in getting to this level. I think it would have been better if they had chosen the oxygen method. With that, we would not have dioxins and furans.
Let us face it. There are some substances that we cannot have in the world if we want to survive.
Mr. Fraser: Some people would outlaw chlorine and all its compounds. Others say that one way to handle hydrocarbons is to outlaw carbon and all its compounds, which is you and me.
Senator Spivak: We are not talking about everything. We are talking about a small number of things.
Mr. Fraser: With a little stretch, your arguments could go any way. We can outlaw nickel cadmium batteries. However, if we do, someone will have to invent a solar powered flashlight. Oops, that does not work, does it? Excuse me.
Ms Laurie-Lean: We have two different issues here and I do not want to get them confused. One is the philosophical issue. We recognize in our submission that there is a difference in philosophy as to whether our efforts are best spent on controlling use or on controlling releases. That is one issue.
Senator Spivak: It is not an either/or situation.
Ms Laurie-Lean: We believe that the focus should be on releases. Where the control on use flows out in order to control the releases, we believe the powers exist. However, you should not start by controlling use. We recognize that there is a difference of opinion.
When you come to virtual elimination, it is a somewhat different issue because the banning of use for most of these substances that so far have been identified, and there may be many more, is probably not as controversial, at least for us. We are not producing them. Therefore, we are not as concerned about the use part in the context of virtual elimination. However, we do not believe that you can ban or totally eliminate some inadvertently produced substances.
For some processes, there may be alternatives. I do not know enough about the hydrogen fuel cell to tell you that it is guaranteed not to produce anything else you might not want in the process. The development or production of hydrogen requires energy.
There are other processes that do not produce anything else. For example, the electrical arc furnace does not use fuel. It is not a combustion process. It simply adds energy.
If you have small amounts of carbons and chlorines, some metal present in small amounts, and energy, you may produce dioxins and furans. You are worried about grams or kilograms, yet most processes, unless you purposefully do something, will not produce it. When you start talking about 10 to the minus 12, 10 to the minus 15, there is enough chlorine in rock, in wood, and so on, to produce that problem substance. How much effort do you want to focus in trying to get to these low-levels when so many other environmental issues in our country need to be addressed as well?
Senator Spivak: You are not contradicting what I am saying, and I agree with you. If you can do something better, why focus your energy on other things? I am only suggesting that one ought not to throw out the concept of banning the use and generation simply because it would not be sensible to do that for everything. No one is suggesting that.
Mr. Fraser: Nor are we.
Senator Spivak: Great.
The Chairman: It seems that we are well into clause 65, and I am glad that we are there. Did you want to make any further remarks on that? I am sure some of my colleagues and myself do. You might wish to elaborate on your position, particularly the controversy that arises over clause 65(3), that it focuses the target of industry and others on the basis of more control rather than elimination. That clause has been criticized. Some say that ultimately we should move towards the elimination of some of these rather than talking about controlling them. It seems to be very controversial. Other briefs, as I am sure you know, are very critical of that clause. I would like to understand fully your position on it.
Mr. Lloyd: This repeats some of the points that you were discussing with the mining association representatives. Let me discuss track one substances, these things that under the Toxic Substance Management Policy (TSMP) or which are persistent, bioaccumulative, toxic, and predominantly man-made. There are some that are products, and we have the power under clause 93(1) regulations to deal with products. We can prohibit new products that would meet these criteria. For existing products, we can ban their manufacture or import. Effectively, in Canada, we have banned the persistent organic pollutants (POPs) that have been identified.
That position has been taken internationally, also. The minister was here yesterday talking about the issues in the Arctic and what is being done on them. One of the additional points is the fact that there is a global treaty being negotiated on this. There is already a regional treaty that covers North America and Europe. The treaty that is being negotiated takes kind of the same approach as CEPA does in clause 93 and the regulations of being able to ban or severely restrict the POPs. The one that is severely restricted in the international convention is DDT because of the necessary malaria uses. We do not have that concern here, so we have basically banned those. That is the mechanism in the legislation that deals with the POPs issue.
I think the other side of the POPs issue or the track one or PPTs, is the things that are unwanted by-products, the dioxin-furan issue. Everyone agrees that these are substances that someone in Environment Canada, one of the assistant deputy ministers, used to call "mega uglies." That is a good description of them. We should do what we can to minimize the release of those substances, but we have to do that, taking into account the costs, the technology that is available, and the risks that they pose. The risk goes down as you get further and further down towards infinitesimal levels of release. We think that type of approach will work for managing these issues.
The way the legislation is currently structured will allow us, we think, to take that type of approach. It is the same type of approach that is set out in this international treaty that was negotiated for POPs regionally. It will drive toward the best available technology being applied. It will drive toward very low release limits. We do not have those limits in Canada. However, in the convention that will be signed by Europe and North America, we will probably end up adopting the type of release limits that are in the United Nations convention. It talks about controlling dioxin releases down to the level of parts per billion. As was said earlier, that is still a lot higher than the lowest amount you can measure. You can measure down to parts per trillion. However, the technology is not there to get them down further than that. There is a question of whether the technology needs to be developed. If there were still risks being posed at dioxin emissions at the parts per billion level, where it was worthwhile driving down further, there would be an effort globally to develop the technology to do that, but in jurisdictions like Europe, where they have adopted the parts per billion standard, they are satisfied with that. That type of standard was adopted in this international treaty. We think that type of standard will evolve from the way these provisions are set up in CEPA. We are not 100 per cent sure because the complexity of the provisions is somewhat daunting, but it does not go so far as to require what, in our view, would be the impossible standard of having all combustion sources have dioxin emissions below this parts per trillion level of what can be measured.
In terms of the sources of these releases, you commented, senator, about the wood stoves versus, I believe, diesel traffic. The inventory prepared by Environment Canada and the federal and provincial ministries indicated that we have air emissions of about 200 grams per year of dioxin emissions in Canada. Diesel traffic accounts for 8.7 of those, wood stoves account for 36 of them, and municipal incineration in Newfoundland accounts for about 75. The question arises as to whether society wants to be spending its resources on this, because those are the most significant emitters. In the chemical industry, we are down at, I think, .1 of a gram and we are trying to do better.
Senator Spivak: I would just point out that in California they regulate barbecues and lawn mowers. They have to. There is just no way around it because they cannot breathe.
We are now away from banning. We are now into virtual elimination. Your changes on the operational sections at report stage, which take everything back to clause 65(3), I believe, would probably make it impossible to achieve virtual elimination because you have to consider economic factors as well as others. Those economic factors are not really defined, just as cost effective measures are not defined, so one could always argue economic factors. Those changes were the subject of a memo, although it is debatable what the interpretation of that memo is. In one of these briefs, you say that you want to eliminate clause 65(1), which contains the ultimate objective of achieving virtual elimination.
Critics say that it will be impossible to achieve because you must always consider economic factors. If you consider economic factors, many things are economical by being more environmentally responsible, but some of them are not. That is the point about virtual elimination.
Mr. Paton: We need an example here of a company dealing with this issue to really understand it.
The problem with the original version that came out of committee was that it required the minister to regulate below the level of quantification -- no discretion, no common sense, no risk.
Senator Spivak: This was at committee stage?
Mr. Paton: Yes. Below the level of quantification means that you have to set a number for dioxins and furans at the parts per trillion. That, in any stretch of the imagination, is not very good policy. That is saying, "The minister must do this regardless of what the impact is. Economic cost factors do not matter. It is bad stuff, so let us just get rid of it all." That is simplistic thinking to the extreme. That is just not good policy. It is not workable. In the long run, it would have heaped many credibility problems on the federal government if it sought to ban wood stoves or whatever, or explained that they were not going to do that but would regulate us at our 0.1 level.
Senator Spivak: You are talking about the way in which clause 65(3) came out of committee.
Mr. Paton: It is very complex to explain. Because clause 65(1) uses the term "virtual elimination," that definition of "virtual elimination" would apply to the subsequent application sections. Because clause 65(1) said "below the level of quantification," all the application sections meant you had to achieve emissions below the level of quantification.
This is a very tough issue. In some sense, it is fundamental because there are many critics on various sides of this. In some ways, it is very academic because we do not believe that the original provisions that came out of the committee were workable in the first place and, in the long run, would not have gone anywhere. As well, all the companies in our whole industry have been working hard under the current act because it still allows the minister to set a number. It allows the minister to set the toughest possible number that he or she could set. The minister still can set an extremely low number, and probably the number that we would agree on would be the internationally best-practised numbers in the world. This does not eliminate the minister's capability of doing that. It just says that now, in making those decisions, they should also consider other factors. That is just common sense.
I want to share an example of how this affects a company if you adopt the original approach versus the approach that has been in the bill.
Mr. Rodier: If I may, Noranda is building a magnesium plant in Quebec. We are using a proprietary process that extracts the magnesium out of asbestos tails, so we are taking a waste product and making a metal.
Magnesium, because it is a very light metal and weighs 60 per cent of the weight of aluminum and has all the same mechanical properties, will be very helpful to the automotive industry to reduce weight, to reduce fuel consumption, to attack the greenhouse gas problem, and any number of other issues. This plant will cost $730 million. It will create 325 technical, high-paying jobs. It has a raw material base that we just have to pick up with a front-end loader for at least 200 years' capacity. The plant will produce about 18 per cent of the world's magnesium production as it now stands and is designed to be doubled in the next five years, market permitting.
Because we are using chlorine bleaching and a fuse salt electrolysis with carbon electrodes, some dioxins or furans are produced as a by-product. We have very stringent clean-up systems, including the incineration of the gas stream and activated carbon capture to capture the dioxins. Our total emission for this plant, worst-case scenario, is estimated to be 0.09 grams per year. It will be way below any emission level that we are talking about in picograms per cubic meter. Picograms are 10 to the minus 12, as we said before. This plant will have zero effluents. There will be 20 grams a year of dioxin captured and stored in a lined pond with an undercoating of bentonite. It will be under water always, and it will eventually, once that pond is filled, will be covered and revegetated.
The silica and iron that is in the asbestos tails that we do not extract will be 60 picograms per tonne in residue in a totally controlled atmosphere with no effluent, no atmospheric loss, nothing. The Quebec standard for industrial land use is 750 picograms per tonne, so we are way below that level.
We are saying that if we apply the concept of LOQ, limit of quantification, we are now where it is commercially available to detect down to I think 30 picograms per cubic meter, but we know that analytical scientists, being as inventive as they are, will go below that. Some labs now can go to femtograms, which are 10 to the minus 15. If virtual elimination means zero, we are saying that is totally impractical and unrelated to any risk to anyone, and that it is uneconomic.
We are saving a town that was going down the tube because asbestos mining is disappearing. We are creating a product that will help the environmental community to protect the atmosphere in a much greater sense because it will be able to save a lot of fuel. We are creating very good jobs, with all of the roll-over effects that come with them. We had a full public audience, and everyone had a chance to take a kick at the cat, and we did compromise and we did add to the security measures of this plant, and we do have a permit.
If the law stood as it did when it came out of committee, it would have put in doubt this type of investment.
The Chairman: Why?
Mr. Rodier: If we have a moving target where we do not know the end, no one will invest $750 million.
The Chairman: You are always in that dilemma. There will always be ministerial discretion under any legislation.
Mr. Rodier: This is why it was important to have the cost-effectiveness measure reintroduced.
Senator Spivak: Mr. Chairman, this is not the issue. I am sorry, Mr. Paton, but you are setting up a straw man.
If you read what came out of committee, it says it is not limited to health and environmental risks and includes any relevant social, economic or technical risks. There is no difference in that clause between what came out at report stage and what came out of committee. The difference lay in taking steps to achieve. That part was taken out. Everywhere else, it is the implementation of virtual elimination under clause 65(3).
Nowhere does it say that virtual elimination must be zero. There are two different issues here. We are talking about whether virtual elimination can indeed be realized. Virtual elimination means a level so low that it cannot be measured, or it means some level designated by the minister.
What is your problem in that situation? In such a situation, the plant could go ahead just as you have suggested.
Mr. Paton: If you are to invest money in a plant, you will need a permit. The permit will state the allowable release number. The law states that the release number shall be set based on the lowest possible number achievable by the best available technology. That is a moving target.
Senator Spivak: Yes, but this requirement was not any different from committee stage to report stage.
Mr. Paton: Then why is anyone complaining?
Senator Spivak: All of those other sections have been added, which mean that economic factors must be considered each time in a way that might make impossible the achievement of the required levels, at least according to a memo that we received. If I am wrong, so are you. It is either impossible to achieve or it is not.
Mr. Paton: This comes down to a very simple issue. The release number is set based on the lowest level of technology that can be measured or on technology measurement, plus economic and other factors including environmental and health risks. That is how clause 65(3) is brought into effect through those subsequent clauses.
Senator Spivak: That is right.
Mr. Paton: I do not think that there is any disagreement between anyone on that. Everybody agrees that there is a difference. What came out of the House of Commons reflected the fact that release numbers would be based on those broader considerations. That does not mean that the release number will not be set at the lowest level. It means that the minister has a choice. The minister can take other factors into consideration.
Senator Spivak: The example presented suggests that the level must go down to zero. No one has said that.
Mr. Rodier: It was open to interpretation. That was the problem.
Mr. Paton: Uncertainty kills investment. That is the simple message.
I can share another example with you. Dow has exactly the same problem, and it is working in Germany under the toughest standards in the world.
Mr. Lachance: Those examples tend to be a little involved. I will try to cut to the chase.
In Fort Saskatchewan, we operate a plant, which involves part of the chlorine chemistry chain. This plant, because of the combustion-based process, produces trace amounts of dioxin. Dow has set a corporate goal to reduce our dioxin level worldwide by 90 per cent.
For the Fort Saskatchewan plan to meet that goal, we had to evaluate any possible impact on the community with those trace-level emissions of dioxin. We worked through the Institute for Risk Research, based in Waterloo. We evaluated the impact and found that the levels were the same as the levels found in Edmonton.
I am not saying that the levels are not elevated. After all, this is a rural area. We felt that there was certainly justification for us to move aggressively in terms of reducing our emissions of dioxins. We did that. We spent significant investment to improve the control technology as described before. As a result of that, we reduced our emissions by 95 per cent. At the current level, there is no environmental impact and no health impact. We are still committed to continue to reduce those emissions on a continuing basis under an aggressive program.
Where is the end point for this continuous improvement? What happens when we hit this grey zone, this twilight zone? At what point do we decide it is time to move on? This is part of this debate between the levels of one and three. Basically, the minister now has the ability to impose the toughest standards in the world.
By the way, we do not disagree that he or she should do so, but it should be done in a context that takes into account common sense considerations.
I need to emphasize here that the Toxic Substance Management Policy, or TSMP, for those who have read it, embodies the common sense approach. The TSMP is a policy of the Government of Canada, which is committed to incorporating that policy into the new bill.
How does one regulate or legislate common sense? It is not a simple matter. We say that what came out of the committee was not workable. If it is not workable, then it does not meet the test of common sense.
We believe that the report-stage amendments gave the minister the ability to impose the toughest standards in the world. I want to insist on that -- the toughest standards in the world. We must do that while maintaining the ability to apply common sense in terms of the end point.
Some people disagree with that approach. That is their right. Some people feel we should basically eliminate those substances. At some point, the political process must decide where the balance should lie.
The Chairman: Let me understand. You are not suggesting that the minister's discretion should be taken away as far as setting the levels, the quantification? You are not suggesting that?
Mr. Paton: No. In fact our problem was the opposite. The original bill was formulated in the committee to force the minister to set the number at the lowest level of quantification based on available technology. If someone came along and said that they can now measure parts per trillion, then there must be a new number.
That does not make any sense if the level is already so low as to have no environmental impact. Yet the minister has no discretion. The number must be imposed.
The Chairman: Mr. Paton, in any legislation that is ever devised to accommodate the changing technologies and understandings in the world, ministers and governments will be granted discretion. Would you agree with that?
Mr. Paton: I would agree with that, but it was not always there in this legislation.
The Chairman: I understand. When you talk in terms of investment in your plants, you will always face indefinite areas of discretion, which can affect your operation. Do you agree with that? That happens anywhere you go.
Mr. Paton: Under the bill that has been revised, that is so.
The Chairman: I am just speaking generally. As a fundamental trait of environmental legislation, you will always face ministerial discretion to deal with changing situations.
Mr. Paton: Senator, I want to insist on that point. The bill that came out of committee did not have that discretion.
The Chairman: I understand that.
Mr. Paton: I cannot agree with you generally because in the case before us, that discretion was eliminated. It is preferable, yes. If you are to have good legislation and good policy, there should be some discretion, yes.
The Chairman: The question here is the determination of the cost-effectiveness by the minister in exercising his or her discretion.
Mr. Paton: It is more than that. I suppose you can use the term "cost-effectiveness" very generally.
The Chairman: That is from your point of view.
Mr. Paton: This even includes environmental impact. One senator gave a great example about the mine and the issues there. In reality, all companies spend a lot of money on environmental improvement. You want your companies to spend the money to get the most impact to reduce negative effects on the environment. If you set up a dynamic where you must keep chasing down some line, spending hundreds of millions of dollars to achieve parts per trillion, you will actually, in the long run, hurt the environment because there will not be enough money to deal with other issues.
The Chairman: That is why ministerial discretion exists. That is why you can discuss with the ministers what you see as appropriate.
Mr. Paton: Exactly. We must take economic health and environment health risks into consideration.
The Chairman: As a public-policy approach to dealing with toxic substances that have the impact of creating long-term harmful effects on the environment, is it not better to target the elimination of those toxic substances rather than just their control, recognizing discretions, phasing out, et cetera?
We are talking about targets now. You may never achieve them. Clause 65(3) talks about control and release as opposed to a target of elimination. As I understand from what I have read, that is the issue here. What is wrong with that approach?
Mr. Lloyd: There are two issues involved here: One is the target; the other is what do you actually have to do. Companies have to make plans under this bill with respect to virtual elimination, and the government needs to make regulations. What should those plans and regulations be aimed at? What should they have to enforce? Should they have to enforce the below-the-limit-of-quantification number that is set out in clause 65(1), which, from our perspective, is as close to zero as you can get because this is as close as you can measure? Or should they be set based on what the risk is, what is technically possible, what the social considerations are, and what the economic factors are? Those are ultimately political decisions. However, from an industry perspective, we feel it is important that they are set based on the common-sense factors set out in clause 65(3) and that they are not determined by just the measurement technology factor, which is set out in clause 65(1).
There is another question, as well: What should your goal be? We have problems with the bill as it is now in this context because the goal is unrealistic. To tell the public that we should reduce the levels of these emissions to a point below how low they can be measured will create a situation where expectations will always be beyond what we are able to achieve. After all, measurement technology will always outstrip the ability of industry and the need for industry in terms of impact to go down that far.
Even when you have solved the problem, that is, when there is no more environmental impact, you have to ask yourself whether it is good public policy to set an objective that bears no relationship to what you are trying to do, which is to eliminate harm from the environment.
Thus, we would like this part of the bill improved by stating that it be a risk-based objective. If you have achieved that and there is no harm arising from dioxin emissions, then why would you want to spend more money on it? If you are still having harm, then you would want to spend more money on it.
The Chairman: But would not -- no minister would impose that on you.
Mr. Lloyd: That is to say, unless the minister were forced to do it by legislation. Before the amendments moved at third reading, the bill would have forced a minister, even against the minister's better judgment, to have done exactly what you rightly say the minister should not be doing.
The Chairman: You are mixing up a couple of issues here, with the greatest respect. To me, there is a big difference between virtual elimination and ultimate reduction. For one to define "virtual elimination" by utilizing the term "ultimate reduction" is very different. When you are concerned about what ministers do that is reasonable and unreasonable, that is a fair consideration. You have cited some examples in that regard. I refer to going below zero, et cetera. It would be absurd for a minister to be imposing that upon you. I do not think a reasonable minister would ever do that. After all, what is the advantage of doing that? There are many other concerns. The ministers I have known over the years are generally reasonable, educated individuals who would not impose that upon you. That is one issue about which I am not worried.
What I am worried about is how one can look to ultimate reduction as sending a message to you and the public that that will be sufficient. We are talking about trying to eliminate these substances. As a result, when you talk about being released into the environment for ultimate reduction, I am not sure that that goes far enough.
I am worried about what these two sections say because that is what is at the substance of this whole legislation.
Mr. Lloyd: Clause 65(1) sets an objective of being below how low you can measure. In simple lay language, that is what it says.
The Chairman: It means below what the minister sets in his list. Am I wrong in that?
Mr. Lloyd: The minister sets the LOQ. The LOQ is how low you can measure. If you are below how low you can measure, I am not quite sure what the difference between that and zero is. It becomes academic.
The Chairman: I understand.
Mr. Lloyd: Whatever it is is ever lowering because measurement technology will improve.
We have some problems with that objective, in that it is not risk-based. It is unrealistic. It sets objectives that are unlikely to be met and that do not need to be met to address risks and environmental impact. That gives us some problems. It gives some problems in terms of creating expectations with the public.
The key part here is clause 65(3). It talks about what release limit will be specified. Upon that, government regulations will be set and company plans will be based. That release limit will certainly allow the minister to set the toughest standards in the world, which is what we expect. It gives the minister the discretion to set the number that the minister feels makes sense. Under that clause, the minister could well set a number that is below the limit of quantification. However, the minister would have the choice in doing that. The factors the minister would take into consideration would be technical. He or she would ask: Is it feasible to go below the limit of quantification? Is there technology to do that? Are there risks to human health or the environment going down from the parts per billion further that would warrant the minister deciding to go down further? After the consultation process, if the minister says it makes sense to go below the limit of quantification, the minister can make that decision. The minister can also decide that we have gone far enough. The way the bill is currently drafted, the minister has the discretion to do what is needed. The minister's hands are not tied.
That is how we read the current bill. We see that as different from the bill that came out of the committee.
The bill that came out of the committee had the same ultimate objective as clause 65(1). The key difference was that the operational provisions that applied in clause 79 to the plans that companies would provide and the regulations the government would develop under clause 91 were tied into implementing virtual elimination. The definition of that was set out in clause 65(1) as it related to subclause (2) and also clause 65.1 of having to have those plans to go below how low you could measure, having to have regulations that would go below how low you could measure. We thought that was unworkable, and I think the examples that have been provided by Dow and Noranda show, in practical, real-life, business-case terms, from companies that were doing the very best that they could to address this issue, how they were not workable.
It is not as though Canada is out of step with how other countries are addressing this. Other countries recognize that a best-available-technology solution, looking at risks, and looking at the economic considerations, is the way this issue has to be addressed. We are consistent with that. We are adopting a workable approach, one that will require us to reduce dioxin emission but will not require us to chase down the last molecule. Again, the toxic substance management policy, which is the foundation policy upon which the clauses are built, contained common sense and not chasing the last molecule as fundamental parts of that policy, and we think they are in the current bill.
The Chairman: I very much appreciate that explanation. Very well done.
Senator Spivak: Just one point: The substances you are talking about would be on the virtual elimination list. When you look at the process for those substances to get on the virtual elimination list, it is quite a process, and it is not unreasonable for those particular substances. When you say unworkable and impractical, that is always what is said in advance of some major kind of decision like this, but on that list, which I imagine would be a very small list at this point in time, you want to look at ultimate reduction. Let me talk about endocrine disrupters. The United States is now testing for endocrine-disrupting substances. Endocrine-disrupting substances might, at a very minute level, although the science is not complete, have very serious effects at a certain stage in the gestation of an embryo. They have seen those effects in animals and birds, and you know about this.
If endocrine-disrupting substances can do something as fundamental as impair the reproductive system, on which the survival of the human species depends, surely that is something you want to eliminate.
I cannot imagine that any minister in his right mind would take that list of 23,000 substances and say to you that you have to reduce all of them down to the last molecule. That would never happen. You are talking about things that may be of harm, and the point is that we do not know about the harm at the moment. We were told by Monsanto that PCBs and dioxins were good for us. Things like that happened, only to discover later on that that is not the case. That is the real point here. It is not that we will adopt absolutely unworkable and ridiculous rules so that industry is hamstrung so they cannot do anything; that is not the issue.
Senator Taylor: You cannot always trust that the government will always be Liberal.
Senator Spivak: That is right, so to eliminate possible harm would not be a very good thing to do there. We have not even mentioned biotechnology products, about which there is a whole other field. These are things you cannot know at the moment. It is not bad to put in legislation that some unusual substances ought to be reduced and ought to be below the level of observing them.
Mr. Lloyd: I think you are right, in terms of the process that is set out in the legislation and in government policy in terms of identifying these track-one substances. They are -- the term I used before -- the mega-uglies. There was certainly no challenge when dioxin was proposed on that list from industry that it fit the criteria and that it was a track-one substance. What you are suggesting should be done in those cases is within the discretion of the minister to do under the powers that the minister has under the bill as it is before you. If the substance in question happens to be a product, under clause 93(1) the product can be banned or its import and manufacture can be prevented. If it happens to be a by-product released, like dioxin, which we have talked about, the minister can control it down to whatever level is felt appropriate. I would repeat the answer that I gave previously. The minister has those powers to do what is necessary.
Senator Cochrane: I have questions to ask of the mining people, because they have not had much input here.
Could you give us some idea of the implications on the Voisey's Bay project of Bill C-32? Would they have to do another environmental assessment? What would be the extra costs? Would Inco in all likelihood decide to pull out or go somewhere else with its resources?
Mr. Fraser: Inco is not here today and we certainly cannot speak for them. Perhaps their competitor in the nickel business would like to comment. I do not feel qualified to answer.
Ms Laurie-Lean: I will not address Voisey's Bay in particular because I think Inco would have to answer that question. In general, there are no direct impacts of Bill C-32 on the environmental assessment process, so I do not believe it would retrigger assessment. There is protection within the Canadian Environmental Assessment Act such that, once an assessment has been made, if there is a second trigger created, it will not be necessary to redo the assessment. From that standpoint, there would not be a new assessment required. I suspect that it would not affect the investment decision of whether to build a smelter in Newfoundland or Ontario or wherever. It may affect the decision of the relative investment priority of Canada over other countries. It is possible that new smelters could run into a problem with dioxins and furans. Some of more advanced technologies use non-pryromaniac processes. They do not use high temperatures; rather, they use liquid-based, low-temperature processes. Those technologies could possibly generate dioxins and furans in small quantities, but they have the advantage of no sulphur dioxide or particulate emissions. That is why they are so attractive. Some of the more progressive, more advanced technologies may also produce -- and this is an unknown field right now; we have only discovered that this may be a problem -- dioxins and furans. Chances are, with the way the bill is written now, the decision on investment vis-à-vis Voisey's Bay would not be that critical. There are many other issues, as you know, with the three governments and aboriginal groups and so on.
I am sure there are many other issues. However, at the margin, Bill C-32, especially once we know what it will do in practice, could have an effect on investment climate, and that is a concern.
Senator Robichaud: On this last intervention in relation to Senator Cochrane's question, you were saying that there are other processes that would probably produce very small amounts of dioxins and furans but that would not produce any SO2s. If there were not some discretion for the minister to make a decision, then these new processes would be out of the question; correct?
Ms Laurie-Lean: Exactly.
Senator Robichaud: You would not be in a position to choose the lesser of two evils.
Ms Laurie-Lean: Yes. I am being hesitant because at this stage the science is not there. People have concentrated on dioxin and furan production in processes that use chlorine or processes that have a plastic in their feed. We are now realizing that the area of concern is the process conditions rather than whether or not you add something -- things like lower temperatures, among other things, that, as a mining engineer, are beyond me. It may be exactly those things that are implemented to reduce acid rain, SO2 emissions, and particulate formation to cool down your gases that create the conditions that encourage dioxin and furan formation. The amounts are very small. However, as you get into these parts per trillion and part per quadrillion, and so on, these things start being important. We do not know enough at this stage to say definitively "yes" or "no," and we would hope that a bill like this would allow a wise decision to be made in the future, taking all factors into consideration.
The Chairman: Unfortunately, we are running out of time. We may determine to ask you, within your schedule, to come back. I apologize for that. Your submissions have been very helpful to us and your explanations have been very important. With the time that has been imposed on our committee, I must be very respectful of that.
I have one other matter for you to consider. We talked about the preamble. "Whereas the Government of Canada recognizes and values the use of voluntary approaches in protecting the environment and achieving sustainable development" is wording that has been recommended. I will leave the suggested wording with you, and ask you to make recommendations as to what wording would be acceptable to you in the preamble. I would ask you to get back to us as quickly as possible.
Senator Buchanan: With my background in provincial politics, I agree that CEPA will be intruding into provincial jurisdictions on the civil matters. I refer you to Hydro-Québec, which may be not on all fours but does discuss and give opinions on provincial and federal jurisdictions.
My question relates to your recommendation 4.5 on page 20. What do you mean by performance and intent of provincial provisions?
Mr. Lloyd: It relates to subparagraphs 10(3)(a) and (b). Clause 10 is desirable. It allows for the federal government to say, "You are doing this fine under provincial requirement, so you can deal with it under that instead of under the federal one because it is equivalent." The question is: What does equivalent mean in this context? We would like to get some kind of clarification of that.
Yesterday, when Mr. Guimont from Environment Canada was addressing this issue, he talked about criteria in terms of equivalency. In point of fact, to our reading of the bill, there really are not any criteria. We are concerned that "equivalent" not mean "absolutely identical." We think there will be instances where provincial legislation tackles something just as effectively as federal legislation but does it in a somewhat different way. You might have a slightly different definition of something.
Senator Buchanan: You will not get it perfect, though.
Mr. Lloyd: No, but we want to ensure that the bill is not interpreted to require it to be identical.
Senator Buchanan: Does the same apply to the federal provisions on performance and intent? Why would they be different?
Mr. Lloyd: I do not understand.
Senator Buchanan: You are saying that the sections would be fine if someone would be able to examine the performance and intent of the provincial provisions.
Mr. Lloyd: Right.
Senator Buchanan: What if there is no performance? The intent surely would be the same federal and provincial.
Mr. Lloyd: When you are looking at whether the provincial regulation is equivalent to the federal regulation, what criteria are you using to make that judgment? We think the act is basically silent on that right now and that there should be some clarification.
Senator Buchanan: It just seems to me, in reading it -- and perhaps I am too protective of provincial rights -- that it is demeaning to provincial governments.
Mr. Paton: Our point is exactly the opposite.
Senator Buchanan: That is what I wanted to find out.
Mr. Paton: It is exactly the opposite. Our concern would be that the federal government may use spurious arguments to say: "That is not equivalent. You do not calculate the numbers the same way we do."
Senator Buchanan: You agree.
Mr. Paton: We totally agree. We are saying to focus on the results and what you are trying to do and keep the details to a minimum. Make harmonization work.
Senator Buchanan: It is not there, but the way this committee is going, it probably will stay as it is.
Senator Adams: I live up in Nunavut. You say that in the future you may not have an interest in opening up new mines because the environment rules are too strict. Is there anything in particular that the organization is concerned about? The opportunity for the future for some communities up there is in mining.
Mr. Fraser: The comments, recommendations, and suggestions we make in here apply to mining throughout Canada. It is no different in Voisey's Bay in Newfoundland than a diamond mine in the Northwest Territories or a potash mine in Saskatchewan. This is what mining in Canada is all about. We represent many of those sorts of interests, and these are the kinds of things that we feel will make our industry continue to survive in this country. There is no question you have some interesting possibilities in your part of the world.
I did have a few suggestions before we close, Mr. Chairman.
We are most receptive to being invited back. It would not necessarily be the same people, but we would brief them to ensure continuity.
Second, via written comment, we would be most pleased to respond.
Third, if, at the end of the day, you have half an hour or 15 minutes and would like some advice from the mining industry, Ms Laurie-Lean is about a block away and does know this bill very well. She does speak for us.
We leave those three options with you as ways and means of getting further information.
The Chairman: Thank you very much, Mr. Fraser. I appreciate that.
Mr. Telewiak: Senator Adams, Falconbridge operates a mine in the most northern part of Quebec, and it has been operating very successfully. We are very pleased with the results, both environmentally and socially. Certainly Nunavut would be also an attractive area for mining, including companies like ourselves. Our concerns, as Mr. Fraser has outlined with the bill, include a number of things. I would emphasize again virtual elimination and the definition of "virtual elimination" as it applies here, which affects the mining climate and the mining investment opportunities not only in Nunavut but across the country.
The Chairman: I thank you all. It has been instructive and important to hear your point of view. We look forward to further dialogue.
The committee adjourned.