Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 5 - Evidence - June 20, 2006
OTTAWA, Tuesday, June 20, 2006
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 6:23 p.m. to review the Canadian Environmental Protection Act (1999, c. 33) pursuant to section 343(1) of the said act.
Senator Tommy Banks (Chairman) in the chair.
[English]
The Chairman: This meeting of the Standing Senate Committee on Energy, Environment and Natural Resources is to continue part of our initial study, which will conclude today, I hope, by this meeting, in asking witnesses to come before us to assist us in determining how we will approach our mandated study of the Canadian Environmental Protection Act.
This afternoon we have with us Senator Tardif from Alberta, Senator Hubley of Prince Edward Island, the deputy chair of the committee, Senator Cochrane, who is from Newfoundland and Labrador, Senator Spivak of Manitoba and Senator Angus from Montreal.
Our guests this afternoon are the Honourable Charles Caccia, who had a great deal to do with the Canadian Environmental Protection Act, CEPA, in its first iterations, and Nadine Levin, who is the senior policy specialist and the head of regulations in the strategies section of the enforcement services sector of Environment Canada.
Mr. Caccia, I believe you have a statement.
Hon. Charles Caccia, P.C., as an individual: Thank you, Mr. Chairman and honourable senators, for this unique opportunity to appear before you and to provide some thoughts on this rather complex piece of legislation. As a former unwashed member of the other place, I find it a bit awe-inspiring to appear before a body consisting of members of the chamber of sober second thought. Sober second thought was not something that those of us in the House of Commons were not particularly famous for. Therefore, I will proceed in the full knowledge that my observations are not necessarily rooted in profound sober second thought, but they are rooted mostly in the direct and sometimes stark experience of day-to-day political life.
I will briefly touch upon why we have CEPA, followed by something under the general title of, "Who is the enemy," followed by thoughts about sound science, what Canadians want, and a few reflections on the burden of proof. Then I will conclude as quickly as I can with where to go from here.
With respect to CEPA, it is clear from its title and content that it is intended to protect human health, prevent pollution, use the precautionary principle and act in the public interest. It is one of the rare pieces of legislation where two ministers are responsible for it.
Conceptually, the legislation deals with what happens in the environment as the place where human health can be protected or be put in danger as a result of human activities. Despite the existence of this legislation, pollution, particularly in the air, has increased over the years as we can detect frequently in smog-dominated days.
As you may have already heard from other witnesses, many dangerous substances have not yet been listed. To summarize it, CEPA, unfortunately, is not a success story, but it can be, which brings me to analyze the question of why, and who is the enemy. What is the obstacle to success?
We are all familiar with Pogo's expression, "We finally met the enemy and it was us," as a societal observation.
In geographic terms, in Europe, the corporate sector contributes to and cooperates in the development of pollution- prevention legislation. Unfortunately, that is not the case in Canada. Sectoral interests, in particular, the chemical industry and the mining industry, are strong and their lobbies powerful. They are active on two fronts: visibly before committee by advancing the notion that actions should be watered down or modified; that "voluntary" be considered preferable to "mandatory"; that certain words such "toxic" be deleted, as you well know; that certain proposed amendments be defeated, particularly at the report stage, as was the case some eight years ago in the House of Commons; and also by influencing departments with the notion that there is such a thing as "sound science," something I will mention later.
There is also the invisible activity by way of correspondence to the minister or to the Prime Minister, threatening that certain investments will be suspended, jobs will be lost and plants will be closed. That activity happened during the course of the last review and with results: for instance, the threat by Alcan not to proceed with a proposed Magnolia plant and a letter written by the Alcan president at that time to the then Prime Minister.
Another enemy well hidden behind the scenes is the Department of Industry. Through cabinet or the Privy Council Office, the department manages to obtain approval of certain amendments at report stage, as was the case with CEPA 1999, with negative impact on the workability of CEPA. All the good work done at the committee level was simply wiped out by industry and by lobbyists working through that department.
I bring to your attention an initial paper that was produced some 10 years ago by Environment Canada entitled, Federal House in Order.
This document is valued today for most of the observations and comments contained in that report, and it may be desirable for this committee to request an assessment of that nature from the department itself.
In broader terms, going back to Pogo, as a society, we tend to react and cure rather than to anticipate and prevent. We also tend to look at the short term rather than the long term. CEPA's lack of success so far reflects these propensities. It is weak on anticipating and preventing, and also not very strong on reacting and curing.
The question is: Can this situation be corrected? Of course it can, if there is political will and if the goals of Industry Canada do not take precedence over environmental goals. This situation, in turn, requires a shift in PCO's conceptual thinking, which, at present, treats the concept of sustainable development as an add-on, an interesting intellectual exercise rather than a concept that ought to be at the centre of the political policy-making process.
This point brings me to pause and dwell on the term, "sound science," because I find the term disturbing as it has emerged in recent years. Sound science is a term that business and departments such as Environment Canada love very much. The question is: What does it really mean? Does it mean there are two types of science: since when, and where? Science, as we all know, is in constant evolution. A scientist can propose a theory. The theory is subjected to peer review. When accepted, it becomes science, part of the scientific body of knowledge, and when it is rejected, it is not science, just a theory.
There is no such thing as sound science. Of course, there are paid scientists. They are available to interest groups who want to convince you, for instance, that lead in gasoline is not harmful to human health. Canadian refineries, for instance, hired a scientist when trying to stop the federal government in the early 1980s from removing lead from gasoline. Also, in the climate change debate, there are scientists today who have a theory that climate change is caused by cosmic rays. From the perspective of the petroleum association, this theory could be described as sound science.
While the smoking gun is not visible, there is enough evidence for the global community, by and large, to proceed with the Kyoto Protocol, basing its political judgment on the science, not on sound science produced and peer reviewed so far. Today, unfortunately, there are federal departments echoing the notion that there is such a thing as sound science.
You may have asked witnesses what, in their view, Canadians, by and large, want from this legislation. That difficult question is hard to answer. Most likely, Canadians want to have their health protected by preventing pollution rather than having poorly controlled pollution. From your perspective as representatives of the public, you may want to interpret the public interest in terms of prevention so as to reduce the number of hospital admissions, for instance, due to respiratory conditions and other medical conditions. The goal of prevention led to the adoption of the idea of "zero tolerance" in the 1974 Great Lakes Water Quality Agreement.
Those people who were around in the 1980s when we wrestled with acid rain caused by sulphur dioxide emissions from smelters remember the high cost incurred in subsidizing certain companies with public money for the installation of scrubbers. Some said we should wait for the Americans, that we cannot do it alone. Some said that Canadian industry will lose its competitive edge if forced to adopt environmentally friendly national plans, or friendly technology. Others said we will lose jobs, and so forth.
All these objections proved to be false. Latent or visible, there is always strong public support, I submit to you, for any action that succeeds in preventing pollution and without waiting for the smoking gun, because it is about public health. Protecting public health is the ultimate and lasting public desire and the expectation, I believe, for parliamentarians.
On the burden of proof, which is an important concept incorporated in the legislation and about which volumes have been written and submissions have been made to your committee, you now have a golden opportunity to make a contribution. It seems clear to me that whoever operates with, or introduces, a substance, new or old, ought to carry the burden of proving that such substance is not harmful to public health, in no uncertain terms. In the absence of certainty, the public interest should take precedence over the sectoral interest, and not the reverse. This policy decision is of large consequence, of course: one worthy of the senators' scrutiny and far-sightedness.
Yet, even in the case where there is ample evidence of harm to human health — as in the case of lead, mercury, or asbestos — these substances still are not covered by CEPA. In the case of lead, countries such as Denmark and the Netherlands have banned it in every shape or form a long time ago. The same is true with asbestos and mercury. If tobacco smoke were a substance, it would still be the object of CEPA risk assessments. I am certain of that.
Now, we come to what could be perhaps the final stretch. I want to review one of the papers, if time permits. As to where to go from here, I can make only the following suggestions. There are many paths before you to choose from, and the path you choose will depend on the depth you want to reach to provide advice to the government.
If you decide to adopt the public interest and pursue the goal of public health — remembering that one minister sponsoring this legislation is the Minister of Health — then you may want to know exactly what happened at report stage when CEPA went through Parliament last time. You may want to have a report. You may want to examine each government amendment that was adopted at report stage in the House of Commons. You may want to know the effect of such amendments on the implementation of the legislation. These last-minute amendments made CEPA what it is today; namely, a rather ineffective tool.
You may also want to request that Environment Canada prepare some issue papers. There are a number of possibilities, and a tremendous number of issue papers are required to make some sense of the report prepared for you by Environment Canada. The issue papers worked well in the past. They were extremely well done and helpful to us. They can be helpful again to provide an in-depth understanding as to whether, for instance, the precautionary principle as defined in the preamble of the act is adequate and operative in the body of the legislation, and used in the practical application of the legislation. You also may want to find out whether the definition of "virtual elimination" is strong enough in controlling quantities and concentrations and how section 65 has been used.
You may want to know whether the Minister of Health is given adequate powers, whether the pollution prevention provisions are strong enough, whether the biotechnology safety net is strong enough, or why the Minister of Health, as a co-sponsor of this legislation, is traditionally so absent from the CEPA process. We tried to find this information and we got nowhere. You may want to inquire whether, for instance, the enforcement of CEPA is adequate and sufficiently funded, et cetera.
In his book entitled, Unnatural Law, Rethinking Canadian Environmental Law and Policy, David Boyd writes on page 330:
CEPA 1999 and Nova Scotia's Environment Act embrace pollution prevention as a purpose although their specific provisions in this regard are weak....Stronger laws and policies, in the form of either incentives or regulations, are necessary to make pollution prevention a more widespread practice in Canada. Like Sweden, Canada should be eliminating the production and use of toxic substances that cause cancer, accumulate in food chains, disrupt hormonal systems, or do not break down in nature. Laws governing chemicals, such as CEPA 1999 and the Pest Control Products Act, should be amended to incorporate the substitution principle, so that harmful products must be phased out when safer alternatives become available. Canada's NPRI, which measures industrial pollution, could serve as the baseline for new incentives or regulations that require decreases in toxic releases over a prescribed period of time.
The Chairman: Mr. Caccia, what does NPRI mean?
Mr. Caccia: It means National Pollutant Release Inventory. It is an inventory of pollutants. I believe it started around 1994.
To conclude, Mr. Chairman, on this rambling monologue, the hue and cry from Canadian industry representatives can be heard any time CEPA comes up for discussion. Yet, European chemical industries have to comply with stringent rules and yet manage to be successful all over the world.
The Canadian chemical industry has a strong and effective lobby. Over the years, this lobby has succeeded in weakening CEPA, and considerably so. Yet when you talk to the more progressive industry people they will tell you they do not mind strong laws, and they do not mind strong regulations, when applied to everybody — none of that voluntarism nonsense — with targets and timetables so as to be able to plan changes and improvements. What they want, understandably so, is certainty. They want rules that apply to the entire sector.
Your task it seems to me, honourable senators, is to define the public interest, look after the public interest, legislate for the long term so as to ensure environmental sustainability, improve human health, speak for those who do not have a lobby in Ottawa, and ensure that laws are anticipatory and preventive rather than reactive.
CEPA offers that opportunity. The law is about the protection of the environment, yes, but in reality the law is about our health.
The Chairman: Thank you, Mr. Caccia. Given the role you played when this legislation was first promulgated, your insight into this subject is very valuable to us.
Senators, are we agreed that we should hear from Ms. Levin and then ask both our guests to accept questions?
Hon. Senators: Agreed.
Nadine Levin, Senior Policy Specialist, Head, Regulations and Strategies Section, Enforcement Services Directorate, Environment Canada: Mr. Chairman, I am here to provide any factual information you would like. I do not have a specific presentation as I understood you would have many questions. I am here to assist the committee in acquiring any knowledge it needs in its decision of how to conduct this review.
Senator Cochrane: I would like to raise the issue of the data gap. We heard recently from Ken Ogilvie of Pollution Probe that the categorization work going on under CEPA now uses data that is 20 years old, gathered from 1984 to 1986 on production volumes of chemicals. That is not the case in the U.S. Mr. Olgivie said the work in the U.S. shows dramatic shifts in the use and distribution of certain chemicals even in a few years' time.
Can you tell us how much money Environment Canada dedicates on an annual basis to data collection on toxic substances? Did the figure increase with the introduction of CEPA or has it remained consistent?
Ms. Levin: I prefer to prepare those kinds of figures in a written form and provide them to the committee, or have an official in the department prepare and submit them.
Most people are aware that a federal budget allocated nearly $42.3 million to the assessment and management of toxic substances soon after CEPA 1999 was proclaimed. However, in terms of annual budget spent on assessment and data gathering, I cannot tell you that right now.
Senator Cochrane: Will you get for us, what happened before and what is happening now?
Ms. Levin: Yes, we can get that.
Senator Cochrane: I would like to know if this data is collected on an ongoing basis, who is responsible for updating it and how regularly this work is carried out.
The Chairman: Ms. Levin, will that be something that you will also send to the clerk of the committee in writing?
Ms. Levin: Yes, that kind of information better serves the committee if all the members have it in writing.
Senator Cochrane: Where does Canada stand, Mr. Caccia, internationally, when it comes to the management of toxic substances? Can you give us some best practices internationally?
Mr. Caccia: The United States Department of Agriculture, USDA, conducted studies on this. They produced a report in 2002, including a report on taxation. We do not appear to be in an outstanding position in the forefront. In a letter to the editor in The Globe and Mail last Friday signed by the former executive secretary of the Brundtland commission, Mr. Jim MacNeill, made the following comment:
The rest of the world has finally caught up with the decline and fall of Canada's environmental programs. Today, no international meeting passes without non-stop corridor discussion of the Canadian question: How could this happen in Canada, of all places?
In other words, we are slipping, and we have slipped badly, in terms of our international reputation.
Senator Cochrane: Are you aware of how they manage their toxic substances?
Mr. Caccia: Yes, in particular, the European Union has strong administrative legislation. The European Union is in the process of launching a more stringent scheme that could provide a model for Canada, if we were to adopt it. In many respects on the subject of toxic substances, the European legislation nationally and as a union is easily 20 years ahead of us.
The Chairman: It is also the case, is it not, that the legislation is proposed: it is not in place yet? Are you talking about the program, Registration, Evaluation and Authorisation of Chemicals, REACH?
Mr. Caccia: Yes, it is proposed.
Senator Spivak: I remember both of you from the last picture.
Mr. Caccia, if you recall, when the committee report came to the Senate we were not allowed to make amendments, so we walked out.
The Chairman: I am sorry to interrupt, Senator Spivak. You were not allowed by whom to make amendments? I have been here only a little while, so I do not understand that.
Senator Spivak: The government in power at the time said that no amendments would be considered.
First, at the time when Mr. Caccia and Karen Kraft Sloan were on the House of Commons Standing Committee on Environment and Sustainable Development, the committee went through the most painstaking and rigorous analysis of CEPA. I do not think that analysis could be duplicated. It took a long time. In addition, committee members went through painstaking, strategic movements to have CEPA approved in committee.
We have been told that it is not that the bill is so bad, but that its implementation has been negligible. Could you give me the approximate date that your amendments were tabled in the House? Do you think we should look at reinstating those amendments to improve the legislation?
Mr. Caccia: Some of those amendments may still be desirable; some may by now be outdated. You would have to examine them one by one and ask people such as Ms. Levin what the value of those amendments are 10 years later.
If I remember correctly, that report to the House of Commons was in the spring of 1998 or so. There is also a fine piece written by the Library of Parliament research branch on the history of the clause-by-clause study by the committee, which you may want to read. It is pretty long.
As to the validity of those amendments, some may still be desirable. I urge you to also look at the amendments proposed at the report stage by the government, because those amendments are the ones that did most of the damage.
Senator Spivak: I am torn between legislation and implementation. As to the legislation, Ms. Levin, do you think that would be a valuable exercise? Would it be worth our time to look at those amendments? I ask because I remember how painstaking and rigorous that process was.
Ms. Levin: As Mr. Caccia indicated, you would have to look again at the substance of those amendments to determine whether amendments that may have been overturned or withdrawn at report stage still have relevance today.
I believe the report was made in the spring of 1999, because Royal Assent of CEPA 1999 was in September of 1999.
I do not think it is possible to make a judgment without examining all the text, unfortunately, or fortunately.
Senator Spivak: Is there any documentation on what could be useful in amending the legislation? Mr. Caccia talked about issue papers, but surely people in Environment Canada and Health Canada must have been thinking about this legislation.
Ms. Levin: It is certainly true that since CEPA 1999 was brought into force on March 31, 2002, the legislation has been examined on various occasions to see if adjustments were necessary. The legislation has been amended since it was enacted. I am not referring only to Bill C-15; I am referring to alterations in the definition of "ship" and some additions that were made in Part 8 with respect to environmental emergencies.
When the occasion has arisen that legislative amendments were needed to either implement the legislation more effectively or to deal with a new policy concern, those amendments were made.
Also, as the years go by and people find things that need tweaking or adjusting, these things are stored together and brought forward for consideration by the minister as to whether he or she wishes to make amendments. I have no idea what the current minister's view will be on any of those things, but all those things are brought forward for consideration.
Mr. Caccia: Nothing stands in the way of this committee requesting from the minister and Environment Canada a paper by September that would answer the question of Senator Spivak about what could be useful in terms of amendments.
I was hoping to find an answer to her question in this Scoping the Issues paper. Some questions are asked. However, it is a weak paper, unfortunately, particularly with regard to the topics it does not cover. Therefore, the committee may want to reply to the Scoping the Issues paper by asking what it wants to know.
Senator Spivak: Tweaking and adjusting are one thing; fundamental questions are another.
Are all the documents relating to the issues that you raise confidential, or could we request documents that are for public release?
Ms. Levin: I would await the minister's introduction and submission of any documents that are being prepared for the minister. As far as I know, the minister has not yet brought forward her views, so I cannot comment on those. Through the years, various parts of the department have raised matters that could benefit from clarification or adjustment.
As an example, in section 56 of the act, which deals with pollution prevention, the minister has the ability to issue a notice requiring any person or class of persons described in the notice to prepare and implement a pollution prevention plan.
There is some difficulty with knowing what the word "implement" means. There is a dictionary definition, but there are difficulties with regard to when something is implemented or fully implemented. Issues around words like that — if there is not a full understanding of what "implement" means — can make the goal of pollution prevention, or a pollution prevention plan difficult.
The Chairman: I am sorry to intervene. What other interpretation can be brought to the word "implement" other than the one that is commonly understood?
Mr. Caccia: Mr. Chairman, in some places, the debate on how many angels can sit on top of a pin is still going on.
The Chairman: Are there other suggestions? Did someone say, "I do not know what implementation means"? Did someone say that, rather than bringing into force or putting into place, it means this? I am confused by that. What else can implementation possibly mean?
Ms. Levin: Let me give you a hypothetical situation. Let us say that a notice for pollution prevention planning has been prepared: a person prepares a plan and then seeks to implement it. In their implementation, they say they will implement that, but it will take more money and more time: they will do it after the deadline.
Does that mean they have not fully implemented it or they have —
The Chairman: Yes.
Ms. Levin: Well, one might think, but a debate is in progress on what this term actually means, and whether we can require someone in their declaration of implementation to, in fact, fully implement it. We are having difficulty with this particular word in a particular situation at this time.
The Chairman: We should ask Mr. Clinton for help.
Senator Spivak: The previous people who appeared before us gave us a hierarchy. If you were in our shoes, what would be your hierarchy in terms of what most desperately needs to be fixed? We cannot do it all.
Ms. Levin: I do not think I have a hierarchy. I do not know whether it is my place to talk in policy terms of a hierarchy.
There are many different ways, I think, that a Senate committee could do a review. For example, the committee could examine ways in which the statute has not yet been used — ways in which it maybe could be used. You can look at many things.
Senator Cochrane raised issues she would like answered. Your committee could choose to concentrate on many things.
I do not think it is my place to direct you as to what you should concentrate on. There are many issues before you, and you will probably choose among them as to what you think best can be accomplished in your collective wisdom.
Mr. Caccia: Mr. Chairman, in an attempt to reply to Senator Spivak's question, probably at the top of the list would be the issue of shifting the thinking of the central agency of government, the Privy Council Office. It needs to shift from its present, unfocussed way of proceeding, to one in which it makes the pursuit of substantial development the top priority of government, horizontally across all departments. That shift could make a difference in the implementation of a number of pieces of environmental legislation — not only governmental laws and bills, but bills that relate to any other activity for which the federal government is responsible.
The Chairman: The committee once recommended that change in a report called Sustainable Development. We recommended the then-government have a choke point, and that every measure, initiative, bill and proposal that comes before the PCO be examined through an environmental, ecological lens.
The report has had limited success, but we will probably recommend something along those lines again.
Senator Tardif: Mr. Caccia, you made reference in your presentation to the burden of proof. What distinction is there between the idea of the burden of proof and the precautionary principle?
Mr. Caccia: A precautionary principle is a philosophical concept that emerged 30 or 40 years ago. It was the object of intensive discussions, beginning in Europe, which was, I think, promoted by certain political parties as well and picked up by them. The concept incorporates, in its philosophical meaning, the application of the burden of proof as one of the many ways of implementing the precautionary principle. In essence, it says — and I think there are people who can better define it than I can — that you are unwise if you wait for absolute and final proof of something before you take action. You do not have to see the smoking gun, as in evidence.
When the evidence is strong enough — but also not absolutely conclusive to everybody's satisfaction — then it is incumbent upon you as a member of society, or as an adviser to governments or as a parliamentarian, to draw the necessary conclusion so as to translate that precaution into a legislative measure. The alternative technique — which is the one that is prevalent in North America and dominates considerably the spirit of CEPA — relies on risk assessment as the guideline.
The precautionary principle anticipates and prevents the risk assessment in the end, and leads you to react and cure. These two approaches are profoundly different ways of thinking and transforming findings into legislative activity.
I hope I answered your question.
Senator Tardif: Yes: Would you say, then, that the arguments for sound science are used to render the precautionary principle inapplicable?
Mr. Caccia: Yes, the sound science prophets want to wait for the smoking gun. Therefore, you do not act on climate change because there is no ultimate proof. You do not act on acid rain because there is no absolute scientific conclusion.
They would definitely achieve the end that you described, no doubt. We are dealing here with two distinctly different ways of looking at the world around us, and how to operate in improving the environmental and health conditions.
The precautionary principle is one that acts much sooner. It does not wait for the smoking gun. It looks at the long term. The risk assessment waits for the final proof, the smoking gun, and usually results in decisions that have short- term effects. Alternatively, which is even worse, it makes decisions that in the end force the public sector to take over the remedial action and the costs that were caused by the private sector, as in the case of the Sydney Tar Ponds, the Love Canal and all other major environmental issues that have been faced in recent decades.
Senator Tardif: However, the precautionary principle is part of the act. Therefore, it is not used. Perhaps if we are not using that approach — we are using a risk assessment approach rather than a precautionary principle — we are not following what is in the act. Is that correct? I want to hear Ms. Levin's reaction to that question as well.
Mr. Caccia: The approach appears in the preamble. It also appears in a section, the number of which I do not remember right now. It is a question of how much you rely on the precautionary principle as opposed to the risk assessment approach.
I refer your question, which is relevant, to the excellent submission by Bruce Lourie of the Ivey Foundation. I believe he appeared before the House of Commons Standing Committee on Environment and Sustainable Development some weeks ago. Page 12 of the submission is devoted to the precautionary principle and to sound science.
The precautionary principle is a specific response to recognizing inherent uncertainty and, more specifically, the inability of risk management tools to accommodate uncertainty. Precaution is the basic idea of taking reasonable actions to prevent harm in the face of uncertainty. CEPA and other federal documents reference the precautionary principle, but as with many progressive elements with CEPA, there is no evidence of the precautionary principle being applied to decisions managing toxic substances in Canada.
Senator Tardif: Can you comment on that, Ms. Levin?
Ms. Levin: I cannot speak for every decision made under the legislation with respect to how the precautionary principle is implemented.
I would say, for example, in the examination of precursors and smog particulate matter that was added to the list of toxic substances, the precautionary principle was applied in that case. Some 12 to 16 substances were added to the list of toxic substances on that basis.
A scientific assessment was completed. The precursors to these various air pollutants were added to the list of toxic substances on the basis of the precautionary principle, as I understand it.
There is an obligation for the Government of Canada to apply the precautionary principle as in section 2 (1)(a) of the act. The precautionary principle is stated. The version that appears there is the one that is in the Rio Declaration on the Environment and Development, Agenda 21, from the United Nations Division for Sustainable Development, 1992.
Senator Spivak raised the issue that the Senate committee previously looked at the English version of this principle. It states:
...the Government of Canada shall... exercise its powers in a manner that protects the environment and human health, applies the precautionary principle that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation....
The French version talks about "mesure effective."
Senator Spivak alluded to the situation where the previous version of this committee, in a clause-by-clause review of Bill C-32, examined the implications of having these two different phrases in the precautionary principle. The French duplicates the version from Agenda 21, the plan of action from the Rio conference. The two terms are in fact different.
Mr. Caccia: Senator Tardif, you should know that in Rio, the discussion took place over several weeks with respect to the little phrase "cost-effective" because there was strong opposition to allowing that term to sneak in.
In the end those who wanted it won, but it was a slim majority. The definition is, for anyone interested in the long term, much better in the French version than in the English version.
Senator Tardif: To what extent did the cost-effective phrase curtail action?
Ms. Levin: That question should be addressed to the officials involved in the regulation of substances and the policy decisions made, perhaps to the minister herself.
I am involved in reviewing regulations for enforceability, but the policy decisions made behind these regulations and the various measures and elements in them are not the choice of the enforcement branch.
You may wish to speak with officials from the department, such as Cécile Cléroux. I think you have already heard from the Assistant Deputy Minister of Environmental Stewardship or others who can clearly give you information on how the precautionary principle is applied in those areas.
Mr. Caccia: Senator Tardif, it would be more cost-effective not to have traffic lights because you would consume less gasoline while you are idling at a red light. It would be more effective not to have regulations on certain aspects of international flights or national flights because they increase the price of the ticket. Using cost-effectiveness, you can kill almost any measure if you really want to. That is why it is such a dangerous term.
We would have blood all over the place without those cost-ineffective measures at traffic lights.
The Chairman: When you were in Rio determining the nature of this act, did other countries argue that the word "cost" rather than simply "effective" measures should be in the English language version of the agreement?
Mr. Caccia: No: It is a Canadian peculiarity that it appears in two versions.
What prevailed in Rio was "cost-effective" as it appears in the English version of the act. It was as a result of pressure exercised by countries such as Canada, I have to admit, the U.S.A. and other major industrial economies.
Senator Angus: Welcome to both of you. I had a word with Mr. Caccia. He said he has been following our hearings and keeping in touch. I found that interesting.
Ms. Levin, I know you are a senior official in the environment department. I imagine you are also following our hearings. Is that right?
Ms. Levin: Yes. I have been reading the transcripts.
Senator Angus: Then you have an idea about how we have been thrashing around.
I made the statement the other night that we know there are so many good people such as yourselves in Environment Canada trying to do the best you can. Yet we have experts that continue to appear, telling us we have a bad record in Canada. This information troubles us all here.
On top of our own research and studies on water or the oilsands and whether they are completed properly, we are asked to review CEPA. We look at each other on the steering committee. If you read the transcripts, some people have told us we must do a comprehensive review. Using the plain dictionary definition of comprehensive, it is a daunting challenge.
We decided to bring in a few people to offer ideas as to how we might accomplish this task. We have been doing this during the last two or three weeks.
The other day during our last hearing, which you may have read in the transcript, I suggested a title. Hypothetically speaking, suppose we publish a report entitled, "CEPA, Decent Legislation Not Being Effectively Utilized or Implemented: A Case Study, Mercury." Would we be better served to take one substance listed in the CEPA regulations as toxic, and study it? People in the north tell us how breast milk is contaminated, the meat in walruses is poisonous and the growth of youngsters stunted. We could find out in depth where the pollution comes from by conducting hearings in Cleveland, Detroit and Toronto, the places we are told emit mercury that is carried up into the atmosphere and down into the North.
Clearly, that approach is not the answer. I am totally confused because the law itself is a huge statute, and it is a companion to about 35 other statutes. They all have to be read with regard to the others.
I know from when we tried to hire a good environmental lawyer for our law firm that there are not many around. Environment is such a specialty, and the law is complicated. I was on the committee interviewing candidates, which is where I first had a sense of how complex this is. We are not here to pretend we know more. You live in this area.
Ms. Levin, you are in the department. You are knowledgeable. You have been there a long time. Everyone says there are not enough resources. That, in itself, must frustrate you. The politicians in power, at the end of the day, decide where the resources go.
If the environment is not sexy enough or is not a vote-getting thing and other things are, then environment gets the short end of the stick. You know this, Mr. Caccia; I just calculated the 30-some years you were an honourable member of Parliament.
Now I do not know whether it has gotten so bad, or whether attention has been drawn to the issue by the work of people such as the Commissioner of the Environment and Sustainable Development and the Organisation for Economic Co-operation and Development, OECD, highlighting the fact that Canada used to be pretty clean. Canada has gone way down in the 20s in a lot of areas.
Are we blowing smoke around? What can we do to add some value here?
Ms. Levin: As I mentioned earlier, you can do this review in many different ways. You can take a single toxic substance, whether it is mercury or any other, and look at how it is dealt with under the legislation: see if you think the legislation provides adequately for dealing with the substance and whether administrative legislation effectively deals with the substance. That is another way to review how effective the administration and enforcement of the act has been.
There is no reason why you cannot take an approach like that. You could review this legislation in many different ways.
Senator Angus: I understand CEPA is one of the many laws. CEPA is the framework legislation that is oriented more towards the protection of human beings and their health as opposed to other things. Is that right?
Ms. Levin: There is definitely a human health dimension, obviously. You have probably had factual presentations on the act already. The act is divided into 11 parts, in essence.
Parts 5, 6, 7, 8 and 9 all provide for regulation-making to deal with various environmental problems, whether those are toxic substances in part 5 or substances that are subject to conventions such as the Rotterdam Convention on prior informed consent, also in part 5. Animal products and biotechnology are in part 6, in their form as new substances. Part 7 covers many different types of pollutants and wastes, everything from nutrients to disposal at sea, fuels and vehicle emissions. The legislation provides considerable potential for doing many things.
The authority is there. Reviewing how the act has been implemented is yet another way. You may want to choose one part of the act to look at how it has been implemented or, as you suggested, one substance to see how the act has been applied in relation to that substance. There are many ways to review this act.
Senator Angus: There are. These truths are self-evident.
Mr. Caccia: With respect to the question of Senator Angus on whether to have a title such as, "CEPA, Decent Legislation Not Being Effectively Utilized: A Case Study of Mercury," a decision of that nature would be well received by the health unit and also by the environment community.
A brief by Environmental Defence Canada devotes a paragraph to mercury risk and precaution, which reads as follows:
A core principle of precaution is weight of evidence. For mercury, the weight of evidence is clear, and it is based on weight of evidence that most industrial nations have acted to restrict mercury use and emissions. With respect to mercury, CEPA appears to entrench the opposite behaviour. One by one, the evidence of harm caused by mercury has been established. Evidence of emissions, evidence of transport routes, evidence of deposition, evidence of release, evidence of biological update, evidence of exposure pathways, evidence of neurological impairment, and even evidence of ecosystem response to emission reduction efforts, yet still this overwhelming weight of evidence has not been translated into action.
Listen to the following from Bruce Lourie:
Canada is perhaps the least precautionary nation of industrial countries when it comes to toxic substances management. If it were not for the courts there would be little evidence of precaution at the federal level, and certainly no evidence of precaution on the CEPA.
Senator Angus: I read it and I am stunned.
Mr. Caccia: You are on the right track.
Senator Angus: Ms. Levin has a good reputation. She is Senior Policy Specialist, Head, Regulations and Strategies Section, Enforcement Services Directorate.
I want you to feel comfortable here. I am not your enemy.
You are on the firing line. How can experts come and say things like that, or is it all a bunch of BS?
Ms. Levin: I do not think it is a bunch of BS, but the department works in cooperation with provinces and territories. There is a commitment with provinces and territories not to duplicate efforts they undertake but these matters are all worthy of your consideration when you look at whether the act has been implemented to date. I think all these things can be part of the scrutiny you bring to bear on the implementation and administration of the legislation.
Senator Angus: One thing drives me bananas, and it shows in the transcripts. The Commissioner of the Environment and Sustainable Development has said in all her last three reports that Canada has all the tools necessary for an exemplary plan for the environment, pollution prevention and all the things to obviate the horrors that will arise if we do not do the right thing. Yet, we are not using those tools properly.
Is it because the Nadine Levins of this world are no good at what they do? The federal-provincial overlap in concurrent jurisdiction is clearly a problem. That issue has registered with me.
Ms. Levin: I do not think that is a problem.
Senator Angus: You do not?
Ms. Levin: No.
Senator Angus: It just requires cooperation?
Ms. Levin: It means that more than one government can act to protect the environment. The Supreme Court of Canada says that is a great idea. They said that in the Hydro-Québec decision as well as in the Hudson Quebec decision on the regulation of pesticides.
Senator Angus: Overlap is not one of the big problems?
Ms. Levin: I do not think so. Keep in mind that the provinces and territories put in place approximately 70 per cent of the environmental requirements in this country and the federal government puts in place approximately 30 per cent. The provinces have constitutional authority for works of a local and private nature, and civil and property rights. The provinces use permit systems, regulations and legislation. The federal government also has at its disposal the criminal law head of power; census and statistics; navigation and shipping; sea coast and inland fisheries; peace, order and good government; interprovincial and international trade and commerce; and several other heads of power and further authority to protect the environment. Therefore, I think it is not ineffective that more than one government can act.
Mr. Caccia: Mr. Chairman, the federal house is in great disorder. This is why, even with the best of intentions, Environment Canada is frustrated and cannot proceed, or has such limited success in the implementation of CEPA. Every time a controversial issue comes forward for which a solution is proposed by Environment Canada, it is shot down in flames by another department, most likely Industry Canada. There is internal conflict and internal contradiction, and the government cannot proceed as long as the federal house is in this disorder.
The Chairman: Which takes us to the mindset of PCO that you talked about before.
Mr. Caccia: Yes.
Senator Angus: I know the enemy is us, the enemy is industry and the enemy is lack of money. Issues have not been properly prioritized yet, although this committee will do its best to get more focus.
I am suddenly sensitive to things in this area to which I was not previously sensitive. This morning on the front page of The Globe and Mail I read about two new substances. I read about how they can cause lung cancer and other terrible things.
Someone decided to ban those two substances. How long did it take? How many people died from lung cancer before they were banned? What was the process? Was it a good process or did we finally, after much backfilling, get to the point that the headline could be printed?
Ms. Levin: One substance to which you refer is in teflon and fire retardants.
Senator Angus: Yes.
Ms. Levin: You should hear from the scientists who were involved in the assessment of these substances rather than from me. They can explain the steps they went through, why it took the amount of time it did to arrive at a conclusion, whether they were able to establish what allowable concentration there should be, or whether there should be no allowable concentration at all. You need to talk to the people who were involved in the science.
Senator Angus: We often use lumber with wood preservatives to build the balconies that we sit on during hot summer days. Now we hear that this preservative causes lung cancer and kills babies. I painted my balcony with that preservative only last summer or the summer before that.
Ms. Levin: The wood preservation industry has been subject to a notice for the development and implementation of a pollution prevention plan for various toxic substances in wood preserving solutions.
First, a technical guideline was proposed and the wood preservation industry was given the opportunity to implement it. It was specifically stated to the industry that if elements or persons in the industry did not implement the guideline, there would be a notice for pollution prevention planning. There were elements who did not implement the guideline and there has been a notice.
I believe five companies are subject to the notice. The other companies in the industry chose to implement the guideline.
Environment Canada has taken action in respect of chemicals such as arsenic and others that are found in wood preserving chemicals.
The Chairman: You said that some companies in the industry have undertaken to do something and others have not. Is there a sanction against the companies who have not undertaken to do something? What happens if they do nothing? Can they continue to sell their products?
Ms. Levin: In this case the industry was amenable to implementing a guideline to reduce their releases to the environment and ensure worker safety in relation to the use of these chemicals. A guideline is voluntary. It is not an enforceable instrument. One can choose to implement all of a guideline, part of it or none of it.
Pollution prevention planning is done via a notice issued by the minister. The minister can stipulate what substances are targeted by the pollution prevention plan and what factors to consider in developing and implementing the plan. The minister can also stipulate who is required to develop and implement a plan. That was done in the case of the wood preservation industry.
However, Environment Canada can take no action under CEPA 1999 in respect of a guideline if someone chooses not to implement it, unless that guideline is incorporated by reference into a regulation.
Senator Angus: You can ban the substance though, can you not?
The Chairman: No, you cannot.
Ms. Levin: By regulation, yes.
Senator Angus: We have a grandson who plays where I painted on that green stuff. My wife is in paroxysms of fear. It has now been painted over with something else.
The Chairman: I hope you did not paint it over with lead paint.
Senator Angus: I am told that your department will say not to sell it to Canadians but it is okay to sell it abroad. I as a Canadian do not want to be associated with that double standard.
The Chairman: If Moses came down from the mountain with 10 vague suggestions and guidelines as to how to operate, the world would be very different. Maybe it has come to that.
Mr. Caccia: Even if Moses were to come down with guidelines, they would not be enforceable.
Senator Angus: All the people from your department who have appeared before us are good people. People such as you and Mr. Caccia have been following these hearings and you will know that witnesses have been scathing in their remarks. Can we ask for a rebuttal? I take it you do not agree with all the scathing things that are said.
Ms. Levin: Do you mean by industry witnesses?
Senator Angus: I brought the transcripts of the last two meetings because I think they are particularly instructive. I will send them to the Prime Minister's Office. I have had them copied. I will include a note to the Prime Minister that says, "Buddy, if this is not first priority, it better become first priority. Here is how bad it is." Witnesses were graphic in telling us how bad it is.
Mr. Chairman, you are good at saying, "Have you got a list at the department and can you send it to us?" It would be a good exercise, even if you all said, "We agree with everything that is said. The bottom line is we need more money from the boss."
The Minister of Finance would then have to sit every morning for an hour in the Department of the Environment.
The Chairman: It is not only a question of money, is it? Does there not have to be a hammer somewhere?
This act sets out a process called virtual elimination, as a means of correcting some things. We all know by reading information and hearing from witnesses on both sides of the fence that there are bad substances out there and industries say, "We do not want babies to put that kind of stuff in their mouths." How many substances on the 23,000 list, the 6,000 list, the 4,000 list, or whatever list have been required to undergo virtual elimination in Canada?
Ms. Levin: Keep in mind what virtual elimination actually means under CEPA 1999. It means the elimination of the substance in releases below detectible limits using routine and available sampling technology.
The Chairman: We understand that technology always allows ever finer measurements. How many substances have been virtually eliminated?
Ms. Levin: In releases?
The Chairman: Yes.
Ms. Levin: I believe one will be added to the virtual elimination list.
Substances targeted for virtual elimination have to meet criteria. They have to be toxic, persistent in the environment, biocumulative, present in the environment primarily as a result of human activity and they cannot be radionuclides or naturally-occurring minerals.
Senator Angus: He wants to know how many substances are on the virtual elimination list.
The Chairman: Is mercury on that list?
Ms. Levin: No. Mercury is a mineral.
The Chairman: Mercury is therefore not covered by CEPA.
Ms. Levin: Yes, it is. Because it is on the list of toxic substances it can be regulated at any stage of its lifecycle. For example, section 93(1) of the act sets off regulation-making authority to deal with any substance that is on the list of toxic substances. It can be regulated at the point of its manufacture. It can be regulated at import. Its presence in products can be regulated and controlled. It can be regulated and controlled such that the concentration in a product or the quantity is limited, or a regulation could be made that says, "Mercury cannot be used in X, Y, Z product at all." All these things are possible.
The Chairman: To revert to my original question and without giving a specific example, has any substance been virtually eliminated?
Ms. Levin: In releases?
The Chairman: Yes, in releases.
Ms. Levin: Only one substance has been targeted for virtual elimination.
The Chairman: No substance has been virtually eliminated, is that right? The reason I ask the question, for those of us who are interested in this, is that there are lists. A new one is coming out. However, we know there is a list of 23,000 — if they were people, we would call them persons of interest. There are thousands and thousands and thousands of substances.
Ms. Levin: Yes, there are.
We have a regulation called the Prohibition of Certain Toxic Substances Regulations, 2005, which in fact has listed substances for virtual elimination.
The Chairman: They have not yet been virtually eliminated?
Ms. Levin: To enforce a regulation such as this, you would sample releases of these substances to ensure they are below the limits set up.
The Chairman: Do we have the means of doing that?
Ms. Levin: Yes.
The Chairman: Has it been done?
Ms. Levin: As far as the enforcement branch is concerned, I am not aware that we have done it. We have not gone out systematically and inspected for each of these.
Senator Angus: Mr. Chairman, you did not ask the last question. Why not?
The Chairman: I want to get a couple of other things going here because we can adjust that later.
Sections 325 and 326 talk about the deposit and refund system. Would you please explain that to us a little bit and tell us whether those sections have ever been used?
Ms. Levin: First, sections 325 and 326 represent the economic instruments that can be used under CEPA 1999. They can be used in conjunction with other regulation-making powers.
The Chairman: The reason I ask the question is because this committee is on record in two of its reports as urging the use of economic measures from time to time in the interests of the environment.
Ms. Levin: We have not used section 325 yet. The section can be used only in relation to regulations for toxic substances, nutrients — which are substances such as phosphates that can cause excessive growth of vegetation in aquatic environments and regulations governing the federal house, which is Part 9 of CEPA 1999 covering respective federal government operations, federal lands and Aboriginal lands. We have not used section 325.
We have used section 326 for the creation of economic instruments, for example, in relation to the solvent- degreasing regulations. Section 326 has been used for ozone depleting substances. In terms of transferring credits, a tradable credit system is in place.
Although it is not in section 326, there is also a possibility of trading emission credits under Division 5 of Part 7, which are vehicle and engine emissions.
The Chairman: The three applicable circumstances that you talked about in section 325 are very cogent ones.
Ms. Levin: However, we have not used them.
The Chairman: Why would that be? Who did not do what?
Ms. Levin: It may have been that a deposit and refund system was not seen as effective in controlling, let us say, nutrients or a particular toxic substance. Section 326 has been used thus far in a limited way.
Your committee may choose to raise these things and ask about them.
The Chairman: They are tools that exist in the act that could be used?
Ms. Levin: No: There are very inventive ways, for example, that section 326 can be used. Conditions can be set, for example, for the participation of tradable unit schemes and those conditions can be all kinds of things, including requiring by regulation that people take pollution prevention action.
The Chairman: Reverse incentives can be put in place or real incentives can put in place?
Ms. Levin: If they are set in place as conditions, or they are part of the creation or operation of the system?
The Chairman: If you do this, you do not need to do that?
Ms. Levin: I am not so sure that is possible. However, Dan Blasioli from the Department of Justice might be able to tell you.
The Chairman: I think we could ask that question later once we decide where we will go.
Mr. Caccia: Might I add that 10 years ago we spent a considerable amount of time on section 326, in making it as imaginative as possible, and casting the net as widely as possible. It is a disappointment to see how little it has been used.
The Chairman: We will get a list of substances in September, to which we all look forward, and we have heard that it deals with ratios of substances. Is that correct or am I barking up the wrong tree? I am talking about whether we will measure the amount of the substance there is, or the amount of substance per pound there is. They are two different questions — intensity as opposed to volume.
Ms. Levin: I will get back to you on that. I am not certain what you refer to.
The Chairman: I may be barking up the wrong tree.
I ask the question because in many discussions about emissions of various kinds, including effluents and substances into the air, there are arguments that we ought to make the measurements as a proportion of reductions — that when we measure reductions, we ought to measure intensity, if I can put it that way, the proportion per —
Ms. Levin: Do you mean per unit of production?
The Chairman: Yes, as opposed to how much substance we put out, or put into the pool.
Ms. Levin: I will get back to you.
The Chairman: With respect to section 2 — which I think you more or less devised, Ms. Levin — in your opinion, does the act as it exists provide the tools that we need to fulfil the objects and obligations that are there?
Ms. Levin: Do you mean the administrative duties in section 2?
The Chairman: Yes.
Ms. Levin: I think the authority is present to fulfil the administrative duties.
The Chairman: Is it frequently used?
Ms. Levin: Every time the department chooses to act to protect the environment in respect of a toxic substance or emissions from vehicles, in fact, they do so in accordance with the administrative duties. One duty is to take preventive and remedial measures to protect, enhance and restore the environment; so, yes, the department is consistent with the administrative duties in the act when it does something like that.
The Chairman: Does it do something like that often? Give us one tiny, microcosmic example of a thing the department would do under those administrative duties.
Ms. Levin: We have put in place emission regulations for vehicles, engines and equipment, both on-road and off- road, to enhance or improve air quality. That measure is preventive and remedial. The preventive aspect is that the vehicles have to be manufactured with the necessary controls to achieve the emission requirements. Mr. Caccia raised the issue of the control of sulphur content in diesel fuel, similarly.
These preventive or remedial measures protect, enhance and restore the environment. That is an example.
The Chairman: That is a good one because it has been effective.
Senator Spivak: Can I interrupt?
The Chairman: Yes.
Senator Spivak: Is that control based on the American average — do you know what I am talking about?
Ms. Levin: The regulatory impact analysis statement for the regulations in all those cases indicates that Canada aligns its requirements with the U.S. Environmental Protection Agency requirements due to the nature of the North American marketplace in vehicles, engines, equipment and fuels.
The Chairman: We have heard conflicting stories. With respect to manufacturing internal combustion engines for automotive vehicles, are they regulations or guidelines? Are they imposed, or are they things that we have asked by agreement that the industry will try to reach this fuzzy —
Ms. Levin: We do not control the manufacturing process by means of these regulations. We control the emissions.
The Chairman: Are they controlled or is it a guideline?
Ms. Levin: No, these are regulations; they are not guidelines.
There had been a Memorandum of Understanding with the railway industry in terms of emissions from locomotives, but I am talking about the off-road and on-road vehicle and engine emission regulations.
The Chairman: Good; so a car that did not meet those regulations could not be imported into the country — by way of example. Is that correct?
Ms. Levin: Unless the importer undertook, after the importation and before the vehicle was sold, to have —
The Chairman: To modify it?
Ms. Levin: Yes, to have the vehicle meet those emission requirements.
The Chairman: I have a hard time getting through Part 5.
Mr. Caccia: You are not alone, Mr. Chairman.
The Chairman: Is that one place we might look to make things clearer, because that part is convoluted?
Ms. Levin: Yes: It is a complex part that is difficult to follow, read and understand. Some of the provisions might be reordered so they flow more easily. There is no doubt that when you read cross-references between provisions, Part 5 can be difficult to follow.
The Chairman: Is it your view that the object of Part 5 is good and the measures in it are good but they do not follow an easily understandable — and therefore enforceable — order?
Ms. Levin: I would not say they are not enforceable, but I would say that the foundation of Part 5 is good. The current order is difficult to follow. I do not think this difficulty is a secret to anyone, both inside and outside the department, who has read Part 5 and tried to follow the order of the provisions.
The Chairman: That is what I meant by the difficulty in enforcement. It is hard to figure out exactly what it means. Does it apply here or not? Is there a way to get at this problem? Do you think a realigning or a redrafting of Part 5, without changing the intent, might be a useful thing?
Ms. Levin: Perhaps changing the order of some of the provisions might help the flow of logic in the part.
The Chairman: You would not need to leap and forth between references. It is a question of order.
Mr. Caccia: Might I make this observation? Rather than being distracted by the sequence or lack of sequence in Part 5, you may want to have your research people identify what stands in the way of the implementation of Part 5 as it is intended in the preamble of the legislation, in its main concept. Having identified the obstacles, then you may want to change certain portions of Part 5 to remove these obstacles because, as was mentioned earlier, certain amendments were made at the report stage in the House of Commons in 1999 that have seriously weakened the potential impact of Part 5.
The Chairman: That is stated much better. Thank you.
Senator Spivak: That is good to know.
The Chairman: The definitions — the outlining of air pollution and water pollution in sections 3 and 7 — seem to be Health Canada definitions; but Health Canada, as you said, Mr. Caccia, does not seem to have much to do with this act anymore.
Mr. Caccia has already commented on that, but I ask Ms. Levin: Are you in frequent contact with Health Canada about health matters related to pollution of one kind or another? Is Health Canada actively involved?
Ms. Levin: I am not in frequent consultation with Health Canada, but other components of Environment Canada are. The new substances program and the assessment of existing substances program are in consultation with Health Canada.
The Chairman: Good.
Ms. Levin: There is no specific mention of the Minister of Health in relation to the international air pollution provisions to which the definition of air pollution applies, for example. Although, it is clear from the definition that there is a human health dimension.
The Chairman: By reference, we can assume that that department is interested in one way or another, right?
We have heard stories about respiratory problems and a number of hospitalizations that result from them. One assumes you cannot make a border for pollution, so we do not know whether something came from Buffalo or Hamilton.
Ms. Levin: In terms of the definition of air and water pollution, you might perhaps direct questions to Health Canada as to how they see their role in relation to how this definition works.
The Chairman: We will do that.
Mr. Caccia: Mr. Chairman, might I add an observation?
The Chairman: Yes.
Mr. Caccia: Most successful initiatives to protect the environment have been made possible over time because they were clearly linked to health issues. Therefore, the connection to health, the role of the health department and emphasis on the role of that department in connection with CEPA would heighten considerably the potential success of this legislation.
The issues are not seen in isolation simply as environmental protection, which is still valued. It is the old agenda. They would be viewed as health issues seen through the environmental and health optic.
The Chairman: If nothing else, that would mean two people at the cabinet priority table are concerned about the issues rather than one.
The priority substance list, PSL: are these substances screened? How does a substance get on the priority substance list? What are the implications for a substance to be included on that list?
Ms. Levin: I can tell you how substances were put on the list in the past under the previous act.
The minister of the day chose an expert panel to propose what substances would benefit from priority investigation, and to determine whether the substances are toxic or capable of becoming toxic. The definition of substance is so broad that they could be individual substances such as arsenic or mercury, or effluents such as chlorinated waste water or emissions from zinc plants, for example.
The director general who is responsible for assessment of substances perhaps can give you a better picture of how the priority substances list is established today. However, the minister certainly has the option of consulting experts outside the department for advice.
The first expert panels involve provincial governments, labour groups, environmental groups and academics from places like the Royal Society to give advice to the minister.
Mr. Caccia: On page 37 of this report produced by Environment Canada, you may find a question addressed to parliamentarians and this committee. It reads as follows: "Should the act provide an alternative approach to the listing of substances that have been determined to be toxic?"
If I may be so bold, you should reply by saying, please produce an issue paper so we can have the elements in order to answer your question. The question is in the scoping paper.
The Chairman: We will ask that question, Mr. Caccia. Thank you.
I want to get a little bit of an argument from you. You have argued that the precautionary principle says, in effect, do not wait for proof.
If a reasonable suspicion exists that some action or some substance will be harmful, do not wait for absolute proof that it is harmful. As a precaution, and until it can be shown to be otherwise, take it out of circulation.
On the other hand, you have also suggested that the purveyor, manufacturer or the miner of whatever substance we are talking about should be required to prove that the substance is not harmful.
It is difficult to prove the non-existence of something. Are those two things compatible? Can we say to a manufacturer, a miner or a fabricator of a substance that will come into commercial use, on the one hand you have to prove to us that this substance is harmless? On the other hand, on the basis of a suspicion we will bar it, if we use the REACH idea?
Mr. Caccia: A shift in the burden of proof would be a considerable step forward in implementing the precautionary principle. We are light years away from that shift.
The ancient Romans, even the ancient Greeks, wrote to us about their knowledge that lead is poisonous to humans. We are still wrestling with the issue 2,000 years later of whether to put it on a substances list. That gives you an idea of the mindset we are wrestling with.
To answer your basic question, yes, a shift in the burden of proof would be a considerable step forward in the application of the policy.
The Chairman: I have one last question. It deals with what Senator Angus brought up.
As complicated as this act of Parliament is, it was an attempt to streamline and to put into one place a whole bunch of stuff in a whole bunch of different acts and different sets of regulations elsewhere.
Has it in fact streamlined legislation, or does legislation need to be further streamlined? Is this act as good as we can get? In other words, does this act deal with so many aspects of so many different questions and issues that this act is the least complicated piece of legislation with which we can deal with the questions? Does this legislation need to be streamlined further?
Mr. Caccia: The first CEPA policy emerged in 1988 under Minister Tom McMillan's regime. The measure was highly desired by the department itself because the department felt that it was, as you say, necessary to streamline.
It is difficult to know whether it should be further streamlined. It is difficult to say, as you asked earlier, whether it is a matter of money.
It is not a question of streamlining, and it is not a question of money. It is a question of political will.
Ms. Levin: I would not describe the creation of the original act as streamlining per se. It was an attempt to look at protection of the environment in a different way. Rather than saying, let us protect air and have a clean air act, let us protect the environment against environmental contaminants and have an environmental contaminants act.
It attempted to say, let us look at regulating or preventing improper use of substances that have a harmful effect on the environment rather than separating the substances into how they reach the environment: rather than saying this one came into the environment via air emission so let us have a clean air act, which is what we had before.
Rather than an environmental contaminants act, let us have an act that sets out regulation-making powers with respect to substances so we can regulate them under one single piece of legislation as to which component of the environment they affect in a negative way.
The Chairman: I am worried we are going away from that. Your minister is the Minister of the Environment. We now have provisions in CEPA that take care of clean air, and which replaced a clean air act.
The government and the minister have both said they will make a clean air act. Will that act, which we assume will come in fairly short order, obviate parts of or all of CEPA, or are we wasting our time here?
Ms. Levin: I think you should address this question to Minister Ambrose, as to how she will deal with this. I am not in a position to answer.
The Chairman: If a clean air act was put into place next week, it would, by definition, bump into some of the things that are in CEPA, would it not?
Ms. Levin: It depends what is in the act. It is difficult to speak in a vacuum. Please ask the minister these kinds of questions, as proposing legislation is in her purview.
The Chairman: My question is unfair. I beg your pardon.
Mr. Caccia: Mr. Chairman, your question is not unfair at all but it is difficult to examine the inscrutable.
The Chairman: However, it is unfair to ask Ms. Levin, in particular. I apologize for that.
Senator Cochrane: Mr. Caccia, I know where you are coming from. With regard to resources, you have expressed yourself clearly.
Ms. Levin, from the perspective of people in the environment, those working on the ground, do you feel that the current budget provides adequate resources to enforce CEPA?
Ms. Levin: I think you have already had answers from Cécile Cléroux, have you not, suggesting that more resources to implement legislation are always desirable? I will leave the words to senior management as to what they have already said on the issue of resources.
Senator Cochrane: At the present time, the government is moving to limit exposure to a class of pollutants used in consumer products ranging from the non-stick frying pans to upholstery. Knowing what must happen — for example, other departments will have to do risk assessments and so on — how long do you think it will be before a final decision is made?
Senator Spivak: The substance has already been banned in the states.
Ms. Levin: I thought the risk assessment had actually been done.
Senator Cochrane: I hope so.
Ms. Levin: Are you asking how long it will take to develop regulations?
Senator Cochrane: Yes, to bring this forward.
Ms. Levin: The average time to develop a regulation is three to four and a half years: a minimum of 36 months, in any case, generally speaking.
Regulations are proposed and published in the Canada Gazette. There is a required 60-day comment period, as you know. Then comments received have to be analyzed and reviewed. Then, it is determined whether adjustments to the proposed regulation should be made. Regulation-making can be a time-consuming process.
Senator Cochrane: I guess that is our problem.
Ms. Levin: CEPA 99 sets a time limit in Part 5 for certain kinds of regulation. Where a substance has been found to be toxic as a result of a screening assessment of substances on the Domestic Substances List, or a decision made by another jurisdiction to restrict or ban a substance, or substances on the Priority Substances List, once the ministers together have made their final determination that the substance is toxic and that they will recommend that the substance be added to the list of toxic substances, the minister has 24 months to propose an instrument and then 18 months following that to finalize an instrument and bring it into effect. That instrument can be a regulation, a requirement to prepare and implement a pollution prevention plan, a guideline code of practice, administrative agreement with preventive or corrective measures in it, or an environmental emergency plan.
There is already in Part 5, in any case, time-limit provisions set into the legislation. They do not appear in other parts of the act, but they do appear in Part 5.
The Chairman: Is the time span appropriate?
Ms. Levin: The Standing Committee on Environment and Sustainable Development proposed such types of measures, at least for toxic substances, in its last review. In its response to the committee's report, the government acknowledged that they agreed with using these kinds of provisions in Part 5. The committee may choose to look at whether these kinds of provisions are a good idea for other parts of the act.
Other time-limit provisions are in the act. Even the existence of administrative agreements have a life span of five years under the current legislation.
The Chairman: I think the question has to do with the legislation requiring that the government take certain actions.
I will give you an analogy that I am sure you are familiar with. In the Species at Risk Act, there is a process by which science speaks, the government listens, and then the government must do something or other by such-and-such a time. The species automatically goes on the list, in the absence of government saying: We will not do that, and here is why we will not do that. The timeline is specific.
The legislation requires the government to do certain things. Would that be useful in implementing aspects of CEPA?
Ms. Levin: That policy decision belongs with the minister to determine whether she wants to make that kind of proposal. It is not something I can answer.
Mr. Caccia: The Species at Risk Act has the provision you mentioned. We fought hard for it. The Committee on the Status of Endangered Wildlife in Canada, COSEWIC, namely, a committee of scientists, makes a specific proposition. Therefore, an action is proposed by, let us say, a non-political body. We do not have that in CEPA. It would need to be created to introduce a procedure of the kind you have in mind.
The Chairman: Should we have it?
Mr. Caccia: Yes, it would be helpful, provided it looks after the public interest.
The Chairman: CEPA is about the public interest, is not it?
Mr. Caccia: Yes.
Senator Tardif: As enforcement of the act appears to be one of the major problems, and because the act is the responsibility of both the Minister of the Environment and the Minister of Health, what mechanism is in place to evaluate results?
Is there a coordinating mechanism, for example, of the two deputy ministers? Is there a subcommittee to look at action plans from both departments? How are they measured? How is the mechanism evaluated?
Ms. Levin: A management committee of both Environment Canada and Health Canada is looking at how they manage and implement their responsibilities under the legislation. Keep in mind that the Minister of Health only has administrative responsibilities in parts of the act. Part 5 happens to be one of them. The Minister of Health has obligations for the development of objective guidelines and codes in Part 3 of the act, but the Minister of Health does not have a legislative role, for example, in Part 9, which is the federal house and environmental emergencies. The Minister of Health does not designate enforcement officers or analysts. That role belongs to the Minister of the Environment.
Mr. Caccia: Enforcement, if I might add, was in poor condition in the 1990s, so much so that the then environment committee launched an examination and came up with recommendations. The Deputy Minister at the time took an interest in that matter, and the effectiveness of the enforcement section of Environment Canada was considerably improved.
However, you may want to look into the question as to whether the enforcement segment of Environment Canada is budgeted adequately to perform its role in every region of the country in an adequate manner. The question is more of budgeting than efficiency of that unit, which I am told is now doing extremely well compared to what was happening during the 1990s.
The Chairman: I have one final question. I serve on other committee, as most of us do. As to what Mr. Caccia has just spoken of, on other committees I have come across a situation in which the amount of money that was allocated on a budget line for the operation of a department did not actually get to where it was putatively going. As a matter of course, over time, the Deputy Minister of the department took a "piece of the pie" for, perhaps, general administration overhead purposes. As a result, the amount which was said to be going, according to budget lines and planning, into this effort was not, in fact, going there.
Does this situation happen in the Department of the Environment? Have you ever heard of anything such as that, Ms. Levin?
Ms. Levin: In terms of how activities of the department are financed against budget votes, et cetera, you should direct this question to the Deputy Minister. We have a new Deputy Minister, Michael Horgan, and perhaps you should ask him this question.
Mr. Caccia: Mr. Chairman, in answer to your question, yes, I have also heard about this situation in previous years. This question is a difficult one that I cannot answer.
However, you may want to explore it with the Auditor General, and perhaps even with the Commissioner of the Environment and Sustainable Development, to obtain an answer as to whether funds allocated for a certain purpose were used for their intended purpose.
The Chairman: I am not suggesting there is anything wrong with that practice. It might be a perfectly normal across- the-board procedure that everyone undertakes. There is overhead. Things that have to be paid for. I will take your advice, Ms. Levin, and we will ask the Deputy Minister when the opportunity arises.
Senator Angus: One item that Mr. Caccia mentioned in his excellent paper that gives us a road map was to ask the department to prepare a series of issue papers for us. However, you did not define the issues, or possibly you do not have a clear idea of what the issues would be. Can you suggest, say, of five issue papers that we might request?
Mr. Caccia: You may want to have an issue paper that would provide you with an understanding as to whether the precautionary principle is adequate and applicable in the operations of the legislation; whether the definition of virtual elimination is strong enough to control quantities and concentrations; whether the Minister of Health has sufficient and adequate powers in performing his or her role in connection with CEPA; whether the pollution prevention provisions are strong enough; whether the biotechnology safety net is adequate; and whether the enforcement of CEPA is adequate and sufficiently funded, as raised earlier by Senator Tardif and others.
Senator Spivak: Mercury is only managed, it is not listed for virtual elimination, but there are all kinds of alternatives to mercury. How, under the act, do you decide which is which?
My next question regards the problem virtual elimination. There are now substances in which one part in one trillion is enough to effect hormone imbalances. Under CEPA, can you ban the emissions that come from coal generators? Is that not within the powers of the act? For example, 130 coal generators are being built in the United States. There is a huge argument over whether scrubbers should be put in. That would be a disaster.
Under CEPA, is it possible to talk about those emissions so that companies are forced to put in scrubbers? For example, the Ontario government is now deciding whether or not they should they put in scrubbers.
Ms. Levin: In the area of virtual elimination, one aspect of the act in section 65.1 is that the level of quantification, which is the level at which the substance can be detected, means the lowest concentration that can be accurately measured using sensitive but routine sampling and analytical methods.
Routine sampling and analytical measures become more precise over time. When you talk about one part per trillion, maybe one day, that will be one part per quadrillion, or one part per quintuplion, because techniques become more refined and more precise. Sampling and analytical methodology that is routine today may be so five years from now.
As to that particular section on establishing level of quantification, there has been criticism from the industry that this will be a constantly moving target because methods will become more and more precise. Therefore, how will virtual elimination of a substance and releases ever be achieved under the circumstances?
Senator Spivak: Already results are noticeable in fish, animals and even human beings. In the reserve, there is a variation in the number of girls versus boys, et cetera. Are you saying that we have the technology at the moment for one part per trillion?
The Chairman: It depends on the substance.
Ms. Levin: Yes, it would depend on the substance. You asked about emissions from electrical facilities or other facilities that use coal as a fuel.
If emissions from these facilities are declared toxic under the meaning of section 64, they can certainly be regulated. If they cause international air pollution — they are a domestic source of international air pollution — they can also be regulated.
Yes, the authority is there in the act to deal with these substances, if they are found to be toxic or they happen to present a domestic source of international air pollution. Yes, it is there.
Senator Spivak: However, the authority has to be used.
Ms. Levin: The authority is not there to tell people to stop using coal unless coal itself as a substance was declared toxic, and it would not be.
Senator Spivak: I understand that. Under the Mulroney government the pulp mills in British Columbia were forced to control their emissions by a different method.
Mr. Caccia: Mr. Chairman, in answer to Senator Spivak's question, one could say that very few substances are suited to applying pollution prevention other than mercury. Mercury is added to many commercial products where numerous and cost-effective alternatives are widely available. Mercury thermostats are a good example.
For nearly 10 years, Canada has been involved in discussions regarding modest and ineffective voluntary efforts to have mercury thermostats collected and recycled. The same applies to mercury thermometers, mercury vapour switches or mercury dental amalgams.
The Chairman: Is there a provision in CEPA that would require or incent by any means the substitution of an equally effective product for mercury, for example, in the applications to which you refer? The light switches in the trunks of our cars are turned on by mercury switches.
Ms. Levin: A regulation-making authority would allow this to happen. A regulation could take a toxic substance, any toxic substance, and determine that it should not be used in products X, Y, Z.
The Chairman: We do not want to put people out of business.
Ms. Levin: You can phase these things in, senator. It is not necessary to say, "Tomorrow, you cannot do it."
Mr. Caccia: We put people out of business with chlorofluorocarbons in the ozone layer, but an alternative product was produced. In the case of mercury, there would be alternative products to create the necessary jobs. Alternative products are in existence.
The Chairman: If I manufacture mercury switches and there is an alternative that would still result in a product that is as effective and still profitable to me, why would I not use it? What is the advantage?
Mr. Caccia: Because nobody asks you not to use it. Therefore, the free market prevails. There is no regulation to say, stop using it. There is no red light at the traffic intersection. It is a green light for everybody. That is why.
The Chairman: You have both been extremely helpful to us in this first phase of our study.
Once we decide exactly how to approach this task, we may ask you to come back to talk to us again when we can be more specific, having determined on a course of how we will study CEPA, and the way and extent to which we will do it.
The committee adjourned.