Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 9 - Evidence - November 9, 2006
OTTAWA, Thursday, November 9, 2006
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:12 a.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.
The Chairman: I call the meeting to order. It is my pleasure to welcome you to the Standing Senate Committee on Energy, Environment and Natural Resources. Over the last few months, the committee has held a number of scoping meetings on the Canadian Environmental Protection Act, 1999 before deciding how best to proceed with the review mandated in the act.
The committee has decided to examine the act by analyzing three case studies to determine how well the act is protecting Canadian citizens from the detrimental health effects known to result from the exposure to substances. The first case study focuses on mercury.
Appearing before us this morning as part of a panel is Dr. David Bennett, who is a member of the National Environmental and Occupational Exposures Committee of the Canadian Strategy for Cancer Control; Dr. Victoria Lee, who is a board member of the Canadian Association of Physicians for the Environment; and Dr. Timothy Lambert, who is a volunteer for the Canadian Public Health Association.
Before we begin, I would like to briefly introduce the members of our committee who are present.
To my immediate right is Senator Angus. He is from Montreal. He is a lawyer with an extensive record of community involvement and is currently senior partner for the Montreal office of Stikeman Elliott. He is also deputy chair of the Standing Senate Committee on Banking, Trade and Commerce.
To my far left is Senator Tardif, who has long been recognized as one of Canada's foremost advocates and defenders of minority, linguistic and cultural rights and for her considerable contribution to secondary and post-secondary education. Appointed to the Senate in 2005, when she hit the ground running, she is currently a member of the Standing Senate Committee on Official Languages and Standing Committee on Rules, Procedures and the Rights of Parliament.
Senator Milne is from Ontario and is deputy chair of the Standing Senate Committee on Legal and Constitutional Affairs. In the past, she has taken an interest in the legalization of hemp as an industrial crop and has opposed the use of bovine growth hormones used to stimulate milk production. More recently, Senator Milne has taken an interest in the release of the post-1901 census records and genetically modified foods, which are not directly related.
I am presuming you would like to speak to us for a few minutes. I suggest you do so in consecutive order, and then we will ask you questions.
Dr. Victoria Lee, Board Member, Canadian Association of Physicians for the Environment: Honourable senators, thank you for the opportunity to speak with you today. I am a physician and a board member of the Canadian Association of Physicians for the Environment. CAPE is the national voice of physicians for the environment and health. We believe that health should be considered a state of physical, mental, social and ecological well-being. The Canadian Environmental Protection Act, CEPA, 1999 is the primary authority for the assessment and management of environmental contaminants and therefore directs policy decisions in Canada. Unfortunately, CEPA has fallen short of carrying out its mandate to protect health, well-being and the environment of all Canadians from pollution and toxic substances, particularly with respect to children. We continue to be exposed daily to persistent and toxic substances that build up in our bodies and consequently cause health problems.
Mercury is one of these toxic substances. Mercury endangers our health because it cannot be removed once it has been released into the environment. It is, in fact, rapidly taken up by micro-organisms and tends to bioaccumulate and biomagnify in animals. It is well-established that methyl mercury and mercury vapour passes through the placenta into a pregnant women's uterus and even moderate levels of mercury in the uterus leads to detrimental effects on memory, attention and language skills.
The 1999-00 blood testing program in the United States found that approximately 8 per cent of women of child- bearing age had blood mercury levels above the Environmental Protection Agency's estimated safe level. The testing concluded that 375,000 children born in the U.S. each year are at risk of neurodevelopmental problems related to their mothers' mercury level. Recent studies have found that increased levels of mercury and the associated loss of IQ cause diminished economic productivity, and this persists over the lifetime of these children. In the United States, the lost productivity associated with methyl mercury toxicity is estimated at $8.7 billion in annual terms. In Canada, 79 per cent of women from Nunavik and 68 per cent of those from the Baffin regions have blood levels above the EPA standards.
CEPA's history of inaction on mercury needs to be changed. Environment Canada has stated that it does not matter whether we use CEPA to deal with mercury emissions; however, it does matter. We are here to talk about what in CEPA prevents its effective use.
There has been little positive action on mercury in Canada. The reductions have generally been the result of other regulations. We continue to contaminate the environment and our bodies with mercury, and CEPA does little to prevent that. Even industry representatives that have testified before you have stated that CEPA has no impact with respect to mercury.
Environment Canada wants you to believe that CEPA is meeting its objectives. If CEPA is protecting the health of Canadians, I ask you: Why have no substances been listed for virtual elimination? Why do consumer products continue to release toxic substances? Why does air pollution continue to harm our health?
Hazardous substances like mercury remain widespread in medical and consumer products despite their listing as toxic by CEPA. For instance, companies are still allowed to sell mercury thermometers when perfectly good alternatives are available. The U.S. poison control system found in 2001 that 20,000 people reported being exposed to mercury by broken thermometers. Over 1,700 people required treatment and some 20 per cent of these cases resulted in adverse health reactions and one death. The situation is not dissimilar in Canada.
CEPA needs to be more effective in eliminating toxic substances in products. The act needs to be strengthened so that harmful substances such as mercury are removed from products that are imported and manufactured here in Canada.
Many groups have come before you to explain the gaps in CEPA. We are here today, as physicians who are front- line health care workers to reinforce the message that CEPA needs to be fixed.
The inadequacies of the CEPA are clearest in our pollution hot spots, which are vulnerable geographic regions such as the North, the Atlantic provinces, the Great Lakes and the St. Lawrence basin. These are all areas with high mercury levels and other toxic pollution, and an effective national environmental act would obligate us to clean these areas up and, in doing so, protect the people and environment.
Let us consider the Great Lakes region in detail. The Great Lakes region is an extraordinary natural endowment, holding 18 per cent of the world's surface freshwater. The Great Lakes are also vital to many North American fish and wildlife species; their wealth of natural resources has long made the region a heartland of economic strength.
In 1991-95, the Government of Canada and the United States developed the Great Lakes Binational Toxics Strategy to restore the degraded areas and to achieve zero discharge of designated persistent and biocumulative toxic substances. The two countries agreed that the discharge of any and all persistent toxic substances be virtually eliminated. Mercury was listed as a Level l substance to be virtually eliminated under this agreement, and Canada committed to a 90 per cent reduction in the release of mercury by the year 2000.
Due to the lack of national coordination on mercury control, atmospheric deposition has not declined in this region. In fact, a study done in 2004 showed that 100 per cent of blood mercury levels tested in those that eat fish in that region had levels that were above detectible.
CEPA should be responsible and accountable for cleaning up the Great Lakes basin to protect the livelihood of the 33 million people that live in this area. Canada must live up to its international commitments.
We strongly recommend that the virtual elimination sections of CEPA be developed so that we can fully protect ourselves from the worst of toxic substances, including mercury.
In closing, the ecological, human-health and economic threats of the continual release of mercury are significant and clear. The stakes of inaction are too high to be comforted by the gains and co-benefits of non-CEPA regulations. We urge the members of the Senate to take the necessary steps today to protect our children from breathing tainted air and pregnant women from consuming contaminated foods. We urge you to seize the opportunity to protect the health of Canadians by strengthening CEPA in the following ways: eliminating toxic substances from our products; developing a meaningful virtual elimination section in CEPA; and, by protecting vulnerable and valuable geographic areas such as the Great Lakes and living up to our international agreements.
Timothy Lambert, Volunteer, Canadian Public Health Association: Thank you for having me here today, Mr. Chairman. I am here representing the Canadian Public Health Association. For the last eight or nine years as a volunteer with the Canadian Public Health Association, I have been involved in several of the Canada-wide standard processes for benzene, particulate matter, ozone, mercury and with consultation on the domestic substances list, the recent releases on behalf of CPHA.
In addition, as part of my Ph.D. in studying public health, I have evaluated the history of how public health is being conducted in Canada and the ethical background for the control and management of substances and the protection of public health.
The CPHA sees CEPA as a key piece of legislation with respect to protecting public health and recognizing that the environment is a determinant of health. Therefore, the health of the environment is impacting the health of Canadians; likewise, human activities are impacting both the health of the environment and the health of Canadians. From that perspective, we have brought forward a number of recommendations to CEPA in that regard.
First and foremost, the CPHA urges that the committee look closely at the declaration of the primary purpose of CEPA. At this time, it is limited to sustainable development, in particular, pollution prevention, and in that regard, the act sets out a precedent to deal with future releases and is not dealing with the impacts from previous human activities.
Mercury provides a good example of why that is a limitation because most of the deposition taking place now is a result of past human activities. The environment is contaminated, and mercury, more than any other contaminant is responsible for a number of fish advisories across Canada. Yet, that is all from previous activities, and therefore, CEPA, as it is declared now, is not addressing that issue.
The second broad area which the Canadian Public Health Association would like the committee to focus on is the meaning of the precautionary principle and its definition. If you look closely at the definition in CEPA, it does not involve public health. We find even though CEPA is talking about the environment as a determinant of health and the interconnection between the environment and human health, the precautionary principle does not specifically reference public health.
We have provided the committee with some wording in our recommendation for the members to consider recommending as a change. We would suggest that you consider the precautionary principle as,
Where there are threats of serious or irreversible damage, to public health or the environment, precautionary measures should be taken to mitigate the harm; lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to mitigate environmental degradation and the protection of public health; as a tool of sustainable development, processes, products, and substances must be shown not to cause serious or irreversible damage to human health and the environment.
The next broad area, which the Canadian Public Health Association recommends the committee consider for inclusion in CEPA, is the concept of environmental justice. At this time, that concept is completely absent in CEPA and is a fundamental development that has taken place in public health and environmental theory and philosophy. It is being recognized in other countries in the world, and we think Canada needs to become involved and embrace that concept.
Mercury is a good example for bringing out the meaning of environmental justice because we have an inequity in exposure to mercury and the health effects experienced by it. Mercury is depositing in Canada's North, and this area now is experiencing an inequity in respect to human health and impacts on the environment because of that local deposition in the North of the atmospheric processes. When we are thinking about national standards and guidelines, we need to recognize that we have these unique situations where the risks are increased compared to the national average. Similarly, with respect to local communities around some of these large point sources of mercury, for example, in Alberta, where there are several power plants around Wabamun Lake, mercury deposits locally as well as part of the global pool. That part of mercury is not discussed that much, so you have a local community that may have increased human health risks and environmental risks because of that local deposition, which occurs around smelters.
In the U.S., there are many studies showing this local deposition close to such places, yet we have not developed that information in Canada to be able to fully articulate to Canadians that that is happening.
We have brought forward some recommendation of environmental justice and some wording in section 2, and we suggest that as part of the administrative duty of the Government of Canada in CEPA, it respects environmental justice in setting national standards and environmental and public health decision making. Respecting environmental justice means ensuring that identifiable groups, local communities, low socio-economic status groups and vulnerable ecosystems do not face increased health risks simply because of these characteristics.
Senator Milne: Excuse me, Mr. Lambert, I do not want to interrupt the flow but you are talking about specific recommendations and I have three papers from you but I cannot find the recommendations.
Mr. Lambert: I have provided one document that has specific recommendations and addresses our proposed changes to CEPA. I have provided two attachments of papers, which I have published in this area, one deals more with a kind of general framework for ethics of public health and environmental health. It outlines the precautionary principle and environmental justice broadly with respect to mercury. I called it ``Attachment A'' and it is named ``Broadly Ethical Perspectives.''
Senators should have three handouts. One is called ``Ethical Perspectives for Public Environmental Health.'' In that paper, we lay out the rationale for the need to consider environmental justice with respect to mercury and the notion that in the North we have these problems, with respect to that being particularly impacted. When we are involved in international treaties, we need legislation to guide us in discussions with people in the United States or China, where there will be a massive expansion of coal-fired power plants and a large increase in the mercury that will be deposited in Canada as a result of those activities, as an example how to consider environmental justice.
The next broad area where we have proposed recommendations is with respect to information gathering. Dr. Lee pointed out that data in the United States shows that we have a significant number of women who are facing health risks with respect to mercury because of their body burden. We cannot actually turn to a similar database in Canada to reference to Canadians what is going on in Canada. This is a shortcoming of CEPA because CEPA should have that information. In reference to information gathering we recommend,
A national human health-monitoring program of toxic chemicals shall be established, and that the information gathered on human exposure shall be made public.
In keeping with the previous theme, we also recommend that in developing any monitoring needs respecting environmental justice, ``the national monitoring program shall specifically include populations where there could be greater exposures than the national average.'' It was shown in 1997, in research in Canada that we have outlying regions with indigenous populations in the North, even in Quebec, where the body burden of mercury is greater than the national average. There is physical evidence to support the need for these recommendations that we are providing to the committee.
We recommend, ``The Minister shall collect and consider information and scientific assessments of other jurisdictions.'' We have a great deal of knowledge about toxic chemicals and the body burden, as developed in the U.S. and Europe, and we should take advantage of the resources that other people have poured in and have, as a specific recommendation in CEPA, that we collect and use this information to improve our decision-making.
The next broad area that we are interested in is virtual elimination. The Canada-wide standards do not specifically bring us to virtual elimination. In this respect, we are looking for a clause on continuous improvement. We put into the legislation in Alberta with the Mercury Emissions From Coal-fired Power Plants Regulation, a five-year review to look at continuous improvement. We are suggesting that should be included in CEPA as well and carried out nationally with respect to these plans.
We have some broad recommendations with respect to regulations and the shortcoming in the current regulations to meet our information needs as the primary area that we have identified in looking at CEPA. On the limitation with the regulations and whether there is a specific gain to pollution prevention, we are recommending that we consider remedial and restorative actions as part of those regulations.
The last broad area that we have for recommendations is consultation, which CEPA recommends in a number of areas. We are suggesting, based on our experience in the Canada-wide standards, that CEPA needs a clear and precise public consultation process to ensure that diversity is heard and that consensus be developed or, at minimum, that a range of acceptable solutions be explicated.
Certainly, we would be able to take any questions and provide any other information that the committee needs.
David Bennett, Member of the National Environmental and Occupational Exposures Committee, Canadian Strategy for Cancer Control: I would like to thank the Senate committee for addressing the important issue of Canada's flagship environmental statute and for inviting the NCOEE to testify. The NCOEE is the National Committee on Environmental and Occupational Exposures of the Canadian Strategy for Cancer Control. I am the retired National Director of Health, Safety and Environment at the Canadian Labour Congress, and I represent the CLC on the national committee.
I would first like to make a firm distinction between the prevention of pollution and the control of pollutants, once they have reached the end of the waste pipe. The CEPA 1999 is explicitly a statue that centrally concerns pollution prevention, which it defines as,
The use of processes, practices, materials, products, substances or energy that avoid or minimize the creation of pollutants and waste and reduce the overall risk to the environment or human health.
Pollution prevention means the elimination or minimization of the toxic inputs into industrial processes and their use within these processes. This results in the avoidance of the creation of pollutants in the first place, while control methods can only mitigate the effects of pollutants once created.
This rigid distinction between prevention and control comes into play in the case of mercury and its compounds, which are a particular concern of the Senate Energy Committee. Prevention methods can easily be implemented in the case of metallic mercury: You simply ban it, phase it out, or impose use restrictions, for instance in the areas of dental materials, medical equipment and switching gear, such as thermostats. With mercury compounds in industrial processes, the problem is more complex but the prevention program can still be employed as it is in the case of metallic mercury — phasing out of mercury compounds and interim use restrictions.
Where the mercury compounds are embedded in the industrial feedstock, such as coal-fired power plants, incinerators and smelters, the prevention agenda is extremely difficult, to the point of impossibility. You can only prevent the creation of mercury pollution by reducing the scale of operations. Even the pollution prevention technique of increasing the ratio of product to waste cannot prevent mercury emissions. Once they are embedded in the feedstock, it is impossible to avoid the creation of mercury pollutants.
Here we stumble, inadvertently perhaps, on one of the flaws of the pollution prevention provisions under CEPA 1999. In the Notice Requiring the Preparation and Implementation of Pollution Prevention Plans for Base Metal Smelters and Refineries and Zinc Plants 2004, we see that control methods are allowed in defiance of CEPA's own definition of ``pollution prevention.'' As far as mercury is concerned, this is inevitable, but it sets a bad precedent for pollution prevention plans generally: once control is allowed, companies will pursue the traditional emission control solutions at the expense of the newer and more effective methods of pollution prevention.
On carcinogens, the NCOEE stance is to recommend that all substances listed as Groups 1 and 2A of the World Health Organization International Agency for Research on Cancer be placed on CEPA Schedule 1 to regulate and eliminate or restrict their use.
IARC Group 1 comprises substances, processes and energy sources that are carcinogenic to humans while Group 2A comprises substances, processes and energy sources which are probably carcinogenic to humans. They are thus extremely poisonous sources of cancer. There is no threshold or safe limit of exposure for any of them, nor can they be effectively managed by traditional emission control methods. The only way of calculating minimal risk is by the highly tendentious method of quantitative risk assessment. A truly precautionary approach would be to ban them or phase them out, the chief method of primary pollution prevention. This is the reason for arguing that IARC Groups 1 and 2A should go on CEPA Schedule 1.
A second position, which is common to the national committee and the Canadian Labour Congress, is to require pollution prevention planning for all toxic substances with special strict planning provisions aimed at elimination for IARC Groups 1 and 2A. Incidentally, mercury and compounds are in IARC Class 3, unclassifiable as to human carcinogenicity. The way this is to be done is through CEPA Part IX, which applies to federal undertakings in both public and private sectors. For workplaces under provincial jurisdiction, there should be equivalent regulations which meet the federal standard under Part IX.
Why this restriction in CEPA to the federal sector rather than a national standard in CEPA for pollution prevention planning? The problem is that the federal government does not have effective jurisdiction inside most Canadian workplaces. Pollution prevention planning is notoriously something that happens within workplaces, not at the public end of the waste pipe, hence the tortuous and ineffectual provisions in the CEPA 1999 pollution prevention planning notices designed to avoid federal inspectors from entering workplaces under provincial jurisdiction in order to ensure that the terms of the notice are being adhered to. There have been only four such notices since 2003, an absurdly low number when we consider that CEPA 1999 is an act respecting pollution prevention.
The CLC, incidentally, presented a critique of the pollution prevention requirements and why they should be so feeble in its submission to the House of Commons Standing Committee on Environment and Development on CEPA, Bill C-32, in May 1999. This whole issue will, I hope, be a matter of discussion for the committee, but I hope that I have convinced the committee that the pollution prevention planning provisions of CEPA 1999 are entirely inadequate. The solution means a different approach to a national standard through Part IX of CEPA 1999 instead of the current pretence that the statute is really about pollution prevention.
As for the national committee position on carcinogens in CEPA Schedule 1, we are very far from seeing this take place. A concern of equal importance is that once a substance is on Schedule 1, this is no guarantee that anything of any consequence will happen. For IARC carcinogens, the position is clear: They have to be eliminated or phased out so that they cannot poison workers, communities or the environment, all of which is respectfully submitted on behalf of the National Committee of the Canadian Strategy for Cancer Control.
Senator Angus: Doctors, thank you very much. I have to say, and I whispered to the chairman, that you have given us a real basis for a wonderful report that this committee could issue. I say that without hesitation that your preparation is tremendous. I am a trained lawyer, and you have obviously followed the old rules of not only outlining the problem but you have taken some pains to give us your suggested solutions. That is really what this is about, and it is very helpful to us. I am sure you agree, chair.
The Chairman: I do.
Senator Angus: I would be willing to sit here all day to discuss these issues with you, if you had all day.
Dr. Lee, you outlined a specific geographical area. Your statement or your narrative about the binational strategy and that meeting that took place in the late 1990s intrigued me.
Dr. Lee: It was in 1995, I believe.
Senator Angus: Canada participated in that initiative with our friends to the south, and would it be federal Canada?
Dr. Lee: From reading the documents, it seems like the local governments and provincial and federal governments were involved. When they speak about agreements there and challenges, they speak in terms that Canada has made the commitment to reduce mercury levels by 90 per cent by 2000. There are federal agreements, and then they talk about Ontario making strides in mercury deposition and things like that. It seems like different levels of government were involved.
Senator Angus: The mental picture I am deriving from your comments is that we have maybe a municipal group from Windsor or Toronto, and then maybe some provincial groups, and then the federal government. You conclude by saying the lack of a national coordination is your guess as to why nothing concrete came out of this.
Dr. Lee: From the documents I read from February 2006, from the report from the binational agreement and commitment, it is written that Ontario has made certain strides toward eliminating mercury. However, it has not made a big difference as far as deposition of mercury or rate of deposition of mercury is concerned. In the document, they state that it could be due to lack of available national strategies. They also look at the U.S. not having a national strategy or the current strategy or policy that is under question is in the legal courts, and they outline that Canada does not have a national policy in mercury.
Senator Angus: This is clearly, as you have all suggested a major flaw in our framework legislation.
Dr. Lee: Yes.
Senator Angus: What came through clearly from all your comments, Mr. Bennett in particular, is that one of our impediments is our federation or our set-up in the areas of concurrent jurisdiction or exclusive jurisdiction, and that is a challenge for any federal legislator. I envisaged these situations in a plant where the workers are organized and these notices go out, and yet there is an inability for the federal inspectors to go into these workplaces and actually monitor. Your suggestion of a national monitoring program makes a lot of sense. I am wondering can we go further. I suppose one of your recommendations is as to how we get around the constitutional issues, is it? I am addressing this to all of you.
Mr. Lambert: Certainly, a national monitoring program could be facilitated through Health Canada or maybe the Public Health Agency of Canada. There is a broad recommendation at the beginning that it may play a good role in doing that, and they have a new structure, which allows for that type of thing to take place.
Senator Angus: One thing that has become obvious to us in this study is that not only are there constitutional issues as amongst the provinces, the municipalities, and the federal government, but within the federal government as well. We find these — I do not like to call them ``turf wars,'' ``inter-jurisdictional blockages'' between the Department of Health and the Department of the Environment and EnerCan, and so on. These are big issues. It is 2006. I would have hoped, as I know you do, that we could have found a way to get around that problem.
I know my colleagues want to question you as well. Let me ask you one other general question. I would appreciate your comments. You can appreciate that people from the federal government are monitoring our hearings, or at least I hope they are.
You are so specific when referring to statistics, 79 per cent of women in Nunavik and 68 per cent of the women in the Baffin region with these blood levels. That is a result of certain data that you have gathered yourselves. It is very impressive.
Have you brought the arguments listed in these various documents to the attention of the Department of Health, Environment Canada or any federal body? That is to say, prior to bringing this information to this Senate committee.
Mr. Lambert: I was involved in the Canada-wide mercury standards. Certainly, this is the type of argument we have been bringing forward. That is why I also provided the two publications to show the committee that they are on the public record. We are trying to push these things forward.
The problem, in my experience, is while we have extremely qualified people in Environment Canada and Health Canada, they become limited by what they can do according to the legislation and the needed changes will not come from them. We find ourselves in a chicken-and-egg situation. They may sympathize and agree with the arguments, but they are limited by the legislation. A good example is the precautionary principle. They will say they want public health in the precautionary principle, but it is not there and they cannot actually submit it to a committee on mercury and redefine the precautionary principle for the Canada-wide standards.
If we create the legislative change, I think it will free them to take advantage of their obvious skills and the government would function better as a result.
Senator Angus: I suppose the good news is that the statute, even though it is its ancillary laws and regulations are cumbersome, provides for a review. That is what we are doing here and that type of exercise is designed to identify these problems so the law can be changed. We can recommend that change.
The word ``bipartisan'' is becoming more in vogue these past few days following the elections in the U.S. This committee, I hope and believe, is an earnest example of a bipartisan committee. We are not driven by partisanship; we are here to try to create a better environment, as you are. In that spirit, we are not trying to put blame on any predecessor governments. We have heard evidence about all the millions of dollars that have been spent. We had the Commissioner of the Environment come here and mention a big specific number, and it created no real concrete result in terms of these kinds of problems.
Do you know why that is? Apart from the constitutional issues or the last answer you provided about the law not allowing you to deal with the precautionary principle — sounds more like the Peter Principle to me — why do you think these flaws exist?
You listed them clearly, Mr. Lambert, in your paper. There are six issues raised on these subjects. I was particularly intrigued by the environmental justice concept, which seems to be prevalent in all of our other modern trading nations, but we do not seem to have it. I know that is a general question, but could each of you comment?
Mr. Bennett: I think your question is: Why is the precautionary principle not used and not considered more in environmental health issues?
Senator Angus: That is a good way of narrowing down my rambling, but it goes on beyond the principle.
Some of the other lacunae you have highlighted in each of your testimonies are there as a result of something, and I was wondering what those something's are. You have focused on the precautionary principle, so I would like to hear what you have to say.
Mr. Bennett: I think we have the answer, and the answer came from a federal government project involving Health Canada. The project was concerned with the institutionalization of the precautionary principle in Canadian practice and Canadian law and statute law and regulations.
The story is a particularly egregious example of the way that the government operated. In the end, the precautionary principle was subsumed under the Canadian government's existing policy of risk management. Risk management had three components: risk assessment, risk communication and the third one escapes me now.
Senator Angus: Is it the control or management of that risk emanating from the first two points?
Mr. Bennett: This was the global concept of risk management. Instead of saying we have the precautionary principle as a challenge to the risk management procedure, then the government decided — and it appears on government websites — that the precautionary principle would be subsumed under risk management when the whole purpose of the precautionary principle was to override notions of risk assessment and risk management.
The result is that you get the concept of risk management. The precautionary principle then becomes one small qualification in the way that risk management operates. In some Canadian statutes, with a particularly involving resource development in the Canadian North, the precautionary principle is put in there directly without any qualification over risk management. However, whenever dealing in national or Ottawa-based issues over environmental protection and environmental health, the government cannot do anything significant regarding the precautionary principle because it has tied its own hands by this slight of hand way of incorporating the precautionary principle under its existing policy of risk management.
Senator Angus: Was that, in effect, save me from myself I know not what I do? Was that something done consciously?
Mr. Bennett: Yes.
Senator Angus: You stated ``slight of hand.''
Mr. Bennett: I suppose this is a political contention and I will admit that.
What happened was that the government came up with a draft policy, which was the idea of subsuming the precautionary principle under risk management. It came out with that and had a very genuine form of consultation over the future of this document, but then the consultation process was stopped and the policy was adopted as per the original draft.
When you ask whether there was a real consideration of alternatives, I am afraid the answer is no. The government did not want to budge over its very conservative and reactive policy of risk management.
Senator Angus: Thank you, that is very helpful.
The Chairman: You just stated a few minutes ago that the indication of precautionary principle having been subsumed by other considerations is on a website. On which website can we find that information?
Mr. Bennett: You can find it on the Health Canada website.
The Chairman: Thank you. We will have a look.
Senator Angus: Would you like, Mr. Lambert or Dr. Lee, to comment on my general question of ``why?''
Mr. Lambert: I probably could not necessarily address that in a specific manner of providing any evidence, but I think the CEPA five-year review allows us to look at these things and reflect on where we are going. The whole notion of the precautionary principle and environmental justice are ideas that are developing, as we understand what is happening with the environment and human health. I do not think there are things we necessarily could have predicted 25 years ago. As we come to understand how things happen and how things evolved, we certainly need to change and develop our policies.
The precautionary principle first came out with Rio de Janero in 1992 with respect to sustainable development, and that infiltrated CEPA around that time. Certainly, they had not taken a step back to focus on sustainable development and where to go from there, and it is all about the future. We have tended to drop what we were doing about what is happening now, so we can see those gaps in CEPA where that has taken place. Therefore, there was a shift, and we are bringing forward the completion of that introduction of modern ideas into CEPA. I would not think it is deliberate; it is similar to the concept of risk itself, duly brought out back in the 1920s, namely, that risk is all about creating these problems for ourselves through our own good intentions.
Mercury is a great example with electricity. No one wants to turn off the electricity because we will all freeze to death, but, at the same time, we are coming to understand a negative adverse consequence that causes us to say that we need to change the way we create electricity. It will take time, but certainly these new technologies we introduce will bring in new risks that we will understand, and that is why we are trying be based on justice in Canada. As we recognize the inequality that comes from these decisions, we need to fix them. Environmental justice is emerging with scientific technology because 25 years ago we did not have the data to know how the people in the north are being impacted, in particular, from this deposition of mercury. Recognizing that science, we can bring our ethical and legal tools to adjust CEPA accordingly and move forward that way.
It is a developmental process taking place right now, and if we latch on, then we will develop our ideas accordingly and move forward. Canada can be a leader in bringing these concepts forward to the rest of the world.
Senator Angus: That is a positive outlook. I am happy to hear that, too. It is just that we have fallen so far behind and you have pointed out in many ways why. I am wondering what caused a nation as advanced and developed as Canada to get so far out of step.
Dr. Lee: I would like to point to the lack of coordinated efforts from national directives like CEPA. CEPA is the authoritative act under which local and provincial governments can work. When there is no direction on something like mercury levels from CEPA, it is difficult for local and provincial governments to enforce or regulate effectively and coordinate their efforts.
When you were looking at specific numbers of 69 per cent of populations in certain areas, these are very small populations that we are looking at. In the United States, for example, they have national data on biomonitoring, on mercury levels and other toxic substances. CAPE is a trying to work with other health organizations to gather national biomonitoring type of data that would be important. However, it is difficult to carry out and have meaningful results without having national coordination.
Senator Tardif: I want to add as well my congratulations for having prepared such a well-researched presentation. I look forward to reading the articles that you have given to us, Mr. Lambert. I notice you are from the University of Calgary.
Mr. Lambert: Yes, by day, I work for the Calgary health region as the manager of environment health risk assessment, and on this I am also a professor at the University of Calgary where the Sydney tar ponds have been a key area of my research for the last few years and I also work in public health ethics. Those are my two areas.
Senator Tardif: I look forward to reading your papers.
I noticed that in today's presentations there was no specific mention of protecting the child, and yet in one of the documents that I had previously been given, you indicated that we need to do much more to protect the child and that CEPA does not have specific provisions for the protection of children and other vulnerable populations. You did mention the Aboriginal population and the people that are vulnerable in the North, the Atlantic and Great Lakes area.
However, I was wondering how one should change the language. Could the language be changed in CEPA to address the protection of the child?
Mr. Lambert: On page 13 of my submission, I recommended that when we do our assessment of chemicals and we determine the quantities we say we will release that we develop child-specific uncertainty factors, and that is recognition. I brought a document with me from 1997, called What on Earth: A National Symposium on Environmental Contaminants and Implications for Child Health.
Out of that type of research from 10 years ago in Canada, we have recommended following the U.S. EPA. They have adopted, in their risk assessment processes, the development of child-specific uncertainty factors to address this because children are not just little adults, and they are completely different. Mercury impacts the brain. If you look at young children, when they are developing, sometimes their body mass to their brain is one to one, whereas as we grow older, that ratio brain mass to body mass gets smaller and smaller, so you can see mercury especially impacts the brain there.
We saw that coming forward by specifically addressing it in the way we do risk assessment, so we have couched it within the broad recommendation of considering child-specific uncertainty factors. I could go on at length on the child, but if that answers your question, I will stop there.
The Chairman: Mr. Lambert, you referred to page 13 of a document. Which document is that?
Mr. Lambert: It is the submission of the recommendations, and it is under the concept of Virtual Elimination.
Dr. Lee: If I may add to that, there is a document that was handed out, A New and Improved CEPA, and on page 5 of 9, under number 1, Consideration of Vulnerable Populations when Categorizing Substances, we have detailed recommendations on how CEPA may improve upon categorization and statements under Vulnerable Populations, Provisions Similar to found in Revised Pest Control.
Senator Tardif: Yes, thank you. That is where I picked it up. You did not mention it today.
Mr. Bennett: Could I respond by trying to sketch out the relationship between research, which includes research on the health effects on children of mercury compounds, and pollution prevention planning.
Could I also say that with respect to the Canadian government's concepts of risk management, the third missing factor that is to be considered is risk reduction. Therefore, it goes to risk management, and the three components are risk reduction, risk communication and risk assessment.
I do not want to say that the whole effort of trying to determine health effects on specific populations is wasted. It is not wasted. It is utterly necessary to some forms of effective national action on reducing the effects of pollutants on the Canadian population.
What I am saying, though, is that when we enter this area of pollution prevention and the pollution prevention planning requirements that flow from it, we are not concerned with investigating ranges of health effects, calculating risk and taking pollution prevention action as a result of our calculations, research, investigations. We do not do that in pollution prevention planning. Rather, we take the whole universe of toxic chemicals in a workplace, which does include mercury and its compounds, and then institute a whole series of techniques for reducing the input and the use of these toxic compounds or the toxic compounds which lead to toxic pollution. Then you take measures that actually reduce this so that the amount, for example, of mercury compounds emitted into the environment is substantially reduced.
We do not ask if we have a problem or what kind of problem or how big it is or what we will do about it. We do not do that; rather, we simply say that we have an estimate of relative toxicity; this is the universe of chemicals that we are dealing with; this is what we want to do to reduce the use and inputs; and go ahead and do it. Although science is used in pollution prevention planning, it is used in a very different way from the approaches that you suggested should be applied to national legislation on pollution reduction, pollution control and even pollution prevention.
It is not to say that the research is wasted. The trouble is that the more we demand research and calculation in the area of pollution prevention, the less effective pollution prevention planning becomes. You can see tangible examples of this from leading American states such as Massachusetts, New Jersey and Oregon, where they simply put the program into place, have some strict scientific and technical criteria for saying what companies, employers and businesses have to do, and they go ahead and do it. It comes down to, with pollution prevention planning, not messing about; just do it. It demonstrably works. It has worked in selected American states and we can do it in Canada as well. We then ask: Why are we not doing it properly?
Senator Tardif: For clarification on your comments, is this because the precautionary principle does not include the public health dimension?
Mr. Bennett: No, not quite, senator.
Senator Tardif: You are saying that research is used in such a way where it identifies the toxicity.
Mr. Bennett: I do not think that is the case. However, a number of areas come close to it. First, whatever CEPA does, it has to be a national statute and it has to cover all forms of social and economic activity in all sectors across the country. This is the idea behind Canada-wide national standards for environmental protection generally. When it comes to pollution prevention planning, the NOCEE says, you cannot do it that way for various complex but clear reasons. Concentrate on the federal sector; use the provisions in the federal sector as a standard for the provinces. You get your national standard through complementary action of federal and provincial action. It is because we have this mindset about a national standard or a national statute, that the practitioners and the policy-makers are unable to see that you cannot do pollution prevention planning in the way that it is currently being done. If you do, it will be very small and very feeble.
Second, is that an entire architecture has been created inside CEPA that says, you can only do things about toxic chemicals once you have declared a substance to be CEPA toxic. If you look at the way that pollution prevention planning actually works, you do not categorize substances as toxic and go through a time-consuming, drawn-out expensive procedure to decide whether a certain substance is toxic. Rather, you take a list of toxic substances and say, right, if your workplace uses one or more of these substances, then you have to do pollution prevention planning and you have to address all toxic substances in the workplace, not just the ones declared to be CEPA toxic. The whole national mindset about CEPA has stopped people from thinking seriously about how pollution prevention planning can work and should work.
Senator Tardif: Thank you for that explanation. I will switch to consumer products that have mercury, such as children's toys, cosmetics, thermometers, electrical appliances, light bulbs, et cetera.
Mr. Lambert: Costume jewellery is a key one for children.
Senator Tardif: Would you suggest that we should ban all consumer products containing mercury rather than try to control and manage them after they are in place?
Mr. Lambert: Certainly, yes for children's toys and costume jewellery, which are two catastrophic examples. Another example is lead in costume jewellery. The problem is that children put such items in their mouths and suck on them. We have voluntary agreements to try to address this issue. A woman in Calgary camped outside the store that sold the costume jewellery that caused her daughter to develop holes in her head. We have guidelines in place but the fact is that the borders are leaky and these goods come into Canada. We might have guidelines in place that ban mercury or lead in costume products but consumers can go to any of these fairs and see people selling all of these trinkets. It is all shiny and glittery so all the children want to buy something. Yet, there is no monitoring program to ensure that the goods are safe, to know where the goods are manufactured or how they are brought into Canada. There needs to be a way to address that gap.
Perhaps if we have regulations and specific laws that address this issue, it would improve. The situation is not unlike waiting for the evidence — until the fifth or sixth child dies — to prove that a stop sign is needed. We have made positive moves, such as removing mercury from running shoes that flicker. It was the mercury that caused them to do that. It is another example of costume jewellery. We are moving in that direction but, certainly, we need specific regulations and we need to work with our international partners to ensure that they are monitoring activities in their own jurisdictions. As well, many children are probably making a lot of this costume jewellery form supplies available in the stores.
Senator Tardif: I will go through my costume jewellery when I get home and put it in the garbage.
Senator Milne: I will follow through on costume jewellery because this affects women and children, in particular when children put it in their mouths and suck on it. I am assuming that mercury is used in some white metal compounds that pieces of glass are set into. Is this what you mean when you say ``costume jewellery?''
Mr. Lambert: Yes, and we have been trying to address the issue for a long time. An example is the girl that died in Minnesota about a year and a half ago from lead in costume jewellery. We have everything in place to try to supposedly deal with this kind of problem but whether it is working, we do not have the information and the data to know. It feeds a little into what we are recommending for information gathering for CEPA. What we have taking place is measuring the emissions from a stack but there is no real monitoring program to ensure that things that we think we are doing is taking place.
Senator Milne: I am asking you to be specific because we are live on air right now, and this will be seen by people across Canada. I am asking you to be specific to try to get some of this information out there. This woman is camping in front of a store in Calgary because her child has holes in her head.
Mr. Lambert: That was in the past. If you search on the Internet, you will find the history of that incident with the woman in Calgary. It is an example of, ``Here is what is going on, and we think we are dealing with this.'' There are certainly agreements in place to try to limit this going on, but I am suggesting that we do not really have the information and the actual testing programs to ensure this is actually taking place. I do not believe anyone is saying that it is okay to have costume jewellery with this stuff in it, but it is a question of how do we know.
Senator Milne: In other words, mothers, if you are out there listening, if you are putting something around your child's neck or on their finger or wrist, make sure it is gold, something inert.
To come back to the question before us, I congratulate you all, because you have been the most specific witnesses that we have had before this committee, and you have come up with specific suggestions.
I do differ a bit from Senator Angus when he said we have fallen so far behind in Canada on mercury emissions and what we are doing about them. In fact, we have not. Mercury emissions are down something like 90 per cent, and I believe someone said 70 per cent, but that is in spite of CEPA, not because of CEPA. What can we do with CEPA to make it more effective? I really do appreciate these specific recommendations.
The Chairman: I think it was down more than 70 per cent. We heard from industry that it was close to 90 per cent, or more. We have seen graphs that purport to show this. If the mercury emissions that we make from industrial sources in Canada have in fact, been reduced by 90 per cent, who cares under what regulation or rubric they were reduced? If they have been reduced, they have been reduced. If it was incidental to CEPA, what difference does that make?
Mr. Lambert: The difference is, with respect, that we are here to review CEPA, and we are looking at CEPA as a tool. If CEPA as a tool is not working because it is not reducing mercury emissions, and if many Canadians are pounding on the doors of industry, saying, ``Here is the problem, and you have to get the mercury emissions down,'' and if you are coming up with agreements between the general public and industry to start doing something, then clearly it is suggesting there is a gap in CEPA.
The Chairman: You are right, and that is the question we asked you to address. However, industry has said that CEPA may not be working, but the fact is that without CEPA and without the applications of CEPA, they have reduced mercury emissions by 90 per cent, so is that not good?
Mr. Lambert: If we look at it from a historical perspective, we have known for a long time that mercury is a problem. I was involved with Canada-wide standards for mercury from coal. We sat around for delay after delay, and it was not until we developed a consensus process in Alberta and essentially sat with industry and reached agreements ourselves. The public put in many volunteer hours persuading industry and trying to get them to understand the public health side of the issue. If CEPA was working properly, we could have had these reductions in the 1990s and we would be that much further ahead. As well, we would have development of technology to reduce mercury emissions back in the 1990s, and we could now be exporting that technology to China and India and all these places that have hundreds of coal plants coming on line. We are still fooling around with trying to figure out how to get mercury out of coal emissions. Those coal plants are going in without any mercury control. If CEPA had been effective and we had put in a pollution control strategy on coal plants in the 1990s, or even in the 1980s, right now, we could probably be talking with China and saying, ``We will come over there. Here is good environmental legislation we have developed; it has been through the public; we believe it is sound. Here is a set of technology suites that will back up that legislation so you are not in a situation where you have legislation and nothing to enforce it with.'' We could be a world leader, whereas, we are not in that position now, and the problem is that Canada is actually the one that will be getting the emissions from that mercury. It will go into the global pool and deposit in Canada. CEPA should have played a role a long time ago to do that, and it would have facilitated world change. That is the difference.
The Chairman: Thank you.
Senator Milne: Dr. Lambert, you have talked about all these new coal plants in Alberta.
Mr. Lambert: No, senator, I was speaking of coal plants in China.
Senator Milne: Yes, but how is the gasification of coal project going in Alberta? How mercury-free will that be?
Mr. Lambert: I do not think I can answer that question. I would say it is a challenge for the public to be involved in knowing the various stages of some of these industrial processes. Even for just putting in the activated carbon to reduce mercury, it is a challenge for us to get the data and be participants in how that information and technology is being developed. It is very challenging right now for the public.
Senator Milne: A big fish in Alberta now is how best to use coal and make it as clean as possible, and gasification is one of the processes they were working on. If you can find out any information, it would be interesting.
Mr. Lambert: I have made many good friends in the industry, and if I can find that information, I will bring it forward.
Senator Milne: Thank you.
Senator Angus asked you why; my question is how — how to do some of these things and how to put the teeth into CEPA, which you have suggested. Mr. Bennett has said that we should just do it and make it law and then the provinces would follow along. There is a very big barrier in between making a federal law and getting provinces to follow along. We all know that and it sounds great, but I have real qualms about it actually happening in many cases.
Mr. Bennett: If we look at the history of Canadian federalism and cooperative federalism, you have a right to be pessimistic. On the other hand, the way that the Canadian Labour Congress has articulated the process is that the federal provisions under CEPA Part IX are only the first stage in a national standard of pollution prevention planning.
Senator Milne: If an inspector went into a plant, as you know, the first people to complain would be the unionized workers.
Mr. Bennett: Our proposal is that we should not pretend that federal inspectors have any business inside workplaces under federal jurisdiction. Then we have our own mechanisms, like the Canadian Council of Ministers of the Environment, to say to the provinces, ``This is the federal standard, this is what we regard as the flagship of pollution prevention planning, and we want to enter into discussions with you so that we get similar, not identical, but similar legislation and regulations in the provinces and the territories.''
What will we do other than talk about cooperation? What else will we do? The Canadian Labour Congress proposed a scheme of what you could call ``environmental taxation,'' but it is actually permits. If you use a certain range of chemicals, then there is a fee that you have to pay to the federal government. This fee is then used as a source of revenue to help the provinces implement legislation and regulations that come up to the federal standard under Part IX of CEPA.
Presently, that aspect is not anywhere near the top of the political agenda. However, it certainly was on the agenda in CEPA 1999 when the Department of Natural Resources and Environment Canada were looking at the whole question of fees, taxes and charges under CEPA. The aspect they completed was to develop a system that would make it possible to implement emissions trading or a carbon tax under CEPA.
The sort of proposal that the CLC made was considered, but it was rejected because this issue was not a government priority. Also, I think there were some doubts as to whether Environment Canada was the right vehicle for doing something that you might say comes under the jurisdiction of Revenue Canada.
We have worked out quite a convincing proposal for trying to induce the provinces to follow the federal flagship standard, and we have articulated that proposal. We have used American and Danish examples with respect to the way this is completed. It is not simply a question of saying this is what we are doing and telling the federal departments to do the same. It has been articulated more thoroughly than that.
Senator Milne: Dr. Lee, you have spoken of cleaning up the Great Lakes Basin, the Arctic and the Maritime provinces. Sydney is a prime example. How do you propose to complete that clean up?
Dr. Lee: The way we see CEPA changing would be in the following manner: First, to develop a meaningful virtual elimination section to add not just mercury but also other hazardous substances that have already been defined as Level 1 substances. Developing that section in CEPA would be very good for eliminating these substances. Second, we should look at vulnerable geographic areas and accomplish more in those areas. Third, focus on the vulnerable populations we have mentioned, children and pregnant women, who are vulnerable to mercury as well as other hazardous substances. Four, get those hazardous substances, such as mercury, out of our products manufactured here and imported into the country.
Those are some ways in which we would like to see CEPA change.
Senator Milne: I still do not see how changing CEPA can do much about cleaning up the Great Lakes Basin. That free mercury is already there.
Dr. Lee: The virtual elimination part of it is not looking at just the baseline mercury that is there, but also making a drastic reduction on mercury that will be deposited now and in the future.
By having CEPA put mercury on their virtual elimination list, it would definitely enhance what will be released in the future from industry, manufacturing et cetera. Therefore, it will reduce future impacts of mercury.
Senator Milne: Therefore, releases would continue to increase, but it would slow down the angle of the graph?
Dr. Lee: As far as atmospheric mercury is concerned, it is not just Canada that contributes to what is deposited in the Great Lakes. We still contribute significantly to the Great Lakes.
Another thing that has been mentioned is that internationally we want to set an example in order that others can follow suit. This is another area in which we can make a big and meaningful difference.
The Chairman: Mr. Bennett, you talked about elimination of a number of things, including dental amalgam, which is on the list that you specifically mentioned.
We have heard from the Canadian Dental Association. It is their contention, first, that mercury involved in dental amalgam is virtually trapped there and that its emissions in the human body are relatively insignificant. They have put in place for virtually all members of their association means by which when the dental amalgam is removed, when a filling is removed and changed, and when it goes into the drain when we all spit it out, as we do, there are processes now in place in that drain that remove the mercury, trap it and the means by which it is then dealt with are very carefully controlled. It is properly — one cannot say disposed of because you cannot dispose of mercury, but it is dealt with properly. I am wondering if you agree with me.
I am wondering if you have reason to disagree with or question the contention of the Dental Association that it is okay, and it is the most practical thing for us to use as a component of a dental filling.
They said clearly that gold is a better alternative, but that the practicality of it is that there are many of us who simply cannot afford gold and that dental amalgam containing mercury is okay.
Mr. Bennett: Let us say we have a situation in which mercury amalgam fillings are there in the millions in the population, and when these fillings are removed, one must capture the mercury and ensure it does not escape, pollute the environment and damage human health at the waste end of the process.
The Chairman: That is also true when a person with dental amalgam fillings dies. We have discussed that as well.
Mr. Bennett: If you take this limited scenario, this is the best that we can do. If dentists and the profession are following this procedure, that is all that can be done. The trouble with pollution control methods is that once that pollutant has been created, you cannot do anything more than capture and insulate it from the human environment.
In some cases, you can effectively destroy the pollutant. The example is PCBs. In the case of mercury compounds, you cannot do that. Once all this waste has been taken out, all one can do is put it in a pot and ensure it does not escape. I have no problem with that part of it.
The other part, which is how to stop mercury from getting into people's fillings, that is a question for the legislators to determine as to when the alternatives are less unsafe than mercury, the alternatives being ceramic and gold.
Once we are convinced that there are less unsafe alternatives, you then simply stop the profession from using mercury in fillings. Whether that has been done, I do not know. Mercury fillings are, if they exist at all, only a small part of the contribution to the problem.
The thing to grasp is, again, the distinction between prevention and control methods. The main and most effective method is to stop the mercury from being produced or used in the first place. Control methods, once the stuff is there — and it is a matter of great regret that it is — one simply must make the best of control methods. From what you are saying, Senator Banks, the dental profession is doing that.
The Chairman: We were happy to hear that they are.
You spoke, Mr. Lambert, about the ethical background in all these questions. That is a phrase that I have not heard before.
I think the members of our committee are probably sick and tired of the amount of paper that we send out. We try to keep everybody up to date on everything, and it is voluminous. I apologize for that.
An article and a report last week by the Harvard School of Public Health referred to neurotoxic substances and their existence in the world, in North America in particular, as a silent pandemic. You have all referred to this to a degree with respect to the difference between the neurotoxic effects of mercury in particular on adults, on the one hand, and on children, on the other, in respect of the development of their mental capacity. We are used to people sometimes being alarmist.
Would you subscribe to the contention that this is, in fact, a silent pandemic and that it is having demonstrable and emergent effects upon the mental capacities and development of our children?
Mr. Lambert: If I am correct, I believe you are referring to the new paper by Philip Landrigan. Dr. Landrigan is very well respected —
The Chairman: The name I recall is Philippe Grandjean.
Mr. Lambert: He is the other author.
The Chairman: It was Harvard.
Mr. Lambert: There were two authors, and I referred to Dr. Landrigan because he has been a key person pushing the neurotoxicity of lead. Lead and mercury have both been identified as two key elements in neurotoxicity.
I think it is important to interpret that we are not talking about things where children are dropping dead. He is talking about, on a population perspective, looking at lead and mercury and the detriment in IQ, and it translates into a tremendous health burden and a cost, not only financially because we are less productive, but also if I am correct as a sort of dimming of our neuro-capacities. It is a subtle type of thing, but it is occurring across a population basis. It is affecting all of these children and cutting across socioeconomic status and IQ, so intelligent people are not as intelligent as they could be. It is a shifting of the actual distribution of the curve. That is why I believe he is referring to it as a pandemic.
In my submission, I have called children the unwitting targets of environmental justice. That is the kind of context in which I am referring to that term. These children have no capacity to make changes so they are not protected. They have no voice. It is a problem. We now know they are particularly vulnerable to neurotoxic substances. For that reason, we have recommended putting neurotoxic substances on the list for virtual elimination, and we should move in that direction.
The Chairman: Just for the interest of us and those who are still watching us on television, when you talked about costume jewellery and things like that, bobbles containing mercury and other neurotoxic substances, is it the manufactured gems or is it the metal part that holds those things together that causes the problem? Parents would like to know that. Is it all of the above, or do we know?
Mr. Lambert: I do not think we know. It is an issue that we have been trying to address for years, and we are struggling with it. Perhaps gains have been made in that area. I raised the issue as an example of where CEPA could be used for information gathering. If we had these types of monitoring programs going on, we would understand these types of questions. It is a gap. How widespread is it? Is it intermittent with the odd batches coming through with the presence of these toxic metals? It may depend on how refined things are. Things are done even before the manufacturer receives the products to make those materials. We do not understand these processes. I raised it from the point of view of trying to address a gap in CEPA.
The Chairman: Dr. Lee, you talked about thermometers. We have heard about them before. If you asked most Canadians where they come into contact with mercury, they would say thermometers. I presume we could reasonably extrapolate that if there are 20,000 deaths in the United States that are attributable to problems deriving from the use of mercury thermometers, then there are probably about 2,000 in Canada. That would be a demographic approximation. Are mercury thermometers outlawed in the United States?
Dr. Lee: I do not have specific information on regulations regarding mercury thermometers in the U.S.
We have information that there is a lot of mercury in different consumer products, as Mr. Lambert has pointed out, and in the energy sector. For example, medical incinerators also use mercury use. A wide variety of consumer and non- consumer products contain mercury. This is a good opportunity, in reviewing CEPA, to try to get mercury out of consumer products, especially, if at all possible.
I would like to respond to the idea of pandemic that you just referred to. I have one of the studies by the author that you mentioned. An epidemic is when a disease occurs at a rate that is much greater than you would expect. A pandemic would be an epidemic on a worldwide basis. If you look at mercury or other pollutants nowadays, it is a global problem. Mercury that is deposited from China or released from Canada does not remain just in the Great Lakes or in Canada; it is shared by the world population and the world's children. The idea from the study is that when they looked at populations in New Zealand and India and different areas, they found similar problems with decreased IQ and language problems and speech problems, which are related to loss of productivity and livelihood. This can be defined as a pandemic because it is occurring at a much greater rate than imaginable even 10 to 20 years ago, and it is a shared global phenomenon.
Senator Angus: Mr. Chairman, you asked part of the question I was going to explore with Dr. Lee. I will try to complete on the thermometers. I gather your concept of virtual elimination would mean statutory banning. Is that what you mean by virtual elimination?
Dr. Lee: Others on this panel might have a better definition than I do. However, as I understand virtual elimination, there is a baseline of substance that is naturally occurring. For example, for mercury, I believe it is 30 per cent occurring naturally and 70 per cent anthropogenic. By virtual elimination, we are trying to get rid of that anthropogenic or human-induced part.
Senator Angus: That phrase has nothing to do with banning specific consumer products?
Dr. Lee: In order to eliminate anthropogenic production of mercury, we would need regulations and policies in place that would not allow further production of certain products.
The Chairman: Am I correct that what you mean is that it would disallow the conscious use of input of mercury into making something? Is that what you mean by ``anthropogenic''?
Dr. Lee: ``Anthropogenic'' in general terms means human-released mercury, not naturally occurring.
The Chairman: What you are talking about with respect to a ban is saying to manufacturers of electric light switches, light bulbs, thermometers, whatever, that they may not consciously put mercury into this product. Is that right?
Dr. Lee: Yes, when there are alternatives available. For example, if we look at thermometers, there are just as cheap and just as good thermometers available that do not have any mercury inside. Why should we allow mercury in thermometers when there are good alternatives available that consumers can have access to and can purchase without any economic or geographic barriers?
Senator Angus: Some witnesses who talked about thermometers left us with the impression that we are likely not producing mercury-filled thermometers in Canada, but we are still importing many of them. Thus, they still present a potential hazard.
That raises the issue of when they break or are disposed of. Are there guidelines that you can give us as to their disposal? Any number of senators might have two or three of these in their medicine cabinets. How do we get rid of them properly?
Dr. Lee: I would like to echo Mr. Bennett's comments that perhaps in this case we should be more proactive and preventive in our actions and have programs available to exchange mercury thermometers rather than have people waiting for them to break before disposing of them. Having effective programs available for people to exchange their old mercury-tainted thermometers for new without-mercury thermometers would be a good recommendation for the committee.
Senator Angus: I would imagine that when people are cleaning out, they just throw the old thermometers in the garbage, which is bad. The alternative would be to have a kind of control centre where there would be a better form of disposal. Do we have such a place to dispose of the thermometers? Does that issue fall within your general recommendations?
Dr. Lee: Are you asking whether there are hazardous waste disposal sites for thermometers?
Senator Angus: Is there some alternative readily available to Canadians for disposing of these kinds of products?
Dr. Lee: No, senator, I am not aware of any.
The Chairman: It depends from city to city; some places have such a facility and some do not.
Senator Angus: My comment about Canada being behind was directed to your comments, not specifically on our mercury emission reductions but rather generally on issues such as the points that you made about the precautionary principle and the other areas where we seem to be lagging. I think all of us on this committee are interested in Canada not lagging behind. Certainly, Senator Milne and I are two senators who want to make Canada number one and not go from number four to number 28, as we have in some areas.
Mr. Bennett: Can I use this as an opportunity to talk a little bit about the virtual elimination process? There is a very long and complicated procedure under CEPA for getting a chemical on the virtual elimination list. There is a major research project called ``environmental assessment,'' and the chemical is assessed to determine whether it meets the technical definition of ``toxic'' under the CEPA. If it does, then it is declared CEPA toxic. Following that, a number of things can happen. The substance can go on the virtual elimination list; however, the trouble is, as far as I know, that there is only one chemical on the virtual elimination list of CEPA 1999, so we are about seven years behind. Of that chemical, no elimination action has been proposed.
Senator Angus: What is that chemical?
Mr. Bennett: I do not know.
The Chairman: It is not mercury.
Mr. Bennett: It is an extremely poisonous chemical, which is used in very small quantities. It could be hexachlorobenzene, which, I believe, is a greenhouse gas as well. The idea that mercury should be routed through this process and end up on the virtual elimination list is an exercise in circumlocution. If the committee wants action, my advice would be to not go through this process of getting something on the virtual elimination list. For example, you might get into long, drawn-out debates as to whether mercury in dental fillings truly has a health impact on the person with the fillings. My response is who cares? We know that mercury is a poison and we know that it leaches out, so do something about it. Mercury is already on Schedule 1 of the CEPA for the kinds of actions that the committee has discussed in this and previous sessions. We do not need this great architectural procedure to take us to where we want to be. It is on Schedule 1 already; just issue the regulations. What will we do? Look at the applications of mercury; see what progress has been made, and then use regulations in what we call a ``technology-forcing fashion'' to require companies to do what is already the best practice in the industry. For example, it is only out-of-date plants using out- of-date technology that still use mercury switches in cars. There has been pressure from many sources, including the trade union movement, to get mercury out of switching gear in automobiles, and it has been successful. A regulation would get industry to realize that this can be done and it is being done. It would let industry know that it has a certain time frame in which to convert automobiles, for example, to non-mercury switching gear. Then, the question arises, what to do with the mercury that is already in use? It might be that the CEPA is the vehicle for that answer.
Senator Milne: I have been scanning quickly through the presentation prepared by Ms. Tara Zupancic. I will read one short paragraph in respect of the mercury and lead toxicity:
Toxic emissions are increasingly linked with serious illness including several forms of cancer, reproductive problems, birth defects, low birth weight, intellectual deficits, autism, learning disabilities, and Attention Deficit Hyperactivity Disorder (ADHA). Rapid and disturbing increases in thyroid cancer, non-Hodgkin's lymphoma, testicular cancer, prostate cancer and breast cancer are likely caused, in part, by increases in environmental pollution, including early life exposures.
Canadians should be very aware of that information.
I thank you for your presentation to us today on this subject. I am not asking a question but making a bit of a statement instead. If there is something we can do through the CEPA and perhaps through encouraging stricter regulations, Mr. Bennett, then I think this committee should do so.
The Chairman: That is part of our objective. I am particularly grateful for your having pointed out to us what should have been obvious to us before: We have to look more carefully at the concept of Canada-wide standards, which are all very well and good except the results are not Canada-wide. As you pointed out, some concentrations are not fair or environmentally just. You are right when you say that the precautionary principle was one which the previous government undertook to apply, not just to these questions but to everything. It was a tenet of the government. It would seem that it has been sidetracked, in some respects, except for those acts of Parliament in which it is clearly stated and operative. A part of it has always bothered me and others of us: The words ``cost effective'' because that is a backdoor through which one can escape.
Cost-effectiveness it is not defined and it is always easy to argue that when something needs to be done because of the general public-good purpose, it is not cost-effective because it will cost money to do that. Cost-effectiveness is a function of the precautionary principle, which essentially says that if you are in doubt, do not do it; or, to be proactive, if there is a doubt about the use of this item, take it away and do not use it until you are reasonably certain that it will not be harmful.
Do any of you have a comment about the question of whether cost-effectiveness is something that can be retained in the precautionary principle if it is ever going to be given real application?
Mr. Lambert: I could probably address that issue for you. First, the way we have defined it, we have separated the administrative duty of taking precautionary measures to mitigate harm from cost-effectiveness; we have inserted a semicolon. I do not want to get too technical on the writing. The way we see it, the administrative duty is to protect the public and the environment and to do no harm.
The Chairman: Let me be very specific. We have had this argument before. The core is ``lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures.'' Do we need that?
Mr. Lambert: It is a question of emphasis. The first aspect of the clause, the way we have provided it, says we will take action and we will do this. The second aspect of the clause places the onus on ensuring that when we take action, we will not retrench the first principle by making it subservient to cost-effectiveness. That is the way I look at it.
We have a duty to take action. When we are deciding what to do, we are looking at what is cost effective. It acts as a secondary principle, not negating the need to take action, but figuring out what action to take. If we are to choose between five or six options, let us choose the option that is the most cost-effective and let us not get ourselves bogged down with a question of whether we are taking action or not. That is the first side of how to look at that.
Generally, when people introduce cost-effectiveness, they think about how much it will cost to put in this technology and they forget about the fact that it is actually costing society, millions and billions of dollars in health effects. If it is limited to trying to find out which option to use, A, B, or C, and finding out which is most cost-effective, that is great. By claiming lack of scientific certainty, we are not reintroducing the argument and using cost-effectiveness to negate taking action.
The Chairman: I think we are vehemently agreeing. This committee has in the past very carefully said to the previous government that in all of these respects we must internalize not externalize the costs. My worry is that the cost-effective codicil in the precautionary principle is fine and operative and would be effective so long as the true costs are internalized. When costs are not internalized, it is an impediment to the application of something that should be in the public good. I am sorry that I did not ask a question; I made a speech.
Senator Milne: I will make a speech too.
Senator Banks has just reminded me of something on the precautionary principle. I am heading directly from here to Standing Senate Committee on Legal and Constitutional Affairs. One of the things that the committee usually strenuously objects to is reverse onus in anything. The last phrase of that point is ``as a tool of sustainable development, processes, products and substances must be shown not to pose serious or irreversible damage to human health or the environment.''
That is very definitely a reverse onus clause that makes whomever is in charge of the process take over the cost of proving that it is not harmful. Many manufacturing companies absolutely do not have the ability to perform that process; they do not have the scientists who can perform those sorts of tests.
Mr. Lambert: I will offer what I think is a great analogy. Let us say you are not feeling well. You go to your doctor and the doctor says, ``I will give you this drug. I am not sure if it will kill you or not. That is not my problem. We will see if it kills you or not. We will just give it to you, and if you feel better, then that is great.''
Essentially, we are saying the same thing with respect to the environment. Why? I am living in a community and there are facilities around me. Do I have to live there and not know if something will kill me, and it is not the responsibility of the person who is releasing all this pollution to even worry about whether it is killing me? Essentially, that is what it is.
We actually have reverse onus in place already with respect to medicine, seat belts, airbags, et cetera. There is a lot of testing to ensure that an airbag does not deploy and kill the person, which defeats the whole purpose.
These things are actually already there. There is nothing in the concept of reverse onus that says that industry should bear all of the cost. Society could bear some of the cost as well. We can have collaboration on research with universities and the government in trying to figure out how to do things in better ways so that the population is kept free from harm. Once we get that level of comfort with something, then we will introduce it into society. To suggest that one can simply do anything one wants even if it is going to cause harm, and it is up to the individual to prove that he is actually being harmed before putting these things in his body, seems to be counterintuitive.
Senator Milne: I agree, except that many of the sources of this type of environmental pollution are from small- and medium-sized enterprises, which are our largest employers in this country. They are the ones that have the most employees in this country and they are the ones that simply do not have the expertise or the access to the expertise to be able to do this sort of thing.
Mr. Lambert: In CEPA, in clause 2.1(k), it is the administrative duty of the government. It says:
(k) endeavour to act expeditiously and diligently to assess whether existing substances or those new to Canada are toxic or capable of becoming toxic and assess the risk that such substances pose to the environment and human life and health;
It is part of a larger relationship. Generally, the small industries are not introducing brand new processes that may be releasing clouds of pollution that will kill people. They are part of larger associations of industry and they can still be a part of the whole network. It is a change in how we do things.
We talk about collaboration with the government, universities and industry. If everyone is not working together, it will not function. We are not necessarily saying we need to dump all of these costs on small enterprises. We are saying that we have to think about this properly. We need these collaborative relationships to be able to manifest this change.
We are changing the way we do things in society. We have done it with respect to health care. One cannot just give someone a drug which one has not done research on. That has created a tremendous amount of business and provided many jobs for scientists.
It is the same type of thing with respect to environmental chemicals. They will have a huge spin-off in all this new industry on how to do things better, in collaborating with universities and the government to ensure that these new processes that we want introduced are not causing problems.
Senator Milne: You do not have to sell me on this idea. I would have to sell the Standing Senate Committee on Legal and Constitutional Affairs on this idea, and you are not giving me much ammunition.
Mr. Lambert: I would suggest that you go back to the analogy of medicine, where that is exactly what we are doing.
Mr. Bennett: I would like to follow up on Mr. Lambert's contention. If you look at CEPA as a statute, there are very few qualifications over cost-benefit or risk-benefit considerations in the statute. When it comes to regulations under CEPA, there is a requirement for a regulatory impact analysis, but the regulatory impact analysis is not a cost-benefit conception, not a cost-benefit requirement. For example, regulatory activity is not guided by the principle that if it costs too much, we are not going to do it; that is just simply not the case. When you look at experience with pollution prevention planning, there are some interesting case studies done by a non-government organization in New York called INFORM. That organization encouraged literally dozens of cases of pollution prevention activity in a wide variety of industries. In nearly every case, they found that the actions taken were cost effective. That means that the benefit in financial terms always exceeded the cost, but there was lasting environmental benefit as well as an economic benefit of the pollution prevention investment. The only differences were the size of the initial investment and the pay back time in how long it took to recoup the investment.
In the area of pollution prevention, there is not a case for saying that cost-benefit is a consideration; it is simply irrelevant to the exercise. If you do get into cost-benefit cases, you find that there is no case for saying that this is an economic detriment to the industry concerned.
When you look at cost benefit in terms of the precautionary principle, I believe the Senate committee should be looking at the official policy on the precautionary principle that the Canadian government has adopted to see whether any cost-benefit considerations within that policy actually compromise the operation of the precautionary principle. If they do, the government is doubly damned, first, by limiting precautionary questions to the pre-existing framework of risk management, and secondly, by a further qualification over cost-benefit analysis.
The Chairman: Thank you very much. You have been very cost effective in the use of our time. I think I speak for us all when I say we are impressed by the homework you have done and the specificity with which you have answered the questions we put to you; we are very grateful for that. I can also assure you that we are very likely to come back to you with more questions.
The committee adjourned.