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ENEV - Standing Committee

Energy, the Environment and Natural Resources



OTTAWA, Tuesday, May 17, 2022

The Standing Senate Committee on Energy, the Environment and Natural Resources met with videoconference this day at 6:31 p.m. [ET] to study Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.

Senator Paul J. Massicotte (Chair) in the chair.


The Chair: Honourable senators, I declare the meeting in session. My name is Paul Massicotte, I am a senator from Quebec, and I am the chair of the committee.

Today, we are conducting a hybrid meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.

Before we begin, I’d like to remind senators and witnesses to please keep your microphone muted at all times unless recognized by name by the chair.

When speaking, please speak slowly and clearly. For senators participating via Zoom, I will ask you to use the “raise hand” feature in order to be recognized. For those attending the meeting in person, I will ask you to please signal to the clerk if you want to be recognized.

I would like to remind honourable senators that in the interest of obtaining as much information as possible, we have composed panels of three. I will do my best to get to everyone who wants to put a question to our witnesses. To do so, I ask senators to try and keep their questions and preambles brief. Each senator will be able to ask one question and a supplementary question or a follow-up to their first. I would ask that you specify to whom your question is addressed.

Now, I would like to introduce the members of the committee who are participating in this meeting: Senator Margaret Dawn Anderson, from the Northwest Territories; Senator David Arnot, from Saskatchewan; Senator Rosa Galvez, from Quebec; Senator Amina Gerba, from Quebec; Senator Mary Jane McCallum, from Manitoba; Senator Julie Miville-Dechêne, from Quebec; Senator Dennis Patterson, from Nunavut; Senator Judith Seidman, from Quebec; Senator Karen Sorensen, from Alberta; Senator Josée Verner, P.C., from Quebec.

I would also like to note the presence of the sponsor of this bill, Senator Stan Kutcher, from Nova Scotia.

I wish to welcome all of you, and the viewers across the country who may be watching.

Today, we are continuing our examination of Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.

For our first panel, we welcome Mr. Joseph F. Castrilli, Legal Advisor, and Ms. Fe de Leon, Researcher, from the Canadian Environmental Law Association; Ms. Justyna Laurie-Lean, Vice President, Environment and Regulatory Affairs, from the Mining Association of Canada; Ms. Shannon Joseph, Vice President, Government Relations and Indigenous Affairs, from the Canadian Association of Petroleum Producers; Mr. David R. Boyd, Associate Professor, Institute for Resources, Environment and Sustainability, University of British Columbia, as an individual.

Welcome to all of you, and thank you for being with us.

Mr. Castrilli, you now have the floor.


Joseph F. Castrilli, Legal Advisor, Canadian Environmental Law Association: Thank you, Mr. Chairman and members of the committee. In the materials we submitted to the committee, the Canadian Environmental Law Association focused on the emission of cancer-causing agents to illustrate that Bill S-5 will not help solve the problem of toxic substances in the environment unless the bill improves the approach of the Canadian Environmental Protection Act to the issue of pollution prevention.

We analyzed 13 years of national pollution data and found that, while federal requirements are reducing on-site air emissions of some of the most harmful chemicals to human health and the environment, on-site disposal and land releases of the same chemicals have been dramatically increasing over the same period. For example, our review found that in Quebec, for arsenic, a known cancer-causing agent designated as toxic under CEPA, on-site air emissions increased 49% during the period 2006 to 2018. However, on-site disposal and land release of arsenic and its compounds increased by more than 10,800% during the same period.

The data for 43 cancer-causing agents listed in CEPA’s Schedule 1 List of Toxic Substances taken together— the vast majority of which are human-created chemicals, not naturally occurring ones — show similar, if not as dramatic trends, usually in the form of decreased on-site air emissions but increased on-site releases to land.

The bottom line: Moving a carcinogen from one environmental pathway such as air to another, such as land, does not represent progress in protecting human health and the environment. It represents putting a different part of the environment and a different group of people at risk. It is not a solution to the problem for the 150 chemicals the federal government has designated as toxic and placed in Schedule 1 of the act, let alone for the 43 cancer-causing agents in that schedule.

What is needed is a strategy of prevention and elimination of Schedule 1 toxic substances from Canadian commerce to the maximum extent possible. This was the expectation for CEPA as described in a 1995 House Standing Committee on Environment and Sustainable Development report, summarized in our February 2022 submissions.

There are three things wrong with existing law that Bill S-5 does not correct on the issue of pollution prevention. First, pollution prevention is discretionary for toxic substances listed in Schedule 1. This situation has resulted in only one sixth of all substances in the schedule in the last 20 years having a pollution prevention plan — a rate that, if continued, will mean that all existing toxic substances in Schedule 1 will not have a plan before the year 2100. Pollution prevention needs to be mandatory under Bill S-5.

Second, the pollution prevention authority in the act is meant to control the creation and use of toxic substances. However, because of the approach that has been applied under CEPA, it has become predominantly a pollution abatement measure, where only emission concentrations of a substance are sought to be controlled, something the 1995 House Standing Committee on Environment and Sustainable Development report warned against doing. The result has allowed such substances to stay in Canadian commerce and the environment. Pollution abatement should not be used as a substitute for pollution prevention and Bill S-5 should say so.

Third, Bill S-5 does not make the substitution of safer alternatives to toxic substances a central focus of amendments to the act, thus placing Canadians and the environment at risk and Canada at a disadvantage relative to other countries that have done so. Alternatives analysis needs to be made a central pillar of the act.

Our March 2022 proposed amendments to Bill S-5 would address these and related issues identified in our pre-filed materials. Subject to any questions members of the committee may have, those are our submissions. Thank you.

The Chair: Thank you. Now I’ll go to Ms. Joseph.

Shannon Joseph, Vice President, Government Relations and Indigenous Affairs, Canadian Association of Petroleum Producers: Thank you for having me. We are happy to have the opportunity to discuss Bill S-5 and to discuss changes to the Canadian Environmental Protection Act, or CEPA. CEPA is one of Canada’s most important pieces of environmental legislation and has been a world-leading tool for chemicals management.

The act provides broad regulatory powers to the federal government with respect to the control of substances that pose a health or environmental risk. The many proposed changes to the legislation would expand this federal regulatory authority.

The Canadian Association of Petroleum Producers would like to highlight three aspects of Bill S-5 that warrant close consideration by the committee.

First is language that could impact the ability of provinces to meaningfully exercise their jurisdiction over resource development and environmental management. Notably, the addition of the new concept “ . . . a product that may release a substance . . . .” This “products” language could be understood to include natural resources and a range of traded goods that could release a substance, such as carbon dioxide, in certain circumstances.

Natural resource development is an exclusive area of constitutional authority for provincial legislatures. Giving the federal government the ability to directly regulate bitumen, crude oil or natural gas as products that could release a substance would directly conflict with provincial authority over resource development and the exercise of provincial regulatory authority over environmental management.

This is not the intent of the legislation. This language needs to be reconsidered, and CAPP would be happy to work with legislators to identify solutions.

The second area is ensuring transparency in the application of the law. Many of the amendments in the proposed bill allow important concepts to be defined outside the legislative process with a high level of discretion from the minister. This will make it difficult for legislatures to ensure the law is applied as intended.

Amendments in Bill S-5 introduce numerous new terms to CEPA, the meaning and application of which will only be determined later. This can create uncertainty at the time of the bill’s passing concerning concepts such as the right to a healthy environment, environmental justice and cumulative effects, and these terms will all be important for how the law is applied.

The implications, obligations and limitations of the proposed changes should be clarified by Parliament in a way that provides transparency and predictability and avoids impacts to investor confidence.

Finally, we feel it is important to maintain CEPA as a flexible, risk-based chemicals-management legislation. CEPA should not be used as a back door to regulate products or processes that do not represent a risk to public health or environmental protection. Currently, regulation under CEPA requires both that a substance must be a hazard, and there has to be a pathway to exposure to human health or to environmental risk.

To date, the Government of Canada has not sought to regulate substances that do not pose these types of risks.

However, amendments to CEPA introduce the new concept of a list of substances capable of becoming toxic. This amendment changes the foundation of CEPA from a risk-based legislation to a hazards-based approach. Once a substance is on such a list, it will be treated differently. So the list can act as a way to stigmatize and limit the use of substances and, in effect, regulate without a science-based risk assessment.

In closing, we believe it is critical to Canada’s environment and economy that any updates to CEPA preserve important features of the existing act, which is world-leading, flexible and risk-based in terms of chemicals management. We believe this bill should be given proper study to ensure this. Thank you.

The Chair: Thank you. From the Mining Association of Canada, we welcome Ms. Justyna Laurie-Lean.

Justyna Laurie-Lean, Vice President, Environment and Regulatory Affairs, Mining Association of Canada: Thank you, chair. I am participating from Ottawa, traditional Algonquin territory.

Our association is the national organization representing the Canadian mining industry. Our members strive to be responsible operators who are respectful environmental stewards. Their commitments are demonstrated through participation in Towards Sustainable Mining, a performance-based program through which our members evaluate, manage and publicly report facility-level performance on critical environmental and social responsibilities.

We have provided to the committee a written submission which includes additional background. We appreciate this opportunity to highlight the main points and answer any questions.

In our analysis, Bill S-5 is a well-crafted set of amendments. It would modernize, expand and clarify core enabling provisions of CEPA, but we have reservations. Specifically, we have concerns about under-resourced or fragmented implementation as well as further reductions in resources for day-to-day operations of Health Canada and Environment and Climate Change Canada.

Our experience indicates that legislative changes trigger several years of effort to develop interpretation, guidance, policies, frameworks and regulations, accompanied by intensive consultation and engagement with interested organizations and the public. Diversion of departmental resources to implementing legislative changes risks coming at the expense of delivering protection of the environment and human health.

Already we have observed in recent years continuous reduction in environmental monitoring, research, maintenance of routine reporting and publication systems and the development of timely compliance guidance.

We therefore urge you to keep resource implications in mind in your deliberations on Bill S-5.

We particularly caution against making enabling provisions overly prescriptive. The chemicals-management provisions of CEPA apply to a large number of diverse substances. Each specific situation requires careful selection of the right approach for effective and efficient assessment and management of risks to the environment and human health. The choices made should be based on expertise, available information and continuously evolving knowledge.

We do recommend two small amendments. One we believe would improve the functioning of one of the new lists that Bill S-5 would introduce. The second would improve the functioning of the chemicals-management portions of CEPA as a whole.

Bill S-5, clause 20, would create a new list of substances capable of becoming toxic in a new section 75.1. As proposed, there are no consequences to the list. The new subsection 75.1(2) notes only that it “may” include certain additional information. We recommend that clause 20 be amended to require that any addition to this list include an indication of what action will be taken, without constraining the nature of that action.

Mr. John Moffet, in an appearance before this committee, stated that this list is intended to communicate to potential users that the government would not welcome new uses of a listed substance. However, as formulated, the section 75.1 list would not mandate nor limit such use of this list.

The objective Mr. Moffet outlined would be better accomplished through the second amendment to Bill S-5 we recommend — the creation of a searchable electronic database or search tool that would identify, for each substance, its status under CEPA. Such a comprehensive database would make it easy for potential users of a substance to find out if significant new activity or any other restrictions have been placed on it. By facilitating transparency, such a mechanism would promote compliance and be valuable to the public and to manufacturers, product designers, importers, users, retailers, distributors, consumers, academics and non-government organizations. Thank you.

The Chair: Thank you very much. Next we welcome Dr. David Boyd, Associate Professor, Institute for Resources, Environment and Sustainability, University of British Columbia.

David Boyd, Associate Professor, Institute for Resources, Environment and Sustainability, University of British Columbia, as an individual: Good afternoon, senators, and thank you for the opportunity to join you. I’d like to commend the Government of Canada for finally taking steps to recognize the fundamental right to a healthy environment in legislation. This is an important first step towards the ultimate goal of including this right in the Canadian Charter of Rights and Freedoms, where it surely belongs.

Globally, this right is now recognized in 156 nations, through constitutions, legislation and regional human rights treaties. It was recognized by the UN Human Rights Council last October, and Quebec incorporated this right in its Environment Quality Act back in 1978 and its provincial Charter of Human Rights and Freedoms in 2006.

While it’s an important first step, the proposed wording in Bill S-5 has three significant weaknesses: First, it’s quite narrow in describing the right to a healthy environment. Last year’s UN resolution used the language of a “ . . . clean, healthy and sustainable environment.”

A bill currently before the U.S. Congress, called the Environmental Justice For All Act, recognizes:

. . . the right of all people to clean air, safe and affordable drinking water, protection from climate hazards, and the sustainable preservation of the ecological integrity and aesthetic, scientific, cultural, and historical values of the natural environment.

Quebec also uses more comprehensive language in both of its laws.

Second, the phrase “as provided under that Act” means that Canadians’ right to a healthy environment would be circumscribed to issues addressed by CEPA. That means that no person would have the right to a healthy environment under the Canada National Parks Act, the Impact Assessment Act, the Pest Control Products Act or any other federal environment-related legislation.

Third, there is a second limiting phrase, “which right may be balanced with relevant factors, including social, economic, health and scientific factors.” Let me be clear that I’ve read every constitutional provision, every legislative provision and every treaty provision in the world articulating the right to a healthy environment, and I’ve never seen this type of language used to limit the potential impact of recognizing a human right.

We know in Canada that rights are not absolute. The phrase used in our Charter is “ . . . subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

I would strongly encourage this committee to examine the wording of section 4 of the National Housing Strategy Act, enacted in 2019, for a clear articulation of a human right, in that case, the right to housing. Subsection 4(a) of the act states:

4 It is declared to be the housing policy of the Government of Canada to

(a) recognize that the right to adequate housing is a fundamental human right affirmed in international law;

No qualifying language is used.

The other point I’d like to make briefly is that, according to Health Canada, every year in Canada, air pollution is linked to more than 15,000 premature deaths, 2.7 million asthma symptom days, 35 million acute respiratory symptom days and $120 billion in socio-economic costs from air pollution. Yet the continued absence of legally binding ambient air-quality standards puts Canada behind the United States and almost every other wealthy industrialized nation in the world. I recognize this issue is beyond the scope of the present bill, but I want you to be aware of this extraordinary oversight and remind you that the 2017 report of the House of Commons Standing Committee on Environment and Sustainable Development recommended:

. . . that CEPA be amended to require the federal government to develop legally binding and enforceable national standards for air quality in consultation with the provinces, territories, Indigenous peoples, stakeholders and the public.

Thank you very much, and I look forward to your questions.

The Chair: Thank you very much. We’ll now start questions. We’ll first allow Senator Kutcher, sponsor of the bill, to ask a question.

Senator Kutcher: My question would be to Mr. Boyd.

Do you have any specific suggestions for the kind of language that might be considered to tighten up the issue around the right to a healthy environment?

Mr. Boyd: Thank you, Senator Kutcher. I would have several specific suggestions. One would be to add the adjectives “clean and sustainable” so that the right would be described as “the right to a clean, healthy and sustainable environment,” consistent with the language used by the United Nations Human Rights Council last October in its Resolution 48/13.

Second, I would urge the committee to remove the limitation on the application of this right as being only to federal government actions under CEPA and make it a broader and more encompassing application.

Third, I suggest removing the clause that refers to balancing it with social, economic and scientific factors, which is unprecedented globally in terms of referring to the right to a healthy environment.

Senator Kutcher: Thank you.


Senator Miville-Dechêne: My question is for Mr. Castrilli. Mr. Castrilli, I have read your brief, which is quite long and very complete. I want to ask you a specific question about the obligation you want to impose on companies to have pollution prevention plans. Why are these prevention plans important? What would they allow us to do that is not currently being done? What do they contain, and why do you insist on this? Is the prevention plan a way to stop using some of the substances on the list of 150 most toxic substances?


Mr. Castrilli: Thank you for your question, senator.

Regarding the history of what is known as Part 4 of CEPA, which deals with pollution prevention, if you go back to the 1995 House of Commons Standing Committee on Environment and Sustainable Development report, they saw Part 4 in contradistinction to Part 5, which is about controlling toxic substances through controlling emissions. Because Part 4 and Part 5 both deal with Schedule 1 substances, we’re dealing with the worst of the worst chemicals out of over 23,000 in Canadian commerce. The expectation of the House environment committee in 1995, when it was considering the predecessor to the current law, was that for those most dangerous chemicals that are to be found in Schedule 1, we should be looking at eliminating them from commerce, full stop, or at least eliminating as many uses in respect of them as possible.

So it is designed to be the first line of defence under CEPA. What has happened, unfortunately, under CEPA over the ensuing 20 years is that the government has essentially allowed industry to treat the obligation, when it’s actually imposed upon them by the minister, as simply another opportunity to engage in emissions concentration controls or pollution abatement, basically. That’s not what Part 4 is about; Part 4 is about getting the worst of the worst out of Canadian commerce to the maximum extent possible.

Senator Miville-Dechêne: What I’m trying to get at is that this is a written prevention plan. Is there a mandatory clause that asks them to eliminate the toxin? What is this prevention plan? You can write anything, but if you do not act upon it, it doesn’t mean anything.

So what exactly do you want in this pollution prevention plan?

Mr. Castrilli: In our March 2022 submissions, we actually drafted a set of amendments for all of the parts of the act that we were proposing amendments for, and for pollution prevention, we drafted 11 pages of amendments.

Senator Miville-Dechêne: Okay, but can you summarize it in a nutshell? What would it require?

Mr. Castrilli: Essentially, it requires companies to look at their processes to see whether there are opportunities for removing a chemical that’s currently being used that’s on Schedule 1 and substituting it with something else. That’s the essence of what’s done in Massachusetts and New Jersey, and we’re suggesting it’s what was anticipated as the essence of CEPA, according to section 3, but has not actually been done in practice.

In our amendments, we’ve placed a full-blown description of the exercise that a company would be obligated to do if it wants to continue to try to use a substance that’s already on what I call the “hardcore baddy list” under Schedule 1.

Our proposal is basically designed in a way that’s very similar to the regime in Europe under the REACH — Registration, Evaluation, Authorisation and Restriction of Chemicals — regulation.

Senator Seidman: Thank you very much to our witnesses for their testimony this evening. My question is for Ms. Laurie-Lean of the Mining Association of Canada.

In your submission and in your presentation tonight, you propose two amendments, one of which is the development of a searchable electronic database providing information about substances on the Domestic Substances List. The Chemistry Industry Association of Canada has proposed a similar amendment, and this issue of transparency and improving public access to data about substance risks has been brought forward by many other associations as well. Although you all tackle the amendment somewhat differently, you’re all attempting to achieve a similar goal.

You propose to add a new subsection 76(4). Could you explain this amendment to us, its rationale and why it’s best placed in amending clause 20 by adding this new subsection? Thank you.

Ms. Laurie-Lean: I would not insist that it has to be placed in any particular place. It seemed appropriate, because in that part of clause 20, there’s a reference to the public having a right to request that a substance be assessed. It seemed that in order to exercise that right efficiently, it would be good if the public could find out whether it has already been assessed, is being assessed or is prioritized for assessment. It seemed appropriate there, but it can be placed somewhere else.

It is to make sure that people and all potential organizations can be informed about what information has already been gathered and the assessments that have already been done. The assessments that are done under CEPA are just chock full of very good and very valuable information. It’s also important to know how stale-dated the information is. Is the conclusion based on a particular source of releases, a particular volume or an application?

Having that information would be very helpful for the for-and-against-type of users. It’s possibly too much detail for the general public who are just looking for a one-pager, but it is good for everyone else to have that deep, current information. It’s there, but it’s very difficult to access simply because it is very difficult to search through the registry.

Senator Seidman: Would any of the other witnesses like to respond to that question, in terms of having a searchable electronic database?

Mr. Boyd: It would be entirely consistent with the fulfillment of Canadians’ right to a healthy environment to have access to that information, to have that transparency available. I would endorse that type of access-to-information provision in the act.

Senator Seidman: That is exactly what it tries to achieve, transparency for everyone. Even if it is too technical for some people, it would achieve that. Thank you very much.

Mr. Castrilli, do you have anything to say about that?

Mr. Castrilli: I agree with Mr. Boyd. That kind of provision would be helpful in terms of expanding information access to the general public on these issues.


Senator Galvez: My question is for Ms. Joseph.


In your opening remarks, you seem to say that the modernization of CEPA steps on the jurisdiction of the provincial governments and may hinder the powers of the provinces concerning natural resources, but I think you will agree that the federal regulation is there to stop pollution, and it has jurisdiction over the attenuation and control of pollution.

Your title covers Indigenous affairs, and I would like to ask you about this new feature of CEPA concerning cumulative effects. There have been many studies concerning cancer happening in the Chipewyan community and that being linked to the oil sands. With the project of discharging the tailings ponds in the rivers and having these scientists peer review papers making the link between cancer and oil products, can you explain if you’re going to run some cumulative effects in vulnerable populations if this bill is adopted? Thank you.

Ms. Joseph: I believe your question is related to mine releases. We support the processes that are ongoing between the provinces, the federal government and Indigenous communities related to the development of mine-water-release regulations, and we want to ensure that this is done in an appropriate and a safe manner.

Senator Galvez: Thank you. I have a question for Mr. Castrilli. You seem to disagree on the approach that the government has chosen to manage chemical substances, and to a certain point I agree with you. I just want to check with you that the approach should have been to source reduction, tackling first the source of the pollution and then identifying the exposure pathways, and then identifying the receptors and the type of exposure, acute versus chronic. Can you comment on these different approaches to manage chemical substances?

Mr. Castrilli: Thank you for the question, senator. The division, if I can put it that way, between our approach and what the Government of Canada seems to want to continue with CEPA is problematic in two respects.

First, Part 4 was designed to remove substances from Canadian commerce that are the most dangerous. That certainly was the expectation of the House of Commons Standing Committee on Environment and Sustainable Development in 1995, when it was considering what is now the current version of CEPA. That’s what the purpose of Part 4 was all about.

Over the succeeding two decades, what the government has allowed to occur is for Part 4 to become another Part 5 in the sense of essentially allowing industry, when it’s chosen by the minister to do a plan, to essentially engage in pollution abatement, which means that the substances that are among the most dangerous in the country are allowed to remain in commerce. Ultimately, that means they’re allowed to end up in the environment again.

The government already has Part 4, which is designed to eliminate the creation and use of substances that are listed in Schedule 1, where that is called for. In my view, because of the discretionary nature of the current section 56 in the act, that hasn’t happened. Effectively, we’re simply getting pollution abatement exercises under Part 4 that are more appropriate to Part 5, and we’re not getting the worst of the worst substances in commerce out of commerce, which is certainly the expectation of the House of Commons Standing Committee on Environment and Sustainable Development.

If you go back to that committee’s report, you’ll see that in the long term, they said pollution prevention needs to actually become a substitute for pollution abatement in relation to substances that are listed in Schedule 1. That has not happened, and, in my respectful submission, when you look at the data we’ve accumulated over the period of 2006 to 2018, we are seeing dramatic increases of the worst of the worst chemicals moving from air to land, where they certainly will continue to be available to the environment.

It’s a difference in approach with respect to a part of the act. I thought the debate had been settled on 20 years ago, but apparently it hasn’t. That’s why we’ve come back 20 years later to repeat the submissions we made 20 years ago, that Part 4 needs to be about pollution prevention, not about pollution abatement.

Senator Sorensen: My question is quite quick. It’s for Ms. Laurie-Lean. There have been varying opinions around the proposed watch list for substances that may become capable of becoming toxic, and the government has argued that this was just going to help industry avoid regrettable substitution. You had some comments about the watch list — although that’s not what you called it — in your comments, and I’m curious to know if you can elaborate a little bit further on the drawbacks that you might see from the watch list.

Ms. Laurie-Lean: Every time we’ve heard explanations of what this list is supposed to be, we’ve heard a different explanation, which is a bit worrisome. However, the part that is most important is that, as proposed by Bill S-5, there is a new list created. The minister has the right to place things on the list, and that’s it. So it’s a parking lot, and parking lots tend to be unhealthy as a choice.

You already have possible no-action and action decisions regarding Schedule 1. So, now, you can place a substance on the list and do nothing. If there are circumstances where the exposure is currently quite low, and you want to prevent an increase in volume — it may be the same application but an increase in volume — you’re going to monitor the volumes. That would be a good action. If you’re uncertain, you may monitor, do research or do studies. If you want to prevent new uses, you use the “significant new activity” restriction and then inform people that it is being placed on the list. But do something. Don’t just place a substance on the list and do nothing.

Senator Sorensen: Thank you for your candour, I appreciate that. I have no further questions.

The Chair: Senator McCallum, I apologize. On my screen, you were not at the top of the list.

Senator McCallum: My question is for Mr. Castrilli. Thank you for the extensive work you’ve done for environmental protection. When I look at the bill, I see that 1999 CEPA has not worked in the way that it should have. As a result, there have been increased toxic chemicals with an increase in the number of premature deaths, especially in Quebec: 4,000, and Ontario: 6,600. The lack of meaningful application to pollution prevention, the removal of virtual elimination, the removal of Schedule 1 — which is the list of toxic substances — no legally binding enforceable ambient air quality and the lack of legal recourse for individuals all work against the right to a healthy environment.

What will be the end result of this bill, especially for the vulnerable populations, including the First Nations, if this bill is not amended? Thank you.

Mr. Castrilli: Thank you for your question, Senator McCallum.

My sense of Bill S-5 as drafted is that it has essentially engaged in making a series of housekeeping changes to a law that has developed over the last 20 years a great number of unmet needs. We identified roughly seven or eight of those unmet needs in our February submissions. We then tried to address the question of how to solve those problems in our March submissions in terms of the draft amendments we prepared.

In my respectful submission, if we don’t make some of the changes that we’re suggesting in this round of amendments in connection with CEPA — since this act doesn’t seem to get amended more than once every two decades — we’re going to be coming back roughly around the year 2040, and we’re still going to have to address these problems, except then we’ll have had 40 years of not dealing with them. So in my respectful submission, we need to start now. We may not have covered everything off that needs to be addressed, but we’ve certainly tried to tackle those things we think need to be dealt with now in light of the available evidence. That’s why our amendments turn out to be longer than Bill S-5. That’s the nature of the situation.

Senator McCallum: Ms. Joseph, I want to go back to the question on interjurisdictional gaps that First Nations fall into and how they are unable to deal with federal law or provincial law. In this gap, their communities are surrounded by toxic waste. I’m looking at oil and gas as well as mining. I’m thinking of the tailings ponds.

What is the work that the Canadian Association of Petroleum Producers, or CAPP, is doing to alleviate this problem? Because as I understand, the tailings ponds are at their limit, and they may be released into the Athabasca River. Thank you.

Ms. Joseph: Thank you, senator. As I began to mention earlier, there’s a process in terms of tailings management in the oil sands region where members contribute approximately $50 million annually to environmental management. As well, there is a table where Indigenous communities, the provincial government and industry engage in discussing the management of tailings and the environment more generally, and there’s a process to develop regulations related to this.

Our members are absolutely committed to the safe management of all by-products of our operations and, when those operations wind up, to the restoration of those sites. We remain committed to that.

Senator Patterson: Thank you to the witnesses. My questions are for Ms. Joseph, and I have two. You said Bill S-5 introduces all these brand-new terms that will only be determined later, that we don’t have any idea where these consultations will lead us, creating uncertainty. As you know, there are currently court cases in Ontario and Federal Court, asking for a definition of and examining the right to a healthy environment.

I’m wondering if you can tell us if you recommend a way of dealing with this problem and the uncertainty that the passage of the bill will create. Is there a way of dealing with the uncertainty that lies ahead?

Ms. Joseph: Thank you, senator. In our view, it is important to have that two-year process to develop these concepts. Part of the concern we have is the way the language of the bill is written. It says that there will be a consultation and the minister will take some of these things and then we’ll just have some kind of implementation framework. It’s not clear how these concepts will land and what their implications could be, and we know from an investment confidence standpoint that this can have an impact on permitting and on freezing of permitting. This has been some of the experience we’ve had in B.C. over the past few months.

We just think that it will be important to have ways to vet some of these processes in the end or create clarity around how these concepts will be managed before they have immediate effect.

Senator Patterson: You mentioned investment confidence. I dared to tell Minister Guilbeault, when he appeared to introduce this bill, that I feared that in the climate of uncertainty that will be created with Bill S-5, the bill would exacerbate the trend of investment capital fleeing this country. The minister challenged me to prove this, so I’d like to ask you on behalf of, I guess, the energy industry and your members: Can you describe what has been the trend for investment in capital by petroleum producers, and can you give us some concrete numbers?

Ms. Joseph: In 2014, our sector attracted about $81 billion in capital. Right before the pandemic, this went down to around $30 billion. There was a significant flight of capital in that period, and our industry is the largest private capital investment to Canada. These things are notable.

Everything that Canada can do to have policy frameworks that are clear and that allow proponents to understand how our rules will be applied, predictability, transparency — all of these concepts that we’ve heard today — will be important.

Senator Patterson: You mentioned experience in B.C. vis-à-vis investment capital. Is it instructive on this bill? Can you tell us what you’re referring to, please?

Ms. Joseph: One of the items I highlighted in an information document circulated to committee members was an experience in B.C. following the court decision of Yahey v. B.C., where we were looking at cumulative impacts and cumulative effects related to rights. That situation continues to unfold, but it did result in permitting being frozen for several months — that was permitting for all sectors, namely, oil and gas, forestry, et cetera. Although things are now moving forward again, it did result in investments moving across the border and jobs that might have occurred not occurring. It shows the importance of these things being done well and things being clear when new concepts are introduced into the law so that law implementers and proponents who follow the law know what environment they are operating in and how to operate successfully with partners on the ground.

The Chair: Mr. Boyd, you wanted to add something.

Mr. Boyd: I have several points to make.

First, the question of environmental injustices and the relationship to Bill S-5. This goes back to the point about prevention. We have these horrible situations across the country, Fort Chipewyan, Aamjiwnaang, Grassy Narrows, Boat Harbour, where Indigenous peoples are suffering the long-term impacts of exposure to air pollution, water pollution and toxic chemicals. Surely, in the 21st century in Canada, we can all agree that’s unacceptable and that we have to prevent those types of situations from occurring and also to clean up and restore those that do exist. That also relates to the question of investment. That is, as a country, do we want investment that damages and destroys our environment and violates human rights, or do we want investment that actually propels us towards a sustainable future?

We have reports from the International Energy Agency warning that continued investment in oil, gas and coal risks the potential for stranded assets. We can look to a country like Norway, which has the right to a healthy environment in its constitution — its highest and strongest law — going back to the early 1990s. Norway has incredibly strong environmental laws and has a thriving oil and gas industry with the highest standards in the world.

Finally — and this is somewhat tangential to Bill S-5, but Senator Galvez raised this — if you dump toxic waste or garbage on provincial land or federal land anywhere in Canada, you can face fines that in some jurisdictions are in the hundreds of thousands of dollars. Maximum fines in some provinces are in the millions of dollars. But today, in 2022, the maximum fine for dumping toxic waste on Indian reserves in Canada is $100. So if you’re a criminal enterprise, where are you going to dump your garbage and your waste: on provincial land where you could face a fine of million dollars if you’re caught, or on Indian reserve land where the maximum fine is $100? I think this is an unconscionable problem with our law. I would encourage you senators to do something to rectify this situation.

The Chair: We’ve got five minutes left, I’m going to use up the time to ask a question.

Mr. Castrilli, I heard you and I read your report, where you make it clear that you have to ensure a significant diminution of toxic material in the air, but the land portion has increased immensely. You also referred to Quebec. When Canadians hear that, if they’re listening to us tonight, I think a lot of them will be offended and upset with our poor management of our own resources, which is to the detriment of our health.

Let me play a game here. If I make Ms. Joseph or Ms. Laurie-Lean minister of the environment tomorrow morning and you heard those details, what would you do, other than being upset? What would you do differently from what we’re doing today, which is not working?

Ms. Laurie-Lean: First, I would check the numbers because Mr. Castrilli is not necessarily reflecting what the reality is. Some of his “growth” numbers reflect the fact that the reporting requirements changed over that time period. Without actually seeing them, I couldn’t say for sure. I have seen these kinds of statements before, and they failed to reflect the change in reporting to the National Pollutant Release Inventory, which had changed quite dramatically over time.

Second, Schedule 1 is not the list of the most dangerous and toxic substances. It is the list of substances that meet the definition of section 64, which is a combination of hazard and volume. Some things are simply there because of the volume that we use. There’s nothing in the world that we can use carelessly and thoughtlessly. That’s why they’re there, and they are being reduced. Some of those statements are a bit misleading.

The Chair: Ms. Joseph?

Ms. Joseph: Our members are committed to safety and spend more on environmental management than any other industry in the country. The last number posted on our site was $3 billion. I’d be happy to circulate that to members. We remain committed to continuing to improve the environmental performance of our industry through initiatives, including carbon capture and sequestration. I’m pleased the other witness highlighted Norway’s leadership. Norway has been able to implement those types of innovations, and Canada is pursuing those same directions. We’ll continue to work towards that environmental leadership going forward and remaining an important industry in this country, supplying the world with something it needs at this time and with lower and lower emissions and environmental impact.

The Chair: Mr. Castrilli, you have the last word.

Mr. Castrilli: First, the numbers we’ve provided the committee are the industry’s numbers provided to the federal government through the National Pollutant Release Inventory. They were also looked at by the Commission for Environmental Cooperation. This tripartite international agency also reviewed the numbers. There’s nothing wrong with the numbers, except what the numbers are, which are, in my view, astounding and tragic in many instances.

Second, there are 43 carcinogens in Schedule 1, and the data that we provided the committee relate to the 43 carcinogens. We’ve provided you with the worst of the worst in terms of the data that exists in Canada. In my respectful submission, there’s no merit to the suggestion that the numbers are not to be believed and taken at face value for what they are.

The Chair: Thank you very much. That ends our first panel. On behalf of the public and the senators here, I want to thank Mr. Castrilli of the Canadian Environmental Law Association; Ms. Fe De Leon, Researcher, Canadian Environmental Law Association; and from the Mining Association of Canada, Justyna Laurie-Lean, Vice President, Environment and Regulatory Affairs; Ms. Shannon Joseph, Vice President, Government Relations and Indigenous Affairs Canadian Association of Petroleum Producers; and Dr. David Boyd, Associate Professor, Institute for Resources, Environment and Sustainability, University of British Columbia, as an individual. Thank you for being with us tonight, for sharing your knowledge and for making your recommendations. This is very important for Canada, and we thank you very much on behalf of all our colleagues here tonight.


For our second panel of witnesses, we welcome Ms. Cassie Barker, Senior Program Manager, Toxics, Environmental Defence Canada; Ms. Elaine MacDonald, Healthy Communities Program Director, Ecojustice Canada; Ms. Toolika Rastogi, Senior Manager, Policy and Research, and Ms. Elisabeth Ormandy, Executive Director, Canadian Society for Humane Science, Humane Canada; Mark Butler, Senior Advisor, accompanied by Hugh Benevides, Legislative Advisor, Nature Canada.

Welcome to all of you, and thank you for being with us.

Ms. MacDonald and Ms. Barker, it was agreed that you would share the four minutes, so you now have the floor.


Elaine MacDonald, Healthy Communities Program Director, Ecojustice Canada: I apologize. I was told I had a full four minutes in my invitation. I will try to be quick, then.

Good evening, honourable senators, and thank you for inviting me to speak is this evening.

Ecojustice, Canada’s largest environmental law charity, provided the committee with a joint written brief on April 25 with the David Suzuki Foundation, Environmental Defence, the Canadian Association for Physicians of the Environment and Breast Cancer Action Quebec. Our brief has eight recommended areas for amendments within the scope of Bill S-5. I will briefly address three, but before I do, I wish to note that there are other parts of CEPA in need of modernization that are not amended by Bill S-5, such as Part 6 on biotechnology, ambient air-quality standards and the sections pertaining to citizens’ enforcement.

Echoing the comments of Dr. David Boyd, we strongly recommend that the committee amend subclause 3(2) on the right to a healthy environment to remove the part of the clause on balancing the right with other relevant factors, including social, economic, health and scientific factors. We recognize that the right to a healthy environment, like other human rights — and, indeed, other duties listed in CEPA — will be subject to reasonable limits, as may be justified in light of the purpose of the act. However, as drafted in Bill S-5, the balancing language undermines the right and inappropriately elevates the other factors, including economic factors, to the same status of the right to a healthy environment.

Clause 29 provides discretion for the minister to recommend a mandatory prohibition regulations for highest-risk substances. It would be more appropriate to provide criteria to limit this discretion. Otherwise, the regime risks providing arbitrary decisions that are not rooted in science. We recommend that clause 29 be amended to specify exceptions to the mandatory prohibition regulations only in three situations: if the activity or release of that substance is not ongoing, if it can be undertaken in a manner that eliminates all harmful effects on the environment and human health, or if it’s an essential use for which there are no less harmful alternatives.

Another area of recommended amendments is with respect to timelines. Legislating timelines requirements will improve accountability and prevent lengthy delays in finalizing assessments and implementing the risk-management measures necessary to protect human health and the environment. Lengthy delays of years or even decades are not uncommon as substances move through the various steps under CEPA. To address delays between proposed and final substance assessments, we recommend that subclause 21(2) be amended to set a one-year time limit for finalized assessments, with exceptions only in the situation where additional data or studies are required.

Finally, I wish to speak strongly to support the watch list in clause 20. The watch list acts like an early warning system that a substance may one day be determined to meet CEPA definition of “toxicity.” Although it is not a regulatory list, the watch list lets chemical users know they are best to avoid those substances now, where possible, rather than face regulatory restrictions later. The watch list is an elegant way to get ahead of the toxic tide and avoid a regrettable substitution that can occur when another toxic substance replaces a restricted or banned substance.

“Significant new activity notifications,” or “SNANs,” as they’re called, cannot serve the same function as the watch list. SNANs are regulatory instruments issued after assessing a substance. Additionally, the watch list is noted a novel idea; if you look back to the early days of CEPA, the Priority Substance List under subsection 76(1) contains similar language as proposed in Bill S-5 and was used effectively in the early days of CEPA implementation.

Those are my submissions. I hope we left a bit of time for Cassie.

Cassie Barker, Senior Program Manager, Toxics, Environmental Defence Canada: Thank you.

In addition to all those important amendments, I will add the following: mandating assessments of disproportionate impacts of chemicals on vulnerable populations, assessing the cumulative risks for the environment, a higher bar for confidentiality claims to expand public access to data about environmental and health risks and mandatory labelling of hazardous ingredients.

I would also add that toxic substances in general erode our health, damage the biosphere and damage the public trust.

To echo my colleagues, Indigenous, racialized and marginalized people are being impacted. Their communities are being exploited and their bodies are disproportionately polluted. They desperately need our focused attention and action.

As you know, exposure-related cancers, neurodevelopmental harms and many other chronic health impacts are stealing our future. While marginalized communities bear the highest burdens and impacts, these harms are occurring in every community; they affect those of all ages, income levels and political affiliations. We must first reduce these exposures and, at a minimum, ensure that hazardous ingredients have mandatory labelling to ensure transparency — discussed here today — and our right to know.

We also need to elevate transparency and the public interest by restricting claims of confidential business information on human health hazards and eco-toxic substances. Science shows us that we have surpassed our planet’s ability to absorb so-called “novel entities,” such as synthetic chemicals, plastics and pesticides, and that legislators and industry must drastically curtail those entities and emissions.

Other jurisdictions and lawmakers seem to understand the math that we have surpassed our planet’s ability to absorb pollution-based profits. They understand the urgency. They are acting on the latest science and in the public interest to change course and prevent further harm. They are making a more level playing field for companies that are using nontoxic chemistry to provide the same services and functions to society. In contrast to the investment flight that other industries are experiencing, there is a massive move toward such sectors such as green chemistry and bio-based substances and feedstocks.

We, too, can be ambitious, and Bill S-5 is the starting point, but it requires changes to make a stronger, more rigorous reform of those key aspects of CEPA. As Dr. MacDonald mentioned, our proposed amendments will help the government clarify and focus their ambition on securing environmental rights and improving chemicals management. Thank you.

The Chair: Dr. Rastogi, please go ahead now.

Toolika Rastogi, Senior Manager, Policy and Research, Humane Canada: Good evening, honourable senators and colleagues, and thank you very much for the invitation to be before you today.

Humane Canada is the federation of Societies for the Prevention of Cruelty to Animals, or SPCAs, and humane societies. Our 53 members and 15 associates are in every province and two territories, in both rural and urban areas. They’re small volunteer-based local societies as well as province-wide organizations, including the largest SPCA on the continent.

We bring together some of the oldest social institutions in the country. Our oldest member was founded two years after Confederation. In fact, Humane Canada was born 65 years ago, in part, out of this very chamber. We thank the Senate for its continuing great work for animals.

Humane Canada espouses the concept of one health and one welfare that recognizes the interconnectedness between human and animal health and welfare and the integrity of the environment that we all share. We strongly support the government’s objectives to modernize CEPA through this bill and to protect human health and the environment.

Humane Canada is also pleased with the government’s commitment to eliminate animal-based toxicity testing by 2035, which would help Canada align with our regulatory partners, the U.S. and EU, whose efforts are consistent with this timeline.

To ensure this goal is met, it is essential that Bill S-5 include substantive provisions, beyond the preamble, and address animal testing in specific, tangible ways.

Our associate the Canadian Society for Humane Science has specific expertise in the use of animals in science, so I’m delighted that my colleague Dr. Elisabeth Ormandy is here today. I’ll turn it over to her now.

Elisabeth Ormandy, Executive Director, Canadian Society for Humane Science, Humane Canada: Thank you, Toolika.

Toxicity testing is the most harmful type of animal use in Canadian science. Fortunately, though, non-animal methods demonstrate several advantages over historical approaches based on animal testing. Non-animal methods can provide more reliable and relevant information about potential hazards; they are faster and more comprehensive; and where comparisons are possible, they have an equal or greater ability to predict than animal models.

To advance the government’s own 2035 commitment, we recommend that in addition to the language in the preamble, Bill S-5 should amend CEPA to, first, include language specifying preference for non-animal methods over animal-derived data.

Second, require development of a strategic plan outlining the pathway to reducing the use of animals for testing, as well as annual reporting against that plan.

Third, use language that prioritizes the reduction and replacement of animals over refinement, since refinement is less relevant in the context of eliminating animal testing.

In addition, we would like to see the establishment of an advisory committee that would oversee activities to promote the development and implementation of non-animal methods, and adequate funding for these efforts is also essential.

Our NGO community agrees with these recommendations, and evidence submitted to this committee shows that industry organizations are also supportive of amendments that prioritize the replacement and reduction of animal use in toxicity testing as well as the development of a strategic plan and provision of adequate funding.

In closing, we would like to thank committee members for inviting us to appear on this important issue. Modernizing CEPA presents an exciting opportunity to better protect the environment and health of Canadians while phasing out the unnecessary use of animals. Furthermore, it offers a mandated way to ensure Canada’s position as a global leader in non-animal test methods. So we urge you to make the most of it. Thank you.


The Chair: Thank you. Mr. Butler, you may now begin your opening remarks.


Mark Butler, Senior Advisor, Nature Canada: Honourable senators, I’m coming to you from Halifax, or Kjipuktuk, on unceded Mi’kmaq land. Appearing with me today is Hugh Benevides, who with his legal background is best equipped to answer questions on our proposed amendments. Hugh is in Treaty 7 territory in the Bow Valley in Alberta.

I’m here tonight because in 2013 a company called AquaBounty wanted to raise the world’s first genetically engineered food animal, an Atlantic salmon, on Prince Edward Island. As Karen Wristen of Living Oceans Society described to you last Thursday, Part 6 of CEPA allowed this proposal and the risk assessment to proceed with no public notice, no public participation and no Indigenous consultation that we know of. Neither was Indigenous knowledge incorporated into the risk assessment.

The risk to wild salmon and the implications for Indigenous peoples’ rights pushed me and my organization at the time, and now Nature Canada, to get involved. Genetic engineering is a very powerful technology. We now have the power to change the genome and thus the inherited traits of any species on the planet. However, with that power comes considerable risk. Unlike many issues I’ve worked on, the technology is in the early stages. We have the opportunity to prevent a problem rather than trying to clean it up afterwards. That seems right for CEPA, whose long title is An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development.

This technology is emerging at a time when nature is really on the ropes. Canada has joined with other G7 countries to halt and reverse biodiversity lost by 2030. This commitment should set the bar even higher for new technologies.

We have proposed six amendments, including aligning CEPA with United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, requiring timely transparency in CEPA Part 6 notifications and waiver requests, requiring meaningful public involvement in risk assessments and reversing the burden of proof so that proponents have to show a demonstrable need for a new GE organism.

In 2017, after a thorough study of CEPA, the House of Commons Environment and Sustainable Development Committee issued a report. In its report, the committee said that:

. . . the current regulatory regime for genetically modified organisms . . . renders it inadequate to face the challenges posed by the rapidly advancing area of biotechnology . . . . The committee believes it is time to re-examine the options and to establish an effective regulatory regime for genetically modified organisms.

The committee made several recommendations, including recommendation 26, which supports a more open and inclusive risk-assessment process. Unfortunately, Bill S-5 contains some minor changes to Part 6 but nothing that embodies either the spirit or intent of this recommendation.

When Bill S-5 was introduced, the government also announced a review of the regulations that apply to Part 6. We welcome this review, but it doesn’t do the job. In meetings with Environment and Climate Change Canada officials, the proposed review has come across as more of a housekeeping exercise. Some of the changes we are seeking can only be made at the level of the act.

It seems to us that the government is trying to rush an already incomplete bill through the Senate. Honourable senators, we ask that you take the time to make the changes to Part 6, as well as Part 5, to protect Canadians and the environment. Thank you.

The Chair: Thank you very much to our experts. We’ll start the questions with Senator Kutcher, who is sponsoring this bill.

Senator Kutcher: Thank you to the witnesses. The first question is to Dr. MacDonald. Dr. MacDonald, what impact do you think that removal of the balancing language would have in protecting the right to a healthy environment?

Ms. MacDonald: It would make the right much more meaningful under CEPA. As it is written now, it really is hard to know if it will have any real impact in terms of decision-making that could occur under CEPA, particularly balancing it against the economy. I can see that balancing for social or science reasons, those may be important factors to consider in the application of the right. They may not be things that need to be balanced against the right, but they may help the government decide how to apply the right.

We’re particularly concerned about balancing against the economy and that undermining the whole application of the right within CEPA. We think the amendment will lead to more meaningful decision-making, stronger decision-making that protects people from environmental harms. Without that amendment, we’re seriously concerned that the right will have very limited application, if any, under the act.

Senator Kutcher: Thank you very much. This is to Dr. Ormandy. Is there a Canadian gold-standard-based repository that identifies non-animal toxic methods of equivalent scientific validity that can be used by academic or industry scientists who are investigating toxicity of substances? Is there a place where people go to get this methodology?

Ms. Ormandy: Thank you for your question, senator. I’m not aware of a Canadian repository, but Canada is a member of the Organisation for Economic Co-operation and Development, or OECD, which lists numerous accepted non-animal test methods for OECD member countries.

Senator Kutcher: Is there a role somewhere in Canadian locations under the Canadian Institutes of Health Research or the National Research Council Canada or someplace like that where Canadian scientists would have access to this, or do they have to go searching elsewhere?

Ms. Ormandy: We do have a relatively recently established Canadian Centre for Alternatives to Animal Methods and its subsidiary, the Canadian Centre for the Validation of Alternative Methods, which is housed at the University of Windsor. This is now our national alternative methods centre and validation centre. That would be a sensible place to start.

Senator Kutcher: Thank you very much for that.

Senator Seidman: My question is for Elaine MacDonald of Ecojustice Canada and Cassie Barker of Environmental Defence Canada. In your submission, there are five big recommendations. I’d like to look at number 5, which Cassie Barker mentioned, and perhaps both of you might respond. It says, “A higher bar for confidentiality claims to expand public access to data about environmental and health risks. ”This recommendation addresses transparency issues. You say if we amended it, it would bring it in line with other comparable jurisdictions such as the U.S. and the EU.

If you could, please develop the specifics of the recommendation and the requirement of the reverse onus on claims of confidentiality. Thank you.

Ms. MacDonald: What we’re recommending, and we do have more details on this in another document which we could provide you, is that rather than claims of confidential business information, or CBI, just being accepted by the minister without review, that the minister be required to actually review requests for CBI and ensure they do meet the bar that they truly need to be confidential for business reasons. This is what’s done at least for a proportion of claims in the U.S., up to 25%, and this is what’s done in the European Union.

The practice in Canada right now, from our understanding, is that the legislation doesn’t require the minister to actually review those claims of CBI. The bill does amend that section slightly to require businesses to start providing reasons, which they didn’t have to do before; they could just say this is CBI, full stop. But we want the minister to actually have to review that information and make a determination that that information truly needs to be confidential before accepting that it is confidential.

This is what we see will open up transparency around things like even Part 6, as Mark mentioned, as well as the information on new substances under Part 5, which right now largely operates as a black box under CEPA. There’s very little public light shone on how the government reviews those substances that come in through those processes under CEPA.

Senator Seidman: Thank you very much.

Senator Galvez: My question is also for Dr. MacDonald. In a previous meeting, some witnesses questioned the necessity of the proposed list of substances capable of becoming toxic, called the watch list. One witness said that he didn’t believe that a watch list will work when substances can be nominated without any substantive predictable process for prioritization.

A second industry witness told us that the list will overlap with both parts of Schedule 1. A third witness said that the current significant new activity provision in CEPA already does what the proposed list will do. So there is some confusion on this.

Given that your previous submission to the committee welcomes this new list, can you please respond to these stakeholder comments?

Ms. MacDonald: Let me see if I can remember them all. First of all, I did address the issue around SNANs, the significant new activity notices. Those are actually regulatory instruments that are issued regarding substances after they’ve been assessed. The watch list is about putting substances on a list that haven’t been assessed yet but potentially could be found to be toxic when they are assessed. It functions as an early warning system to say, “Hey, industry or users, it might be wise to avoid these, particularly as substitution chemicals, because it looks like in the future they could be regulated.” That could avoid future regulations if they are avoided.

We see this regrettable substitution thing happening all the time when chemicals are banned and then a new one replaces it. You can look at BPA and BPS. There are numerous examples that both Ms. Barker and I could provide of that happening, unfortunately. The watch list is kind of a way to try and get at that issue without making it a regulatory requirement. It’s just a polite way to say, “You probably shouldn’t use these things.”

I’m trying to remember the other two. The other one was that it overlaps with Schedule 1. No, if it’s on Schedule 1, it wouldn’t be on the watch list. If something is on a schedule, it has already been found to be toxic, so I don’t really understand that comment.

The first one was — can you remind me, Senator Galvez? I should have written it down.

Senator Galvez: Will it work when a substance can be nominated without any substantive predictable process or priority?

Ms. MacDonald: There is no nomination process proposed for the watch list. It’s the minister who develops the watch list, so I’m not sure what that comment is about. It will be up to the minister to use the watch list effectively. The minister will have to decide what to put on the watch list, but hopefully, it could be a powerful instrument or a powerful means — I won’t say instrument because it’s not regulatory — a powerful means to avoid chemicals that potentially could be found to be toxic and try to get ahead of this crazy toxic treadmill that we find ourselves on.

We need to find more ways to prevent toxic chemicals from being used. This is one way that I think could be very effective. I fully support the watch list, even though it wasn’t our idea.

Senator McCallum: My question is for Mark Butler and Hugh Benevides. I’m looking at the amendment that you had put forward where it states:

. . . where the living organism is an animal having a wild counterpart, the information provided shows a demonstrable need for the significant new activity involving the living organism and that the significant new activity does not render the living organism toxic or capable of becoming toxic.

We’re looking at genetically modified wildlife and how it goes against Indigenous knowledge. When we look at the salmon, the salmon is medicine, and it provides to the earth as well. This seems to be giving licence to make wildlife more vulnerable and other fish endangered. Can you comment on that?

Hugh Benevides, Legislative Advisor, Nature Canada: Absolutely. Hello, senators. Thank you for the question, Senator McCallum.

With our amendments, including the one that you’ve read and cited, the intention is to prevent unleashing new genetically engineered animals on nature and on people so that we don’t get into what Dr. MacDonald has just described as a “crazy toxic treadmill” in the case of new animals. The particular provision you noted also included significant new activities in relation to those new animals.

We want the public and Indigenous peoples to be able to interrogate and participate in the conversations that currently only happen between proponents and government about the properties of this new animal and the hazards it poses. We want to do what this act says, which is to prevent pollution. Make no mistake; we say that the new salmon, which we talk about in our brief and which Mr. Butler and Karen have mentioned, is a form of pollution should it escape — and we say that’s inevitable — and interact with its wild counterpart. I hope that answers your question, senator. I’m happy to elaborate.

Senator McCallum: I wanted to go back to Senator Kutcher’s question on the balancing of the right to a healthy environment because that really disturbed me. There is no balance there. That’s not the word. It’s something like it should be considered against. But when you look at the considerations that are there, there is no way that social, health and scientific factors could go against the right to a healthy environment. The only one that can do that in those factors would be economic factors. It’s only economic factors where industry seems to have the upper hand.

When I’ve worked with Indigenous groups, their rights have been struck down in favour of activities for the economy. Could you please comment on that, Ms. MacDonald?

Ms. MacDonald: I absolutely agree with your comment that the real concern is balancing against economic factors. For far too long, human health and the environment have been put behind economic development, and we don’t want to see that continue. We think that recognizing the right to a healthy environment without having to balance it against economic factors is a way to start to put humans first and put the lens on human health and protection of the right to our healthy and clean environment — clean air, clean water, all the things that David Boyd spoke about.

I do agree with you that things like social, health and scientific factors are things that are more likely to be considered in how they address the right to a healthy environment, not factors to be balanced against it. I do find the entire clause to be rather weird and awkward. For the most part, what we really want to address is economic factors and how they should not be balanced against the right to a healthy environment.


Senator Gerba: My question is for Ms. Rastogi or Ms. Barker.

I understand that this is the first time that federal legislation will recognize the right to a healthy environment and that it will also consider vulnerable populations.

Ms. Rastogi, during your presentation you alluded to the European Union. Does Canada have any other trading partners that have adopted environmental protection measures comparable to those in Bill S-5 and have enshrined them in their domestic legislation?


Ms. Rastogi: Thank you, Senator Gerba. I’m not sure I’m the right person to answer this question, but let me make a couple of brief remarks. I believe you are speaking about vulnerable populations and the groups that Humane Canada represents.

Humane Canada represents Humane Societies and SPCAs, and we are animal protection organizations that are represented across the country. Did I misunderstand your question, or am I the right person to answer?


Senator Gerba: Actually, I just wanted to know if there are other trading partners of Canada or other countries that have laws similar to the one we are trying to amend.


Ms. Rastogi: My sincere apologies for misunderstanding the question.

Indeed, not only trading partners but very close partners in regulatory activities. The United States, for example — our closest partner in many different areas — has the TSCA — the Toxic Substances Control Act — which very much is about protecting the environment and health from the impacts of substances.

Canada and the U.S. are working in close partnership on regulatory activities. As Dr. Ormandy mentioned earlier, at the OECD, all OECD countries — the U.S., the European Union countries and Canada, which is taking a particular leadership role — are working closely. In addition, our understanding is that Canada and the U.S. work quite closely together in terms of doing joint assessments of chemicals and the risks that they pose.

The United States provides a very good model in terms of their statute and their approach to addressing chemicals. Canada and the U.S. are very much in alignment and work closely together.

That being said, Canada doesn’t have, within our statutes, some of the requirements, goals and tools that we would like to have added and amended in Bill S-5. The United States has a number of tools, including requirements for the Environmental Protection Agency administrator to ensure that non-animal methods are used in assessments and requirements that proponents are using specific methods that are non-animal methods.

As well, TSCA mandates one of the most useful tools: a very clear-cut and detailed strategic plan to achieving their goal of eliminating toxicity testing by 2035. 2035 is the same date that Canada’s government has identified as the goal for eliminating animal testing for toxicity purposes here in Canada, but we don’t have a plan that’s been elucidated and mandated and to which a minister — or in the case of the U.S., the administrator — would report against.

Having that tool and allowing stakeholders and the public to see our progress towards achieving the elimination of toxicity testing would be extremely valuable. Thank you

Senator Miville-Dechêne: My question to Cassie Barker or Elaine MacDonald. My question is about transparency, following up on Senator Seidman’s question.

If you look at subclause 50(2), there is the heading “Exceptions to requirement to give reasons”. I don’t know if you can see what I’m referring to. I will read it:

In the case of information provided under a regulation, order or notice, reasons for a request for confidentiality are not required if the regulation, order or notice so specifies.

What do you make of this sentence? Does this reduce transparency for important information about toxicity? You didn’t refer to it in your brief, so I was wondering what your take is on that.

Ms. MacDonald: Are you referring to a section of CEPA itself or the bill?

Senator Miville-Dechêne: CEPA, 50(3).

Ms. MacDonald: Our submissions were very specific to the sections that were amended by Bill S-5, so I think the reason we didn’t address section 50 is because it wasn’t a section that was amended by Bill S-5. We tried to focus on the opportunity to address the sections opened by Bill S-5, understanding that there are limitations to how far you can amend a bill under the parent act rule or whatever the similar rule is in the Senate.

Senator Miville-Dechêne: But you did talk about transparency, and you wanted the language to be stronger. What do you think should be added here? Are you saying that there should be a mandatory review by the government? What kind of language do you want to add and where?

Ms. MacDonald: We were referring to latter sections in the act that were amended regarding confidential business information.

Ms. Barker: Section 313.

Ms. MacDonald: That’s what we were looking at. Just to get around that complication, I would say the same comment applies. The government should always be asking industry to have to prove that something is actually impacting their business interests before they accept it as confidential. If that is the case, of course, accept it as confidential, but do not make it automatic that anything submitted by industry is confidential just because they say it is.

We want to increase transparency. We want to increase the public’s understanding of the issues being addressed by CEPA, whether they be biotechnology or toxic substances or pollution or whatever. We need to be as open as possible.

Senator Miville-Dechêne: If I read this clause, it’s not anything goes, because the proposed amendment to subsection 313(2) states, “A request for confidentiality shall be submitted, with reasons, in writing and contain any supplementary information that may be prescribed.” So there is somewhat of an improvement, isn’t there?

Ms. MacDonald: I believe you’re saying that’s with respect to clause 50. Yes, the bill is requiring them to provide reasons. I did state that. What we’re saying is that the minister doesn’t necessarily have to review those reasons. That’s what we want them to do, review the reasons and determine that they actually do meet the bar of confidential business information. That is our ask.

The Chair: Mr. Benevides, would you want to add something?

Mr. Benevides: If I could. Thank you to Senator Miville-Dechêne.

On the question of balance, which one of the other senators identified, whether in terms of right to a healthy environment or in terms of transparency, there’s no question of balance. Everything is weighted in CEPA towards the proponents, the manufacturers, the importers and the users of toxic substances and other things. This particular clause appears to require reasons, which, as Elaine says, may not be particularly good, and they also may not be referred to. The next subparagraph then appears to allow, by cabinet fiat, that in the case of information provided under a regulation, order or notice, reasons aren’t required. So the left hand giveth and the right hand taketh away. Once again the balance is completely uneven, as I view this provision.

Senator Miville-Dechêne: On that sentence, the government has explained to us that they need this exception because sometimes they ask for information not from the enterprises that produce those toxic substances but from the experts or other people who would help to find the truth. So the idea is that everything has to be published, but it makes the process take so much longer. Do you buy that?

Mr. Benevides: I’m afraid that you’ve had more of an explanation of that than I’ve had, senator, so I can’t respond in this tight timeline and forum. I’m happy to talk about it separately.

Senator Patterson: My first question is to Nature Canada. You gave a very alarming-to-me example of a company permitted to develop genetically modified Atlantic salmon, and you said there was no public notice, no public participation, and no consultation, as far as you know, with Indigenous people, and you talked about the problem with the burden of proof. So the law is not working very well now. Could I ask, Mr. Benevides, to help me understand how your proposal for changes to sections 106 and 108 would remedy these problems that you’ve addressed so dramatically? If you could outline, again, please, how it can be fixed.

Mr. Benevides: Thank you for the question. The amendments that we’ve proposed, in summary, require not just mere notice but advance notice that a proponent has made a notification and advance notice that they’ve asked to have certain information requirements waived, and we’ve asked that there be notice that a risk assessment will be conducted. Just as importantly, we’ve asked that the public actually be involved in the risk assessment, that the public gets a chance to review those waiver requests and to present additional evidence.

Right now, none of that happens, and none of that happened in relation to the AquaBounty salmon. It also happens that that doesn’t generally happen with chemicals in Part 5 either. And what we’ve tried to do is bring in the important transparency and involvement of the public and put an additional burden on the proponent to show as part of that risk assessment and discussion that there’s demonstrably a need for this new animal to exist, to be put into commerce and to be put into our environment, particularly where there’s a wild counterpart. So to emphasize, none of that happens now, and that’s precisely what our amendments wish to address.

Senator Patterson: Thank you. Nature Canada in its submission said not to rush an incomplete bill through the Senate. I think, Dr. MacDonald, you said you had eight recommended areas of amendment. Nature Canada has seven recommended areas of amendment. We are scheduled to rush into a clause-by-clause review of the bill in less than 36 hours from now. Would you have any comment, Ecojustice and Environmental Defence Canada, about whether we are indeed rushing this bill, and do we need more time to study it properly and amend it properly?

Ms. MacDonald: Thank you for the question. In one sense it does feel like moving to clause by clause by Thursday and only ending testimony today really doesn’t give this committee much time to consider everything they’ve heard, but I will say, as was noted by Joe Castrilli and others, that we’ve been waiting 20 years for CEPA to be amended and we don’t want to throw the baby out with the bathwater either.

So this bill does advance and make steps to improve CEPA. It doesn’t do everything we need it to do. We all acknowledge that. Perhaps the committee can make some amendments to strengthen it now and we can work and communicate that another bill is needed to address all these other aspects of CEPA that haven’t been addressed by Bill S-5 — and there are many of them. CEPA is a monstrous piece of legislation that touches on many different areas of the environment. Toxic substances is just one part of CEPA. The right to a healthy environment and the administration of the act are other sections. There are major gaps in terms of what needs to be fixed that are not part of Bill S-5.

What we’ve decided, as groups that have been working on this for years and years, is we want Bill S-5 to be strengthened and become law in this parliamentary session because we’ve waited so long to see some of these things happen under CEPA, but we need to be telling the government and legislators that they need to work on another bill right now to address some of these other things.

And we’ve heard the minister speak to that. I think the minister recognizes that this is just a start and we shouldn’t have to wait 20 years to amend CEPA. We need to make it a regular habit to keep CEPA up-to-date, every couple years.

Senator Arnot: I have a question for all the witnesses. We’ve had some discussion about this clause that purports to balance several factors. I would invite any one of the witnesses to provide better wording for that clause if you accept a clause will be in there. We’ve heard, thanks to Senator McCallum’s advice, that the word “economic” could be taken out and really assist in the interpretation of this act.

Fundamentally, this right is not in the Canadian Charter of Rights and Freedoms where the balancing takes place in the courts under section 1. We don’t have that.

I’m asking the witnesses to please give us something in writing as soon as possible with any recommendation on that particular issue.

Senator McCallum: Senator Arnot, it wasn’t to leave “economic” out. It has to be in there. That’s the only thing that will decrease the right to a healthy environment.

My question is for Mark Butler and Hugh Benevides about aligning CEPA reform with Indigenous rights, including UNDRIP. Could you expand on that a bit?

Mr. Benevides: Thank you, senator. I thought that perhaps the most powerful testimony thus far, other than today’s, of course, was last Thursday from the Assembly of First Nations, the Congress of Aboriginal Peoples and Bob Chamberlin, saying that Bill S-5 needs to be made compliant with the spirit and letter of UNDRIP and the principle of FPIC: Free, Prior and Informed Consent. Asking people to check a website does not comprise free prior and informed consent, nor does it comprise — and I’ll come back to our experience with salmon — meaningful public participation.

We don’t have specific language for UNDRIP that we’ve proposed for the bill because we thought it was better for Indigenous groups to propose. If you would like us to try and do that, I would. I’m not sure if there are other parts of the question I’m not answering.

Senator McCallum: I do remember that. I have looked at that with some of the amendments I’ve been working on with the Assembly of First Nations, and I think it was to make people aware or help them understand that when section 35 of the Constitution Act and the United Nations Declaration on the Rights of Indigenous Peoples are applied —

The Chair: We lost you. You’re in and out.

Senator McCallum: Can you hear me?

The Chair: Yes, let’s try it.

Senator McCallum: No, I’m done now. Thank you.

Senator Galvez: I would like to give the opportunity to Mr. Butler and Hugh Benevides to tell us, for the benefit of our colleagues, about the dangers, impacts and effects of putting genetically engineered species together with wild species, because we need to understand why this is a big problem. Thank you.

Mr. Butler: Thank you very much for that question. It’s a timely question, because just a couple months ago, Brazilian scientists discovered the first genetically engineered animal reproducing in the wild. It’s an aquarium fish that glows in the dark. This is a species that is entirely new to nature, and its interaction with other species will have negative impacts on the environment.

If we come back home to Atlantic Canada, most of you perhaps know that Atlantic salmon is in trouble and facing a number of threats. We would be worried that if this salmon was to be widely used in the industry, over time, it would escape and breed with wild salmon, and there would be genetic introgression into the wild stocks, which would reduce the fitness and the ability of those salmon to survive. It’s genetic pollution at a time when nature is already in trouble.

If I could just add a point to a previous discussion, we do want to see this bill pass, but it’s a big bill, with a lot in it, from chemicals to Indigenous rights to biotechnology. We want to see adequate time given after 22 years to considering amendments. I must say, we are skeptical of the claim or the promise that there will be another bill in a year or two. Thank you.

The Chair: Thank you, this brings us to the end of our second panel. I’d like to thank you, on behalf of the Canadian public and on behalf of ourselves. We obviously have a significant challenge in doing the work we have to do. We’ll do the best we can, which is usually quite satisfactory, and I want to assure the public that we’re serious about our commitment. I think we can do a pretty good job with this legislation.

On behalf of ourselves, I want to thank from Environmental Defence, Cassie Barker, Senior Program Manager, Toxics; from Ecojustice, Elaine MacDonald, Healthy Communities Program Director; from Humane Canada, Dr. Toolika Rastogi, Senior Manager, Policy and Research, and Dr. Elisabeth Ormandy, Executive Director Canadian Society for Humane Science; and from Nature Canada, Mark Butler, Senior Adviser, and Hugh Benevides, Legislative Adviser.


Thanks for sharing your knowledge with us. I am sure it will have a major impact on our work.

Colleagues, before I conclude the meeting, I would like to remind you that on Thursday morning at 9 o’clock we will start the clause-by-clause consideration of the bill. I believe that there will be important amendments presented. For those who want to share their statements or their amendments with their colleagues, that is entirely up to you. This will allow us to have more time to discuss your ideas instead of reading documents. It will also make the process more efficient.

Thank you very much.

(The committee adjourned).

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