THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Tuesday, May 31, 2022
The Standing Senate Committee on Energy, the Environment and Natural Resources met with video conference this day at 9:08 a.m. [ET] to study Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act.
Senator Paul J. Massicotte (Chair) in the chair.
[Translation]
The Chair: Good morning, honourable senators. My name is Paul Massicotte; I am a senator from Quebec and chair of the committee.
Today, we are holding a hybrid meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
I would like to introduce the committee members who are participating in today’s meeting: Margaret Dawn Anderson from the Northwest Territories; Rosa Galvez from Quebec; Clément Gignac from Quebec; Stanley Kutcher from Nova Scotia; Mary Jane McCallum from Manitoba; Julie Miville-Dechêne from Quebec; Dennis Patterson from Nunavut; Judith Seidman from Quebec; Karen Sorensen from Alberta; Josée Verner, P.C., from Quebec; David Arnot from Saskatchewan.
I welcome all my dear colleagues and all the Canadians who are watching us.
Today, we are continuing our clause-by-clause consideration of Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act.
[English]
Before we begin, I would like to make members aware that we have government officials on the Zoom call should members have any technical questions to raise as we go through the bill clause by clause.
We have from Environment and Climate Change Canada John Moffet, Assistant Deputy Minister, Environmental Protection Branch; Ms. Laura Farquharson, Director General, Legislative Governance, Legislative and Regulatory Affairs, Environmental Stewardship Branch; Jacqueline Gonçalves, Director General, Science and Risk Assessment, Science and Technology Branch; and Bryan Stephens, Acting Manager, Legislative Policy, Environmental Protection Branch. Finally, from Health Canada, we have Greg Carreau, Director General, Safe Environments Directorate.
[Translation]
I want to remind senators of a few things. If at any point you are unsure where we are in the process, please feel free to ask for clarifications. I want to make sure that all of us know where we are at all times.
Just a quick clarification: If a senator objects to a clause in its entirety, the normal committee procedure is not to pass a motion to delete the entire clause, but rather to vote against keeping the clause in the legislation.
As chair, I will do my best to ensure that all senators who wish to speak are able to do so. However, I will need to rely on your cooperation, and I ask you all to stick to the facts and to speak as briefly as possible.
I would like to provide some clarifications on the process we will follow during this meeting. When I ask whether a motion carries, I will ask the senators who support the motion to raise their hand, and then I will ask those who are opposed to the motion to use the thumbs down image.
If you want to propose an amendment, I ask that you proceed as follows. If the amendment is not too long, first read out loud the current wording of the provision you would like to amend. If a number of committee members want to amend the same provision, only the first senator proposing an amendment will read the provision being debated. Then you will read your amendment, briefly explain the reasons behind the amendment, and then we will have a question-and-answer period and a debate that will be brief and direct. Afterwards, we will hold a vote.
Finally, I want to remind senators that, if they have any doubts about the results of a raised hand vote, the best way to respond is by requesting a recorded division.
Is it agreed that the committee proceed to a clause-by-clause consideration of Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act?
Some Hon. Senators: Agreed.
The Chair: Carried. We’ll resume debate on clause 2. Senator McCallum wanted consideration of this clause to be postponed.
Honourable senators, we will resume debate on clause 2. I believe Senator McCallum now wants to move a new amendment.
[English]
Senator McCallum: We are looking at MJM-S5-2-2-17a.
Ms. Cardinal: I have S5-2-2-3 that comes before. That is our first one.
Senator McCallum: I don’t have that one, 2-2-3. That one is standing.
Ms. Cardinal: That one is standing?
Senator McCallum: Yes.
Ms. Cardinal: Okay.
Senator McCallum: We’re going to leave that. That’s the first one that Senator Massicotte had just said that. Maybe I will get back to that later.
The Chair: If that’s the case, can I invite Senator Galvez to present her new amendment.
Senator Galvez: Are we in the precautionary principle clause, RG-S5-3-3-3? Are we in clause 3 now?
The Chair: No. We are in clause 2 and I’m looking at RG-S5-2-112, which we got this morning.
Senator Galvez: Is this concerning the preamble?
The Chair: Yes.
Senator Galvez: We already passed that one on the vertebrate and on the substance to reduce. That was amended, so this one is done.
The Chair: The amendment we got this morning said that “Bill S-5 be amended in clause 2, on page 1, by deleting lines 12 to 16.”
Senator Galvez: Sorry. I abandoned this amendment. I consulted with experts in the field, and there are other places in which my concern has been addressed, so this amendment can be dropped. This is the one that reads, “Whereas the Government of Canada acknowledged the need to control and manage pollutants.” Is that right?
The Chair: So that’s withdrawn?
Senator Galvez: Yes.
The Chair: Thank you. Now we’ll go to Senator McCallum. I think this is MJM-S5-2-2-17a.
Senator McCallum: My goodness. The amendment is as follows:
That Bill S-5 be amended in clause 2, on page 2, by replacing line 17 with the following:
“of science and Indigenous knowledge in the process of making decisions related to”.
I added, “Indigenous knowledge” and I gave you the rationale. Did you want me to go over them again?
The Chair: That’s a good idea.
Senator McCallum: Indigenous people lived on these lands for thousands of years, since time immemorial, and thrived. It was not through pure luck, as some people like to believe and articulate, but because they had knowledge on ways of being and thriving with the land. Although life was hard and harsh, they were in charge of their own lives, and work and life were meaningful. It was this harshness amid the environment that made them resilient with the ability to adapt.
My father, who was a trapper and a fisherman for over 30 years, had a PhD in life. He knew the land, the animals, the seasons, astronomy, geography and their interconnection. Next to the family, it is work and relationships with spirituality, community, land, water, air, animals, plants, biota, et cetera, that were and continue to be the foundations of their societies. When these foundations become unsound, how can societies be sound? As one Cree elder said, “If the land is not healthy, then how can we be?”
I have where I got the quotes from. It is the application of “science” that has led to this destruction of lands and lives. It will take Indigenous knowledge and their knowledge of ways of being with the land that will lead to the solution. The work of healing and ecological justice will counteract the environmental racism.
In her role as Canada’s Research Chair in Integrative Science, Dr. Bartlett used the term Etuaptmumk, the Mi’kmaq word for the gift of multiple perspectives, which is often called Two-Eyed Seeing. Two-Eyed Seeing reflects overarching concepts that exist within diverse Indigenous communities whose knowledge systems, although distinct and linked intimately to the unique geographic territories from which they have emerged, share ontological insights. Dr. Barlett’s research fed back to an academic program in integrative science, a science degree program which seeks to bring together Indigenous and Western knowledges and ways of knowing. Since then, Two-Eyed Seeing usage has extended well beyond the realm of integrative science, which is based largely within the disciplines of biology, ecology and environmental science. The link to that is there.
In a submission from the Assembly of First Nations, one of their recommendations includes considerations for the meaningful integration of Indigenous knowledge systems in human health and environmental risk assessments and studies.
The Chair: Could you summarize it, your conclusion?
Senator McCallum: Indigenous knowledge has been accepted widely now. It is important to balance that notion of science with Indigenous knowledge, to be tempered by it. A convention is coming up with prospectors and developers, and one of the events will be to include Indigenous cultural awareness, that is, how traditional values, teaching and knowledge have influenced the industry over the years. Industry itself has acknowledged that Indigenous knowledge is critical.
The Chair: Senator Kutcher, do you have a question or comment?
Senator Kutcher: I have a comment. I would like to note that Senator McCallum has just spoken eloquently on this amendment and I support her motion. This will recognize the role of Indigenous knowledge in addition to science in the process of decision making. I urge us all to support this.
Senator Patterson: Senator Kutcher, you are the sponsor of the bill and you support the amendment. Does that mean that the government supports the amendment?
Senator Kutcher: Senator, I wouldn’t presume to speak for the government, but I don’t think I would speak only for myself all the time.
Senator Patterson: A very diplomatic answer. Thank you.
The Chair: Are there any other comments before we go to a vote?
Senator Gold: In response to Senator Patterson’s question, the government supports this amendment.
The Chair: Therefore, if you permit me, it is moved by the Honourable Senator McCallum:
That Bill S-5 be amended in clause 2, on page 2, by replacing line 17 with the following:
“of science and Indigenous knowledge in the process of making decisions related to”.
Is it your pleasure, honourable senators, to adopt the motion as in the amendment?
Some Hon. Senators: Agreed.
The Chair: The motion is carried. Thank you.
We would normally ask to carry clause 2 but, as you know, Senator McCallum asked for it to stand, so we’ll deal with it later on.
Senator McCallum, you have another amendment.
Senator McCallum: It deals with the same one. It is the “timely incorporation of scientifically justified and Indigenous knowledge–based . . .”
The Chair: Are you suggesting we add it in duplication?
Senator McCallum: No. This is on page 2, line 20. It’s the same.
The Chair: Adding the same words, though?
Senator McCallum: Yes.
Senator Kutcher: Could we have that read out so I know exactly where we are?
Senator McCallum: It’s line 20. Do you want me to read the whole thing?
The Chair: No. Make it short.
Senator McCallum: I mean the clause on page 2 that states, “Whereas the Government of Canada . . . .” It’s on line 20. It says:
. . . as well as the importance of promoting the development and timely incorporation of scientifically justified and Indigenous knowledge-based alternative methods and strategies . . .
Did you find it? It’s the same paragraph.
Senator Kutcher: Yes. I appreciate that. I just want to make sure we are clear that it is “and Indigenous knowledge-based alternative methods and strategies.” That is the amendment, is that correct?
Senator McCallum: Yes.
Senator Kutcher: Can I speak to that?
The Chair: Please.
Senator Kutcher: I’ll follow Senator Gold’s advice and say I’ll speak on behalf of the government. The government feels that Indigenous knowledge has already been identified in the clause and it is redundant to put it in here. This is the preamble and it is quite clear with Senator McCallum’s previous amendment Indigenous knowledge is firmly entrenched.
Senator McCallum: Can I comment on that?
The Chair: Please do.
Senator McCallum: It is being inserted twice. You are inserting “scientifically justified alternative methods” again as well. So if you have inserted science, then why aren’t we including Indigenous knowledge again in the second? Because if you only single out scientifically justified alternative methods and strategies, the Indigenous knowledge at the beginning doesn’t seem to have a part to play.
Senator Seidman: Just to say that I don’t think it is the same reference here in this part of the sentence because here they are talking about scientific testing and assessment of substances, which is quite a different story from recognizing the role of science and Indigenous knowledge in the process of making decisions related to the protections. It is different. I’m not sure it is appropriate to repeat it in this particular case. That would be my assessment.
The Chair: Senator McCallum, you were shaking your head. Do you agree with the comment of Senator Seidman?
Senator McCallum: I agree with what she said that the first one is on the process of making decisions, and the other one goes into methods and strategies. There is Indigenous knowledge that is different for making decisions, and there is different Indigenous knowledge in the relationship to animals.
Senator Seidman: This is in the testing and assessment of substances. I’m not sure we would say — I don’t know how to respond, but I would suggest this is scientific method, the testing and assessment of substances. That’s what this refers to.
Senator McCallum: Yes, it is, but there is science in Indigenous knowledge.
The Chair: Do you want to maintain the amendment as you originally proposed? Could you read us the amendment you’re recommending?
Senator McCallum: It says:
Whereas the Government of Canada recognizes the role of science and Indigenous knowledge in the process of making decisions related to the protection of the environment and human health, as well as the importance of promoting the development and timely incorporation of science and Indigenous knowledge . . .
I’m sorry, I’m reading the first one:
. . . and timely incorporation of scientifically justified and Indigenous knowledge-based alternative methods and strategies in the testing and assessment of substances . . .
And then this is where it will change with Senator Galvez’s amendment about the “reduce, replace and refine.”
The Chair: I think we should go to a vote. I think we know exactly what you are seeking. It is moved by the Honourable Senator McCallum:
That Bill S-5 be amended in clause 2, on page 2, by replacing line 20 with the following:
“and timely incorporation of scientifically justified and Indigenous knowledge–based alter-”.
Is it your pleasure, honourable senators, to adopt the motion in amendment as proposed by Senator McCallum?
Senator Gold: No.
The Chair: If you raise your hand that means you are in approval. All those against? Therefore defeated.
Senator Kutcher had an intervention.
Senator Kutcher: Thank you, Mr. Chair. I want to thank everybody for this careful analysis of animal testing that’s going on in this bill. I think it’s going to result in a better piece of legislation and be way better for animals in our testing as we move to get rid of this.
I asked officials to provide me a written note on this issue because I think that there was so much discussion. Let me share with you what officials have provided me. We can think about this as we come to animal testing throughout the bill.
The issue here is that proposals for animal testing should be understood in the broader context of efforts by the government to end testing on animals, and there will be several planned legislative regulatory and policy actions. First, the Ministry of Health is proposing to ban cosmetic testing on animals under the Food and Drugs Act. There are amendments under the Canadian Environmental Protection Act, 1999, or CEPA.
Second, the government tends to amend regulations such as the New Substances Notification Regulations (Chemicals and Polymers) under CEPA that explicitly require animal data testing to promote the use of valid, non-animal testing methods where available.
Third, I understand that departments are considering developing a strategy to end testing on vertebrate animals and convene a multi-interest advisory body to address this issue.
So there will be motions that I will support with subamendments for the approach under CEPA as possible. When we get to them, I will do that. I want to ensure that, as we had talked previously with Senator Galvez, we prioritize by replace, reduce and then refine animal testing on vertebrates as we had discussed before.
There will also be two non-legislative proposals coming forward from the government. They will convene an ad hoc group of scientific and technical experts to provide advice on efforts to replace, reduce and refine the use of vertebrate animal testing. Mechanical management plan uses this approach through expert engagement.
Second, the government is considering developing a strategy to support the implementation of CEPA that prioritizes ongoing efforts to reduce reliance on animal toxicity testing of chemicals while ensuring protection of human health and environment. Thank you.
The Chair: At this point, we would normally vote on clause 2, but given the request to stand it, we’ll proceed to clause 3.
Senator Patterson: I have in my package an amendment by Senator Galvez of clause 2 on page 2 respecting lines 22 and 23. Has that been withdrawn? Was it passed at the last meeting?
Senator Galvez: Yes.
Senator Patterson: It’s coming back to me. Is the word “refine” still in the bill as amended in clause 2?
Senator Galvez: Yes, as amended.
Senator Patterson: Thank you very much.
The Chair: So we are going to stand on clause 2. Shall clause 3 carry?
Senator Galvez: No, shall clause 3—
The Chair: I think we have some amendments proposed by Senator McCallum and also by Senator Galvez but they seem to be in duplication. They are not? Not the first one. When we get there, we’ll ask you to explain. Could we start with Senator McCallum? You are at MJM-S5-3-3-3b. The first amendment in clause 3.
Senator Kutcher: Got it, okay. Thank you.
Senator McCallum: So you want me to go through my reason for “cost-effective?” Because I had “cost-effective” removed. That’s under 3b. Do you want me to read it out?
The Chair: That’s the one we want to deal with?
Senator McCallum: It says:
That Bill S-5 be amended in clause 3, on page 3,
(a) by replacing lines 3 and 4 with the following:
“not be used as a reason for postponing measures to prevent environmental degrada-”;
(b) by replacing line 13 with the following:
“which right may be considered against relevant factors, in-”.
I removed the phrase “cost-effective.”
The Chair: That’s the only amendment? Remove the phrase “cost-effective?”
Senator McCallum: For this one, yes.
The Chair: Okay.
Senator McCallum: The phrase “cost-effective” was removed because it has been and may continue to be used by the proponent as an excuse for postponing measures to prevent and mitigate environmental degradation.
It’s already happening in Alberta, where the government and the proponents have said the cost is going beyond them. The toxic waste has accumulated over the last 50 years and continues to accumulate. The Athabasca Region First Nations state that the need to improve tailing-treatment technologies has been known since 1995. Unfortunately, viable economic treatment solutions for all tailings waste remain elusive. You can read from their report how the potential for industry to be unable to pay for its environmental liabilities is significant, and that the potential abandonment of these liabilities will certainly impact federal jurisdiction.
There has been a history of non-enforcement by provincial agencies, and the companies are not putting more money aside for reclamation. So “cost-effective” can be used as an excuse, I said.
Senator Kutcher: Thank you, Senator McCallum, for your intervention, but I oppose the motion. This is a very complicated issue, and the language is important.
The Chair: Very short and sweet.
Senator Kutcher: I’m going to ask the officials to help us understand what this language means and why it’s used.
The Chair: We’re back to school now.
Senator Kutcher: Yes, we’re back to school. Could we have the officials weigh in on the meaning of the words “cost-effective,” and why they are in this legislation?
John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada: Senator, I would be happy to speak.
I would simply remark that this is the same definition of the precautionary principle that has been codified in international agreements and in domestic legislation since the Rio Declaration in 1992. Making a change in the definition now would be changing something that appears in multiple other statutes and policy documents, creating uncertainty as to the appropriate interpretation of the principle.
Senator McCallum: Because of the history of the inability to mitigate environmental degradation that exists, it’s going to create uncertainty for First Nations on their lands and in their lives. How will the government ensure that the tailings ponds and all the environmental damage, the toxins that lie around Indigenous lands are dealt with? They can’t afford to wait even another 10 years. You’re creating certainty for the word “cost-effective,” but you’re creating uncertainty with lives.
Senator Galvez: By now, everybody on this committee should be aware that science is ahead, technology follows science, and policies and regulations are behind technology. Also, it has taken 22 years to change this bill. So you can see that we are always very behind what is happening in reality and in the field.
In that sense, there is already very important legislation elsewhere in the world, in Europe and, notably, also in my province of Quebec, where they don’t make any reference to cost or technical effectiveness. It shouldn’t be a reason to postpone any measure.
I understand that Senator McCallum wants to take out the whole thing — “cost-effective” — and what I wanted in my amendment is to take out the word “cost” and just leave it as “effective,” because we don’t know what’s going to come later. Does it really need to be only cost-effective? Maybe it could even be beneficial and not only ensuring minimum effectiveness.
So I want to support this Senator McCallum’s motion of taking away “cost-effective” because it shouldn’t be a barrier to postpone measures, which is what we have seen already, as she already described it. Also, there is no “cost” in the French version of the bill.
The Chair: Are you finished, Senator Galvez?
Senator Galvez: Yes.
[Translation]
Senator Miville-Dechêne: Briefly, I want to support Senator Galvez. It seems to me that it is too easy an excuse to say that, because it all costs too much, we will not do it, especially now that we know all the dangers of these products. The use of the word “cost” diminishes the responsibilities of companies and allows them an easy escape.
I would tell you that I quite agree, however, with keeping the word “effective,” because they are two different concepts. You can’t just say that you need to take action, but effective action. It is not the same thing. If you take action, it could be any action, but if you demand to take effective action, it is much stronger.
I would tend to agree with Senator Galvez’s proposal to delete only the word “cost.”
[English]
Senator McCallum: I just want to ask a question.
Could you give me examples of “cost-effective” measures that have prevented environmental degradation when there are already threats of serious or irreversible damage?
The Chair: Senator Galvez, would you —
Senator McCallum: No, that’s for the ministers.
Mr. Moffet: Could I respond generally?
The Chair: Please.
Mr. Moffet: The way in which the precautionary principle is written and has generally been interpreted in the reference to “cost-effective” is to refer to the cost-effectiveness of a measure from a societal perspective. So when the federal government takes action, and in particular when we regulate, we conduct a cost-benefit analysis. The cost-benefit analysis does not look at the cost to company X versus the benefit to society; the analysis looks at the overall costs to society and the overall benefits to society, including current and future generations.
So the goal is to identify measures that will, on balance, benefit current and future generations from an environmental and health perspective. That’s the way in which the term is interpreted in federal policy.
Senator McCallum: I don’t understand your reasoning because if it is precautionary and it is “cost-effective,” why has there been nothing done with the tailings ponds and with the toxicity? They continue to exist. So I don’t understand your answer.
The Chair: You have a right to your opinion. If you want to, we should vote on it. Otherwise, we can discuss it forever.
Senator McCallum: Isn’t that sober second thought? I don’t understand what he’s saying to me. It’s just words, and we’ll continue to live in toxicity.
Will that be taken away? Will that be mitigated?
The Chair: Senator Kutcher, did you want to comment on that somewhat on behalf of the government?
Senator Kutcher: I can understand Senator McCallum’s concerns. This is a principal component in the bill, and there has been a good discussion from Senator Galvez, and Senator Miville-Dechêne raised some very important points for us to consider.
Senator Sorensen: I often use filters of cost versus value and I think one of the things that Mr. Moffet was trying to express is that cost does not necessarily mean expense or financial cost. There are other costs. The word “cost” indicates money, but there are costs to many things that are not financial.
Senator McCallum: What are we going to vote on? Is it to remove the word “cost” or “cost-effectiveness?”
The Chair: It’s for you to decide. You have an amendment that takes out the word “cost,” but Senator Galvez argues that her amendment is a bit clearer.
Senator McCallum: Effectiveness.
The Chair: My question to you is: Are you prepared to withdraw your amendment so we can focus on Senator Galvez’s amendment?
Senator McCallum: Yes.
The Chair: We withdraw the MJM-S5-3-3-3b and we will proceed to a vote on Senator Galvez’s amendment, which is RG-S5-3-3-3.
Senator Miville-Dechêne: I want to add to the comments by the government official that, if I understand you well, you’re saying “cost-effective” means cost-benefit. If it means cost-benefit, why is it written “cost-effective?” We could write, “cost-benefit.” I’m concerned that the words in the bill do not reflect, I think, what we heard from the officials.
Senator Seidman: Just to try to respond. I think what we heard from the officials is that we do a cost-benefit analysis. So that’s the point here. When you use the word “cost,” it’s a cost-benefit analysis.
The Chair: I suspect all of this we’re nearly saying the same thing. Therefore, can I proceed to a vote on Senator Galvez’s motion. It is moved by the Honourable Senator Galvez that:
That Bill S-5 be amended in clause 3, on page 3, by replacing line 3 of the English version with the following:
“not be used as a reason for postponing effec-”.
And that has been proposed.
Is it your pleasure, honourable senators, to adopt the motion as in the amendment?
Some Hon. Senators: Yes.
The Chair: Put up your hands for those in favour.
Senator McCallum: To do a cost-benefit analysis then? That will be in the amendment?
An Hon. Senator: No, there would have to be another amendment.
Senator McCallum: If we can put another amendment then.
The Chair: We’ll deal with the one we’re voting on and everyone can make an amendment at any point in time.
Senator McCallum: I want to hear what Senator Galvez has to say with that.
The Chair: This is her amendment.
Senator McCallum: This is her amendment. I wanted to hear what she —
The Chair: Senator Galvez, do you want to comment again on your amendment?
Senator Galvez: Yes. The question that Senator McCallum asked the official was clear. Can you give me an example where cost-benefit, as John explained, has been used? Can you give me an example? And he couldn’t. The reason he couldn’t is because there are not cost-effective measures for cleanup.
I agree with Senator Miville-Dechêne that the word “effective” is important, and that the word “cost” is not complete. We need to be clear in the language because otherwise we end up in court, and it is a judge who decides that the word “cost” not only means “monetary” but also implies social and this and the other, but it’s not written in the bill.
The best is just to take away the word “cost” and leave the word “effective” because then it’s clear that it has to be effective in any way that it could be effective: cost-effective, technologically, environmentally and human-health-effective. If we just put “cost,” I think it brings confusion. To most people, “cost” means “monetary.” That’s why I propose to take away the word “cost,” because it’s already clear in the French version. We have to make it the same as the French version. Thank you.
Senator Arnot: I want to make a comment here in support of some of the issues that Senator McCallum is raising because I see in some of these issues a fundamental non-understanding which she is trying to address, in my opinion.
The fundamental problem that I observe is the honour of the Crown. Clearly and unequivocally, the Crown has not acted with honour in the past vis-à-vis the First Nations and the breach of two fundamental principles, one, the treaty relationship, the ongoing relationship in treaty. Many of the issues that Senator McCallum has raised are all about the treaties and the non-implementation of the treaty relationship according to the spirit and intent of treaty.
The second one is a breach of the nation-to-nation relationship, which is all about respect, and that respect has been fundamentally lacking and clearly demonstrated in Canada. The failure to address these issues and the continuing non-understanding are going to be fundamentally detrimental to reconciliation in this country.
It’s all about the honour of the Crown; that high standard has not been met in the treaty relationship or the nation-to-nation relationship which the Government of Canada is talking about.
An example occurred yesterday in the Aboriginal Peoples Committee, where it was very clear that the Tataskweyak Cree Nation, the O-Pipon-Na-Piwin Cree Nation of South Indian Lake and the Athabaska Region First Nations have not been respected for a very long time.
I make that comment because I’m trying to support what Senator McCallum is trying to convey, I believe, and it’s a non-understanding between the way the Indigenous people look at these issues and the way that non-Indigenous people look at these issues. Until that fundamental overarching issue is dealt with, these problems will continue. Thank you.
Senator Patterson: Senator Galvez has said that there is an inconsistency between the French version of the clause that we’re looking at. That’s subsection 2 on page 3 at the top of the page. There’s an inconsistency between the French and the English version. I wonder if we could ask the officials to comment on whether and why there does appear to be an inconsistency between the French and English version, and which is the version to be relied on by the government?
The Chair: Mr. Moffet, do you want to comment to that?
Mr. Moffet: Again, the text in CEPA is taken from the text of the Rio Declaration, which was written in multiple languages at the same time, and in French it talks about “effective,” and in English it talks about “cost-effective.” That language again has been used in multiple federal and provincial statutes. I would point out that it is indeed reflected exactly that way, “cost-effective” in English and “effective” in French in the Quebec Sustainable Development Act, in reference to the precautionary principle.
Senator Miville-Dechêne: I understand what you’re saying about international declarations; however, we are in Canada, and the laws are also read by people. “Effective” in French does not mean only “cost-effective”; it has a broader meaning.
No citizen will know the reference to which you’re referring, so this needs to be clear. I think we have a problem. I would say that, obviously, for personal reasons, the French version seems to me much better because it leaves some leeway for the interpretation of this effectiveness.
The Chair: I would add the comment though that if you want to correct it, adopt senators’ motions because that automatically corrects the English version. Having said that, if you allow me, I think we should proceed to a vote.
Is it your pleasure, honourable senators, to adopt the motion in amendment? Let’s go with the yeas first.
Yeas?
And nays?
Let’s call it again. All those in favour of the amendment as proposed by Senator Galvez? Six on the screen.
Against? Thumbs down.
It is carried.
Now, Senator Miville-Dechêne, I think you have an amendment? And Senator Galvez, you have two more.
Senator Gold: Chair, I wonder if I might make a suggestion for the benefit of all of us.
Could you just indicate on the table of contents that was very well prepared for us what motion we’re addressing? They’re listed clause by clause with specific numbers and page references to the document that was provided to us. It would be really helpful if we could start the discussion by being able to zero in on the actual amendment that we’re discussing.
The Chair: Senator Gold, I appreciate the question. You wanted simplicity, like I did, and I got numbers.
We’re at number 8.
Senator Galvez: Sorry, chair. I lost my connection.
The Chair: We saw that.
Senator Galvez: Can you tell me where we are?
The Chair: Yes. We’re dealing with your amendment, S5-3-3-11a, and you also have S5-3-3-11.
Senator Galvez: What happened with the one on “cost-effective?” Did we vote on it?
The Chair: Yes, we voted in favour of it.
Senator Galvez: Thank you so much. Where are we now then?
The Chair: We are on your second amendment, on clause 3, S5-3-3-11a.
Senator Galvez: I’m opening my file. I’m so sorry.
The Chair: Senator Miville-Dechêne wants to add a comment.
Senator Miville-Dechêne: Senator Galvez, we talked about this section. You remember that we thought, because my amendment was a little bit more — I won’t qualify it.
Senator Galvez: Yes.
Senator Miville-Dechêne: We could start with my amendment.
Senator Galvez: Yes, absolutely.
If Senator Miville-Dechêne’s amendment passes, I will withdraw mine.
The Chair: For the sake of Senator Gold, it’s number 10.
Senator McCallum: Can I say something?
We didn’t go through 11a yet, “to protect the right of every individual in Canada — and the future generations,” that you added, Senator Galvez. Isn’t that where we are at, on 11a?
The Chair: We are on 11a, but it was requested that it be dealt with after Senator Miville-Dechêne deals with her amendments.
Senator McCallum: Is it 3-3-12?
The Chair: Number 10.
Senator Miville-Dechêne: It is S5-3-3-12, number 10 on the list. Are you with us then?
The idea here is that we’re talking about an important sentence in this particular bill, which is the right to a healthy environment.
I will explain my reasoning, as what I am trying to do is quite simple. I can read the new sentence as I drafted it. It’s article 3(a.2). I would say that we keep, “protect the right of every individual in Canada to a healthy environment as provided under this Act.” Period.
We would take away, “which right may be balanced with relevant factors including social, economic, health and scientific factors.”
Why am I suggesting this particular amendment? Because we all know that no right is absolute, even a constitutional right in the Charter. In general, the balancing of those rights is done by courts.
In the UN declaration and where the right to a healthy environment has been legislated, the right has never been qualified as it is in Bill S-5.
Also, I would refer to what the MPs have done: in the 2017 report of the House of Commons on environment no such qualification was proposed. I was obviously surprised to see this particular qualification.
I can read to you, or you can read to yourself where the Human Rights Council:
Recognizes the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights.
So no qualification there.
I would add that, even in Canadian law, if you look at the housing policy in section 4(a) of the National Housing Strategy, it reads, “. . . recognize that the right to adequate housing is a fundamental human right affirmed in international law.”
Once again, even on the right of adequate housing, there is no qualification. I can stop there.
I would also add, and you know all this, that for this particular right there’s no possibility for an individual to make a claim in front of the tribunal to enforce this right to a healthy environment. Even if my amendment is adopted, it doesn’t mean that there will be a flurry of challenges by individuals in court to have this right affirmed. I think it would be more simple and fulsome to cut this sentence in two.
Senator Kutcher: Thank you, Senator Miville-Dechêne, for those well-argued thoughts.
I would like to propose a subamendment. We are on S5-3-3-12, right? Under(a.1)? To, “protect the right of every individual in Canada to a healthy environment is protected under this Act?”
And you want to —
Senator Miville-Dechêne: I want to stop at “Act.”
It’s on page 3, line 12.
Senator Kutcher: Let us have a moment then, because I think we are —
Senator Miville-Dechêne: Maybe you are in article 5. I am on page 3.
Senator Kutcher: I am on the wrong document.
The Chair: Go ahead, Senator Kutcher. The floor is yours.
Senator Kutcher: Thank you. I got a little confused by the jumping back and forth.
I oppose the motion for the following reasons, which Senator Miville-Dechêne already recognized. This right, like all rights, is not absolute. It is important to ensure that it continues to be reflected in the bill. Therefore, I oppose the amendment as it stands.
Senator Patterson: Could we please ask the official if he could explain why the bill proposed including social, economic, health and scientific factors? Does that relate to the Rio Declaration or other relevant legislation?
Mr. Moffet: Yes, senator. I would like to refer the question to my colleague Laura Farquharson, who can explain the way in which this provision relates to the overall new regime, including the establishment of an implementation framework.
Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, Environment and Climate Change Canada: As the senators noted, no rights are absolute. The structure and the right is being recognized under CEPA. Under this first section, we are recognizing a duty of the government to protect the right, balanced against those reasonable social, economic, health and scientific factors. Recognizing that duty, then there is an implementation framework which will elaborate on how the right is considered in the implementation of the whole act. Again, the factors and how those are balanced against the right are to be elaborated in that implementation framework.
Just as the senator said, no right is absolute. This gives clear indication of the other factors that may be relevant when you’re considering how to implement the right.
[Translation]
Senator Miville-Dechêne: I would like to respond to that. Indeed, I began my argument by saying that no right is absolute. You are right, Senator Kutcher, that no right is absolute, but my main point was that in Canadian law and even in rights as they are set out internationally, rights are not qualified. In fact, they are stated and then interpreted by the courts and by governments. So as soon as you qualify a right, you reduce its scope.
In this case, it helps its implementation, but it could also reduce its scope. Normally, rights are not qualified. Let’s think about those in the Canadian Charter of Rights and Freedoms, because they are the ones that are used most often. They are left as open-ended as possible. Why qualify a right to a healthy environment when the National Housing Act does not qualify the right to adequate housing?
[English]
Senator Kutcher: Thank you very much for that, Senator Miville-Dechêne. I would like to propose a subamendment to your comment. Hearing what you are saying, and also trying to balance the other perspectives here, I would suggest that instead of putting a period after “act.” we put a comma and then put “subject to any reasonable limits.” That would provide a way of encapsulating all the good points that you made, senator. I also think it would be consistent with the way the act is written.
Senator McCallum: Senator Galvez and I have not addressed the first part. We are looking at amendments to lines 13 and 14, which is part of this. I actually have four amendments that deal with 13 and 14. I think we should look at them before a subamendment is made. I have four, and I think Senator Galvez has one.
Senator Galvez: I agree with Senator McCallum because my amendment is exactly the same as Senator Kutcher’s proposed subamendment. Let’s keep going in an orderly fashion.
The Chair: The other problem we have is Senator McCallum’s amendments were submitted in English only. We cannot vote on them because we need to have a French copy.
Ms. Cardinal: The subamendments from Senator Kutcher.
Senator McCallum: I didn’t make subamendments.
The Chair: Senator Kutcher did. I stand corrected. Senator Galvez’s amendments include the amendments proposed by Senator Kutcher. While we can’t deal with his amendment, we can deal with Senator Galvez’s amendment.
Ms. Cardinal: We need to vote on her amendment, or she can withdraw it.
Senator McCallum: Then we’ll go on to deal with mine.
The Chair: First, we have to vote on Senator Miville-Dechêne’s amendment. We’ll come to Senator McCallum, but it seems to be equal in spirit to Senator Miville-Dechêne’s amendment. Maybe you could withdraw those, or we can vote on yours separately afterwards.
Can we therefore proceed on the vote on Senator Miville-Dechêne’s amendment?
Ms. Cardinal: Do you want to vote on it or do you want to withdraw it?
Senator Miville-Dechêne: Withdraw.
The Chair: To be clear, we are withdrawing your amendment?
Senator Miville-Dechêne: Yes. And we are going to Senator Galvez’s.
The Chair: Senator Galvez, can you move your amendment?
Senator Galvez: Yes. I move:
That Bill S-5 be amended in clause 3, on page 3,
(a) by replacing line 11 with the following:
“(a.2) protect the right of every individual in Canada — and of future generations — to”;
(b) by replacing lines 13 and 14 with the following:
“subject to any reasonable limits;”.
That is the same subamendment that Senator Kutcher just proposed.
Senator Sorensen: For clarity, Senator Galvez, are you suggesting that the words “social, economic, health and scientific factors” come out and be replaced by “subject to any reasonable limits?”
Senator Galvez: Exactly.
Senator Kutcher: I would like to do a subamendment to Senator Galvez’s amendment — not to support the reference to “future generations.” It would read:
. . . protect the right of every individual in Canada to a healthy environment as provided under this Act, subject to any reasonable limits.
That removes the reference to “future generations,” which, if added, would change the scope of the right and be contrary to the approach taken in the bill. The bill proposes that every individual in Canada has the right to a healthy environment, not a collective right. Recognizing the right of future generations is something entirely different.
Instead, I would propose an amendment to S5-1-2 to introduce the reference to the principle of intergenerational equity, which means it will be elaborated upon in the implementation framework on the right to a healthy environment for future generations.
The Chair: What paragraph are you amending?
Ms. Cardinal: Can you read out the actual subamendment?
Senator Kutcher: She did. You moved “future generations,” right, Senator Galvez?
Senator Galvez: Is it a question you are asking me?
Senator Kutcher: Your amendment had “future generations” in it?
Senator Galvez: Yes. And you are proposing to change to something on equity, intergenerational equity? That sounds very long. I think that future generations, that’s very important, and now we are aware that the pollution that happens today or happened yesterday impacts our children, our grandchildren. So I think adding “future generations” is much simpler and clearer than going into complex concepts of “intergenerational equity” that we need to define.
Senator Kutcher: I’m not putting “intergenerational equity” into this amendment. I’m going to bring that forward later under clause 5. I’m simply removing “future generations” because that would change the scope of the bill. The bill proposes that every individual in Canada has the right to a healthy environment. It’s not a collective right. Recognizing the right of future generations would be beyond what this bill is able to do.
Senator Galvez: I would like to ask the officials if adding “future generations” is out of scope.
Mr. Moffet: I think the question of scope is a question for you, Mr. Chair, and the clerk. There is a distinction that Senator Kutcher is drawing, however, between the right — and Senator Galvez’s amendment would create a new right, which would be a right for all future generations — and the current bill, which focuses on individual Canadians.
What Senator Kutcher is talking about is that he plans to introduce an amendment to indicate that when developing the implementation framework, among other things, the government must consider intergenerational equity. I’m sure you can debate the precise term, but the idea is, when developing the framework, we should look to future generations. However, the right itself is a right that is being recognized for individual Canadians alive at the time that the legislation would be implemented. That’s very different than a collective right that would be accorded to all future generations that would result from the amendment of Senator Galvez.
Senator Galvez: Okay. I understand. Thank you, John. So in that case, I will withdraw the first part of my amendment.
Senator McCallum: I want to comment on that.
The Chair: Can we be clear what you are recommending, Senator Galvez?
Senator Galvez: Based on the explanation I have heard, I will withdraw the phrase that I was adding, “and of future generations,” and I will leave the second part of my amendment, which is to add “subject to any reasonable limits.”
The Chair: Is that RG-S5-3-3-11?
Senator Galvez: Yes, “a.”
Senator McCallum: When you look at Indigenous people, at least First Nations, we have always seen ourselves as a collective. We have been treated as a collective under the Indian Act, under any court cases that come about.
When you look at future generations, what we do today will impact the future generations, so there is nothing to add to that. If you focus on individual Canadians, it will leave out the collective that we belong to as First Nations across Canada. How will that be taken into account?
When you look at the fact that this bill will concentrate on environmental justice, environmental justice principle, from Indigenous people, is that they are a collective.
[Translation]
Senator Miville-Dechêne: I am a little confused at this point about Mr. Moffet and Senator Kutcher’s explanations. If you say that an individual right is being extended in this way, then you consider that it is an individual right for all citizens to benefit from a healthy environment. But it is an individual right over which citizens have no control, since they cannot challenge that right in court.
I must admit that saying that this right is being extended by talking about future generations seems quite strange to me, since it is a right that one cannot enforce in court as a citizen.
We are talking about collective rights here. Adding that we are extending this right to future generations seems to me to be normal at this point.
[English]
The Chair: Thank you. Just to clarify, we want to make sure we understand what you are proposing. Senator Kutcher made some recommendations that Senator Galvez accepted. Senator Galvez, can you tell us specifically what paragraph you are referring to? What did you accept? I understand you are withdrawing your amendment completely, am I correct? What would that amendment be?
Senator Galvez: Chair, may I suggest that we vote on the two parts of my amendment? No, we cannot split it. Okay.
Ms. Cardinal: We have to vote on the subamendment first.
The Chair: We have no choice but to go with the subamendment first.
Senator Seidman: Out of respect for Senator Galvez, who was withdrawing “and of future generations” after she heard the explanation of the officials, I think that is a strong point to make. But right now, I would say we have a subamendment on the floor that removes “and of future generations,” and we should vote on that subamendment.
Senator Galvez: Yes. Thank you.
The Chair: RG-S5-3-3-11a. Agreed? Is the subamendment adopted? Put your hands up if you agree. All those against? So moved.
Now we can go back to Senator Miville-Dechêne’s amendment.
Senator Galvez: No. Mine. As amended.
The Chair: Is it your pleasure, honourable senators, to adopt the motion as amended?
Senator Seidman: That removes “and of future generations?” Okay.
Senator Miville-Dechêne: But keeps “subject to any reasonable limits.”
Senator Seidman: Exactly.
The Chair: I want to make sure we vote on the right thing here. All in favour of that please raise your hand.
Senator McCallum: I don’t understand what we’re doing. Are you doing “b” now?
Senator Galvez: We are doing “a” as amended.
Senator McCallum: So, “a” as amended, but now we are voting on “b?”
Senator Galvez: Yes.
Senator McCallum: By replacing lines 13 and 14 of Galvez’s. Okay.
The Chair: Repeating the vote. All those in favour? All those against? Thumbs down. So carried.
Senator Galvez, have we covered all your amendments?
Senator Galvez: Are you talking to me, chair? So I have amendment RG-S5-3-3-14a. Page 3, after line 14, add a new clause. “That Bill S-5 be amended in clause 3 on page 3 by adding the following after line 14:”
The Chair: You are way ahead of us.
Ms. Cardinal: Senator Galvez, we’ll deal with Senator McCallum’s amendment, which comes before yours.
The Chair: It is number 11 on your road map for clause by clause.
Senator McCallum: So we are looking at 13a?
The Chair: Yes.
Senator Kutcher: Is Senator Galvez’s RG-S5-3-3-11 withdrawn? Okay, thank you.
The Chair: We are now at number 11.
Senator McCallum: Mine is going back to this:
That Bill S-5 be amended in clause 3, on page 3, by replacing lines 13 and 14 with the following:
“which right may be considered against relevant economic factors, in-”.
And you will see on 13, which is the next one, that it is the same but it’s on line 13. Then we look at 9a. I’m sorry, I know I’m mixing you up. The 9a is the consideration of that right, and then 9 is relevant.
What I’m going to say will hit all of those.
The Chair: Can you clarify something for us? On the list, we have two from you.
Senator McCallum: Yes, but the other two that I brought up have to do with the same thing.
The Chair: But you have 13a and 13, and they nearly say the same thing. I presume we should remove one of those.
Senator McCallum: Yes. I am going to go through it, and I want to see which one is better for Indigenous people.
I changed the wording “balanced with” with “considered against,” and removed “social, health and scientific factors.”
In their submission to the Energy Committee, the Assembly of First Nations, or AFN, stated:
While Bill S-5 purports to recognise the right to a healthy environment and enshrine the Government of Canada’s duty to protect this right, the proposed amendments fall short without a legislated remedy. . . . The amendments would impose a requirement of the Government of Canada to protect the right, but the requirement is weakened because it allows for balancing against social, economic, health and scientific factors.
The AFN’s recommendation is that:
The provisions surrounding the right to a healthy environment should be strengthened by removing the language regarding balancing with economic factors or other factors. . . .
CEPA 1999 did not alleviate the toxicity surrounding the environment and lives of Indigenous people, but as witnesses stated, these toxicities have actually continued to increase and have moved from air to land deposition. In other words, there has been no balance, nor can there be a balance as the scale has been tipped in favour of destruction. Wording of the English language is critical, and the word “balance” has a positive connotation that goes with it.
However, one cannot ignore the concerns of environmentalists and First Nations by continuing to support the status quo, which will lead to increased harm, premature deaths, chronic diseases and a lower quality of life. Using the word “balance” while ignoring these negative impacts and allowing industry to carry on its destructive business is deliberate and misguiding.
In previous decisions by government, the decisions of rights holders were not taken into account, especially when the rights holders decided against the project with justified reasons. So in the majority of times, the governments and regulatory boards have sided with the proponents. This is despite the negative effects of resource extraction on Indigenous lands and lives, causing slow death to Mother Earth, including land, air and water as well as the lives of First Nations.
That’s why I put that “right may be considered against relevant” and I put “economic factors.” When you look at “social, health and scientific,” there is nothing that you are going to pull out of those three that would impact on the right to a healthy environment and would actually increase it.
So that word “economic” is in there. It’s pretending that they are considering other rights when they haven’t.
The Chair: But I think it’s decision time, because 13a is nearly the same as 13, so you have to choose which one you want us to vote on.
Senator McCallum: Which “right may be considered against relevant factors.” The same one is “considered against relevant factors.” So I want 13, not 13a, to be the one voted on.
The Chair: So you will withdraw 13a.
Senator McCallum: I’ll withdraw 13a.
Senator Kutcher: Thank you, Senator McCallum, for withdrawing 13a. I would support this motion — the revised motion, number 12 on our list — adjust the balancing language used to protect the right to a healthy environment. Thank you.
The Chair: Senator McCallum, if you don’t mind, if you can move your motion S5-3-3-13, and we’ll proceed to a vote.
Senator McCallum: I move:
That Bill S-5 be amended in clause 3, on page 3, by replacing line 13 with the following:
“which right may be considered against relevant factors, in-”.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment? Put your hands up, those in favour. Those against? It is so moved. Carried.
Now we’re at number 13.
Senator Galvez: I move:
That Bill S-5 be amended in clause 3, on page 3, by adding the following after line 14:
“(3) The Act is amended by replacing paragraph 2(1)(k) with the following:
while avoiding the use of vertebrate animals in testing and assessment where scientifically possible;”
This is just to strengthen what my previous amendment was doing. It is just to make sure that we are going to avoid animal testing whenever it’s scientifically possible. That is to keep up with the development.
The Chair: We are trying to find the amendment.
Ms. Cardinal: Senator, could you say the coding at the top.
Senator McCallum: RG-S5-3-3-14a.
Ms. Cardinal: We don’t have that amendment. We only have 14.
Senator Galvez: It’s that one; it’s 14. Yes. It’s amendment number 13, RG-S5-3-3-14.
The Chair: So it is “replacing paragraph 2(1)(k)” — is that the one?
Senator Galvez: Yes. It is:
That Bill S-5 be amended in clause 3, on page 3, by adding the following after line 14:
“(3) The Act is amended by replacing paragraph 2(1)(k) with the following:
while avoiding the use of vertebrate animals in testing and assessment where scientifically possible;”
The Chair: Sorry, we don’t have that. The draft we have says:
That Bill S-5 be amended in clause 3, on page 3, by adding the following after line 14:
“(3) The Act is amended by replacing paragraph 2(1)(k) with the following:
(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 to assess the risk such substances pose to the environment and human life and health while avoiding the use of vertebrate animals in testing and assessment where scientifically possible;”.
That’s a pretty long paragraph that doesn’t seem to be what you just read.
Senator Galvez: Okay. I’m sorry. I will bring that at the next meeting. I would like to go into 14a, then, that I think you have, because I don’t have it here. But you don’t have it in that either.
The Chair: I recommend we stand on RG-S5-3-3-14 and we do it next time.
Senator Galvez: Yes, please.
The Chair: We are at number 14.
Senator Galvez, we’re standing on S5-3-3-14, right?
Senator Galvez: Yes. You don’t have my 14a on the list?
The Chair: I think you have a choice. If you go to “a,” you are going to drop the other one, no?
Senator Galvez: Okay. I will go with the one that you’re asking, which is clause 3, page 3, 2(1)(k). Is that the one that you have, with the (k)?
The Chair: Yes.
Senator Galvez: I would like to add, “(k) endeavour to act expeditiously and diligently to assess whether existing substances or those new to Canada . . .” — is that the one?
The Chair: Yes. If you’re ready to deal with that, we’re all ready for you.
Senator Galvez: Okay.
The Chair: Number 13.
Senator Galvez: Chair, I don’t have my rationale in front of me. I’m a little bit lost with my — okay. Page 10. Just a second.
The Chair: Number 13.
Senator Kutcher: When the time comes, I have a spelling amendment.
Senator Galvez: I don’t want to delay, so I will present this amendment and the following in the next sitting.
The Chair: We’ll stand clause 3. We’re now going to number 14. Senator McCallum, S5-4-3-27.
Senator McCallum: Thank you.
That Bill S-5 be amended in clause 4, on page 3, by replacing line 27 with the following:
“to substances. First Nations must be considered distinctly within this group due to their unique fiduciary relationship with the Crown and their history of colonization and assimilation under the Crown. (population vulnérable).”.
Before I start, I wanted to say that I didn’t have a chance to discuss this with Senator Anderson, and I didn’t know if she wanted to make a subamendment with First Nations and Inuit, but I will go over the definition of “vulnerable population.”
First Nations through the Indian Act have a very unique place in Canadian history. No other group has undergone active but ongoing and slow genocide like they have, and this catalyst of oppression was done through legislation. First Nations are the only group who has a treaty relationship with Canada.
In their submission to ENEV, AFN states:
One of the largest concerns with Bill S-5 is that it fails to address the regulatory gap currently facing First Nations. First Nations lands and reserves currently fall into a “jurisdictional quagmire,” where reserves fall between the cracks of federal and provincial jurisdiction, posing a risk for unregulated exposures.
AFN continues:
This regulatory gap is widely acknowledged within the federal government and has been identified as a significant issue many times over the last 15 years. Part 9 of CEPA deals with federal lands and activities, which includes First Nations lands and reserves. However, this part of CEPA 1999 has failed to provide proper protection of First Nations environment.
And further:
The issue of the regulatory gap has been consistently identified as one of the largest barriers preventing First Nations from receiving fair environmental and human health protection. This regulatory gap persisted under CEPA and has prevented the fulfillment of environmental and social justice for First Nations Peoples, including the fulfillment of Aboriginal and Treaty Rights. The risk of these injustices continuing under Bill S-5 remains high.
The recommendation from AFN was to:
Expand and improve the language related to “geographically targeted areas” to reflect the intent that those areas should be identified, and that best efforts will be made to reduce pollution expeditiously and significantly in ‘sacrifice zones’ to levels that meet international standards; close polluting facilities; remediate contaminated sites; provide medical treatment; and, where necessary, relocate affected communities, in accordance with Article 32 (3) of the UN Declaration.
Senator Kutcher: Thank you very much, Senator McCallum. The reviews that I’ve had of this amendment raise concerns about including specific populations, which could potentially limit the list of who will be considered as a vulnerable population. I wonder if I could ask the officials to comment on Senator McCallum’s suggestion.
Mr. Moffet: Thank you. Again, I’m going to ask my colleague Laura Farquharson to elaborate on this issue.
Ms. Farquharson: I can certainly start, but I know it is Health Canada that undertook a consultation on vulnerable populations, which is where part of the definition in the bill comes from. You’ll note that no particular groups are identified, and that was done following the consultation with Indigenous peoples as well and, I understand, was part of what at least some of the Indigenous peoples suggested. Perhaps on that point we should go to Greg.
Greg Carreau, Director General, Safe Environments Directorate, Health Canada: Thank you, senator. Thank you, Laura, for the question. Indeed, Health Canada did undertake consultations on the definition of “vulnerable population,” and that included two main concepts. The first is a group of individuals amongst the general population who are more susceptible to chemical exposures. The second is a scope of the subset of the population that may be more exposed to chemicals.
There was a very active consultation period. We do have a working definition that is on the Health Canada website that provides more details in terms of how CEPA would be implemented. Consistent with the senator’s comments, the intent of the wording in the act would be not to define certain subpopulations.
Senator McCallum: I want to comment on that. Again, no other population has been targeted by industry. It has been the First Nations and their lands and the people who are suffering the most and have always suffered because of the land, the resources that lie there.
The Chair: Senator Anderson, did you want to add something?
Senator Anderson: I am definitely in support of Senator McCallum’s motion. I also am in support of adding Inuit and Métis. I also agree with Senator McCallum that Inuit, First Nations and Métis are more susceptible to the damages of environmental degradation, effects to animals, and part of that also has to look at the subsistence reliance on the animals in our area. Because a large part of our food source are those animals that are impacted by pollutants that are also in our waters from our fish and our whales that we rely on for food, subsistence and lifestyle. I wanted to point that out. I would definitely like to add the amendment of “Inuit and Métis.”
The Chair: Senator Anderson, are you proposing an amendment to Senator McCallum’s amendment or are you simply supporting her amendment?
Senator Anderson: I’m supporting her amendment, but I am also asking that there is an amendment that will read: “First Nations, Inuit and Métis.”
Senator McCallum: It will read the same except for the addition of “Inuit and Métis.”
Ms. Cardinal: I’m going to read the subamendment:
to substances. First Nations, Inuit and Métis must be considered distinctly within this group due to their unique fiduciary relationship with the Crown and their history of colonization and assimilation under the Crown. (population vulnérable).
The Chair: We will first vote on the subamendment. Is the subamendment carried? Raise your hand if you agree with the subamendment. Thumbs down for those who vote against the subamendment. The subamendment is refused.
Let’s go to the amendment. Is it your pleasure, honourable senators, to adopt the motion in amendment? Those in favour of the amendment, please raise your hands. Those who are against, thumbs down. So defeated.
Therefore, shall clause 4 carry? No amendment to clause 4. Those in favour of clause 4, raise your hands. Those against, thumbs down. Clause 4 carries.
We’re at number 15. Senator Patterson has an amendment.
Senator Patterson: I am pleased to be moving this amendment on Seal Day on the Hill. Here is the amendment. This is number 15 in the table of contents. I move:
That Bill S-5 be amended in clause 5, on page 3, by replacing lines 34 to 36 with the following:
“this section comes into force, cause a report to be tabled before each House of Parliament regarding consultations on how the right to a healthy environment ought to be considered in the administration of this Act.
(1.1) The report on consultations is to be considered by the committee of each House of Parliament that normally considers matters relating to the environment. Each committee is to report to its House and must include in its report a statement of direction on the development of an implementation framework regarding how the right to a healthy environment is to be considered in the administration of this Act.
(1.2) Taking into account the statement of direction received from each House of Parliament, the Ministers shall develop an implementation framework to set out how the right to a healthy environment will be considered in the administration of this Act.”.
That’s the amendment, Mr. Chair.
The Chair: How about 1.2? No? That’s not part of your motion, 1.2? I think you have a paragraph missing.
Senator Patterson: I thought I read that part. I read 1.2, Mr. Chair.
The Chair: Good. Thank you.
Senator Patterson: Colleagues, may I remind us all that Minister Guilbeault, in presenting this bill, welcomed amendments to improve the bill. This is a fundamental issue with me. As I said in my speech at second reading, I have a concern around defining what the right to a healthy environment would actually mean to Canadians. It’s a concept that requires clarity. As I stated in my second-reading speech, we have two court cases now being heard on the question of whether this right is a constitutionally protected one or a statutory right.
In my opinion, respectfully, we are putting the cart before the horse. We will be holding consultations on something while it is actively being considered by a provincial superior court and a federal court.
The minister pointed out in response to a question from Senator Arnot that this may be litigated, which doesn’t preclude the government from moving ahead with the deployment of that specific piece of legislation. Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, Environment and Climate Change Canada, told the committee:
The approach in the bill, as everyone has noted, is to elaborate on the meaning of the right and how that right will be considered in the administration of CEPA itself, through that implementation framework. The idea is that the elaboration of the meaning — which has some markers already in the bill in mentioning environmental justice, participation in decision making and non-regression — that the meaning will be elaborated through that framework.
That’s a lot of substantive information to be included in the framework, colleagues, information that would have far-reaching impacts on future policy in Canada.
I think we need to respect the right and duty of parliamentarians. That’s why I’m bringing forward a proposition that would have the government report back to Parliament to ensure that parliamentarians have a chance to discuss this with them further before they move ahead any further.
Today, we’re being asked to approve something in principle, without any clear idea of what the nitty-gritty details are, like the meaning of, at the very least, a statutory right. This is not transparent, democratic governance.
We have even in several different contexts bills and policies that are brought forward based on quote, unquote “consultation with stakeholders.” That turns out to be a small group of people in a room with no notice given to others to participate. I’m not saying that is going to be the case here, but I am saying that Parliament should at least get a chance to look at the report and proposed recommendations before we move further on this, at the moment, undefined right.
All this asks for, colleagues, is a report. It is not a veto but a chance for parliamentarians to see the result before it is finalized. Thank you.
The Chair: Thank you, Senator Patterson.
Senator Kutcher: Thank you, Senator Patterson. I would oppose the motion. There are many different aspects to this complicated and thoughtful amendment. Then after I finish explaining my perspective on this, I’ll ask the officials to do that.
The motion would lead to delays in the implementation framework. We need that implementation framework to go ahead. At present, the ministers are required to develop an implementation framework within two years of Royal Assent. This motion would link that not to the development of the framework but to the tabling by the ministers of a report on consultations on the implementation of the framework in both houses of Parliament.
The time spent on generating such a report would divert resources from the development of the implementation framework and delay it.
Additional delays would result from the consideration of this report in both houses of Parliament by their respective committees that study environmental matters. There is no time limit for such considerations or for the committees to provide the required statement of direction on the development of the implementation of the framework, which would need to be taken into account. So this would result in unacceptable delays in implementation.
Additionally, the provisions are not required because of the transparency and accountability requirements that currently exist in clause 5.
First, the Minister of Environment is required to publish the implementation framework upon completion. The intent is that a draft version of the implementation framework would be published for public comment.
Second, there is an annual reporting requirement in the bill. The Minister of Environment must include a report on the implementation of the framework within the CEPA annual report. Also, there is a requirement under CEPA for a parliamentary review of the act every five years, which also gives another opportunity for Parliament to assess the framework and review its implementation.
That’s my understanding of the issues around this amendment, and I would ask the officials to comment on these issues further.
Mr. Moffet: Senator, with respect, I don’t have anything to add to Senator Kutcher’s points in terms of the practical implications of the amendment. Obviously, I would leave it to the senators to determine whether this is an appropriate intermediate step before the finalization of a framework, but it would obviously lead to delays in the finalization of a framework, which is what will actually guide decision makers in both departments in decision making under the various provisions in CEPA.
The Chair: Are there any other comments or questions?
Senator Patterson: Mr. Moffet, Senator Kutcher has stated — and I think you’ve endorsed his remarks — that the requirement to report on consultation would take up resources of the government, which could cause delays.
The government is going to be undertaking consultations on delineating exactly what the right to a healthy environment will mean. Would it not be routine in consultations of this kind that a report be generated within the department on the results of consultations? In other words, would such a report not be generated in the course of consultations, which would summarize what happened in consultations? In other words, would there really be additional resources required by this amendment?
Mr. Moffet: That’s an excellent point, senator. I can’t speak for Senator Kutcher, but I don’t think the issue is so much resources as time.
You are correct, Senator Patterson. When we undertake significant consultations on the development of a significant policy, a regulation or an implementation framework, we provide a record of what we’ve heard so that there’s a clear basis for moving forward.
I think the main point that Senator Kutcher was making — and certainly that I would reiterate — is the obligation to provide that report to both houses to enable both houses to discuss the report and to provide guidance. After that, the ministers would be obliged to develop the framework.
So there are two additional steps that would be introduced, with considerable time taken before the implementation framework would be developed. I think that’s the key focus.
Senator Seidman: I’m still trying to understand this. There’s no question that the concept of a healthy environment is complicated, and we’re quite right to try to understand how this evolves.
Senator Kutcher said that there already is an annual reporting in this bill. What I would like to know is if that annual reporting will deal with this issue. Are we duplicating reporting here? Is there a way to ensure that the kind of thing that Senator Patterson is asking for happens in annual reporting?
Senator Kutcher: I would have to ask the officials to answer that. It’s an important question.
Senator Seidman: Can you help clarify what happens in that annual reporting? I don’t know what is specified in the bill.
The Chair: Can you help us out here in 30 seconds or less?
Mr. Moffet: Sure. The bill would require the minister to include in the CEPA report, which we issue every year, a report on the implementation of the framework, so how we have implemented the framework.
What Senator Patterson’s motion is intended to focus on is the development of the framework and to give both houses of Parliament an opportunity to provide guidance to the ministers in developing the framework. So two different steps.
The Chair: Thank you. I think that answers all the questions.
Is it your pleasure, honourable senators, to adopt the motion, in amendment? All those who are in agreement with the amendment, raise your hands. All those against, thumbs down. So refused.
We have two or three minutes left, but we’re going to call it a day. Thank you very much for all your hard work and preparation. It allowed us to be a bit more effective. We’ll see each other tomorrow on the same issue.
(The committee adjourned.)