Standing Senate Committee on Energy, the Environment and Natural Resources (44th Parliament, 1st Session)

THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES

EVIDENCE

OTTAWA, Thursday, June 2, 2022

The Standing Senate Committee on Energy, the Environment and Natural Resources met with videoconference this day at 9 a.m. [ET] to consider Bill S-5, Strengthening Environmental Protection for a Healthier Canada.

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

[Translation]

The Chair: 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 session of the Standing Senate Committee on Energy, the Environment and Natural Resources.

I wish to introduce the members of the committee participating in today’s meeting: Margaret Dawn Anderson from the Northwest Territories; David Arnot from Saskatchewan; Claude Carignan, P.C., from Quebec; Pierre Dalphond from Quebec; Rosa Galvez from Quebec; Stan Kutcher from Nova Scotia; Mary Jane McCallum from Manitoba; Julie Miville-Dechêne from Quebec; Judith Seidman from Quebec; Karen Sorensen from Alberta; Josée Verner, P.C., from Quebec.

I wish to welcome all of you as well as people across Canada who may be watching.

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

[English]

Before we begin, I would like to make members aware of government officials on the Zoom call, should members have any technical questions to raise as we go through the bill clause by clause.

[Translation]

Today we welcome representatives from Environment and Climate Change Canada: John Moffet, Assistant Deputy Minister, Environmental Protection Branch; Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch; Jacqueline Gonçalves, Director General, Science and Risk Assessment, Science and Technology Branch; Bryan Stephens, Acting Manager, Legislative Policy, Environmental Protection Branch. Finally, from Health Canada we have Greg Carreau, Director General, Safe Environments Directorate.

I would like to explain the process that we will follow during this meeting. If a senator wishes to move an amendment, I ask you to proceed as follows: If it is not too long, first read out the existing wording of the clause you wish to amend.

If several members wish to move an amendment to the same clause, only the first senator moving an amendment would read out the clause under debate. Then read out your amendment and briefly explain the reasons for the amendment. That will be followed by questions and debate, which shall be brief, direct, and without repetition. Lastly, we will vote. When I ask if a motion is carried, I will ask the members in favour to raise their hand; then I will ask the members opposed to give a show of thumbs down.

Finally, I wish to remind senators that if there is ever any uncertainty as to the results of a vote by show of hands, they may request a roll call vote. That is the most effective route to achieve clear results. Senators are aware that any tied vote negates the motion in question.

I wish to clarify something regarding subamendments. A subamendment is moved to propose a minor change, that is, to clarify or correct something, for instance, not to completely change the wording or negate it. In that case, it is preferable if you vote against the proposed amendment and propose your own amendment.

I would remind you that an amendment or subamendment must be proposed in both official languages. In case of doubt, you can still propose an amendment at third reading.

As to the order of motions, this is the correct process: First I ask whether there is agreement to adopt a clause, then an amendment may be proposed and, finally, a subamendment.

The decision-making process also follows a specific order. First we vote on the subamendment, then on the amendment as modified or not, and finally, on the clause as modified or not.

We have several motions that have been postponed, so will leave them as such. We shall begin immediately with clause 10.

Shall clause 10 carry?

We are expecting an amendment from Senator Miville-Dechêne. Please proceed.

Senator Miville-Dechêne: It is JMD-S5-10.1-10.3-5-37. This amendment refers to the clause of Bill S-5 which is subclause 56(1), on page 5.

[English]

If you want to refer to the bill, it’s 56(1), page 5 and this is what I’m proposing to change. Let me read this very short amendment.

That Bill S-5 be amended on page 5 by adding the following after line 37:

10.1(1) Subsection 56(1) and the portion of subsection 56(2) of the Act before paragraph (b) are replaced by the following:

56(1) The minister shall

— and I’m insisting on “shall.” It was “may,” and now it’s “shall.” Therefore, the amendment reads as follows:

That Bill S-5 be amended on page 5 by adding the following after line 37:

“10.1 (1) Subsection 56(1) and the portion of subsection 56(2) of the Act before paragraph (b) are replaced by the following:

56 (1) The minister shall

(a) identify every person or group of persons that manufactures, imports, processes or releases, or that uses in a commercial manufacturing or processing activity,

(i) a substance or group of substances specified on the list of toxic substances in Schedule 1,

(ii) a substance or group of substances to which subsection 166(1) or 176(1) applies, or

(iii) a product that contains a substance or group of substances specified on the list of toxic substances in Schedule 1 or that may release such a substance or group of substances into the environment; and

(b) publish in the Canada Gazette, and in any other manner that the Minister considers appropriate, a notice requiring any person or class of persons identified by the Minister to prepare and implement a pollution prevention plan in respect of a matter referred to in subparagraphs (a)(i) to (iii).

(1.1) For the purpose of identifying the persons or groups of persons referred to in paragraph (1)(a), the Minister may publish in the Canada Gazette, and in any other manner that the Minister considers appropriate, a notice requiring any person of group of persons described in the notice to provide the Minister with any information that may be in their possession or to which they may reasonably be expected to have access, including information regarding their engagement in any activity involving a matter referred to in subparagraphs (1)(a)(i) to (iii).

(2) The notice referred to in paragraph (1)(b) may specify

(a) the substance, group of substances or product in relation to which the plan is to be prepared;

(2) Subsection 56(5) of the Act is replaced by the following:

(5) On written request of a person who is the subject of a notice under paragraph (1)(b), the Minister may waive the requirement for that person to consider a factor specified under paragraph (2)(c) if the Minister is of the opinion that it is not reasonable or practicable to consider the factor on the basis of reasons provided in the request.

10.2 Subsection 58(1) of the Act is replaced by the following:

58 (1) Every person who is required to prepare a pollution prevention plan under section 56 or 291 or under an agreement in respect of environmental protection alternative measures shall file, within 30 days after the end of the period for the preparation of the plan specified in the notice referred to in paragraph 56(1)(b) or extended under subsection 56(3), or specified by the court under section 291 or in the agreement, as the case may be, a written declaration to the Minister that the plan has been prepared and is being implemented.

10.3 Subsection 60(1) of the Act is replaced by the following:

60 (1) The Minister may publish in the Canada Gazette, and in any other manner that the Minister considers appropriate, a notice requiring any person or class of persons who is the subject of a notice under paragraph 56(1)(b) to submit, within the period specified by the Minister, the plan or any part of the plan for the purpose of determining and assessing preventive or control actions in respect of a substance, group of substances or product.”.

From this point, all the other paragraphs have very short correlative amendments that only refer to “reference to paragraph.” If you are in agreement, I can stop reading at this point because the matter up for discussion will be there. Those amendments are very short. We have examples like, “Under paragraph 56(1)(b),” so I don’t think I need to read the whole thing. I want to explain because I need an explanation here.

This is about prevention. We have talked since the beginning of this clause by clause about the toxicity of these matters. Here, we have a way of reinforcing the prevention plan. At this point, you should know that there is a “may” in the government’s request for a prevention plan. They can ask for a prevention plan, but there is no obligation. That’s the big weakness of the bill because we see the results. The Canadian Environmental Law Association estimates that only 25 out of 150 toxic substances on Schedule 1 have pollution prevention plans, which means even though the plans are necessary to try to get rid of those substances as soon as possible, only 25 out of 150 toxic substances have been provided for.

This amendment would be reinforcement because it would mean that those companies that are identified have to give information to the minister and the government. They will have an obligation to do a pollution prevention plan. This is the big difference.

A few associations — quite a few actually — have said that this whole prevention aspect of the bill should be reinforced. But more than that, in 2017 in a House of Commons report, there was an explicit recommendation from the 1995 report following the first review of the Canadian Environmental Protection Act, or CEPA. In this report, it stated that substances declared toxic cause significant risk to human health and the environment. Given these risks and the consensus among Canadian society that action must be taken to reduce the risk caused by toxic substances, the government proposed amending CEPA to enable the minister to require the preparation and implementation of pollution prevention plans for toxic substances.

So you see, this has been a preoccupation of MPs and Parliament for a long time, and now we have a chance to make this bill stronger. As my colleague Rosa Galvez says, we have only one chance. It will maybe take 20 more years for us to go back to this legislation, and I think it’s the minimum for companies that are dealing with those toxic substances to try to get rid of them and have a plan to diminish their use as soon as possible. Thank you.

Senator Kutcher: Thank you very much, Mr. Chair. I want to speak to this particular amendment, but before I do that, I would like to identify a couple of things.

First, I want to thank — on behalf of all the members of the committee if I can do something like that, certainly on behalf of myself — the experts who have been listening to our debates, and who have provided such important, clear information to us. Sometimes, it’s essential that we listen to people who have spent their lives understanding this legislation, and understanding whether this is the best legislation to deal with particular issues. It’s really good that we’re taking their advice seriously.

Second, I would like to address some comments that have come up from Senator Miville-Dechêne this morning and yesterday stating that we have only one chance to amend CEPA. Everybody here listened to the minister speak, and the minister did say that there would be more revisions to CEPA coming. It behooves us to say we disagree with the minister and to do that with substance, not just make statements that clearly contradict the minister. Either we have no trust in the minister — which is a real problem — or we are making our own assumptions which are not in line with what the minister says. That’s not fair. We should be very careful about the kind of statements we’re making.

The government opposes this amendment, first on a point of order, and then, if that’s not a substantive issue, on other aspects.

I must say I’m quite confused by this because the motion creates three new clauses, 10.1, 10.2 and 10.3, which propose to amend provisions of the act that are already being amended by clauses 10 and 11. It could have been better structured as a motion to amend existing clauses 10 and 11.

If the motion is supported, clause 10.1 would replace the version of subsection 56(1) that was just amended by clause 10. Similarly, clause 10.3 would replace subsection 60(1), but then clause 11, which follows directly, would have replaced that same subsection 60(1) again.

Maybe we could get some advice from the officials here about that particular issue. I would appreciate that. Then there are some other comments I have to make, but perhaps the officials can help us with this conundrum.

John Moffet, Assistant Deputy Minister, Environmental Protection Branch: The fundamental challenge that we have with this amendment is not with the issue of pollution prevention — that is the core approach in the act — nor do we have any concerns with support for the use of pollution prevention planning requirements as CEPA was an innovative act when this provision was introduced. It was actually based on requirements in some American states to require energy efficiency plans, but we were the first to require pollution prevention plans.

The issue, though, is whether we need a pollution prevention plan — or P2 plan — for every toxic substance and every user of every toxic substance. The basic architecture of CEPA allows the government to use the appropriate or the best risk-management measure or suite of risk-management measures. The fact that only 25 toxic substances have a P2 plan requirement is not a concern if you look at all of the other approaches we use, including prohibition regulations and other kinds of regulations, standards, guidelines and agreements that cover every toxic substance. In other words, we don’t just use pollution prevention planning, we sometimes use much more significant and stringent requirements.

In addition, it would also not be appropriate for every user of every toxic substance to prepare a plan, given that not every user creates a risk. What we need to do is focus on where the risk occurs and who is best placed to prevent the risk, which is why we currently have a focus that allows the minister to require the creation of toxic substances.

That’s the way the current provisions are structured and situated within the law.

The Chair: Thank you.

Senator Arnot: I don’t have a vote on this committee. I’m regularly a member of the committee in normal circumstances, but it behooves me to make this comment this morning. I’m speaking figuratively here.

I think that we need to see a heavy emphasis on upstream thinking, which is about prevention. That’s the ethos that should be fundamental to the legislation and its implementation as opposed to monitoring because we have heard promises and good intentions from policy-makers as witnesses and others. We have also heard good intentions that were replaced by the opposite actions in the treaty relationship. Senator McCallum has given numerous examples of that. In the treaty relationship, we’ve seen that the Crown has abdicated its treaty responsibilities, particularly to the Tataskweyak First Nation in Manitoba and the other two that were affected. That’s the best example in Canada; it’s the worst, most appalling thing. It was commented on yesterday. I could see the reaction of the senators around the table to Senator McCallum’s comments about the results of that abdication, which was fundamentally shameful for Canada.

The 1,000 trial judges that enter their courtrooms every day in Canada to administer criminal law similarly come with good intentions. I can say that in the sentencing process in criminal law, promises of good behaviour, behavioural change and action change made with really good intentions result in very high recidivism rates. So it’s trite to say that the best predictor of the future is the actions of the past, especially when it comes to trust. The upstream prevention of pollution should be the fundamental principle, not the monitoring of the quality, quantity or degree of pollution that occurs. Because then we move to the downstream and the only option is to repair. That is at great cost due to great damage.

I’ll just make another comment. “Shall” is a well-known weasel word used by legal draftsmen and policy-makers. We should be careful about the use of the word “may” when “shall” is required. This is fundamentally about trust, as Senator Kutcher has said. When we’re asked to give policy-makers with good intentions our trust, the question really becomes, “Is that trust well placed?”

So I’m saying today that while I do not have a vote, I support the amendment of Senator Miville-Dechêne. Thank you.

The Chair: Thank you.

Senator Galvez: Thank you so much Senator Arnot. I agree completely with your assessment of the situation. The title of this bill says, “strengthening environmental protection.” That’s the title of the bill.

The most efficient way to do that is to prevent pollution, not to control and manage it. It’s to prevent it. When we compare the initial CEPA 1999 with this one, we are not strengthening prevention. We are strengthening control and manage. So this is a very small opportunity to improve the bill.

Now, Senator Kutcher said we don’t trust the minister. I’m sorry, but I trust this minister. However, I don’t know if I’m going to trust the next one. So we need to make the bill as strong as possible.

Prevention is the cheapest way, and we should enforce that. I support this amendment by Senator Julie Miville-Dechêne.

Senator Seidman: Thank you very much Senator Arnot and Senator Miville-Dechêne. Obviously, prevention is critical. In the medical world, prevention is critical as well. We all know it’s much better than going for a cure. I fully appreciate this.

I have a question about — and I ask this on behalf of stakeholders — the constitutionality and provincial authority around these issues. Perhaps the officials might be able to help us on that.

Mr. Moffet: Well, senator, I don’t think I can give you a definitive legal opinion, but I can say that Part 4 of the act, which is the provision that includes these provisions, has been in the act since 1999. We have issued about two dozen notices that require multiple companies to prepare pollution prevention plans and have never been challenged. Indeed, these requirements have proven very effective.

I think the reason they have not been challenged is because they don’t tell companies how to do their business. They don’t step into provincial jurisdiction in that way. They focus on the toxic substance, and they require companies to prepare a plan.

I do want to emphasize, though, that they do not require companies to actually prevent pollution.

This provision authorizes the minister to require a company to prepare a plan, and then the company has full discretion as to what the contents of the plan will be and how significant the steps will be that it takes to prevent pollution. So we use this provision when we are confident that the target companies will actually take the steps needed. In other cases, we regulate and actually specifically require action to be taken, including in many cases a full prohibition on the use of the substance, which is the most effective way to guarantee that the substance will not be used and thereby prevent pollution. Thanks.

Senator Seidman: What about the provincial jurisdictional issues around occupational exposures? Is that an issue here?

Mr. Moffet: The issue of jurisdictional authority over occupational health and safety is an important consideration in the way we do our risk assessments and in the focus of our risk management activities. That is an ongoing issue that Health Canada in particular is focused on resolving.

These provisions we are talking about here don’t get into that issue because we can only use those provisions when we have determined that a substance is toxic. To date, our focus on assessing whether a substance is a risk to human health has looked at risks to the Canadian public — to vulnerable populations — but has not taken an occupational health and safety focus.

Senator Seidman: That’s really helpful, thank you.

The Chair: There are four or five people waiting for comments or questions. If you could all make it short, we’ll maybe get to the vote one day.

Senator Sorensen: Quick question to Senator Miville-Dechêne. When I was going through all of this, I ended up with eight or nine themes that kept coming up from witnesses. One was confidentiality. I don’t completely understand if this motion is speaking to confidentiality.

Okay. I’m good with that. Thank you.

Senator Miville-Dechêne: It’s later, article 50.

Senator Sorensen: Thank you.

Senator McCallum: Thank you for all the comments that everyone has made. I wanted to make a request of the minister. He said there are 25 that have been addressed that require P2 plans, and that otherwise there are prohibition and stringent regulation requirements that cover every toxic substance.

Would it be possible for you to send us all that information so that we have it?

Then we can be comfortable that you’re addressing all of the toxic substances because you can’t just pick and choose. Every single one affects Canadian citizens. When we speak about provincial authority, I think you need to always mention who is excluded from there, which are First Nations because the federal government is responsible for Indians and Indian lands and this covers a lot.

If the system was working, like I said yesterday, why have toxic substances increased on Indigenous lands, on First Nations, Métis and Inuit lands? When you say every single one has, they haven’t. I would like to see from the minister how all the 150 have been addressed.

The Chair: Are you okay with Mr. Moffet answering that question? The minister is not here, obviously.

Mr. Moffet: As the lead official for risk management activities, we can provide the Senate with an overview of the risk management measures. For your information, there are a little over 400 risk management measures that have been developed under CEPA for the various substances that are on the list of toxic substances. We can provide you with that list of measures and that mapping of the measure to the substance.

The Chair: Good idea.

Senator Patterson: It seems clear to me that it is appropriate that the word “may” be in the bill as it is. That is simply because pollution prevention plans are not the only way of dealing with toxic substances. It all depends on how they’ll be used, as Mr. Moffet says. Plans are only one measure. But, in fact, the regulator — the government — has the ability to completely ban a substance, so there would be no need for a pollution prevention plan if a substance is banned or otherwise regulated.

I’m convinced that what Mr. Moffet said makes sense and that there is a reason for giving discretion here. A pollution prevention plan, which as he said is developed by industry in any event, is only one of many other measures. Most other measures are more stringent. It would be a make-work project if there was a requirement for every toxic substance to have a pollution prevention plan when it all depends on their use, and there are more stringent measures. I’m hesitant about approving the amendment.

There is one other question I would like to ask Mr. Moffet that was raised by Senator Kutcher. This amendment changes clauses we’ve already approved in 10 and 11. What concerns me is that we have already dealt with clauses 10 and 11.

Could Mr. Moffet elaborate on how this amendment would, in effect, kind of undo or change approvals that have already been made by this committee to those two clauses? Thank you.

Mr. Moffet: Senator Patterson, I would like to suggest that actually that is an issue for the chair and the clerk, but I would point out that, at a minimum, the result is there would be two sections 56 in the act. This doesn’t replace 56. It adds a new 56, or alternatively it would override previous amendments. I do think there is some sorting out to do of how this is to be situated within the statute and with respect to the other amendments.

On procedural matters, I would defer to the clerk of the committee who is responsible for these issues.

Senator Patterson: Mr. Chair, could we ask the clerk to clarify then, as Mr. Moffet suggests?

The Chair: Senator Patterson, at the very end of the process we will look at all the amendments. We have legal staff that would review to make sure there is a proper melding of interests, and therefore it will become logical at that point. When we come to the vote, we’ll vote in principle as to the objectives of that amendment, and then we will work out the details at a later point.

Senator Patterson: Thank you.

Senator Kutcher: I would like to reiterate Senator Patterson’s concerns, which are fundamental. The way this amendment is written will cause people to have to put in place pollution prevention strategies for substances which are either strictly regulated, like medicines used to treat cancer, or substances being phased out because of toxicity.

I would also like to remind us that we all agree that prevention of pollution is the first step. There is no wonder in this amendment that is different than the act itself. I want us to recall that CEPA says, “. . . the primary purpose of this Act is to contribute to sustainable development through pollution prevention.”

I think that we also need to be careful here when we ascribe perspectives that we feel don’t occur in the act when they actually do occur in the act. Once again, the government opposes this amendment for the reasons we’ve already stipulated and that Senator Patterson has also identified. I’m happy to go to a vote on this if people are so inclined.

The Chair: Thank you. We’re basically doing a second round so everyone make it short and sweet.

[Translation]

Senator Miville-Dechêne: I wish to speak to Mr. Moffet’s point that the government can use a wide variety of tools and methods to prevent pollution.

I wish to say that nothing in my amendment prevents the government from taking a variety of actions to prevent pollution. This amendment would require companies to develop a prevention plan if they have one of the three categories of substances and if they use them.

This is how things are done right now. Companies are asked to take stock themselves and reflect on a prevention plan and a plan to eliminate these substances. This is truly a feature of the most popular bills right now. I am thinking about the one I proposed on modern slavery, the idea being to convince companies to analyze their supply chain to see if there is any forced labour.

There can be stricter measures, but we can also implement these kinds of prevention plans, which still require companies to take stock.

I would also remind Mr. Moffet that two House of Commons reports highlighted that the current approach is insufficient, that more preventative action is needed, and that one approach is not simply to give companies the opportunity to adopt a prevention plan, but rather to require them to do so.

That is my justification for this amendment among measures to strengthen the prevention of toxic substance emissions.

The Chair: Are there any other comments?

[English]

Senator Seidman: I would ask a question on the process. Senator Patterson said that, as a committee, we had already approved clause 10, and I just want to be clear that we haven’t. We left off on clause 9, so I just wanted to be sure that we are all clear on that issue.

Chantal Cardinal, Clerk of the Committee: We’ll vote on this new amendment, then we will adopt clause 10.

Senator Seidman: Exactly.

Ms. Cardinal: If her amendment gets adopted, then new clause 10.1.

Senator Seidman: Thank you.

The Chair: It is moved by the honourable senator —

Senator Gold: Excuse me, chair. Before we vote, and I’m happy to proceed to a vote, would you allow me to make a comment, please?

I want to go on record to support what Senator Kutcher said earlier. The officials that are here are independent of the government. They are public servants. They are the experts in this area. I would ask that when we express opinions about the government that we do not direct them to the officials. They’re here to help us. They’re doing a wonderful job. I think we owe them that respect. Thank you.

The Chair: Very briefly, we’re about to vote.

Senator McCallum: I want to say that people are not aware of all that needs to be heard.

My life has travelled a very different path from yours. So when I state something, it is truth, it is not an opinion. And if I say that I’m not here to attack the officials — when I look at the situation, First Nations have been ignored. When you look at senators, Senator Miville-Dechêne, even requiring a pollution prevention plan will change the mindset. It is going to be so costly to fix a tailings pond. You didn’t accept blue-green algae and all that is coming. The government is going to be left with it.

It’s either you pay billions and billions after or you stop it, like upstream thinking as Senator Arnot said.

[Translation]

Senator Dalphond: I have a question for Mr. Moffet. The system is optional right now. The minister can identify certain products and certain companies and ask those companies to create pollution prevention programs. Are the companies identified by the minister all under federal jurisdiction?

[English]

Mr. Moffet: Yes, senator. The act applies to all Canadians and all Canadian companies, but only for certain purposes. So the purpose of the act is to prevent pollution. In this case, we’re talking about pollution caused by toxic substances.

The constitutionality of the focus on toxic substances under the act was approved by the Supreme Court of Canada. So again, the act doesn’t give the federal government authority to tell all companies how to run their businesses. But it does give the federal government authority to take preventive measures with respect to substances that have been assessed as meeting the criteria to be toxic in CEPA.

[Translation]

The Chair: Thank you. Are we all agreed to proceed with the vote?

[English]

Some Hon. Senators: Agreed.

The Chair: It is moved by the Honourable Senator Miville-Dechêne that:

Bill S-5 be amended with a new clause 10.1-10.3, page 5, adding after line 37.

Is it your pleasure, honourable senators, to adopt the motion in amendment? If you agree, raise your hand.

Some Hon. Senators: Agreed.

The Chair: If you disagree, thumbs down.

Shall clause 10 carry?

Agreed.

Shall clause 10.1 carry?

Agreed.

Shall clause 11 carry?

Carried.

Shall clause 12 carry?

Good.

Shall clause 13 carry?

Agreed.

Shall clause 14 carry?

Shall clause 15 carry?

Senator Galvez has an amendment here.

Senator Galvez: What is the number in yours?

Ms. Cardinal: It is 26a in the road map, RG-S5-15-8-2a.

Senator Patterson: What number on the road map?

Senator Galvez: This amendment refers to amendment 26a in your road map. It concerns regulation making. It states:

That Bill S-5 be amended in clause 15, on page 8, by replacing lines 2 to 4 with the following:

“striking out “and” at the end of paragraph (c) and by replacing paragraph (d) with the following:

(d) respecting the conditions, test procedures and laboratory practices to be followed for analysing, testing or measuring the property or characteristic, including procedures and practices for replacing, reducing or refining the use of vertebrate animals; and”.

This is just to be coherent with my previous amendments on animal testing that were adopted.

Section 67 of CEPA sets out the Governor-in-Council’s regulation-making authority with respect to properties or characteristics of substances, as well as conditions, test procedures and laboratory practices to be followed for analyzing, testing or measuring the property of characteristics.

This amendment adds on to this item (d) to explicitly note that the Governor-in-Council authority to make regulation respecting conditions, test procedures and laboratory practice includes the authority to make regulations with respect to procedures and practice for reducing or replacing the use of animals.

It’s just to be coherent with previous amendments that related to animal testing.

Senator Kutcher: I think that this is a good move forward. But I would ask that we add the word “refine” because we had talked about reducing, replacing and refining.

Senator Galvez: That is there.

Senator Kutcher: Is it? I didn’t see it, sorry. Okay. All right.

Senator Galvez: Okay.

Senator Kutcher: I misread.

The Chair: Any other comments? If there is no other comment, is everybody okay? Let’s proceed to a vote.

It is moved by the Honourable Senator Galvez:

That Bill S-5 be amended in clause 15, on page 8, by replacing lines 2 to 4 with the following:

“striking out “and” at the end of paragraph (c) and by replacing paragraph (d) with the following:

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

The Chair: All in favour? Okay.

Against? Thumbs down.

So carried.

Shall clause 19 carry?

Sorry. You have another amendment, Senator Galvez?

Ms. Cardinal: Number 27 on the road map.

Senator Galvez: This amendment concerns amendment 27 in your road map, and it states:

That Bill S-5 be amended in clause 15, on page 8, by replacing lines 6 and 7 with the following:

“classification of a substance as a substance that is carcinogenic, mutagenic, toxic to reproduction or poses other risks of equivalent concern.”.

What it does is that removes the reference to “highest risk” because it is difficult to understand what is “highest risk.”

We can ask the officials.

It changes this “highest risk” for a more specific description for what could be considered “highest risk.” And it replaces it by taking wording from section 15(1) of Bill S-5, using the same wording, which refers to the property or characteristic of a substance for which the Governor-in-Council can make regulation.

My rationale behind this is that Bill S-5 adopts a new regime that prioritizes prohibiting substances that pose the highest risk without these “highest risks” being defined. The classification of substances of highest risks to human health is to be left to future regulations to come. The stated intention of highest risk to human health is to prescribe the threshold for substances where carcinogenicity, mutagenicity, reproductive toxicity and other relevant circumstances or conditions. I’m bringing that wording up from there to here.

This would address a critical gap in the current virtual elimination regime of CEPA 1999 that requires virtual elimination of substances determined to be persistent, bioaccumulative and currently toxic in the environment, but includes no parallel requirement for substances that are of high concern to human health.

The Chair: Thank you, senator.

Senator Patterson: I appreciate the availability of officials to assist us, although with the greatest of respect to Senator Gold, I would not say they’re independent of the government. They all report to a minister, but we know and understand that.

Having said that, I would like to ask Mr. Moffet if there is a need to further define substances that pose the highest risk, as Senator Galvez’s amendments propose. She feels that the present wording as proposed needs further elaboration. Is there a need to further define substances that pose highest risk?

Mr. Moffet: Senator, I’d like to explain the way this provision works, and why it’s written in general terms of substances with a reference to highest risk. The current act essentially creates two tracks of approaches. One track requires virtual elimination for substances that are persistent and bioaccumulative, and then all other substances have a more general track, where the focus is on pollution prevention.

We know, as Senator Galvez has emphasized, that there are, in addition to persistence and bioaccumulation, many other inherent characteristics of substances that make substances high concern.

The intention in the bill is to replace the virtual elimination regime for persistent bioaccumulative substances with a new regime that focuses more broadly on substances of highest risk, and that is the term that is used in the bill now. The purpose of this provision is to allow the government to define what a substance of highest risk is. Rather than specify in the act that it is limited to carcinogenic and mutagenic substances, the idea is to give the government the authority to define those characteristics in a regulation. Then, because it’s in a regulation, there would be the ability to amend the regulation from time to time, so we’re not stuck as we were for 22 years with just persistence and bioaccumulation, or just carcinogenicity or mutagenicity.

The idea would be a broad authority, and then all the details of exactly what substances need to be placed on this new track would be specified in a regulation that, in turn, would be amended from time to time.

The short answer: Our advice is not to define “highest risk” in the act, but to provide authority to define it via regulation, and that’s the intention of this provision.

Senator Patterson: Thanks very much.

Senator Kutcher: I think the official was very helpful in expressing the concern that this would limit the capacity to do higher risks in regulations, and I think we don’t want to tie people’s hands and make this a weaker bill.

I will also be bringing forward amendments to clause 21, which addresses many of the issues.

I agree with Senator Galvez that we need the best structures to do this, but I don’t think we can tie the hands of officials to do what needs to be done within regulations. I’m concerned that this might happen with this amendment.

Senator Galvez: My problem with leaving it like that, “highest risk,” is I don’t understand what is it referring to. Is it referring to acute risk, for example, a firefighter who goes into a fire where gases are exposed and he is acutely exposed, and therefore that is the highest risk because he will die from that? Or does “highest risk” refer to a child living in an Indigenous village who will drink water containing carcinogens, develop a tumour and die of cancer as a teenager? I’m not talking theoretically — I have seen this.

So what is the type of “highest risk” that you will address: the acute risk, or the long-term due to a chronic exposure risk? For me, just say, “highest risk.”

The other issue I have with “highest risk” is what is the limit of highest risk. Where does it start? Who determines the threshold? What risk is acceptable? The U.S. Environmental Protection Agency says one person dying out of 1 million is an acceptable risk. In the whole of CEPA and Bill S-5, nothing of that is expressed.

So what is the risk that we are going to accept?

Mr. Moffet: Those are all very important questions, and the idea is, again, to provide that information in regulations. I remind senators that this section is a regulatory authority that is related to a provision that we have not yet discussed — clause 21 — which replaces the current virtual elimination regime and creates a new mandatory obligation to take very stringent measures with respect to substances that are defined in these regulations as a substance that poses the highest risk.

The bill also makes it clear that at a minimum, those substances include substances that are persistent and bioaccumulative, substances that are carcinogenic and substances that are mutagenic. Then we need to define what we mean even by those terms. I appreciate they’re more specific than “highest risk,” but we need to define what we mean by carcinogenicity. How will we assess that? What do we mean by mutagenicity? Are there other characteristics that evolving science identifies as indicators of high risk that we should include in the regulations? All of those details need to get developed — absolutely. The best way to do that is via regulation, which would be developed in consultation with Canadians and go through the standard, transparent regulatory development process, and which could be amended from time to time in a much easier fashion than codification in a statute.

[Translation]

Senator Miville-Dechêne: I wish to support the amendment by my colleague, Senator Galvez. As opposed to what we are hearing around the table, I would argue that it does not impose a limit and does not tie the government’s hands. It does indeed include the words “carcinogenic, mutagenic, toxic,” but it also says the following:

[...] or poses other risks of equivalent concern.”.

So this opens the door to any other designation. I do not have any scientific training, obviously, but cancer is indeed a silent killer that takes time to develop, so mentioning it is symbolically important. We have to consider not only the big fires, but what happens in the bodies of the individuals exposed.

I would argue that there is no limit. On the contrary, I think we are talking about heightened risks that are often underestimated because we do not see them.

[English]

Senator Dalphond: This is going to add a subsection in paragraph 67 of the act that says, “The Governor-in-Council may, under recommendation of the minister, make regulations that would respect for the purpose of section 77(3) the classification of a substance as a substance that is carcinogenic, mutagenic, toxic or poses risk of equivalent concern.”

In law, that means that the order has to be equivalent to these things because we have a list. That becomes limited. When legislators decide to provide examples in a list, that means the judges, lawyers, enterprises and businesses would have to fit within the same spirit of the ones that are spelled out clearly, which means, at the end of the day, we are restricting the power of the Governor-in-Council to define what “highest risk” is and to have something larger than this limited list or the equivalent of this.

I understand the purpose. Certainly, these things look to me as being of the highest risk, but you’re limiting the type of highest risk. For me, it’s limiting.

Senator Patterson: Agreed.

Senator Seidman: The officials have been really helpful. Thank you for that.

This is an important issue. We heard a lot of witness evidence that this is an important issue. I appreciate the amendment, Senator Galvez, but I do have similar concerns to Senator Dalphond’s. That is it says “other risks of equivalent concern.” Equivalent reduces it and makes it more exclusive because the amendment reduces the risks to those such as the ones you have listed or equivalent.

Senator Galvez: What if we took away the word “equivalent?”

Senator Seidman: I have trouble with leaving things to regulations as well because we all know how long it takes to write regulations. We have had other major pieces of legislation where we have waited far too long for regulations to be written, so I don’t have a lot of faith. But by the same token, we have to have a certain degree of respect for that process. I’m torn, because I understand the issues, but I tend to err on the side of “highest risk” only because it leaves it to the broader concept.

I worry that even if you take out “equivalent” and you just say “other risks of concern” now — “other high risks of concern.” What are we doing by listing, “carcinogenic, mutagenic, toxic to reproduction and other risks of highest concern?” We’re listing things, and maybe there is no reason to list them.

There was a reference made to clause 21. If you look at clause 21 on page 16, you see that these concerns are listed very clearly. I’m just wondering if we’re getting preoccupied here, though with an important issue. I don’t underestimate at all the point you are making.

Senator Galvez: The term “highest risk” is used for people with acute exposure and not with chronic exposure. If you’re not dying today, right now, because that tumour is growing, it’s not considered high risk, but it will become a high risk when the tumour grows and you die.

The Chair: Mr. Moffet, I think I saw your hand raised. Did you want to add something?

Mr. Moffet: Yes, please. I realize it’s unorthodox to intervene without being asked, but I did want to emphasize the connection between this provision and the later provision that the senator just referred to.

The way we have structured the amendments in the bill is that this new track applies to substances of “the highest risk.” For us to be able to implement that new regime, we need to define “the highest risk.” That is why we referred to that phrase in this provision, enabling the government to define in detail what constitutes a substance of “the highest risk.”

Again, the statute will require that it include, at a minimum, persistent bioaccumulation, carcinogenicity and mutagenicity. It will also enable the government to provide details about the interpretation of those terms and add other considerations as science evolves. The phrase “the highest risk” is essential in order for the act to hold together and to enable the government to put substances of the highest risk on a separate track.

The Chair: Thank you.

Senator Sorensen: I’d just like to say that reading road map 41 gives me confidence this will be addressed at another time.

[Translation]

Senator Miville-Dechêne: I am convinced that mentioning real things in a bill serves an important purpose in relation to the provisions I see, which refer to the “bioaccumulative” nature and to much more complex concepts. The idea of mentioning real things, such as cancer, is not limiting. I would however agree to proposing a subamendment along the same lines as the amendment, that would say something like “carcinogenic, mutagenic, toxic to reproduction or poses other risks of the highest concern.”

That would keep the living example, because a lot of people have testified about these issues and reminded us that we are talking about human beings.

The Chair: What did the amendment say in English?

Senator Miville-Dechêne: I read it in French because I speak French better.

[English]

It says that “Classification of a substance as a substance that is carcinogenic, mutagenic, toxic to reproduction and poses the highest concern —” poses . . .

Senator Seidman: Other risks of highest concern.

Senator Miville-Dechêne: Yes, “other risks of highest concern.” Thank you for the translation.

The Chair: Okay.

Senator McCallum: When they say it’s going to be addressed in clause 21 or in other parts of the bills, what is the problem with noting it right here then? It already exists in another bill. It will be supported then by clause 21.

When you look at leaving it to other bodies to define, there are not necessarily women in that group or Indigenous people, so they are not going to understand what “the highest risk” means to Indigenous people, especially regarding reproduction because that is something that men don’t think about. There is so much that affects reproduction, especially for Indigenous people.

When the law or legislation doesn’t address the issues that we bring forward, that is actually environmental racism.

How are we going to allow that to happen? We can’t. We keep fighting to have our voices heard, and they keep being discounted because we think so differently — because it’s our language.

So these are all high risk, and it doesn’t limit it. I support the amendment that was going to be brought forward. Thank you.

The Chair: Thank you.

Senator Arnot: I have a comment here. I’m an old man, but I’m a baby senator, so you can help me with this.

I am not abdicating any responsibility to make this legislation the best legislation it can possibly be here in the Senate. It originated in the Senate. We all want it to be effective. I would err on the side of making it the most effective, stringent, strongest and prescriptive we can at this stage in this place.

When the bill goes to the other place, the members of that other place are subject to importuning by stakeholders on all sides of the issue. They will make a decision, of which they will be accountable to the electors of Canada. The goal here is to try to make this legislation, as it leaves the Senate, the best protection it can be for Canadian citizens — in our opinion. I think we’re all on that page, but it just seems to me that lens might be helpful in assessing the validity of the amendments. Thank you.

The Chair: I suggest we proceed to a vote. Obviously, we need to start with the subamendment. The subamendment will read as follows:

classification of a substance as a substance that is carcinogenic, mutagenic, toxic to reproduction or poses other risks of equivalent concern.

Is the subamendment carried? Those in favour, please raise your hand. Those against, thumbs down. It’s carried, 5-4.

Honourable senators, is it your pleasure to adopt the motion in amendment as amended? Yes?

Anybody who didn’t agree, thumbs down.

Carried.

Now shall clause 15 as amended carry? All in favour raise your hand. Those against? So carried.

Now shall clause 16 carry?

Senator McCallum: My amendment is for clause 16 on page 8. It states:

That Bill S-5 be amended in clause 16, on page 8, by replacing line 25 with the following:

“(iii.2) whether there is a vulnerable population or vulnerable land in”.

— relation to the substance.

Line 25 right now states, “. . . whether there is a vulnerable population in relation to the substance . . . .”

My reasoning is that when you look at my Cree language, there is a saying that says [Indigenous language spoken].

It means “never, ever forget” and there is no word for [Indigenous language spoken]. That word means “everything that we carry.” It’s our history, astronomy, the land and the animals. It’s land, water, sky — everything. All of us carry that with us.

We cannot separate all these because they have an impact on every individual and especially the collective. The land that is most sought after by resource extraction is vulnerable land because that land houses the minerals and not other natural resources, but it also involves the land adjacent to it where the toxins can leach to.

The example I brought is the tailings ponds and the Athabasca River because the tailings are already leaching into the Athabasca River, which will go into the Mackenzie River and ultimately into the Arctic Ocean.

The other example is the hydro-impacted Manitoba communities of Tataskweyak and South Indian Lake, where the toxic algae come from the south and flows up. It will end up in the Arctic Ocean as well.

Is there a piece of land that has been treated respectfully by resource extraction? Or have they just left their toxic materials, which makes the land vulnerable? The regulatory gap that exists because of Indigenous lives and lands includes the land. It is these lands and waters that are rich in natural resources and therefore most at risk of exploitation and dispossession. People think the time is over when Europeans came here and people were dispossessed and colonized. It isn’t over. The dispossession continues every single day — every single day in Canada. That’s why we protect more than just the people. We need to protect the land as well.

Senator Kutcher: I want to thank Senator McCallum. Again, you do a tremendous job of sensitizing us to these important issues in different ways of seeing things. I personally want to thank you.

However, the government says that it opposes this for a couple of reasons. I’ll just share those reasons. There is no definition for vulnerable land. The question is, would we not deal with water? So first of all, I would like the officials to weigh in on that. Following the officials, I have a suggestion for us to consider.

Mr. Moffet: Thank you. As Senator Kutcher explained, the term “vulnerable land” is not a term of art or one that has a well-understood meaning, nor would it necessarily encompass all of the environmental considerations that should be accounted for in a risk assessment, including a risk assessment that is addressing risks to vulnerable populations.

The term “environment” is used throughout the act and is defined very broadly in the act, so that would be a more appropriate term than the concept of land itself.

The Chair: Thank you.

Senator Kutcher: Thank you for that, Mr. Moffet. I was going to ask Senator McCallum if she would be open to a subamendment that would substitute the word “environment” instead of “vulnerable land,” which would give it a wider perspective.

The Chair: What is the word?

Senator Kutcher: Environment.

Senator McCallum: The word that I used in Cree is “environment,” but it’s much more than environment. It goes beyond that. So I’m good with that.

The Chair: Somebody should read the amendment exactly as it is.

Senator Galvez: Can I ask a question to the official?

The Chair: Go ahead.

Senator Galvez: Mr. Moffet, please, can you explain why “environment” would be better than “ecosystem?”

Mr. Moffet: Senator, one of the challenges in dealing with legislation is that we need to focus on terms as they are defined in the act as opposed to common language or common interpretation. The term “environment” is defined in CEPA already. It encompasses ecosystem — ecosystems, ecosystem and ecosystem functioning. So the way the act is written, the term “environment” would be the broadest possible term that could encompass lands, waters, ecosystem functions, et cetera.

[Translation]

Senator Carignan: You answered the question that I wanted to ask the departmental officials. The term “vulnerable land” is not defined. Adding it would be even more limiting, because we are talking about the environment. I do not think we have to state that this is about the environment because the purpose of the bill is indeed to protect the environment. Including it specifically in this subparagraph might lead to interpretation difficulties. Further, adding it to the terms “vulnerable population” or “environment” would in my opinion dilute the meaning of the term “vulnerable population.” By trying to be too perfect, we become imperfect.

[English]

Senator Kutcher: To make this official, I would have a subamendment to add “or environment” instead of —

The Chair: Could you read that again, the exact words?

Senator Kutcher: Sure. “Whether there is a vulnerable population or environment in relation to the substance.”

The Chair: Very well.

Senator McCallum: I agree with that. I will withdraw mine.

The Chair: I’ll read the subamendment in English and French again and we’ll vote on it.

In English, it’s “whether there is a vulnerable population or environment.” In French it is:

[Translation]

“[...] whether there is a vulnerable population or environment”.

I will re-read it.

[English]

In English, it’s “whether there is a vulnerable population or environment.”

[Translation]

It says:

“[...] whether there is a vulnerable population or environment”.

Are we agreed? Those who agree please raise your hand.

Senator Carignan: Excuse me, Mr. Chair, but I wanted to say something.

The Chair: Do you have a question, Senator Carignan?

Senator Carignan: Yes, I would like a definition of a vulnerable environment.

[English]

Mr. Moffet: Senators, it might help you to know two things. First, the term “environment” is defined in the act very broadly; and second, there is a phrase “vulnerable component of the environment” that is referred to in the sentencing considerations in section 287 of the act. So we have already defined the concept of environment, and we have already established a precedent of taking into account or considering the vulnerable component of the environment. That may be a way to fulfill Senator McCallum’s desire to ensure that research addresses vulnerable components of the environment in addition to vulnerable populations.

[Translation]

Senator Carignan: Can you give us an example of a vulnerable environment?

The Chair: Mr. Moffet, did you hear the question?

Mr. Moffet: Yes.

[English]

For example, the concept of cumulative effects is becoming better understood in the scientific community, and so an environment could be considered vulnerable, for example, if it has been subjected to multiple stresses over a period of time and a new stress, a new emission or pollution that might not have a large effect somewhere else might have a significant effect in an area that has already been subject to multiple stressors over time.

The Chair: Okay. Is the subamendment carried? Raise your hands. Those who oppose, thumbs down. So carried.

Is it your pleasure, honourable senators, to adopt the motion in amendment as amended? Raise your hands. Anybody against, thumbs down. So carried.

Now we’re going to Senator Galvez’s anticipated amendment.

Senator Galvez: This amendment refers to number 29a in your road map. It continues with the animal testing suite of amendments. It states:

That Bill S-5 be amended on page 9 by adding the following after line 18:

“16.1 The Act is amended by adding the following after section 68:

68.1 (1) The Ministers shall not generate data or conduct investigations using animals for the purpose of assessing

(a) whether a substance is toxic or capable of becoming toxic; or

(b) either the need to or the manner in which to control

(i) a substance,

(ii) a product that contains a substance, or

(iii) a product that may release a substance into the environment, including a substance specified on the List of Toxic Substances in Schedule 1.

(2) Subsection (1) does not apply if

(a) it is not scientifically possible to obtain the data or to conduct the investigation by methods other than using animals; and

(b) the data or investigation is necessary to achieve objectives related to protecting the environment or human health.”.

So again, I want to stress that this is not to ban animal testing. It’s just to ban unnecessary animal testing.

Senator Kutcher: Thank you very much, Senator Galvez, for dealing with these really important issues.

I would like to ask the officials about this particularly. Government opposes the amendment on the basis that it will actually impede risk assessment and risk management by adding layers of bureaucracy. Also, the government is concerned that it would be very difficult, if not impossible, to determine whether something is scientifically possible or whether something is not scientifically possible.

Hypothetically, something could be scientifically possible, but it would take 50 years to do it and cost $100 million to complete a study without animals. That would get in the way of actually dealing with the risk necessity. If one animal were used, it would take much less time to do that so that we would actually get the results much more quickly. Those were the concerns raised by government about the amendment.

I agree very much with the principle that you’re bringing forward. But I would like to defer to the officials to see if they can assist us with that.

The Chair: Can you help us out there?

Mr. Moffet: Yes. I would start by emphasizing that the test that would be introduced by this amendment is much stricter than the overall approach that was adopted in the earlier amendments that created an emphasis on avoiding animal testing and aligning with emerging international practices to avoid, reduce or refine approaches.

But I would like to ask my colleague, Mr. Carreau, from Health Canada to explain the specific implications of this amendment. Thank you.

Greg Carreau, Director General, Safe Environments Directorate, Health Canada: Thank you very much.

As has been mentioned a number of times, there has been an effort to reduce reliance on animal testing. Currently, animal testing continues to be the most reliable indicator of risk to health for a variety of complex health issues, including cancer.

In particular, there are many non-animal toxicity testing methods available today. In Health Canada programs, we use those non-animal testing methods. However, there are other toxicity testings that are available, and they may be scientifically possible, but they continue to not be validated yet in terms of their scientific robustness or their ability to be relied on as a predictor for health.

So the terminology “scientifically possible” may limit the ability of Health Canada officials to use animal testing data when it is the most reliable indicator of a risk to health.

Also, I think it’s important to note that while Health Canada strives to reduce the reliance on animal testing, it continues to undertake research on alternative methods, and that includes validating these new methods through animal testing. So the department continues to execute animal testing research as a way to ultimately develop alternative methods.

Senator Galvez: Yes. So again, this amendment doesn’t ban animal testing. It does not ban. What it bans is unnecessary animal testing.

I can see that the issue is who is going to determine what is scientifically possible. So this is a question that I’ve been asking and it has been avoided again and again. Who does the experimentation? Is it the industry that does it or is it the government that does it? Who does? And who makes the decision?

We go back again to the risks because this is the same thing. So who decides which risk is acceptable? This question has not been answered. I’m very patient, so I am going to keep asking.

The Chair: Let’s try again.

Mr. Carreau, can you answer that question?

Mr. Carreau: In terms of scientifically valid alternative methods, this is done in collaboration internationally. There are test guidelines that are approved in an international forum which, from our perspective and in most jurisdictions around the world, qualifies what is an alternative test method that meets the rigour that is required to have a reliance on an indicator of human health risk. So it’s the government in collaboration with international bodies.

The Chair: Thank you.

Senator Patterson: To the amendment, we all know cancer is a devastating killer of our population. I think no family is free of the terrible effects of cancer.

What we’ve heard from the officials is animal testing data is still the most reliable method of assessing treatments for terrible diseases like cancer. The government is actively researching alternative methods, but needs animal testing to validate those alternative methods.

Senator Galvez says that the amendment doesn’t ban animal testing. But the amendment prevents the generation of data using animals, even data that will validate alternative methods to testing with animals.

I’m concerned that the amendment will actually prevent the government’s efforts to look for new, alternative treatments that don’t rely on animal testing. You’ve got to know how those treatments work. The only way to do that is by testing on animals. This amendment will not allow data to be produced to validate these new, alternative methods. I think it would be contrary to progress in treating terrible diseases like cancer and, therefore, I’m not convinced that I will support this amendment.

[Translation]

Senator Dalphond: My question is for the departmental officials.

[English]

I understand that your main concerns from what Senator Kutcher said, and perhaps from what was said by some representative of the department, are that, first, 68.1, subsection 1, establishes a principle that we should limit and not use vertebrate animals.

But subsection 2 does include a way out of this. We should not use vertebrates if it is, as is written here, not scientifically possible to obtain the data. I think Senator Kutcher said one of his concerns was that it is a very high threshold because something might be scientifically possible but cost millions of dollars and not be easily accessible on the market and things like that. I understand that. I understand that concern and I share it.

I was involved in the drafting with Senator Galvez’s office. Would it be better if it is not reasonably possible to obtain the data? So if we are lowering the threshold and making it reasonably possible, I think that will give you the exception, which is a reasonable exception, if I can use that word.

Unless there are concerns from the officials, I would propose to amend the amendment. So my subamendment would be to replace the word “scientifically” in subsection 2 by, “if it is not reasonably possible to obtain the data.”

The Chair: So the word “scientifically” gets replaced by “reasonably.”

[Translation]

Can you read it out?

Senator Dalphond: It would be as follows:

[…] it is not reasonably possible to obtain […]

The Chair: Perhaps we can think about it.

[English]

Senator McCallum: I wanted to ask Health Canada how toxins are picked for animal testing, and how they come to your attention or where it needs to go? Which is cheaper, animal or alternative testing? And does the cost affect where it’s going to go? This is a question for Health Canada.

Mr. Moffet: Perhaps I could start and then turn to Health Canada.

Senator McCallum: Okay.

Mr. Moffet: So there are a few issues here. The main one that we would like to focus on is the effectiveness and the acceptance of testing.

When we make decisions that affect substances that are in use globally, we need to ensure that we do so in a way that is recognized by other jurisdictions. We do that, as Mr. Carreau emphasized, by relying to the extent possible on test methods that are accepted by the international scientific community.

Second, we also have issues regarding the time and resources that are required to conduct this work, which is done by the government. Our goal, of course, is to make decisions as expeditiously as possible and with the least expenditure of taxpayers’ money. For the government, for Health Canada and Environment and Climate Change Canada in particular, these are important considerations. Mr. Carreau may be able to elaborate on some of the details about the effectiveness and the acceptability of these test methods.

Mr. Carreau: Thank you, Mr. Moffet. Indeed, there are many alternative test methods that have been developed, including for skin sensitization and eye irritation, for example. The more complex end points that I mentioned earlier, such as cancer, are more difficult scientifically to develop alternative methods for. Work is well under way internationally, as well as domestically in Canada, but it will take the international community some time to develop those alternative methods that can be relied on as an indicator of health.

With respect to cost, which was the senator’s other question, I don’t think that factors into the considerations. There is a commitment internationally, as well as in Canada, to develop these alternative test methods. The challenge remains the scientific complexity of the issue.

Senator McCallum: How are the toxins picked for testing? Where does that information come from? How do you decide which toxins are going to be tested?

Mr. Moffet: This addresses some other amendments in the bill. The current act has a number of tracks or processes for identifying substances that we should look at that may be of concern and that we assess. The main one is the categorization of all of the substances that were in use in the 1990s. We’ve completed that exercise now. You will see in a later provision that one of the proposed amendments to CEPA is an obligation to develop a plan to consult on, publish and then regularly update a plan of priorities so that, together, the ministers of environment and health can communicate to the public, to industry and to the scientific community exactly what types of substances will be addressed as a priority over the next period of time. That way there is an ongoing process of identifying substances to be assessed to determine whether they’re toxic. The goal is to move away from one statutory funnel and have a broader set of considerations to make sure the development of that plan is based on public input.

Senator Sorensen: I want to thank Senator Dalphond because I was going to go down the same road as him, so I will support that subamendment. It’s come up a couple of times. I think we all feel the same about vertebrate animal testing, and I recall the comments about a group of experts being convened to move forward this concept of replace, reduce, and refine and also to create some sort of strategy to reduce animal testing. I think we’re all on the same page.

Senator Kutcher: I think that there’s been a lot of movement, but we still need more movement on animal testing. I’m glad that this is going forward. I think we have a reasonable subamendment. Maybe we should vote on the reasonable subamendment.

The Chair: I suggest we vote on the subamendment proposed by Senator Dalphond.

It was proposed by Senator Dalphond that Bill S-5 be amended in 68.1, subsection 2, paragraph (a) by adding the following:

it is not reasonably possible to obtain the data . . .

And then:

[Translation]

(2) Subsection (1) does not apply if:

(a) it is not reasonably possible to obtain . . .

[English]

All in favour of that subamendment, raise your hands. Anybody opposed? Thumbs down. So moved.

Is it your pleasure, honourable senators, to adopt the motion in amendment as amended? All in favour, raise your hands. Anybody against, thumbs down. Shall clause 16 as amended carry?

Some Hon. Senators: Carry.

The Chair: Shall clause 16.1 as amended carry? All agreed?

An Hon. Senator: Agreed.

The Chair: Shall clause 17 carry? Agreed.

Shall clause 18 carry?

Senator Galvez, I think you’ve achieved your quota?

Senator Galvez: I’m still on the animals. We are all animals. We are included in that.

This is referred to in your road map as amendment 30a. It reads as follows:

That Bill S-5 be amended in clause 18, on page 11, by adding the following after line 27:

“(b.1) the methods, test procedures and laboratory practices to be followed to replace, reduce or refine the use of vertebrate animals;”.

In short, this is to be coherent with the previous amendment. It should be an easy one.

Senator Kutcher: It is going to be easy. I want to strengthen it. First of all, it should be (a.1), not (b.1).

Senator Galvez: No, that’s the other one.

Senator Kutcher: I was told it should be (a.1).

The other thing I wanted to add was a phrase that reads, “the conditions, methods, test procedures.” That would apply to the conditions the animals are kept in.

Senator Galvez: Sorry, we don’t hear you.

Senator Kutcher: I want to add, “conditions.”

Senator Galvez: Where?

Senator Kutcher: It would read, “the conditions, methods, test procedures,” so the amendment would add the conditions the animals are being kept in —

Ms. Cardinal: We have copies to distribute to everyone. It’s coming. At the end when we do the motion to renumber, that’s fine. Don’t worry about (a.1).

Senator Kutcher: You’ve taken a big load off my chest.

The Chair: Are there any questions on the proposed subamendment?

Senator Dalphond: I want to support the subamendment. It’s logical, and then maybe it’s also logical to put it after (a) because it’s a mirror of (a), so it would go (a.1), then (b), “the manner in which the test is resolved.”

The Chair: If there is no question, can I proceed? Is the subamendment as proposed carried? Raise your if you agree.

An Hon. Senator: Carried.

The Chair: If you disagree, thumbs down. So carried.

Is it your pleasure, honourable senators, to adopt the motion as amended? All in favour, raise your hands. Great. Anybody against? No. So carried.

Shall clause 18 as amended carry? Carried. Good.

Shall clause 19 carry?

Senator Galvez: This is what number?

Ms. Cardinal: It is 31a.

Senator Galvez: This refers to amendment 31a in the road map.

Again, it is continuing with the suite of amendments relating to animal testing in the action plan now:

That Bill S-5 be amended in clause 19, on page 12, by replacing line 15 with the following:

“(a) that specifies activities or initiatives to promote the development and implementation of methods not involving the use of animals that would provide information sufficient for assessing risks to health or the environment posed by substances assessed under this Part;

(a.1) that specifies the substances to which the Minis-”.

And it continues.

The Chair: Any questions? It’s pretty clear. No questions?

Senator Miville-Dechêne: But why do we put it like the first clause? Should it be the first priority there? Could we put (c)?

Senator Galvez: That’s what the clerk proposed.

Senator Miville-Dechêne: It makes no difference? For me, it’s a question of priority.

Senator Kutcher: Could I just get feedback from the officials here about whether focusing it this way would help or hinder the comprehensive strategies to promote the testing we need to do? Could the officials just weigh in on that?

Mr. Moffet: I don’t think it would hinder. I think it should be moved down the list. The main focus of this provision, as I explained earlier, is this would be the plan that the ministers would be required to publish identifying basically what they’re going to do, what the priorities are for managing toxic substances, which ones we will assess and what the overall focus will be for the next period of years.

It would be appropriate given the senators’ interest in reducing animal testing to include in that plan, among other things, the activities that the government will undertake to reduce the use of animal testing, but that would be a component or a subelement of the plan as opposed to the key element.

[Translation]

Senator Carignan: Well, I am not sure if this is the right time to say it, because I just read it out.

Reading the amendment with the new paragraph a.1), this paragraph is incomprehensible. There is a problem with the syntax that I cannot quite identify, but the paragraph has to be reworded, obviously. The French reads as follows:

a.1) qui doit énumérer les substances pour lesquelles ils”.

I think the words “ils” and “qui doit” are problematic. Perhaps the errors should be corrected in this amendment, but I agree that it does not directly affect the amendment by Senator Galvez.

[English]

Senator Galvez: I understand that senators have requested that the amendment that I’m adding could go to position (c). There is no problem with that, but, of course, there are little things that will need to be changed. For example, after (a) you have put “(a) and.” It shouldn’t be “and.” We will have to take it out. Can I trust that the clerks will take care of that?

The Chair: Yes.

Senator Galvez: Okay.

The Chair: Does everybody understand the slight changes we’re making to it? Okay. Then let’s proceed to a vote on the amendment.

Ms. Cardinal: We could do it at the end for renumbering. If you decide you want it to be (c), it can fall under the renumbering at the end of the clause by clause.

The Chair: Good. All in favour with the amendment as proposed? Anybody against, thumbs down. So carried.

I think we have another motion by Senator Galvez.

Senator Galvez: So this is amendment 32 in your road map. It deals with substitution and avoidance, and it’s for clarification purposes.

The word is individually. It states:

That Bill S-5 be amended in clause 19, on page 12, by replacing line 38 with the following:

“vidually, with a view toward avoiding substitutions within the class that may be harmful; and”.

It clarifies further the intent of assessing substances by class. Certain compounds are grouped by classes. When you talk about petroleum compounds, you say C10 to C20, C40 to C50. You don’t mention the individual compounds. They are managed by class. So when one of the components of a class is toxic, chances are very high that the whole class has elements of toxicity, therefore it’s worth going by class. This has the objective of avoiding substitution of a substance with another substance of the same class that is just as harmful.

I think I have the support of the government, but my colleague Senator Kutcher may have another subamendment. As long as he doesn’t kill my amendment, I hope I will support that.

Senator Kutcher: Thank you so much. Senator Galvez, are you sitting down?

Senator Galvez: I’m sitting down.

Senator Kutcher: Both the government and I personally support this.

Senator Galvez: A miracle.

The Chair: Let’s go to a vote. All in favour of the amendment? Anybody against, thumbs down.

Shall clause 19 carry as amended? So carried. Shall clause 19 carry? Done.

Before we proceed with clause 20, which looks to have a lot of opinions on it, we’ve reached our deadline and there is no flexibility for us to continue. Again, thank you very much for a productive morning. It is much appreciated.

[Translation]

I think we have made great strides. Let us keep up the good work when we meet again soon.

(The meeting was adjourned.)