THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Thursday, June 9, 2022
The Standing Senate Committee on Energy, the Environment and Natural Resources met with video conference this day at 9:02 a.m. [ET] to consider Bill S-5, Strengthening Environmental Protection for a Healthier Canada.
Senator Paul J. Massicote (Chair) in the chair.
[Translation]
The Chair: My name is Paul Massicote, 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, 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 J. Dalphond from Quebec; Rosa Galvez from Quebec; Stan Kutcher from Nova Scotia; Mary Jane McCallum from Manitoba; Julie Miville-Dechêne from Quebec; Dennis Glen Patterson from Nunavut; Judith G. 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. 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. Today we welcome representatives from Environment and Climate Change Canada: John Moffet, Assistant Deputy Minister, Environmental Protection Branch; Laura Farquharson, Director General, Legislative Governance, 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.
Before we resume debate, I hope that we will complete our task today. However, as we all know, time flies and we need to concentrate to make progress in an efficient way. Therefore, I ask for your cooperation in staying focused on the topic at hand and being brief in your arguments. Please proceed as organized as you can be.
Senators, we will resume debate on clause 5. During previous meetings, several motions in amendment were stood. We will now go through these amendments again. I invite Senator Kutcher to read out his amendment, which had been stood.
[English]
Senator Kutcher: Thank you, Mr. Chair. The amendment proposed is SK-S5-5-4-5c, number 16b. Is everyone ready?
I will go slowly because there are a number of different parts on this.
That Bill S-5 be amended in clause 5,
(a) on page 3, by replacing line 37 with the following:
“(2) The implementation framework, in a manner consistent with the purposes of this Act, shall, among other”;
(b) on page 4,
(i) by replacing line 5 with the following:
“— the principle of non-regression and the principle of intergenerational equity;”,
(ii) by replacing lines 9 to 11 with the following:
“(c) the reasonable limits to which that right is subject, resulting from the consideration of relevant factors, including social, health, scientific and economic factors.”.
Mr. Chair, could I just speak to some of the issues that the government wishes to bring forward to the committee?
The Chair: Go ahead.
Senator Kutcher: Thank you. I am going to ask the officials to comment on two things that I think may have been confusing to us as we’ve been working through this, and I’d ask our colleagues to listen carefully to what the officials have to say and deliberate on the basis of that information.
I’ll do the issues one at a time so that if senators have questions of the officials, they can focus on one at a time instead of saying both things together. I’m just raising that there will be two components that I want to do, but we’ll do them one at a time.
The first one is I would like the officials to share with us why they need to have the items social, health, scientific and economic factors identified in the act.
My understanding is that these are identified to help guide the development of the framework and that they are necessary to give direction to the discussions, consultations and drafting of the framework. I’d like the officials to comment on that, please.
John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada: I’ll start and then turn to my colleague Ms. Farquharson.
The basic architecture here is to refer to the right, establish the right and then, in a general way, acknowledge that the right applies to decisions under the act and that it is subject to reasonable limits. Then require that the government — the ministers — development an implementation framework.
The reason for an implementation framework is that this is a novel concept in Canadian law and deserves public input in the clarification of the way in which the right will be applied, including, importantly, any limits, constraints or considerations that will be used on an ongoing basis. The reason to identify some of those key factors is to ensure that the framework itself addresses the extent to which those factors will be considered in the framework itself.
That’s a broad overview. I’ll now turn to my colleague Ms. Farquharson to elaborate.
Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, Environment and Climate Change Canada: I think it’s mostly been said. It’s important to understand that what we are creating in this act is broader than most acts in the recognition of the right to a healthy environment. Especially if you look at the provincial acts within Canada, the right to a healthy environment is restricted to procedural rights or otherwise restricted by legislation that promotes the environment, whereas here we’ve opened ourselves to discussing other parts of the right to a healthy environment: environmental justice; non-regression; intergenerational equity. We’ll have to think through the whole thing in the implementation framework.
There will be limits to that right and those factors that are enumerated will be part of what’s considered. Providing that guidance in the law helps. We’ve already got a lot to discuss. It helps focus discussion about the implementation framework, provides guidance to those consultations and also to the courts — should it ever come to the courts.
Senator Kutcher: Thank you very much. Could I just ask for further clarification? One of the differences here is that the word “balancing” was removed and the word “consideration” was given. My understanding is that term may have quite a different meaning than “balancing.” Am I correct in that understanding?
Ms. Farquharson: Certainly different words mean different things, and the consideration of those factors is what it says. Those will be considered. The limits considering those factors is what will be elaborated on.
Mr. Moffet: We see the concept of balancing in some other statutes, which is why we originally chose that language. The idea here is not to suggest some equal weighting among two, three or four factors. If there is concern that is what the term “balancing” conveys, then we think that this idea of considering reasonable limits is a more accurate expression of the minister’s obligation. They will consider other limits, and then the goal will be to explain how those other factors will be considered on a case-by-case basis in the application of the right under various decision-making authorities in the act.
[Translation]
The Chair: Senator Miville-Dechêne, I believe you also have an amendment in that same subsection, if you would like to introduce it.
Senator Miville-Dechêne: Yes. If you could put on your headsets, I’m going to speak to you in French because it will be easier for me this morning.
[English]
Senator Kutcher: We had agreed that we would do this one and then vote on this one.
Senator Miville-Dechêne: No.
Senator Kutcher: That was not my understanding.
Senator Miville-Dechêne: We agreed we would present both so people could see both. What did we agree on?
Senator Kutcher: I’m sorry. In that case, I would like the officials to comment on the second issue because it’s relevant to yours. My apologies. I misunderstood. We have so many different things going.
Senator Miville-Dechêne’s amendment is different on this particular clause, so I would like the officials to answer another issue that has come up in discussions — not only in this committee, but also in civil society and industry.
I would like some clarification from the officials on this point. There seems to have been some confusion about what the word “economic” means in this clause. Some have argued it means that industry profit will come before human health. Is this what the term means? Will the framework put human health ahead of profit? What does the word “economic” mean in this context?
Officials, could you help us understand that, please? I think it’s really important we understand that.
Mr. Moffet: Again, I’ll start, but I’m going to repeat myself here. The goal of articulating these terms is not to require in the statute that one or another concept or consideration is more significant than another. The goal is to say that in decision making, a range of factors will be considered. Rather than leave that to a black box, the ministers must explain in an implementation framework how they will account for those factors.
So “economic” is a broad concept that would connote economic development, employment, regional differences in economic impacts, et cetera, again, with no significance as to one issue is more important than another. It is simply to signify that this range of issues is one that the ministers must explain in the implementation framework how they will account for those factors in implementing the new right to a healthy environment.
The Chair: Senator Kutcher, I’m getting a bit mixed up.
You presented an amendment to the bill. We talked about it. Senator Miville-Dechêne had her own comments on that. Obviously, you got your amendments. Are you suggesting we vote on that and deal with the amendment to the amendment? I’m a bit confused as to the deal you had with each other.
Senator Kutcher: So was I, chair. I think the confusion was that we were talking about multiple different choices. It seems what we did settle on is that I would present this and the arguments for this issue, and then Senator Miville-Dechêne would present the arguments for hers.
The Chair: Is that an amendment to your amendment?
Senator Kutcher: That’s what I thought.
Senator Miville-Dechêne: I didn’t agree on that, but let’s do that.
Senator Kutcher: Are you okay with that?
Senator Miville-Dechêne: Yes. I will explain.
Senator Dalphond: I think I’m in agreement with the agreement that was done because Senator Kutcher is proposing amendments on pages 3 and 4, including lines 9 to 11 on page 4. So is Senator Miville-Dechêne, but only for these three lines. I guess an amendment to her amendment will be in order.
Senator Kutcher: It’s about part (c).
Senator Dalphond: Yes, only that.
The Chair: Let’s deal with Senator Kutcher’s proposed amendment. Let’s deal with that more in depth, and then we’ll come back to Senator Miville-Dechêne. We’re not there yet. Senator Patterson has some questions.
Senator Patterson: Yes, they’re about Senator Kutcher’s amendment. Sorry, this is not about part (c).
I would like to ask the officials a question. There is a new word being introduced in this government amendment in part (a) on top of page 4, and that is the principle of intergenerational equity. So we have the principle of non-regression and the principle of intergenerational equity.
This may be an ignorant question, but is there a definition of “intergenerational equity?” I guess I’ll ask, also, if there is a definition of “non-regression.”
You guys may understand this, but I don’t know if the average person understands what these things mean. Are they being defined somewhere? Thank you.
Senator Kutcher: I think that’s an inappropriate question for the officials to answer.
Ms. Farquharson: Yes, there are generally accepted definitions of these terms, which are probably more well-defined in international law. The principle of intergenerational equity, though, is also in the Federal Sustainable Development Act and is defined as the principle that it is important to meet the needs of the present generation without compromising the ability of future generations to meet their own needs.
Senator Patterson: What about non-regression?
Ms. Farquharson: Non-regression generally refers to continuous improvement in environmental protection.
The Chair: Thank you. Therefore, the agreement we have is that Senator Kutcher has presented us with an amendment and Senator Miville-Dechêne is making an amendment to an amendment. If that is the case, we will allow her to make her presentation, and we’ll vote on that. Then we’ll vote on Senator Kutcher’s principal amendment.
[Translation]
Senator Miville-Dechêne: As you know, my initial idea — and that motion was withdrawn — was to not have a subsection (c) so as to give the government complete freedom to interpret this section without restriction. That’s why I am introducing a subamendment today to the government motion. You will find it in the document I sent out, JMD—S5-5.1-4-9, which was just distributed.
The subamendment reads:
[English]
That Bill S-5 be amended in clause 5, on page 4, by replacing lines 9 to 11 with the following:
“(c) the manner in which relevant factors may inform the application of that right.”.
[Translation]
In French, the new paragraph (c) would read as follows:
That Bill S-5 be amended in clause 5, on page 4, by replacing lines 9 to 11 with the following:
“(c) the manner in which relevant factors may inform the application of that right.”.
This wording is therefore a compromise between a black box, as the government says, and the government’s preferred wording. My wording is a compromise because in no way does it restrict the right that Canadians have just been granted, the right to a healthy environment. It does, however, allow departments and authorities to decide what factors will be relevant in the future to inform the application of that right.
We’re leaving some leeway; we’re avoiding misunderstandings that can come with words like “economic.” As you know, Senator Kutcher, despite the government’s explanations, the word “economic” can be perceived and interpreted in various ways. The word “relevant” gives the government complete freedom to consider not only the four factors described, but also what will change in the future — we can’t predict what factors will be relevant in 20 years to inform the application of this right.
Therefore, by proposing this compromise in the wording, we’re leaving a lot of room for interpretation. I must also tell you that, as we know — and I have already said this, but I will repeat it — rights generally are not limited when they are presented. They are presented in their entirety, and then we know very well that they are not absolute. The courts are generally responsible for interpreting these rights.
This is what is generally done for other rights, as I said: the right to housing and rights in international conventions.
For that reason, it would be unfortunate and unwise to name four factors rather than say that all the relevant factors that could be used would be used in the more or less near future.
[English]
Senator Kutcher: Thank you very much, Senator Miville-Dechêne, for that view.
I would actually like the officials to comment on Senator Miville-Dechêne’s argument. We heard from the officials previously that they needed to have this language — social, health, scientific and economic — to assist them in developing the framework. We’ve heard from Senator Miville-Dechêne that they don’t need to have those in there to assist them in developing the framework. So I’d like to hear from the officials who will be tasked with developing the framework what their perspective is on that.
Mr. Moffet: Senators, an important point that I would like to first clarify is that the amendment Senator Kutcher introduced includes the important word “including.” In other words, the four factors that everybody is focused on are not intended to be an exhaustive list. They do not represent the only factors that ministers may consider. However, by listing them, the statute with the bill would clarify that the implementation framework must describe the way in which those factors will be accounted for as well as any other factors that ministers decide are relevant in the interpretation of the newly established right.
There would be flexibility under Senator Kutcher’s amendment to expand the scope of considerations in the initial framework and, as Senator Miville-Dechêne suggests, to expand that list of considerations over time. But the factors that are listed in Senator Kutcher’s amendment are fairly standard considerations in any type of government decision making and inevitably would be accounted for.
It would be important for the statute to provide clarity to Canadians and to the courts — as my colleague Ms. Farquharson suggested — that, at a minimum, those factors need to be explained in the implementation framework.
The Chair: Thank you very much.
[Translation]
Senator Miville-Dechêne: Thank you for that explanation and that interpretation. However, I’d like to remind you that we say here, this resulting right “including social and health.” You’re right that the word “including” is there.
However, it was no accident that four factors were named. I see the good intentions. I understand that you want guidance, but at the same time, naming those four factors de facto makes them more important than other factors. It also makes you wonder — and I know that in a very analytical way, you said that it doesn’t mean that economic factors will be as important as health factors — but the way that sentence would be read in everyday language, by ordinary people who are not lawyers, absolutely places health factors on equal footing with economic factors. That’s what that sentence means.
I think to clarify, if we choose “relevant factors,” we avoid any implication that the government wants to restrict these rights from the outset and include factors that may obviously be contradictory and controversial, and draw a parallel between the health of human beings and the economic needs of human beings. In my view the health of human beings should normally come first. That’s not exactly what this provision says.
I feel that if we want to avoid any interpretation issues, the term “relevant factors” would make much more sense.
Of course, I didn’t make that wording up; it came out of a compromise that several groups came up with after hearing the different opinions from the government and other senators on this issue.
[English]
The Chair: I want to make a comment that we’ve been here for half an hour — and this is obviously an important clause — but in view of the questions, please make sure that it’s very relevant to the vote coming up. If it’s not going to influence anything, I suggest we try to keep it as short as possible.
Senator Galvez: I thank Senator Kutcher for bringing up this amendment. Unfortunately, it arrived officially only a couple of days ago. It was in response to my first or second amendment where I wanted to include “and future generations.” I wanted to say, “the right to a healthy environment was subject to any reasonable limits.” Senator Kutcher argued that he would have something along those lines when he proposed his amendment.
Now I read his amendment and the words “of factors including social health, scientific” are still there. That was not what my understanding was when we discussed my amendment.
I am happy with the principle of intergenerational equity. I want to support the subamendment of Senator Miville-Dechêne because when you talk about any other right — and just take, for example, freedom of religion, are you going to subject freedom of religion to social science? Social science has nothing to do with religion. As a scientist, I admit that. Why does the right to a healthy environment have to be limited by economic factors, for example? I think that the subamendment of Senator Miville-Dechêne is an important compromise, and I’m ready to support this. Thank you.
Senator Sorensen: I wanted to reiterate that — I had written down the same note Mr. Moffet said — it does not say “excluding all other factors.” It does not say “only including.” I guess what I’ve learned here — also from the emails I’m getting and whether you’re on social media — the offence people take to the word “economic.”
Thank you, Senator Miville-Dechêne, you did mention some of the other ones. Nobody is trying to take the word “social” out, the word “health” out or even the word “scientific” out. People are offended by the word “economic,” and I’m not because I see economics as a much greater thing than a chemical company profiting from what they’re doing. It’s a much broader word than that, and there was an effort to explain that this morning.
I don’t dislike the suggestion of Senator Miville-Dechêne, but I don’t know why that word is being perceived as such a bad word. That’s all I have to say. I haven’t quite decided how I’m voting.
Senator McCallum: I wanted to ask the officials, could you give us an example of how “health” and “social” would limit the right to a healthy environment? When you’re saying there are reasonable limits to which the right is subject and you consider social and health, could you give us an example of where “health” and “social” would limit that right to a healthy environment.
Mr. Moffet: Senator, I’ll reply, but I want to make clear that I’m giving an example of how it could be — of how those considerations could be used, not how they would be used. Because how they would or will be used will be something the ministers will determine in consultation with Canadians.
As an example — and this is a real example — in the past few years, the two departments under the Chemicals Management Plan have assessed a number of substances, including one I’ll name, mitotane, which is a substance used in a cancer drug. Through our scientific assessment, we concluded that when we release mitotane into the environment it causes adverse environmental effects, including when it’s excreted from the human body as waste. But we need it to treat certain kinds of cancer. The decision was, well, mitotane can continue to be used as a cancer drug and we will have to live with the adverse environmental effects because the health benefits outweigh the environmental effects. I’m not trying to justify that decision, but that’s an explanation of a specific example of how, in some cases, ministers in the future may need to consider competing health and environmental impacts.
Similarly, you can envisage situations where there might be a social benefit, maybe a regional employment benefit that ministers would consider versus an overall across Canada or global environmental impact. Again, the idea is not to suggest that these factors will in all cases trump or override the environmental considerations. The goal is to ensure that ministers explain in the implementation framework how they will account for this range of factors, including — I wanted to make the point —
The Chair: I think your point has been made.
Mr. Moffet: — that “economic” is much broader than profit and, indeed, looks at long-term economic benefits from environmental protection.
Senator McCallum: I have a supplementary.
The Chair: Very quickly, please, otherwise we will be here next week.
Senator McCallum: That’s fine. We’re supposed to do this with sober second thought, and I really don’t appreciate how we have been rushed through this bill. That’s one of the problems we have when you’re going to balance regional employment benefit over the toxicity because that is what has been the major reason for some of the toxicity that First Nations have to live under — that they’re considering employment of other people instead of mitigating what exists already. Thank you.
Senator Miville-Dechêne: I want to point to my colleagues, and maybe to Senator Sorensen, because you’re right. In theory, the economy is part of our life — not in theory, in practice. It’s the choice of words in Senator Kutcher’s formulation, in the government formulation. We are speaking here of limits right at the start of (c). In my subamendment, we’re saying that the relevant factors may inform the application. That’s really different because as soon as you put the word “limits,” it seems that those factors are limiting or could limit. The way some write it — and I was inspired by it — the word “inform” is much more neutral. It’s taken into consideration, but it’s not a limitation off the top.
I really like that word “inform,” and we could put it in your amendment by saying the manner in which relevant factors, including social, health, scientific and economic factors, may inform the application of that right.
Senator Dalphond: I should say that this new provision provides, first, 5.1(1) that the minister has to develop an implementation framework. Subparagraph (2) says that the implementation framework shall, among other things, elaborate on. We have already a non-exclusive list.
Then what is being proposed here is to add into subparagraph (c) — that was changed incidentally from the beginning — to become “the reasonable limits to which the right is subject” to have some resulting consideration for relevant factors, including social health, scientific and economic factors.
I agree with Senator Sorensen that there’s no problem to mention economic factors because the list here is not exhaustive. This paragraph is non-exhaustive in a list which is non-exhaustive, so it becomes indicative. Let’s be honest, the reality is that this is a factor that is going to be considered anyway. So why hide it from the public? I prefer to have transparency here and have it spelled out instead of having a sentence that looks neutral but hides reality.
The Chair: I’m going to proceed. I want to make it very clear. We’re proceeding, first, with the subamendment of Senator Miville-Dechêne.
Senator Miville-Dechêne: The one I just formulated?
The Chair: No, the one I have in writing in French and English. That’s the only one we have.
Senator Miville-Dechêne: Obviously, I didn’t do that right. But I want to introduce the idea to take away the limit and I would introduce this subamendment to replace mine, which would be, “the manner in which relevant factors, including social, health, scientific and economic factors, may inform the application of that right.”
So we would stay with the four criteria the government wants, but we would talk about being informed and not mention the reasonable limits.
The Chair: Would you read that over again for all of us very slowly?
Senator Miville-Dechêne: Yes. “The manner in which relevant factors, including social, health, scientific and economic factors, may inform the application of that right.”
I will say it in French.
[Translation]
la manière dont les facteurs pertinents, incluant les facteurs sociaux, de santé, scientifiques et économiques peuvent éclairer l’application de ce droit.
The Chair: Can you repeat it in English?
Senator Miville-Dechêne: Absolutely.
[English]
The Chair: The manner in which relevant factors, including social, health, scientific —
Senator Miville-Dechêne: Including social, health, scientific and economic factors —
The Chair: — may inform the application —
Senator Miville-Dechêne: May inform the application of that right.
The Chair: Period.
Senator Miville-Dechêne: Period, that’s it.
The Chair: Are we all understanding what is being suggested here?
Senator Kutcher: Point of order, chair.
I have concerns that we’re creating amendments on the fly, again, without having a chance to receive them, cogitate on them, understand the impacts of the amendments, think them through carefully. This is a problem. It has been a problem in this committee. This continues to be a problem.
The Chair: I appreciate that fact. It is our responsibility to ensure that everybody understands what the amendments and what the proposed amendments are going to be because that is what we are going to vote on.
We’ve been tolerant to accept a certain level of amendments at the last minute, but only when it’s been pretty simple and people understand them. So if you’re not comfortable with the presentation, we can stand on those words and allow Senator Miville-Dechêne to present us with a written subamendment.
Let’s vote on that. The idea is to vote on the subamendment, right.
Senator Patterson?
Senator Patterson: I’m okay with that. I’m not going to support it, but I am okay with —
The Chair: How about the rest of you? Are you comfortable that we understand what is being proposed by Senator Miville-Dechêne?
Senator Galvez: Yes.
The Chair: On the subamendment.
Senator Seidman: Which one? We are voting on the subamendment to the subamendment?
The Chair: The one she gave us and the one which we wrote out. We can repeat it to you.
Senator Seidman: Excuse me. I just want to be clear because we’re not voting on the subamendment. We are voting on a subamendment to the subamendment to the amendment. Let’s be really clear what we are doing here.
I sort of agree with Senator Kutcher that we’re making amendments on the fly. We never know the possible unintended consequences it has from a legislative viewpoint. The law clerks have worked assiduously trying to get these amendments together for us, and then we take them apart and reassemble them while we’re sitting here. I really think that does a huge disservice to the legislative process.
That’s my speech for this morning.
Chantal Cardinal, Clerk of the Committee: We’re voting on the subamendment to Senator Kutcher’s amendment. That is what it is.
The Chair: Is that clear? In other words, the subamendment as we have it in writing is what we are going to first vote upon.
Senator Miville-Dechêne: We can continue in the amendments and, when it is written, vote on it?
The Chair: The people will speak and our committee will decide.
Senator Miville-Dechêne: I would appreciate having a written subamendment and then we could vote on that.
The Chair: Senators, what is your sense? Should we punt on the issue? Should we stand on the issue? Should we vote on the original subamendment?
Senator Galvez: Senator McCallum has her hand raised.
Senator McCallum: I wanted to hear again what we are voting on.
The Chair: If you look at the comment — the one page we got from Senator Miville-Dechêne, which I think everybody has received — which amended paragraph (c) and that was a subamendment changing the amendment by Senator Kutcher.
Senator McCallum: Okay.
The Chair: Does everybody agree to a vote on that subamendment?
Senator Gold?
Senator Gold: I was going to propose that we vote on the subamendment.
The Chair: Exactly. We’re voting on the subamendment. You all have a copy of it. You know what we are talking about.
Those in favour of the subamendment, as presented, please raise your hands.
Those against, please, thumbs down.
It’s refused.
Now let’s proceed to the amendment proposed by Senator Kutcher. He’s made his arguments. I think we understand very clearly what his intent is. I propose we vote on it immediately. We all received a copy. It’s 16(b) of the chain.
Senator Galvez: Chair, I have a question on the amendment given the comment of my colleague, ex-judge Senator Dalphond. What he said is really important. I understand that it is under a subsection that says that, among other things, we’re going to do that. But we need to be clear.
In studying for this, I read a lot about other rights. There was this issue when, if this is not clear enough, we go to court and we say you are infringing my right to a healthy environment, and making the parallel to somebody going to court and saying you’re infringing my right to freedom of religion.
There is no way in court that somebody is going to say that there are social or economic limits to restrict the freedom of religion. I just want to understand how this is going to play out if eventually somebody goes to court and claims this situation?
Senator Gold: Chair, it’s Senator Gold. You’ve called the question. This question has been raised before.
With all respect, I think it’s time to proceed with the vote, as you have already decided.
The Chair: Does everybody agree?
Let’s proceed with the amendment proposed by Senator Kutcher. All in favour of that amendment, please raise your hand.
All those against, thumbs down.
So adopted.
Senator McCallum, we will now look at your two amendments that were stood, S-5-5-4-9a as well as S-5-5-4-9.
Senator McCallum, how would you like to proceed with your amendments?
Senator McCallum: I had withdrawn these to accommodate what had been voted for because I had withdrawn them, but we never went on to make sure that those two were in line with what we had voted for.
The Chair: We can withdraw those two, am I correct?
Senator McCallum: I had withdrawn them, but we did not clean up the language. We need to go back and make certain that the language in those two goes with the language that we just —
The Chair: Could you do that? I think that’s for you to do, senator. If you think that the wording —
Senator McCallum: Okay, I need from the law clerk what the wording was for 13a. Sorry.
The Chair: S5-5-4-9-a.
Senator McCallum: Yes, but 13a — which was voted on and carried — that is the language that should go into 9a and 9. That’s what I’m saying. That the language is the same for all of them.
The Chair: The other legislation was passed, so it’s kind of hard to go backwards. We would have to ask for leave.
Senator McCallum: No, I’m not asking for leave. I’m trying to say we need to look at 9a and 9 to make sure that they’re in line with what was voted on because they’ll be different. Do you know what I’m saying?
The Chair: Well I know what you’re saying, but I’m not sure how to get there because we did pass amendments to it. Your suggestions were in duplication, so we decided to stand on your two amendments. To go back and change legislation which we already approved is a bit of a stretch.
Senator McCallum: I’m not asking that we go back. I’m just asking that it’s clear —
The Chair: So I think, if you wanted to, what is being suggested by the clerk is to maybe ask our legal department to review that, and if you have something significant, I would suggest you raise it at third reading in the Senate. This way everybody will be comfortable that it’s safe and consistent with your wishes.
Senator McCallum: No, that it’s safe and consistent with what has been voted for. That’s what I’m looking at. Thank you. That was it.
The Chair: We’ll withdraw those two at this point.
So if I can ask this, can clause 5, as amended, carry? Carried? Anybody against? None.
Now let’s go to the new clause 10.1. Senator Patterson would like to propose an amendment to the new clause, 10.1. Clause 10.1 had been adopted at a previous meeting.
Is it agreed that we revisit this clause? All those in favour, please raise your hand? Okay, if yes, I will invite Senator Patterson to read out his amendment.
Senator Patterson: Thank you, Mr. Chair. I appreciate being able to review 10.1. I think at the beginning of our consideration of this bill, we had agreed that there should be an opportunity to consider amendments. It doesn’t mean we go back through every vote. But I think we might have anticipated the possibility of unintended consequences to amendments — well I should move the amendment, I suppose, first.
So this is DGP-S5-10.1. Is that clear to everyone?
The Chair: We all have a copy.
Senator Patterson: Thank you. I move:
That the motion in amendment be amended by replacing the proposed text of the portion of subsection 56(1) before paragraph (a) with the following:
“56 (1) The minister may”.
And may I explain that, Mr. Chair?
The Chair: Please do.
Senator Patterson: So the word “may” would replace “shall” and the reason for that is that this amendment of Senator Miville-Dechêne, the one we’re reviewing now, would oblige the minister to require pollution prevention planning from any person who releases, manufacturers or imports a substance listed in Schedule 1 of the Canadian Environmental Protection Act. The substance management in Schedule 1 — and there’s a big list of them — includes dust and carbon dioxide. There are pages of substances listed. But the reason for those substances in Schedule 1 is that they’re designed to enable the federal government to tackle a wide range of potential harms to the environment and human health.
When you put a substance in Schedule 1, it triggers several Canadian Environmental Protection Act authorities ranging from the ministers having the authority to compel the generation of information to banning the manufacture, import and use of a substance in between our authority to compel pollution prevention planning, regulation and selective restrictions. So the choice of instrument is broad in recognition that the most effective and efficient tool will be different in every case.
Some of the substances are innocuous, like carbon dioxide and dust, and even beneficial, but when released in large volumes in some circumstances, they can cause harm. For example, Schedule 1 includes carbon dioxide; nitrous dioxide, which is released from gas stoves, internal combustion engines and wood fires; ammonia dissolved in water, which is included in farm runoff and municipal waste water; dust, they call it particulate matter less than 10 microns; and plastic manufactured items. As well methane, which we know comes from cattle, pigs and horses.
My point, Mr. Chair, is that requiring pollution prevention planning, the word “shall” orders. For example, plastic manufactured items would target not only shopping bags and disposable straws, it would capture a multitude of everyday objects, manufactured or imported. Some can be made from other materials, but not necessarily.
I’ll just give a quick example. Light switch plates are made of plastic, they’re long lasting and not an important source of plastic pollution. Alternative materials can be used, but probably not at a lower or financial cost. What would be the value of forcing plastic light switch plate manufacturers to consider closing or retooling to produce using other materials? So just that one substance would probably require every manufacturer and importer in Canada to prepare, submit and implement a pollution prevention plan. It would apply to farmers creating dust on their farms; construction sites creating dust.
My point is, Mr. Chair, we can fix this easily by making it a “may” rather than a “shall.”
I have discussed this with members of the committee, and I understand there have been concerns even expressed to the minister from the agricultural sector and from the Mining Association of Canada, and I’m referring to those concerns in making this amendment. Thank you.
Senator Miville-Dechêne: Thank you, Senator Patterson, for your explanations. Obviously to take away the “shall” and bring back the “may” brings us back to the original text, so it means getting rid of the amendment. In a few words, I want to remind you why I made this amendment.
It’s about an approach to pollution. Do we want to tackle pollution at the source through prevention and substitution of toxic substances, or do we want to deal with it later through containing or mitigation measures?
We know, since 1995, that the chamber of commerce in those different reports have said pollution prevention planning is the foundation of the pollution prevention approach. It’s a systematic, comprehensive method of identifying options to minimize or avoid the creation of pollutants or waste associated with many types of public and private sector activity.
More to your point Senator Patterson, I see no reason to believe that requiring pollution prevention plans for toxic substances in Schedule 1 would lead to indiscriminate or absurd results. The government has all the tools to target the appropriate sources and uses of toxic substances and can provide appropriate guidance. The idea that everyone who breathes or owns a wood stove would suddenly be subjected to P2 — that’s what the pollution plans are called — is a scare tactic, not a serious argument.
First, as the government itself indicates on its website, P2 plans could minimize the need for additional regulatory or other government intervention.
Indeed, P2 plans give businesses considerable latitude in devising their own approaches and are not as heavy-handed as regulation. As long as they meet the objectives, businesses have months to prepare plans that are adapted to their operation.
Second, I think we should see this amendment as a business opportunity. In Massachusetts, where the government introduced the Toxics Use Reduction Act in 1989, the results have been spectacular — not just for people and the environment, but for business as well. In a report, it was found that Massachusetts companies reduced toxic chemical use by 66%, by-products by 72% and on-site release by 92% between 1990 and 2016. The savings in operating costs generated from the implementation of toxic use reduction projects was estimated to be approximately $4.5 million annually.
The world is changing. Sooner or later, all businesses will have to be sustainable and non-polluting if they want to survive. We should see P2 plans as a way to nudge businesses in the direction of a cleaner and more sustainable future.
I also received the same representation as you did. We did quite a lot of research before presenting this amendment, and I think that the “may” will weaken the amendment. The “shall” will give greater authority to the government to ask the pertinent companies to have a pollution prevention plan.
Senator Patterson: I don’t want to make too much of this, but there is a rule in the Senate against imputing motives to senators. I would ask, respectfully, that the senator withdraw her comments speaking to the amendment and that my amendment was a scare tactic. That’s what I wrote down.
Senator Miville-Dechêne: No. I said that the idea that everyone who breathes or owns a wood stove would suddenly be subjected to P2 plans is a scare tactic. This is what we heard from a stakeholder. I didn’t say it came from you; absolutely not.
Senator Patterson: Yes. Thank you for that clarification.
Senator Seidman: I think you know, Senator Miville-Dechêne, the preventative approach is what we should always strive for. I think that’s why your amendment received so much support from this committee. There is no question in my mind about that. However, I will return to what Senator Galvez has reminded us many times — and I think we are being a victim of that here.
We are rushing through this like crazy, and we are receiving amendments that we have never really discussed at committee. We have never really heard proper witness testimony about this. We have never had time to really properly study. I think this is one of those.
If you don’t take the time necessary to consider them, they can have unintended consequences. What we’re hearing from Senator Patterson right now is exactly that — that they will likely have ripple effects and unintended consequences since we needed more time to consider this amendment properly and to hear necessary witness testimony. I’m sure you researched this and you have witness testimony. You have stakeholders you spoke to, and I appreciate that. However, the committee hasn’t. We haven’t discussed this particular amendment and the kind of impact and unintended consequences it could have.
Frankly, I would err on the side of caution and the cautionary approach that Senator Patterson is proposing because that is what he is intending to do here. He’s saying it’s a noble cause. Being preventative is a noble cause. We should all strive for that in many different areas — in the environment, in the health field, everywhere. But we have to be so careful that what we’re doing isn’t going to have a negative consequence.
I will support Senator Patterson’s amendment for that reason, not because I think that your attempt is the wrong one.
Senator Miville-Dechêne: The Canadian Environmental Law Association did testify to that effect.
Senator Dalphond: I agree with Senator Miville-Dechêne that “may” and “shall” have different meanings and consequences. There is no doubt about that.
My question is for the officials. I understand there are many ways to tackle risk and risk assessment, but how many P2s are in place now and how many will have to be in place if the word “shall” remains? I understand there may be 400, but I would like to hear from officials. What does it mean for the department when a party is asked to submit a P2P? What is the internal process? You have to review it, I suppose. How many do you do now, and how many would you do if the amendment is carried? I just want to understand the impact of what we’re trying to do.
Mr. Moffet: So three questions there. How many pollution prevention planning notices have ministers issued under Canadian Environmental Protection Act? The answer is about 20 so far. We have done very careful work to assess the effectiveness of those and have determined that they have been effective in each case that they’ve been issued, but they’ve only been issued in selected circumstances.
What is the actual implication of issuing a plan? The minister issues a notice. The notice identifies who must prepare a plan, and the notice also identifies the factors that the plan must address, for example, toxic substance X, emissions of toxic substance X, creation of toxic substance Y, et cetera.
The law does not allow the minister to say, “And the plan must succeed in reducing emissions.” Instead, the premise of this set of provisions is to require companies to turn their attention to the issue, and to identify and give companies the opportunity to identify ways to reduce or prevent the creation of the substance.
In that regard, this is only one of many tools in the act to prevent pollution. It is perhaps unfortunate that it is the only tool that is called pollution prevention, but every tool in the act, including regulations — and, in particular, including prohibition regulations — can be designed and are designed to prevent pollution, not just to limit pollution after a substance has been used. Indeed, I think it is arguable that the most preventative measures we can take is to prohibit the use of a substance. So we have at least as many prohibition regulations as we do pollution prevention notices. That’s why we relied on the discretionary authority, so that ministers can choose the appropriate tool in the appropriate circumstance.
Senator Dalphond: I understand that, Mr. Moffet. What would be the consequence of “shall” from the 20 so far? You will be moving to what?
Mr. Moffet: The answer to that is twofold.
There are two parts to this amendment. The first is the identification of every person or group of persons that manufactures, uses, et cetera, the substance; the second is to prepare the plan.
It is clear that the minister would have to identify every person or group of persons that manufactures, imports, processes or releases a toxic substance. That exercise would have to be done for every single toxic substance on the list of toxic substances — a list that grows regularly every year — an exercise that may not be necessary in order to, for example, simply go to a decision to prohibit a substance.
We don’t need to know exactly how many people use a substance if the decision is that the substance is so bad that it should be prohibited.
The second part of the amendment, then, says that the ministers shall issue notices. However, it’s not clear whether the obligation would be to require every person that was identified in the first part of the amendment or whether there would be discretion on the minister to continue to exercise discretion to determine who should receive that notice.
If the obligation is for every user identified to prepare a pollution prevention planning notice, then indeed we would have tens of thousands of notices required. Again, I think the legal obligation in the amendment is actually somewhat ambiguous.
The Chair: There are no other comments, so we’ll proceed with the question.
It is moved by the Honourable Senator Patterson that Bill S-5 be amended in clause 10.1 by replacing the proposed text of the portion of subsection 56(1) before paragraph (a).
Is it your pleasure, honourable senators, to adopt the motion in amendment? Those in agreement, raise your hand. Those against, thumbs down. So carried.
Shall clause 10.1 as amended carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by the committee, including updating —
Senator Galvez: Chair, at what point are we doing observations?
The Chair: Afterwards. I haven’t forgotten.
— Cross-references and renumbering of provisions? Agreed?
Hon. Senators: Agreed.
The Chair: Does the committee wish to consider appending observations to the report?
The answer is yes, I believe. Do you want to do the observations in camera? The answer is yes.
Rule 12-16(1)(d) allows us to go in camera to discuss a draft report. As a consequence, we will do so.
Is it agreed that the committee allow the transcription of the in-camera portion of today’s meeting, that one copy be kept with the clerk of the committee for consultation by committee members and/or staff and that the transcript be destroyed by the clerk when authorized to do so by the subcommittee on agenda and procedure, but no later than at the end of the parliamentary session?
(The committee continued in camera.)