THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Thursday, June 16, 2022
The Standing Senate Committee on Energy, the Environment and Natural Resources met with videoconference this day at 9 a.m. [ET] to study Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.
Senator Paul J. Massicotte (Chair) in the chair.
[Translation]
The Chair: My name is Paul Massicotte. I am a senator from Quebec and the chair of this committee.
Today, we are holding a hybrid meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
I would like to introduce the committee members who are participating in today’s meeting: Margaret Dawn Anderson from the Northwest Territories; Claude Carignan, P.C., from Quebec; Marc Gold, P.C., from Quebec; Rosa Galvez from Quebec; Stanley Kutcher from Nova Scotia; Mary Jane McCallum from Manitoba; Julie Miville-Dechêne from Quebec; Dennis Patterson from Nunavut; Don Plett from Manitoba; Raymonde Saint-Germain from Quebec; Judith Seidman from Quebec; Karen Sorensen from Alberta; Josée Verner, P.C., from Quebec.
We have with us today 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; and Philippe Giguère, Manager, Legislative Policy, Environmental Protection Branch. We also have a representative from Health Canada, Greg Carreau, Director General, Safe Environments Directorate. Good morning, colleagues.
As we have all learned, Senator Galvez, a member of our committee, participated in three meetings from abroad last week on the following dates: Tuesday, June 7, at 9 a.m. and 6:30 p.m., and Thursday, June 9, at 9 a.m.
Pursuant to the motion passed in the Senate on November 25, 2021, and extended on March 31, 2022, and May 5, 2022, senators are prohibited from participating in our meetings by video conference from outside Canada.
In order to avoid questions related to decisions made by the committee during these meetings, the Subcommittee on Agenda and Procedure met this week to come up with a plan to move forward with the conclusion of our report on Bill S-5 for presentation to the Senate.
To assist committee members with this process, you have now received the transcripts of these three meetings, as well as the roadmap that shows the amendments in the order they were proposed to the committee.
To avoid a point of order in the Senate with respect to these three meetings, it is suggested that the committee reconsider certain amendments, which is permitted under rule 10-5 of the Rules of the Senate.
Therefore, the Subcommittee on Agenda and Procedure recommends that the committee vote on each of the amendments and clauses adopted during the three meetings last week.
Therefore, to avoid any questions that may be raised with respect to Senator Galvez’s participation from abroad last week, and pursuant to rule 10-5 of the Rules of the Senate, which states that any senator may move reconsideration of a clause of the bill that has already been approved and of a bill that is still under consideration, I propose that the committee proceed to reconsider each of the amendments and clauses adopted last week, with each clause to be introduced by the chair in the same order.
Is it the pleasure of honourable senators to adopt the motion? All those in favour of this motion must raise their hand. All those opposed to this motion must give a thumbs down.
I note that all the senators voted in favour of the motion, so the motion is carried.
I will describe how we should proceed this morning.
[English]
As is quite standard, we will take one proposed amendment at a time. We will ask the sponsor of the amendment to briefly describe the purpose of the amendment and what it attempts to achieve. We’ll have a debate, and then we’ll have a vote.
I remind all of you that we’ve had ample hours of debate on each item. Obviously, we voted and now we want to redo our steps. Please be considerate in your comments. It’s likely that not much use will come out of it, but we need to allow the debate. If you could be short, sweet and brief, that would be appreciated. Stick to the subject, please, or I’ll have to summon you, and I prefer not to do so.
Having said that, we’ll follow the same process: Those in agreement will put their hands up, and those not in agreement will show a thumbs down.
Let us proceed with the road map, and basically take it up where we left off a week and a half ago. We are at number 33 on the road map, which is basically our agenda; we had a proposed amendment by Senator Patterson.
Senator Patterson, I’ll throw you the ball. Could you briefly describe the amendment and its purpose? Obviously, we may have some questions. Don’t feel guilty if you don’t cover the same territory as you did last time. We have probably heard it all.
Senator Patterson: Thank you, Mr. Chair. I move:
That Bill S-5 be amended in clause 20,
(a) on page 13, by deleting lines 25 to 34;
(b) on page 14, by deleting lines 1 to 8.
Mr. Chair, we heard from industry witnesses that the watch list was somewhat redundant; the suggestion from industry was that the watch list was unnecessary.
If the government wants to send a message to industry about the use of a substance and to warn against it, a Significant New Activity Notice accomplishes this task nicely. We know that the Significant New Activity Notices, fondly described as SNAcs, and the process are working, according to our Chemistry Industry Association of Canada witnesses who have worked very closely with the department on this bill.
Mr. Moffet, whom we all have relied on extensively in these hearings, did acknowledge that there is some duplication in the language regarding this watch list and Schedule 1. He said there is some overlap in the language, so I found his answer about the bureaucratically involved process of clarifying why a substance goes on the watch list versus Schedule 1 to be convoluted and time and resource intensive. That amendment aims to delete all of the proposed new lists of the government as being unnecessary and duplicative.
The Chair: Are there any questions?
Senator Kutcher: As before, the government opposes this amendment. We did hear testimony that was confusing. I want to clarify that the watch list is an early warning system where a substance may one day meet CEPA definitions of toxicity. It’s not a regulatory list. It lets chemical users know they should avoid substances where possible, rather than face regulatory restrictions later.
It’s an elegant way to get rid of the toxics guide and avoid regrettable substitutions, and an SNAN, as Senator Patterson pointed out, is a regulatory instrument issued after assessing a substance. The officials clarified that for us. They don’t serve the same function as a watch list; the watch list identifies chemicals that may become toxic and tells the industry to watch out and to not use them.
I would suggest we vote against this amendment.
The Chair: Are there any other questions or comments?
It was moved by Senator Patterson:
That Bill S-5 be amended in clause 20,
(a) on page 13, by deleting lines 25 to 34;
(b) on page 14, by deleting lines 1 to 8.
All those in favour of the proposed amendment, please raise your hand; all those against the motion, please raise your hand. The motion is defeated.
Now, we will move on to the next item on our road map, which is number 34. Senator Patterson, you had proposed an amendment but withdrew it. Does that proposed amendment remain withdrawn?
Senator Patterson: Mr. Chair, for the record, please, could you give the result of the vote on my previous amendment? What was the result of the vote?
The Chair: It was overwhelmingly negative, but we didn’t take note of the exact —
Senator Patterson: I don’t need the numbers. Now that you say on the record that the motion is defeated, it makes my next proposed amendment — number 34 on the road map, which was related to the previous amendment — unnecessary, so I withdraw the motion listed as number 34.
The Chair: Thank you, Senator Patterson.
Now, we go on to item 35, an amendment proposed by Senator Kutcher in article 20. Would you mind describing briefly the amendment, senator and why you proposed it?
Senator Kutcher: Certainly. I move:
That Bill S-5 be amended in clause 20, on page 14,
(a)by adding the following after line 3:
“(3) The Minister shall delete a substance from the List, as well as any information regarding the substance that is specified on the List, if an order is made under subsection 90(1) adding the substance to the list of toxic substances in Schedule 1.”;
(b)by replacing line 4 with the following:
“(4) The Minister shall publish the List and any amend-”;
(c)by replacing line 7 with the following:
“(5) The List is not a statutory instrument as defined in”.
Colleagues, this allows the government to remove substances. It’s a pathway off the list and would just clarify one way that a substance could come off the watch list. I would urge that we accept this amendment.
The Chair: Are there any comments? If there are no questions or comments, I won’t reread the motion. I think everyone was attentive to what he said. I ask all those in favour of the motion to please raise your hands; all those against the motion? Carried.
Now we move on to the next item, which is item 36 on our road map. Senator Galvez recommended an amendment, so I’ll leave her to describe why.
Senator Galvez: I move:
That Bill S-5 be amended in clause 20, on page 14,
(a) by replacing lines 14 to 16 with the following:
“Minister shall inform the person who filed the request whether the request is granted or denied and provide the reasons for that decision.”;
(b) by adding the following after line 18:
“(4) An assessment granted under subsection (2) must be
(a) initiated no later than six months after the day on which the person who requested the assessment was informed of the decision; and
(b) completed no later than two years after the day on which it was initiated.”.
If you will recall, (b) was taken out, so it is just like that, and this amendment aims to increase effectiveness and clarity with respect to the demands on information, the request to the minister to assess a substance, whether the request was granted or denied and providing the reasons for granting or denying the request.
The Chair: Senator Galvez, that was the principal motion, the principal amendment, correct?
Senator Galvez: Yes.
The Chair: I forget who recommended the subamendment.
Senator Galvez: I did. That’s why I only read (a).
The Chair: So you subamended your own resolution?
Senator Galvez: Yes.
Senator Kutcher: The government opposes this amendment on the grounds that it creates timelines that may be impossible to meet. I’ll remind the committee of testimony we heard from John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada:
. . . the concern about completing an assessment, in most cases, two years seems like a reasonable timeline for an assessment, but in some cases assessments can take longer than that, and putting in a timeline could result in one of two consequences that would be undesirable. The first is that we would have to defer assessments that might be of a higher priority — a higher significance for Canadians or their environment — and the second is that we would have to circumscribe the scope of the assessment in order to complete it within two years.
Putting things off indefinitely is not what we desire. . . . however . . . they’re not always possible to meet. If they’re law, then they might require essentially cutting corners or displacing other priorities.
I would urge senators to vote against the amendment.
The Chair: Are there any other comments or questions on this motion?
Senator Galvez: That was the explanation that Senator Kutcher gave, and that’s why I removed the part where we talk about the three years, so that part is out now.
The Chair: Is that clear to everybody? Let us proceed to a vote on the subamendment, obviously. If I can ask Senator Galvez to read the subamendment.
Senator Galvez: The subamendment proposes:
That the motion in amendment be amended by deleting the words “(b) by adding the following after line 18:” and by deleting the subsequent proposed text.
Senator Kutcher says two years is too short, so I removed that, so the subamendment says to take away line (b).
The Chair: Is that clear, Senator McCallum? Let’s vote on the subamendment. All those in favour of the subamendment, please raise your hands. We’re talking about the subamendment. All those against the subamendment, please raise your hands. It is defeated.
Let’s now vote on the amendment. Do you have any additional comments, Senator Galvez? If not, let’s proceed to vote directly on the amendment.
All those in favour of the amendment, please raise your hands. And all those against the amendment, please raise your hands. It is defeated.
Let’s go to item 37 on the road map. Again, Senator Galvez has a proposed amendment.
Senator Galvez: This concerns vulnerable ecosystems. I move:
That Bill S-5 be amended in clause 20, on page 14, by replacing lines 31 and 32 with the following:
“any vulnerable population or environment in relation to the substance and on the cumulative effects on human health and the environment that may result from expo-”.
This was for clarity. We’re saying we’re talking not only about vulnerable populations but also vulnerable environments such as, for example, the Arctic or some parts of the St. Lawrence, or coastal erosion areas. For clarity, I added the words, “vulnerable populations or environment.”
Senator Kutcher: I’m a bit confused. My memory was the initial amendment said “ecosystem” and that we would support it if it said “environment.” I couldn’t quite hear. I had the original.
Chantal Cardinal, Clerk of the Committee: That’s what she just read out. There was the original, and then she had changed it to “environment” instead of “ecosystem.”
Senator Kutcher: I wanted to make sure it wasn’t the original one we were voting on.
Ms. Cardinal: The amended one, yes.
Senator Kutcher: The amended amendment. Good. Thank you.
The Chair: Are there any other questions or comments? If that’s the case, let us vote on the amendment as proposed.
All those in favour, please raise your hands; all those against, thumbs down. Carried.
Next is item 38.
Senator Galvez: That was Senator Kutcher’s; it was withdrawn.
The Chair: That is correct. Are you still okay with the withdrawal of your earlier amendment, Senator Kutcher?
Senator Kutcher: We’re not moving that, chair. Thank you.
The Chair: Next up is item 39a. Are you withdrawing that one, Senator Galvez?
Senator Galvez: I am not moving that one, either. I have withdrawn it.
The Chair: Okay, done. We’re at item 40. Senator Patterson, are you withdrawing this one?
Senator Patterson: Yes, Mr. Chair. I withdraw number 40 because it was consequential to a defeated amendment. Thank you.
The Chair: Good enough.
Item number 41 is Senator Kutcher’s.
Senator Kutcher: Thank you very much, Mr. Chair. I move:
That Bill S-5 be amended in clause 21, on page 16,
(a)by replacing line 6 with the following:
“(i) is inherently toxic to human beings or non-human organisms, as determined by laboratory or other studies,
(ii) is persistent and bioaccumulative in accordance”;
(b)by replacing line 8 with the following:
“(iii) is present in the environment primarily as a re-”;
(c)by replacing lines 10 to 16 with the following:
“(iv) is not a naturally occurring radionuclide or a naturally occurring inorganic substance;
(b) the substance may constitute a danger in Canada to human life or health and is, in accordance with the regulations, carcinogenic, mutagenic or toxic for reproduction; or
(c) the substance is, in accordance with the regulations, a sub-”.
I think it’s pretty self-evident.
The Chair: Are there any questions or comments on Senator Kutcher’s proposed amendment? If that is the case, we’ll vote.
All in favour of the amendment, please raise your hands; all those against? Adopted.
Items 42, 43, 44 and 45 are all from Senator Galvez. Do you withdraw those four, Senator Galvez?
Senator Galvez: Yes.
The Chair: So 42, 43, 44 and 45 in the road map are withdrawn?
Senator Galvez: Yes.
The Chair: In item number 46, Senator Kutcher has recommended an amendment.
Senator Kutcher: I move:
That Bill S-5 be amended in clause 29, on page 21,
(a)by replacing lines 15 to 17 with the following:
“Schedule 1, the Ministers shall give priority to pollution prevention actions and, in particular, in the case of a substance specified in Part 1 of the list of toxic substances in that Schedule, to the total, par-”;
(b)by replacing lines 20 to 26 with the following:
“the environment.
(1.2) For the purposes of subsection (1.1), the Ministers shall, in respect of a substance specified in Part 1 of the list of toxic substances in Schedule 1, consider whether the activity or release can be un-”.
I think, senators, that this is self-evident as well.
The Chair: Are there any comments or questions related to Senator Kutcher’s proposed amendment? If not, those in favour, please raise your hands; those against, thumbs down. So adopted.
In item number 47, Senator Patterson had recommended a motion.
Senator Patterson: Thank you, Mr. Chair. I can’t put my finger on the amendment. Could the clerk kindly read out the amendment? Then I’ll briefly explain the rationale.
The Chair: Sure.
Ms. Cardinal: It was moved by the Honourable Senator Patterson:
That Bill S-5 be amended on page 28 by adding the following after line 14:
“39.1 (1) Subsection 106(1) of the Act is amended by striking out “and“ after paragraph (a) and by adding the following after that paragraph:
(a.1) where the living organism is an animal having a wild counterpart, the information provided shows a demonstrable need for the living organism and that the living organism is not toxic or capable of becoming toxic; and
(2) Subsection 106(4) of the Act is amended by striking out “and“ after paragraph (a) and by adding the following after that paragraph:
(a.1) where the living organism is an animal having a wild counterpart, the information provided shows a demonstrable need for the significant new activity involving the living organism and that the significant new activity does not render the living organism toxic or capable of becoming toxic; and
(3) Section 106 of the Act is amended by adding the following after subsection (8):
(8.1) Despite subsection (8), if the living organism is an animal having a wild counterpart, the Ministers must provide
(a) a public notice of the request for a waiver; and
(b) opportunities for members of the public to participate in the assessment.”.
The Chair: Senator Patterson, do you want to explain why you’re recommending this amendment?
Senator Patterson: Yes, thank you, Mr. Chair. This amendment requires the minister to provide increased opportunities for public participation and was subamended to change “opportunity” to the plural “opportunities.” It also aligned better with the French version.
I think we’re all aware of the story of the witnesses from Nature Canada about genetically engineered salmon species being released into the wild without anyone being aware of it. I was gratified that the committee supported the amendment when we considered it on June 7. Thank you.
The Chair: Senator Patterson, as you certainly recollect, we amended your original motion. Did you propose the subamendment?
Senator Patterson: Yes. I believe it was carried as amended.
The Chair: I’m being told it was actually Senator Galvez who proposed the subamendment.
Senator Galvez: Yes. I supported the global idea because of — never mind. That is another one, okay.
The Chair: So, the subamendment was proposed by whom?
Ms. Cardinal: It’s not on this one, it’s the next one.
The Chair: Are there any questions from anyone?
Senator Kutcher: Although we recognize the importance of this issue, the government opposes this motion. The committee heard insufficient testimony to allow us to study this very important issue. I would submit that although it is very important, we did not have an opportunity to delve into the science or the other important aspects of this particular issue. We also didn’t learn about what else was going on with government. As I said before, we just learned that Environment and Climate Change Canada and Health Canada have now initiated a comprehensive review of New Substances Notification Regulations related to organisms, which are part of the regulations that implement part 6 of CEPA.
As such, changes to these regulations will be examined closely during that review and it would be premature to propose amendments to this part of the act before those in-depth consultations and subsequent regulatory modernization initiatives have been thoroughly studied and run their course. I would ask officials, as I did last time, if they could comment on this particular issue again, please.
Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environment and Climate Change Canada: As Senator Kutcher has said, there are three things in here: transparency, participation and evaluating a substance for need. I think the consultations that will happen on the regulations that are made under this part to deal with regulating living organisms will address at least some of these issues, and then there will be an opportunity to get input.
In terms of evaluating the need, I suppose we’ve been thinking about the implications of that, and it’s hard to know what a need is. This is a risk-based system and we’re not aware of other jurisdictions that have that kind of an evaluation in the regulatory process. I’ll turn to Ms. Gonçalves to see if she has more to add.
Jacqueline Gonçalves, Director General, Science and Risk Assessment, Environment and Climate Change Canada: Thank you, Laura. I think you’ve covered off the issue quite well. Just to reiterate, the current regulatory system focuses on assessing risk of any new organisms. That is the basis of the current system. As Laura mentioned, there is work under way to proceed with an extensive review and also to conduct public consultations on this issue. That will be happening in the very near future.
Senator Galvez: Thank you, Senator Kutcher, for saying this is a very important issue and for saying that we didn’t hear enough about it.
Genetically modified organisms are now everywhere in agriculture, such as on farms, in corn, for example. Now we are moving into genetically modified fish and aquaculture in open oceans where the risk of impacting the wild species is there. This has been known for a while. It has not been quantified or even qualified, but it’s there. It’s not completely true that there are not jurisdictions that are not doing this because, for example, two important jurisdictions that are moving with this are Mexico — which is studying the impact of genetically modified corn on wild corn — and India, which has forbidden some genetically modified seeds because of the impacts on the natural rice that they have.
What I want to say is that the last time this amendment carried — I understand that today there are people who were not there during the last vote, and so we don’t know what’s going to happen with this amendment. But if it is defeated, I strongly recommend Senator Patterson put in an observation on this very important topic.
Senator Patterson: Look, the system is not working now. A genetically engineered salmon species was developed and allowed to be placed in a salmon farm on Prince Edward Island, and no one in the environmental community knew about it. The senior adviser with Nature Canada spoke of the risk to wild salmon and the implications for Indigenous peoples’ rights that such a species could have. The officials said that it would be a new concept of demonstrating need.
Let me be very clear: The amendment simply proposes — and this was a recommendation from Nature Canada — that a proponent must demonstrate that a living organism that has a wild counterpart can be used safely; otherwise, its development, manufacture, import or use is prohibited. The amendment simply proposes that the proponent should have to demonstrate that the new living organism is needed when there is a wild counterpart.
I was gratified to receive support from the committee when we last considered this. I know the officials are saying, “Trust us, we’re going to study this and we’re going to consult.” I think the fact that this genetically engineered version of an iconic species, namely Atlantic salmon, has been allowed to be produced. Its existence in an Atlantic fish farm shows that we need to act urgently to address this. That’s why the amendment was put forward. Thank you.
Senator Kutcher: With all due respect, while I think this is a very important issue, we did not study genetically modified organisms. I would like to read into the record Mr. Moffet’s comment from last time.
This amendment would inject one particular rule without the benefit of articulating an overall approach to the management of living organisms.
I think that we may inadvertently do things that we would regret later, and I would urge us all to vote against this amendment.
The Chair: Are there any other questions or comments before we go to a vote?
Senator Galvez: It’s true that we could have heard more, but we received briefings. I confirmed that we received a briefing from Mr. Butler of —
Senator Patterson: Nature Canada.
Senator Galvez: Nature Canada. It’s in the papers that we received.
The Chair: All those in favour of the motion, please raise your hands; all those against, thumbs down. It is defeated.
Now we’re going to item 47a.
Senator Galvez: That one was withdrawn.
The Chair: Okay. Senator Patterson, you had a motion last time dealing with 39.2.
Senator Patterson: Yes, Mr. Chair.
The Chair: Do you want to describe why and its purpose?
Senator Patterson: I move:
That Bill S-5 be amended on page 28 by adding the following before line 15:
“39.2 Subsection 108(1) of the Act is replaced by the following:
108 (1) Subject to subsection (4), the Ministers shall, within the prescribed assessment period, assess information provided under subsection 106(1), (3) or (4) or paragraph 109(1)(c) or otherwise available to them in respect of a living organism in order to determine whether
(a) it is toxic or capable of becoming toxic; and
(b) it shows a demonstrable need for the living organism.
(1.1) The Ministers shall ensure that the public is provided with an opportunity to participate meaningfully in the Ministers’ assessment.
(1.2) The Ministers shall, within the prescribed assessment period, solicit public comments in respect of the testing of all evidence and may request additional evidence from any individual.”.
Colleagues, this is also related to advice given in the brief from Nature Canada. We heard evidence that a genetically modified species of Atlantic salmon was allowed to be cultivated and employed in an aquatic farm in Atlantic Canada without any participation from or even notice to the public.
This amendment seeks to set up clear timelines to solicit public participation during the prescribed assessment period and enshrines in law a transparent process for the consideration of applications for new living organisms.
All this happened in the dark, Mr. Chair. We heard evidence that it took a lawsuit from environmental organizations — I think it was Ecology Action Centre in Nova Scotia — who had to file a lawsuit and wait at least a year before getting any information from the government about this in-the-dark process.
This simply puts into law a transparent process for the consideration of applications for new living organisms. I trust we would all agree, on such a sensitive matter, that there should be an opportunity for transparency and public participation.
Thank you, Mr. Chair.
The Chair: I noticed on the last occasion there was a subamendment proposed by Senator Galvez; if you can comment on that, please.
Senator Galvez: This speaks in the same sense about being transparent on what is happening with the engineered organisms or genetically modified organisms. This is just for transparency. I move:
That the motion in amendment be amended in the English version by replacing the words “an opportunity” with the word “opportunities”.
Instead of putting “an opportunity,” I made it plural to give people several “opportunities to participate meaningfully in the minister’s assessment.” That was my subamendment, to change singular for plural in “opportunities.”
Senator Patterson: Which I accept.
Senator Galvez: Thank you.
The Chair: Are there any other questions or comments from our colleagues?
Senator Kutcher: The government opposes this amendment on the basis that it follows on from the previous amendment we just defeated.
We have learned that Environment and Climate Change Canada and Health Canada have already initiated a comprehensive review of New Substances Notification Regulations for organisms. The transparency and public participation will be a major focus of that review and all the consultations. It would be premature to promote amendments to this act before these consultations and subsequent regulatory modernization initiatives have run their course.
I think we need to be careful not to do something we have not fully studied. There is ongoing work on this. There may be unanticipated consequences.
The Chair: Are there any other questions or comments?
Senator Patterson: Mr. Chair, on something so important, we can’t wait for more consultations.
This is simply putting in place what Senator Kutcher says will be an important priority going forward to allow public input and participation. Let’s put it in the act now and not wait, perhaps for years, for the slow government machine to move and recognize this urgent issue.
The Chair: Thank you very much.
Let’s proceed to the vote.
Let’s first deal with the subamendment as proposed by Senator Galvez. Those in favour of the subamendment, please raise your hands; all those against it, thumbs down. The subamendment is carried.
Now, let’s go to the principal amendment as proposed by Senator Patterson. All those in favour of the proposed amendment, please raise your hands; all those against the amendment, please raise your hands. And Senator Patterson’s amendment is also carried.
Senator Patterson, do you have another amendment?
Senator Patterson: Yes. Thank you, Mr. Chair. Could I ask the clerk to read the new clause 44.1 on page 31?
The Chair: Of course you can.
Ms. Cardinal: It is moved by the Honourable Senator Patterson:
That Bill S-5 be amended on page 31 by adding the following after line 18:
“44.1 Subsection 114(1) of the Act is amended by adding the following after paragraph (g):
(g.1) prescribing processes for meaningful public participation in
(i) an assessment under section 108, and
(ii) the determination of whether to grant a waiver requested under subsection 106(8);”.
The Chair: Would you like to explain this amendment, Senator Patterson?
Senator Patterson: This amendment was also recommended by Nature Canada. It would create the legislative authority for the government to create regulations that further allow for public participation in various processes under this act.
In answering my questions, Mr. Hugh Benevides, legislative adviser for Nature Canada, was quite clear, as is the organization in their brief, that this legislative authority is required before we can regulate the processes that would result in meaningful public participation as contemplated in my previous amendment.
I would respectfully recommend to the committee that, having approved the previous amendment, this is the consequential amendment which should also be supported. Thank you.
The Chair: Are there any other questions or comments from our colleagues?
That being the case, I propose the vote. All those in favour of the amendment as proposed by Senator Patterson, please raise your hands; all those against the motion, please raise your hands. The motion is carried.
Senator Miville-Dechêne will present the next item on our road map.
Senator Miville-Dechêne: Thank you, Mr. Chair. I move:
That Bill S-5 be amended in clause 50, on page 35, by deleting lines 10 to 13.
I will read it to you so you understand the sentence I want to remove from Bill S-5:
In the case of information provided under a regulation, order or notice, reasons for a request for confidentiality are not required if the regulation, order or notice so specifies.
[Translation]
I will provide some context for you in case you have forgotten what happened, as it was pretty complex.
I remind you that, when Minister Guilbeault came to speak to us, I asked him what the purpose was of this extremely broad opportunity to grant confidentiality to any document. He could not answer me and directed me to his office. We went back and forth several times trying to figure out why this clause was added to the bill. It gives infinite powers to the authorities to make a document confidential, whereas — I remind you — companies that want to avail themselves of confidentiality, when they make representations to the government on chemical products, can do so, provided that the request is justified. This is the new element that has been added to the bill, and this is what we like.
So we felt that this clause was inappropriate, and since we have not received any explanation as to its usefulness, I thought it was important to remove it from the bill, so that we could limit undue confidentiality on all sorts of public interest documents. There you have it.
The Chair: Just for clarification, Senator Miville-Dechêne, as you know, there was a reference to amendment JMD-S5-50-35-10, which became amendment JMD-S5-50-35-10a, which we are focusing on now. Is that correct?
Senator Miville-Dechêne: Yes, that’s correct. That is amendment JMD-S5-50-35-10 and all the consequential amendments. It was a more ambitious amendment. I concluded, after the rather lengthy discussions we had, that I preferred to withdraw that more ambitious amendment and just eliminate the specific provision that says that any request for confidentiality can be granted.
The clause is too general. I actually seem to recall that the sponsor of the bill supported this amendment.
The Chair: I think you are the sponsor of this bill.
Senator Miville-Dechêne: It’s Senator Kutcher.
[English]
Senator Kutcher: The government supports this amendment and we should move on.
The Chair: Excellent, short and sweet. All in favour of the amendment, please raise your hands; all those against, thumbs down. The motion is carried.
[Translation]
Senator Miville-Dechêne, in the order of the roadmap, for items number 52a, 52, 53, 54, 55, 56 and 57, these are amendments that you had proposed. If I understand correctly, they are all withdrawn?
Senator Miville-Dechêne: Yes, they were consequential amendments to the amendment that I rejected. I remind you that the legal counsel told us that there was still a consequential amendment to be added to the one that was just adopted, and I will let the legal counsel explain that to you. So I withdraw all these amendments.
The Chair: Okay.
We are now on item number 58 of our roadmap. Senator Galvez has the floor.
Senator Galvez: I withdraw this amendment.
The Chair: Okay. We are now on item number 59 of our roadmap. Senator Patterson has the floor.
[English]
Senator Patterson: Thank you, Mr. Chair. This amendment is about emergency authorizations. I move:
That Bill S-5 be amended on page 37 by adding the following after line 39:
“55.1 The Act is amended by adding the following after section 331:
331.1 (1) The Minister may issue an emergency certificate authorizing any activity that does not comply with this Act if the Minister is satisfied that the activity is necessary to deal with an emergency in which there is danger to public safety.
(2) An emergency certificate is not a statutory instrument for the purposes of the Statutory Instruments Act, and the contents of an emergency certificate may be issued orally, but the emergency certificate shall be issued in writing as soon as possible and the writing is conclusive proof of its content.
(3) An emergency certificate may include terms and conditions governing the authorized activity, and if any of the terms or conditions are not complied with in the course of carrying on the activity, the Act and regulations apply to the activity as though the certificate did not exist.
(4) An emergency certificate may specify the persons who may carry on the activity.
(5) The Minister may revoke an emergency certificate as the Minister considers appropriate.”
Mr. Chair, this amendment would provide the Governor-in-Council the right to suspend the application of certain provisions of the act during times of emergency or exceptional circumstances. We heard evidence that there was a vacuum of authority recently during the pandemic. This provision is present in other critical federal acts and regulations. However, when industry asked for flexibility from the government to suspend these requirements during the COVID-19 pandemic, the government could not provide anything other than compliance flexibility.
Colleagues, the bureaucratic term “compliance flexibility” actually means casting a blind eye to activity that is questionable or not permitted or has not been properly authorized. This is an unacceptable situation.
It’s important to note here that the Transportation of Dangerous Goods Act, 1992, has a similar provision. While no one wants another pandemic, this would provide the government with the ability to issue emergency certificates in a variety of manners, allowing for the seamless continuation of business, and it could be easily revoked. It would also grant the government the ability to revoke those emergency certificates once the public emergency is over.
It is structured in such a way that it is meant to continue to ensure accountability, transparency and oversight while recognizing that sometimes things beyond our control make it impossible to operate business as usual.
This is an amendment that came out of a recent extraordinary situation, namely the pandemic, to avoid a regulatory and legislative vacuum or the invidious practice of officials casting a blind eye to unauthorized activity through bureaucratic weasel words like “compliance flexibility.” That’s the reason for the amendment, Mr. Chair. Thank you.
Senator Kutcher: The government opposes the amendment, and in the interest of time, I’ll simply read into the record some of the comments I made before and some of the comments Mr. Moffet, the official, made on this issue. This is my comment:
Before taking enforcement action, ECCC considers aggravating factors such as emergencies; and, second, Environment and Climate Change Canada’s laws protect the environment, human health and conservation —
— this is such an important point —
— and, therefore, it is vital that they remain in effect at all times. Environmental standards should not be weakened due to a crisis, including the COVID-19 pandemic.
Then, John Moffet told us:
. . . when the pandemic started, all departments reviewed their statutes and regulations and had to decide how to deal with the issue . . . .
. . . we concluded with the minister that we did not need to make any changes to our legislation. We did not need to stand down our regulations . . . because of the defence of due diligence.
So if a company that is subject to a regulation does everything reasonable in its powers to comply, but cannot . . . because of an emergency that has arisen — whether it’s for 24 hours or two years — then, first of all, there would be no need to take enforcement action and, secondly, if we did, there would be the defence of due diligence.
We’re . . . concerned that if we put in place an amendment like this, that we would then have to immediately issue such emergency certificates and, on a case-by-case basis, remove them in a timely way.
We concluded that the more appropriate thing to do would be to leave all environmental requirements in place and rely on the obligation of due diligence.
So we cannot support this amendment.
The Chair: Are there any questions or comments on the proposed amendments?
Senator McCallum: I have to ask Senator Patterson and the officials how this emergency certificate would affect Indigenous people. Sometimes, emergency situations can overpower the ability of First Nations to address concerns that they have, so how would they be protected?
The Chair: You’re referring to our previous meeting, I gather?
Senator McCallum: Yes. That is the question I had asked about this.
The Chair: Did you get an answer?
Senator McCallum: Yes.
The Chair: And are you satisfied with the answer?
Senator McCallum: Yes.
The Chair: Then I suggest we proceed. Are there any other questions or comments on the proposed amendment?
That being the case, let’s go to a vote. All those in favour of the amendment, please raise your hands; all those against the amendment, hands up, please. The motion is defeated.
The next amendment is Senator Patterson’s.
Senator Patterson: Thank you Mr. Chair. I move:
That Bill S-5 be amended in clause 56, on page 38,
(a) by replacing line 1 with the following:
“56 (1) Subsections 332(1) and (2) of the Act are re-;
(b) by adding the following after line 21:
“(2) Section 332 of the Act is amended by adding the following after subsection (3):
(4) In addition to any other requirement of this Act, a notice under this Act, a notice of any consultation to be held in relation to a matter under this Act and any decision made under this Act for which a notice is not otherwise required under this Act must be made public to the greatest extent possible, including by being published
(a) by the Minister on their departmental website;
(b) in a newspaper or other periodical that, in the Minister’s opinion, has a large circulation; and
(c) in the Environmental Registry and in the Canada Gazette.
(5) A notice published in accordance with paragraphs 4(a) to (c) must include an indication of any opportunities for public participation that may be available in relation to the content of the notice.
(6) In addition to any other requirements of this Act, a notice of a public consultation is to be published in accordance with paragraphs (4)(a) to (c) at least 60 days before the consultation is to occur.”.
Mr. Chair, Karen Wristen of the Living Oceans Society told us the story of AquaBounty. As a lawyer prominent in the environmental, non-governmental organization space, she should not have been taken by surprise that a new species of salmon had been introduced into Canada. Ms. Wristen told our committee that, in the complete absence of any public information in Canada regarding the risk assessment or the status of AquaBounty’s application, the Living Oceans Society and Ecology Action Centre filed for judicial review of the decision to permit the manufacture and export of this genetically modified species. It would be a year before the government produced its record of decision and longer until we were finally permitted to see the risk assessment.
I was discomfited to hear about the details of the lawsuit, and I believe that we have an opportunity with this amendment to ensure that government decisions and all relevant information are released to the public in a transparent and timely manner. This amendment would see the disclosure of documents done expeditiously after a decision has been rendered, as well as a 60‑day notice period prior to the start of public consultation.
Mr. Chair, this amendment was subamended to remove “to the greatest extent possible,” and I am fine with that subamendment, which was approved by the committee. The subamendment would be:
That the motion in amendment be amended by deleting the words “to the greatest extent possible”, by deleting in the English version the word “and” after the words “large circulation;” and by replacing paragraph “(c)” with the following:
“(c) in the Environmental Registry; and
(d) in the Canada Gazette.”.
As amended, the motion would read like this:
(4)In addition to any other requirement of this Act, a notice under this Act, a notice of any consultation to be held in relation to a matter under this Act and any decision made under this Act for which a notice is not otherwise required under this Act must be made public, including by being published . . .
So the subamendment would delete the words “to the greatest extent possible,” and I’m fine with that.
Perhaps, with your permission, Mr. Chair, since I have an opportunity now to reintroduce this amendment, I will ask that the record show that my amendment excludes the words “to the greatest extent possible.” That was a modification that the committee made when we last considered this, so with your leave, I’ll read the amendment without those words: “to the greatest extent possible.”
Senator Kutcher: With due respect to the senator’s motion, the government opposes it on the basis that it would be redundant and duplicative. We feel that the act already provides publication requirements to the greatest extent possible. For example, the environmental registry scope as determined in Part 2 in the act is widely available. I will simply read into the record additional information that we received from the officials on this issue.
Ms. Farquharson said:
Yes, CEPA provides extensive opportunities for transparency and also public participation. I think there was a point that these different parts applying to different parts of the act in terms of what gets published, but the registry applies to the whole act and so does this 332 section.
. . . there are requirements to publish all orders and regulations for comment or notice of objection and then made available to all stakeholders and Canadians through the Canada Gazette and CEPA registry as well. In fact, I think more prescription is problematic, especially at this time when people are moving to electronic consultation, and I think the Canada Gazette is imminently at that stage where things will become even more accessible.
This actually says including by being published on all those three things. So it is redundant.
Mr. Moffet continued:
I guess the main point that I would like to urge senators to consider is that there are many areas in which practice and policy can be improved. Legislating yet another requirement may not be the right way to fix this problem. We already have an obligation to publish on the registry. We already have an obligation to publish many things in the Canada Gazette. Having a third obligation to publish won’t necessarily lead to increased accessibility.
The Chair: Thank you very much.
Senator Galvez: I remember that I did subamend this amendment by Senator Patterson by saying that I considered that it was important. I proposed that in the amendment, where it says, “(c) in the Environmental Registry and in the Canada Gazette,” it was to split the two differently. This was important because we have to give opportunities for people to get to know what is happening. Sometimes it’s better to post it in several places and not just in one place because of today’s media and the vast choice of places where we can pick up our information or misinformation. It’s better that the government takes control of the information and puts it in a clear way in different outlets.
The Chair: If there are no other question or comments, we’ll go to a vote.
Senator Patterson: I have one last comment, if I may. The government is telling us, through Senator Kutcher, that “everything is okay, trust us, we already are transparent, there’s no need for reinforcing this in this amendment.” However, we had very clear evidence, and it wasn’t just a minor matter. This was an introduction of a new species of Atlantic salmon. We clearly have evidence that the transparency and accountability that the government says is already part of their practice did not work. We had non-governmental organizations, no doubt with limited funds, having to sue to get information about the introduction of a new wild species, with full approvals by the government, and it took them a year before the government even produced its record of decision.
With the greatest of respect, public transparency isn’t working. We had a clear and dramatic example of that. Yes, we may be erring on the side of caution in reinforcing the importance of public accountability, but the government says it’s already doing it. Let’s reinforce this with this amendment, which I was gratified the committee supported when it was last presented to you on June 7.
The Chair: Thank you very much. I do not see any other comments, so let’s proceed to a vote.
I think Senator Galvez made it very clear that she proposed a subamendment to the amendment. For the vote, we will start with Senator Galvez’s recommendation.
Is the subamendment as proposed by Senator Galvez acceptable? All those in favour of the subamendment, raise your hands; all those against the subamendment, raise your hands. The subamendment is carried.
Now let’s go to the principal amendment as proposed by Senator Patterson. All those in favour of his amendment, please raise your hands; those against, thumbs down. The motion is carried. On to Senator Arnot’s amendment.
Senator Arnot, did you want Senator Sorenson to move your amendment?
Senator Arnot: Correct.
Senator Sorensen: I will allow Senator Arnot to speak to it.
Senator Arnot: Thank you, senators, good morning, and thank you, Senator Sorensen, for introducing this amendment this morning. I’m beseeching my colleagues to give due consideration to this amendment. I think it has the potential to make a statement by the Senate on a very important issue and one that must be addressed.
As the Senate committee knows, Senator McCallum has spoken about pollution issues and environmental issues, particularly as they affect First Nations peoples on their lands and reserve lands. She’s made these comments at every meeting of this committee from its inception, has brought forward evidence to support those arguments and given evidence herself through her own knowledge, which has been very instructive. This is an important consideration because the Constitution and the four principles outlined in this amendment have been overlooked, ignored and gone unaddressed for the 40 years since our Constitution was repatriated.
I would remind senators that the last time this matter was dealt with it was passed unanimously, as the chair and the clerk confirmed on June 7. I’m saying that the addition of section 57.1 is a remedy to this problem. It compels the minister every five years, after the coming into force of this section and every fifth year thereafter, to prepare a report regarding the operation of this act in respect to Aboriginal peoples of Canada during the preceding five years.
As the amendment states, the report referred to must include details on the consultations with Aboriginal peoples and Aboriginal governments in relation to the matters under the act, measures implemented to ensure that the act is administered in a way that complies with section 35 of the Constitution Act, 1982, the principle of the honour of the Crown, Canada’s treaty relationships and its fiduciary obligations to Aboriginal peoples of Canada, and any evaluation completed in respect of the effectiveness of the implementation of the measures described in paragraph (b), any findings or recommendations in respect of the administration of this act in respect to the Aboriginal peoples of Canada, and the minister must cause the report to be laid before each house of Parliament no later than six months after the conclusion of the five-year period to which the report refers.
The fundamental principle here is that these four principles — section 35 of the Constitution Act, the principle of the honour of the Crown, the principle of the treaty relationships and the rights and obligations thereunder, and the fiduciary duty — have been breached because they have not been focused on. The purpose of this amendment is to make policy-makers focus on each one of these four principles because they’ve overlooked this in the past, which has caused considerable harm to Aboriginal peoples and the lands of Aboriginal peoples in Canada, which has been presented to this committee.
The fundamental premise is that if something isn’t measured, then no one will focus on it. We need to have ministers and policy-makers focus on these principles. I’ve mentioned in the past that one of the important considerations here is that when Canadian statespersons describe section 35 as being an empty vessel, this is a vessel that could be filled up with litigated cases, which it has. Government always goes to that litigation default as opposed to being proactive and working with Aboriginal peoples and Aboriginal governments to proactively implement actions by the First Nations and the government working in concert to fulfill those constitutional principles.
The last time I spoke to this, I reminded everyone that Chief Justice Lamer, one of our most revered Chief Justices of Canada — in the 1991 case of Delgamuukw, some nine years after the Constitution was repatriated — said very clearly that the courts would deal with these issues if they have to, but they don’t have the tools. Litigation does not provide the courts with the tools to solve a political problem. It’s a political process that’s required to solve a political problem, and that process has not been implemented.
So this is about upstream thinking. It’s about working proactively. It’s about avoiding litigation, because litigation is fundamentally an admission of failure. The purpose of this amendment is to have the executive branch of government be accountable and address these issues in a proactive way going forward so that we don’t have to wait another 40 years, as we have so far, to see these principles acted upon pursuant to the spirit and intent of those principles.
Fundamentally, this amendment would complement the UN Declaration on the Rights of Indigenous Peoples Act, which requires an action plan; this, in fact, would be that action plan, or a template for that action plan.
I’m asking the senators to make a statement here to avoid a future that continues to overlook these fundamental constitutional principles in the way that is intended, and to avoid the problems that have been so well articulated by Senator McCallum, as well as other senators on this committee, as they affect Aboriginal peoples and Aboriginal governments in Canada.
I’m asking and beseeching my colleagues in the Senate to make this important amendment and see it as a remedy to the mistakes that have been made in the past by ignoring these principles and causing damage which has been well articulated by our colleague Senator McCallum. Thank you.
Senator Patterson: On a point of order, Mr. Chair, was the amendment read into the record; if it hasn’t, it should be read into the record, please.
Senator Arnot: I will do that if I’m called upon to do it. I’m quite prepared to do that.
The Chair: If it is going to be read into the record, it has to be done by Senator Sorensen.
Senator Arnot: Okay.
Senator Sorensen: Thank you very much.
Clerk, I’m obviously not in the room. Can you read the section for me?
Ms. Cardinal: It is moved:
That Bill S-5 be amended on page 38 by adding the following after line 34:
“57.1 The Act is amended by adding the following after section 342:
342.1 (1) The Minister shall, five years after the coming into force of this section and every fifth year after that, prepare a report regarding the operation of this Act in respect of the aboriginal peoples of Canada during the preceding five years.
(2) The report referred to in subsection (1) must include details on
(a) consultations with aboriginal peoples and aboriginal governments in relation to matters under the Act;
(b) measures implemented to ensure that the Act is administered in a way that complies with
(i) section 35 of the Constitution Act, 1982,
(ii) the principle of the honour of the Crown, and
(iii) Canada’s treaty relationships with and its fiduciary obligations to the aboriginal peoples of Canada;
(c) any evaluation completed in respect of the effectiveness or implementation of the measures described in paragraph (b); and
(d) any findings or recommendations in respect of the administration of this Act in respect of the aboriginal peoples of Canada.
(3) The Minister must cause the report to be laid before each House of Parliament no later than six months after the conclusion of the five-year period to which the report relates.”.
The Chair: Thank you very much.
Senator Anderson: I wanted to reiterate again for the record the mandate letter of the Minister of Environment and Climate Change which, in part, reads:
As Ministers, each of us has a duty to further this work, both collectively and as individuals. Consequently, I am directing every Minister to implement the United Nations Declaration on the Rights of Indigenous Peoples and to work in partnership with Indigenous Peoples to advance their rights.
Again, I want to point out Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples, which states:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
I want to state, again, that I believe that this amendment would be in keeping with both the mandate letter and the United Nations Declaration on the Rights of Indigenous Peoples.
Thank you.
The Chair: Thank you very much. Are we prepared to go to a vote? All in favour of the motion as read into the record, raise your hands; all those against the motion, please raise your hands. The motion is carried.
Senator Arnot: Mr. Chair, can that be noted as being a unanimous vote in favour?
The Chair: The difficulty with that is that we may have some people who abstained. I can say to you, from what I saw, that everybody seemed to agree with the motion. Physically, it was apparent and it was certainly agreed to.
Senator Arnot: I’m satisfied with that. Thank you.
The Chair: Number 61 on our road map, Senator Patterson has an amendment to propose.
Senator Patterson: Thank you, Mr. Chair. I move:
That Bill S-5 be amended on page 46 by adding the following after line 11:
“Report
67.1 (1) The Minister of Industry must, no later than one year after the day on which this Act receives royal assent, cause to be tabled in both Houses of Parliament a report regarding measures to
(a) ensure that manufactured goods that come to Canada meet the environmental requirements imposed on Canadian manufacturers; and
(b) test imported products for compliance with Canadian standards to ensure that they are safe for Canadian consumers and that Canadian producers are not at a disadvantage.
(2) The report must include
(a) an evaluation of existing measures and their effectiveness;
(b) recommendations for any new measures; and
(c) a proposed timetable and cost estimate for the implementation of new measures recommended under paragraph (b).”.
Mr. Chair, this amendment is a result of a recommendation from the Canadian Manufacturers & Exporters, which represents many hundreds of companies that are involved in manufacturing and exporting products in Canada. As Allison Bernholtz said to the committee:
. . . we stress that it is critical that imports to Canada are held to the same standards as products manufactured locally. To ensure fair competition between Canadian and foreign companies, and to protect the health and safety of Canadians, standards of products imported into Canada and purchased by Canadians must be identical. In other words, Canada should ensure that its manufacturers can compete on as level a playing field as possible. Within Canada, we should have confidence that the products we purchase and rely upon have met certain testing standards. This is why, among our recommendations for the implementation stage of this legislation, we urge that it is important to design policies and regulations that clearly outline that the standards of imported products must meet the same high standards as those made locally.
This concept of making sure exports are held to the same standards as domestically made products was referenced in the Liberal Party’s 2021 election platform, which I’m not always fond of quoting. After consultation with the Law Clerk’s office, the amendment was phrased in a way that would give flexibility to the government to figure out the intricacies of coordinating amendments required.
In closing, Mr. Chair, the government made a suggestion that everything is okay and that we don’t allow toxic products or products dangerous to public health and the safety of Canadians into the country. However, there are some obvious examples of situations where this has been allowed to happen and must not be allowed to happen. I cite brightly coloured children’s toys covered with delicious-looking paint that is suffused with lead, which have turned up on shelves of toy stores and had to be recalled because of their danger to kids. I also cite a species of fish called tilapia which is grown in aquaculture pens and nourished with human waste imported from China.
So this is needed and important and that’s why this amendment is being proposed at the recommendation of Canadian Manufacturers & Exporters. Thank you, Mr. Chair.
The Chair: All those in favour, please raise your hands; all those against, thumbs down. The motion is carried.
[Translation]
Senator Carignan: Excuse me, Mr. Chair, I have a point of order. When we look at the camera, we only see half the room. At the beginning of the meeting, we could see the whole table. We could see the votes of all the senators. However, over the last two or three votes, the camera has moved. Instead, we see people who are not senators and are not sitting at the table. I don’t know if the technicians could go back to the view from the beginning so that we can see the votes of all the senators, please.
The Chair: Noted, thank you.
[English]
Senator Kutcher: I didn’t get a chance to respond to Senator Patterson’s amendment before we voted.
The Chair: He had an amendment, but not a subamendment.
Senator Kutcher: You’re right, but I didn’t have a chance to respond.
The Chair: Well, we voted on it.
Senator Kutcher: I know.
Senator Patterson: You can’t go back, Mr. Chair.
The Chair: If it makes you feel better, go take a walk.
Let’s move on to the next item on the road map.
[Translation]
Senator Miville-Dechêne: Just quickly, I don’t think we can vote on this. It’s related to the amendment on prevention plans, an amendment that was defeated in the first round. So we should put that aside.
The Chair: Are we putting it aside? Are you withdrawing it? This is the S5-59-46-15 we are talking about? I’m sorry, S5-69-46-15, is that correct? You want to withdraw it?
Senator Miville-Dechêne: I withdraw it. Obviously, if there is a different result on the main amendment, we’ll have to come back to it, but that is not the point.
The Chair: But we are withdrawing it now.
Senator Galvez, amendment S5-S1-47-a?
[English]
Senator Galvez: I move:
That Bill S-5 be amended on page 47, by replacing the references below the heading “SCHEDULE 1” in the schedule with the following:
“(Paragraphs 56(1)(a) and (c), section 68, section 68.1, subsection 71(1), paragraphs 77(2)(c) and (d), subsections 77(7) and (9), 90(1) to (2) and 91(1), paragraph 91(2)(a), subsection 93(1), paragraphs 94(1)(a) and (5)(b), subsections 95(1) and (3) and 96(1), paragraph 199(1)(a), subparagraph 199(1)(b)(i) and subsection 317.1(3))”.
This one is simple. It’s because we carried and accepted several of my amendments on animal testing. This is just to add the new section that we have approved into Schedule 1 by adding section 68.1. It is just this simple. We need to add this section now in that schedule.
The Chair: Are there any comments or questions? Senator Kutcher, did you have a question?
Senator Kutcher: Not on this one.
The Chair: Shall we proceed to a vote? All those in favour of the amendment, please raise your hands; all those against, raise your hands. The motion is carried.
The next item on our road map is from Senator Galvez.
Senator Galvez: I will withdraw this amendment at this point, but I want to explain why. I will withdraw it only at this stage, but I may bring it in at third reading. I don’t know. I’m expecting some answers.
The Chair: It’s retracted, right?
Senator Galvez: Yes.
The Chair: The next item is Senator Kutcher’s.
Senator Kutcher: People may remember that this is the really complicated one, so please do pay attention. I move:
That Bill S-5, in the schedule, be amended by replacing, in the English version, the second line of the note in Schedule 1 set out in the schedule, on page 47, with the following:
“and “y” refer to the number of atoms.”.
Thank you, everyone, for catching that.
The Chair: As to Senator Kutcher’s amendment, all in favour, raise your hands; all those against, thumbs down. The motion is carried.
Ms. Cardinal: We had stood clause 2 and clause 5, so we did go back to them in those meetings. If you go to number 16b of your road map, that would be Senator Kutcher’s amendment. Sorry. I forgot one; it’s number one on your road map, from Senator McCallum.
Senator McCallum: I move:
That Bill S-5 be amended in clause 2, on page 2, by replacing line 3 with the following:
“of Indigenous Peoples, including free, prior and informed consent;”.
Did you want me to read the original?
The Chair: Do you want us to read it for you, Senator McCallum?
Senator McCallum: I wanted to read the original clause in the preamble, which says, ”Whereas the government of Canada is committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples.”
My amendment would add to that clause the words “including free, prior and informed consent;”.
Senator Kutcher: Excuse me, chair, could I ask Senator McCallum a question at this point?
Senator McCallum: Yes.
Senator Kutcher: Senator McCallum, in the interests of time and since this carried last time, would you be okay with going to a vote?
Senator McCallum: Yes.
The Chair: The amendment is very clear. She’s adding a few key words. All in favour of the amendment as proposed by Senator McCallum —
Senator Patterson: Point of order, Mr. Chair. The amendment of Senator McCallum was amended by the committee when it was considered previously, as I understood.
The Clerk: It’s not this one.
The Chair: Not this one, Senator Patterson.
Senator Patterson: Okay.
The Chair: Let’s proceed to a vote. All those in favour of the amendment as proposed by Senator McCallum, raise your hands; all those against, raise your hands. The motion is carried.
The next item is Senator Kutcher’s.
Senator Kutcher: Thank you. I move:
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.”.
The Chair: Thank you, senator. I noticed on the last occasion there was a subamendment proposed by Senator Miville-Dechêne.
[Translation]
Senator, do you want to explain yourself and maintain your proposal for a subamendment?
Senator Miville-Dechêne: Yes. So I wanted to clarify that I have submitted the subamendment to amend paragraph (c):
Here is the subamendment in French:
Que l’amendement soit modifié en remplaçant le paragraphe « c) » par ce qui suit :
« c) la manière dont des facteurs pertinents, notamment sociaux, sanitaires, scientifiques et économiques, peuvent éclairer l’application de ce droit. ».
[English]
The wording in the English version is as follows:
. . . the manner in which relevant factors, including social, health, scientific and economic factors may inform the application of that right.
This has been distributed right now. If you remember our conversation, I had presented a subamendment. We had long discussions with the experts and with Senator Kutcher, and it was really important for the government to keep those social, health, scientific and economic factors.
The problem, from my point of view, is that in the amendment presented by Senator Kutcher, we are really insisting on the limits of this right. If you read my subamendment, yes, we are talking about relevant factors, but we are saying they “may inform.” So we’re not putting a straightjacket on this right by limiting it. We are saying the “factors may inform.” Don’t forget that here we are in the area where we want to put that in place and it’s important to have the right words so it’s a balanced proposition.
Last time we didn’t go into that discussion with this particular subamendment because it was not written. That’s why I’ve written it and sent it to you. You will see it is mildly different from the government one, but probably more balanced.
Senator Kutcher: Thank you, Mr. Chair. The government opposes this amendment on the basis that it is too vague and can be interpreted in numerous different ways. I ask that we go to a vote on it.
The Chair: Are there any other comments or questions? Let’s proceed to a vote. All those in favour of the subamendment, as proposed, raise your hands; all those against the subamendment, please raise your hands. The motion is defeated.
Now, let’s vote on the principal amendment as proposed by Senator Kutcher. All those in favour of the main amendment, please raise your hands; all those against, please raise your hands. The main motion is carried.
Now to proceed to our next item, from Senator Patterson.
Senator Patterson: Could the clerk kindly read the amendment?
Ms. Cardinal: Senator Patterson moves:
That Bill S-5 be amended in new clause 10.1 by replacing the proposed text of the portion of subsection 56(1) before paragraph (a) with the following:
“56 (1) The minister may”.
Senator Patterson: Thank you.
Colleagues, this is the amendment that I brought forward in response to concerns from the agricultural and other sectors that the original wording in Senator Miville-Dechêne’s new clause 10.1 was overly broad and had the unintended consequence of requiring pollution mitigation plans for things like dust. There was a dust storm from the agricultural community about requiring pollution mitigation plans for things dust and for things like grey water from municipalities and construction projects.
There were strong concerns that this was overzealous. Members may have received concerns from the agricultural community and the mining community on this issue.
I was gratified that the committee, when it considered this amendment previously, recognized that basically it had unintended consequences. No doubt it was well intended, but it cast too wide a net and was burdensome, particularly to the agricultural community. I received briefs from them complaining that this burden on farmers requiring pollution mitigation plans for dust would be burdensome and actually impossible to deal with. So that is the reason for the amendment.
The Chair: Thank you very much.
Senator Kutcher: The government supports it; it carried the last time. I suggest we vote.
The Chair: All those in favour of the amendment as proposed, please raise your hands; all those against, raise your hands? The motion is carried.
Just to give everyone a chance, I presume there are no other amendments that we have missed or anything that you intended to present for discussion. That being the case, we have now reconsidered all of the amendments voted on last week.
Shall clause 1, which contains the short title, carry?
Some Hon. Senators: Agreed.
The Chair: Shall the title carry?
An Hon. Senator: Agreed.
Senator McCallum: Can I make a comment? Remember at the end, on the amendments that I withdrew, you said the clerks would look at the language to be consistent. Do you remember that?
Senator Galvez: You’re going to rearrange the clauses.
Senator McCallum: Yes, because they will be different, and they will be because his motion passed.
The Chair: Let’s move on.
Shall the title carry?
Some Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Some Hon. Senators: Agreed.
The Chair: Does the committee wish to reconsider any of the observations that have already been submitted and that we have discussed? Are they all still acceptable to you?
Hon. Senators: Agreed.
The Chair: Is it agreed that the steering committee approve the final version of the report?
Some 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 cross-references and renumbering of provisions?
Some Hon. Senators: Agreed.
The Chair: Is it agreed that I report the bill as amended with observations to the Senate?
Some Hon. Senators: Agreed.
(The committee adjourned.)