THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Thursday, April 28, 2022
The Standing Senate Committee on Energy, the Environment and Natural Resources met by 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: Honourable Senators, I see that we have quorum and I declare the meeting in session. My name is Paul Massicotte, I am a senator from Quebec, and I am the chair of the committee.
Today, we are conducting a hybrid meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources. Before we begin, I’d like to remind senators and witnesses to please keep your microphone muted at all times, unless recognized by name by the chair. When speaking, please speak slowly and clearly.
For senators participating via Zoom, I will ask you to use the “raise hand” feature in order to be recognized. For those attending the meeting in person, I will ask you to please signal to the clerk if you want to be recognized. I will do my best to get to everyone who wants to ask a question to our witnesses. In order to do so, I ask Senators to try and keep their questions and preambles brief. That includes the Minister and his colleagues.
Each senator will be able to ask one question and a supplementary question or a follow up to their first question. Now, I would like to introduce the members of the committee who are participating in this meeting: Margaret Dawn Anderson, from the Northwest Territories, David Arnot, from Saskatchewan, Claude Carignan, from Quebec, Rosa Galvez, from Quebec, Clément Gignac, from Quebec, Mary Jane McCallum, from Manitoba, Julie Miville-Dechêne, from Quebec, Dennis Patterson, from Nunavut, Judith Seidman, from Quebec, and Karen Sorensen, from Alberta. I would also like to note the presence of the sponsor of this bill, Senator Stan Kutcher, from Nova Scotia.
I wish to welcome all of you, and the viewers across the country who may be watching. Today, we are beginning our examination of Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.
For the first part of the committee meeting, we are honoured to welcome the Minister of Environment and Climate Change, the Honourable Steven Guilbeault. He has with him John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, and Jacqueline Gonçalves, Director General, Science and Risk Assessment, Science and Technology Branch.
We also welcome, from Justice Canada, Gordon Hill, Senior Counsel, and from Health Canada, Greg Carreau, Director General, Safe Environments Directorate.
Welcome to all and thank you for being with us. Mr. Guilbeault, you now have the floor.
Hon. Steven Guilbeault, P.C., M.P., Minister of Environment and Climate Change: Thank you, Mr. Chair.
[English]
Honourable senators, thank you for the invitation to discuss Bill S-5, strengthening environmental protection for a healthier Canada act. As you know, the Government of Canada introduced Bill S-5 in the Senate on February 9, 2022. The bill proposes amendments to the Canadian Environmental Protection Act, also known as CEPA.
CEPA is the legislative foundation for many of the environmental and health protection programs administered by Environment and Climate Change Canada and Health Canada, programs such as those that relate to vehicle and engine emissions that contribute to climate change and air pollution, environmental emergencies, as well as the Chemicals Management Plan. It also provides the legislative and regulatory basis for the domestic implementation of Canada’s obligations under various international environmental agreements that address pollution, such as the Stockholm Convention, the Minamata Convention and the London Protocol.
Under these agreements, Canada continues to deliver on significant international commitments, such as to reduce emissions of persistent organic pollutants and mercury, and to manage disposals at sea.
Honourable senators, we know that a healthy environment is vital to our health, our development and our well-being. Canadians expect us to act accordingly, not just this government today but future governments as well.
Amendments to CEPA maintain the best of CEPA, which includes its approach to enabling as opposed to prescribing action, while strengthening the act in two key areas: recognizing a right to a healthy environment, as provided under CEPA, and strengthening the management of chemicals and other substances in Canada.
Honourable Senators, we are proposing to recognize in the preamble of CEPA that every individual in Canada has a right to a healthy environment as provided under that act. We are also proposing a duty on the government to protect that right as provided under CEPA, which may be balanced with relevant factors. This is the first time that this right has been included in a federal statute in Canada. What does it mean?
[Translation]
An implementation framework will set out how this right will be considered in administering the Canadian Environmental Protection Act. It will be developed within two years of the amendments becoming law.
It will, among other things, elaborate on principles such as environmental justice and non-regression, as well as on the balancing of this right with relevant factors such as social, economic, health and scientific factors.
The development of the implementation framework will be based on consultations.
In providing guidance on how a right to a healthy environment will be considered in decision-making under CEPA, the framework will set out a path for progressive, continuous improvement in environmental protection.
There will also be a requirement to conduct research, studies or monitoring activities to support the government in protecting that right.
This could include activities to identify populations that are particularly vulnerable to environmental and health risks.
[English]
The second set of key amendments proposed by this bill relates to the management of chemicals and other substances in Canada. Chemicals are an integral part of our daily lives. They touch on virtually every aspect of our lives. Chemicals are in our environment, our food, cosmetics and personal care products, as well as clothing. As you know, chemicals can significantly improve quality of life, health and well-being, but when they are not properly used or managed they can be harmful to our health, with adverse effects such as reproductive and birth defects, intellectual and physical disabilities and cancer. Some harmful effects can be immediate and others can occur gradually as certain substances accumulate in our bodies. Some effects may happen over a lifetime of exposure leading to chronic diseases.
Chemicals can also have short- and long-term effects on the health of animals, plants, water and ecosystems. Canadians expect us to ensure a safe and healthy environment. They expect us to ensure that substances are managed effectively through transparent approaches and activities. They expect us to achieve this with clear, consistent and well-thought-through policies. An industry requires a stable and predictable regulatory environment to help us deliver on these goals. That is what we’re delivering today.
[Translation]
CEPA provides the legislative foundation for the Chemicals Management Plan. Since it was launched in 2006, the Government of Canada has assessed thousands of substances. As a result, Canada was the first country in the world to take action to limit exposures to Bisphenol A in baby bottles and sippy cups in 2010.
On mercury, government actions between 2007 and 2017 led to a decrease in the concentration of mercury emissions to air by 61%, while mercury releases to water declined by 66%.
The Chemicals Management Plan has also resulted in restrictions on substances such as PCBs, lead and triclosan. But there is more to do, and the government recognizes this.
Three Parliamentary reviews and the departments’ extensive experience with the Act have identified numerous gaps and opportunities for improvements to enable more effective environmental and health protection.
A recent prioritization process identified an additional 1,200 substances already in Canadian commerce that should be further considered because of potential human health and environmental concerns.
In addition, some of the substances that were assessed over the past few decades may need to be re-evaluated because of new uses or because we can now assess for different types of risks than was possible in the past.
As science keeps evolving, our legislation must adapt accordingly.
[English]
Bill S-5 will require the creation of a new plan of chemicals management priorities to give Canadians a predictable, multi-year integrated plan for the assessment of substances, as well as for activities and initiatives that support substance management such as information gathering, risk management, risk communications, research and monitoring. It will also implement a new regime that will prioritize the prohibition of activities in relation to toxic substances of the highest risk. The criteria to define toxic substances of the highest risk will be set out in the regulations and will include persistent bioaccumulation, carcinogenicity, mutagenicity, and reproductive toxicity. We will consult Canadians on those regulations. Other new authorities will enhance transparency and improve information gathering. In developing and implementing the plan, the government will continue to set priorities and assess and manage substances through a risk-based approach that accounts for the properties of a substance as well as exposure to the substance.
[Translation]
There are a number of factors of importance to Canadians that the plan must consider.
I won’t highlight them all here. But I will note that at the top of the list are vulnerable populations and cumulative effects.
Bill S-5 will also require that, when assessing risks, the government take into account that certain populations, such as children or workers in certain sectors, may be more vulnerable to the health risks of substances due to exposure or susceptibility, where this information is available.
That means conducting research and biomonitoring to generate data that would provide additional information on how these populations are impacted by harmful substances.
As such, Bill S-5 provides a stronger focus on protecting Indigenous peoples and racialized communities.
[English]
Bill S-5 also establishes a watch list to help inform industry of substances of potential concern so they may avoid replacing one substance with another that may also pose a risk. This and the use of existing tools to drive informed substitution should steer innovation towards greener and safer substances.
As you know, honourable senators, we must work together to create a more resilient environment and economy now, especially considering the challenges that lay ahead of us. That is what Bill S-5 helps us to achieve by building on the extensive authorities that already exist in the Canadian Environmental Protection Act; by providing the basis for a strong, predictable regulatory foundation that is responsive to emerging science and encourages industry to produce and use safer chemicals; and by strengthening the protection of all Canadians and the environment from pollution and harmful substances.
I am looking forward to working with Canadians to develop an implementation framework on how a right to a healthy environment will be considered in the administration of the act, and I am looking forward to hearing from Canadians as we develop the plan of chemicals management priorities and continuing the work on what has been recognized as a world-class chemical management program. Before we get there, we need to work together. I’m looking forward to working with the Senate to ensure the government has the tools to better protect human health and the environment, and to build a healthier and more resilient future for all Canadians. Thank you.
[Translation]
The Chair: Thank you, Minister. I assume that your colleagues have no comments to make at this point?
Mr. Guilbeault: No, not at this point.
The Chair: So we will go immediately to the question period with the sponsor of the bill, Senator Kutcher.
[English]
Senator Kutcher: Thank you very much, minister. I appreciate the opportunity to be here with you and to kick off the questions on this very important piece of legislation. It’s been a long time since CEPA was last updated. I have two questions, one short and one longer. I’ll do the short one first.
A key component of the legislative foundation for improving the chemical management plan is in this bill. Once this plan has been accomplished, how will Canada stand vis-à-vis other jurisdictions, say the European Union or the United States, in its approach to chemical management?
Mr. Guilbeault: Thank you very much, senator. That’s an important question. When developing legislation or even regulation on environmental issues, one of the things we do is to look at countries that have similar legislation as we do on these matters to basically ensure that we are staying in the best in the world when it comes to managing chemicals. We could talk about our climate change body of legislation and regulation.
Comparing ourselves to some of the best of what is being done out there is an important element. We believe that with the proposed amendments, Canada will continue to have a world-class chemical management system.
Senator Kutcher: Thank you very much for that, minister. We’re looking forward to being among the best, for sure.
The next question is a little more detailed and a little more technical. I thank you very much for raising the issues of the importance of research and biomonitoring in areas that we need to improve.
I know Canada has been doing some biomonitoring before this act has come into being, but it’s going to raise the bar on what we need, particularly in terms of identifying toxic substances of highest risk, those carcinogenics, reproductive mutagenic substances and their persistence in the environment and their cumulative effects. We are going to need much more robust longitudinal samples with extensive data to make sure that all vulnerable populations are captured. We are going to need those longitudinal samples to continue over the lifespan so we have mother-to-child transmission captured through the reproductive years. We are going to need it to be done for both general populations and targeted populations. We are going to need biobanks. We are going to need to develop our toxicogenomics work.
The first question is: There are concerns that Canada currently doesn’t have the capacity to conduct this important work. Will there be a plan for enhancing the biomonitoring and research capacity in Canada to support this important piece of legislation?
And the second question is: Will there be specific linkages around some of these areas, particularly cumulative long-term effects research done linked to other countries where this work is very well advanced, such as in the National Institutes of Health in the United States?
Mr. Guilbeault: Thank you, senator. The answer to your first question is yes, obviously, we will need to ensure that we have the proper resources so that we can enforce the elements that will be in a revised CEPA.
In terms of the answer to your second question, maybe I can turn to one of my colleagues from the department.
Greg Carreau, Director General, Safe Environments Directorate, Health Canada: Thank you, senator for the question. Good morning everyone. Thanks for the opportunity to be here today to talk about Bill S-5.
With respect to biomonitoring, indeed it’s an important indicator to establish what chemicals Canadians are exposed to. Currently we do have a very active biomonitoring program at Health Canada in close collaboration with our scientific community, both domestically and internationally.
An example of that is our Maternal-Infant Research on Environmental Chemicals Study, where we look at hair, body fluids, human milk and human tissue samples and looking at exposure over time to a cohort to understand how Canadians are being exposed to chemicals and what the impacts are.
We also have various phases of a biomonitoring program looking at Canadians across the country and what their exposures are. That is used extensively to inform our regulatory risk assessments under the Chemicals Management Plan and risk assessment decisions under CEPA related to health concerns.
But your question, absolutely, senator, as we move to better understand the impacts of chemical exposure on marginalized communities, vulnerable populations and others across Canada, we certainly recognize the need to enhance our current biomonitoring program, and we will look to do that in the future in order to meet what is being proposed in Bill S-5.
Senator Patterson: Welcome, minister. I flagged in my second reading speech on this bill that there are two court cases currently before both an Ontario and a Federal Court which seek to define if the right to a healthy environment is indeed a right as contemplated by the Charter. By putting a right into the operative part of this bill, should we not understand what this right would confer on Canadians and how to operationalize it? Otherwise I believe we’re needlessly injecting uncertainty into every process that relies on CEPA for clarity and certainty.
This bill would have us wait at least two years to know what this right entails and what it obliges industry to consider in their proposed business activities. That is very concerning since we know that investment capital in many areas has been fleeing Canada because of regulatory uncertainty and risk.
Minister, my question is this: Why is the government choosing to press forward with introducing a right and then defining it after the fact, instead of doing that heavy lifting prior to its introduction so that Canadians have clarity right from the start?
Mr. Guilbeault: Thank you for your question, senator. There are a couple of elements I should answer first. First, I would beg to differ and I would welcome you to provide us with data that shows that capital is fleeing Canada, because that’s certainly not what we are seeing in the sector of electrification where, just in the past month and a half, four new companies have announced that they were investing hundreds of millions of dollars in Canada in the electrification sector. That’s number one.
Number two, as you know, the introduction of a right to a healthy environment is in the preamble. As a lawmaker, you would understand that for the four defining regulations on the application of a new element in the legislation, it first has to be in the legislation; and then through regulation, we define how this new right would be implemented in that particular case under CEPA.
Finally, in its last incarnation in the previous Parliament, when the reform to CEPA was introduced, it was saluted by business organizations as well as environmental organizations as an important step forward in environmental protection in Canada.
Senator Patterson: If I have another moment, Mr. Chair, I would like to ask a quick question.
During second reading, the sponsor of this bill, Senator Kutcher, who is with us this morning, suggested shortening timelines from risk assessment to risk management, but the bill calls for studying things like cumulative effects and vulnerable populations in all risk assessments, which one would think could lead to increased timelines due to the increased complexity of these risk assessments.
So why would we be considering deviating from current timelines for risk management, as the bill’s sponsor suggests, which are aligned with the current cabinet directive on regulatory management?
Mr. Guilbeault: I think what we’re trying to do is to be as efficient as possible as responsible lawmakers and in the application of the regulation, while ensuring that we are protecting the health and environment of Canadians. That’s the balance that we always strive to achieve in these endeavours.
[Translation]
Senator Galvez: Good morning, Minister. Thank you very much for the effort to modernize the act, with this very important bill.
[English]
It may seem novel to Canadians that in the last 50 years the right to help the environment gained recognition faster than any other human right. More than 150 states recognize their citizens have a right to a healthy environment. In fact, Canada is among only dozens of nations that do not yet explicitly recognize this fundamental right.
We will have to wait, as you mentioned, two years for the implementation framework that, among other things, will have to balance the right with relevant factors, such as social, economic, health and scientific factors. In practice, because I’m an engineer and for me what is important is in practice, can you please tell me if this new right will stop oil sands tailings from being discharged into the Athabasca River and prevent the contamination of fish and sources of food for Indigenous people? Will it prevent diesel oil from going into drinking water in Iqaluit? Will it stop the Quebec government from increasing nickel quality criteria to promulgate more air pollution from core activities, which impacts the citizens of Limoilou in Quebec?
[Translation]
Mr. Guilbeault: Thank you for your question and your passion for environmental issues, Senator.
[English]
There are a lot of elements in your question, I’m afraid. It would take a lot of time to answer them all. Maybe I could speak specifically about tailings ponds, which was the first part of your question.
As you know, oil sands mining tailings ponds contain a complex mixture of over 150 substances. Work is ongoing to characterize these substances and cross reference each substance on Schedule 1 of CEPA, which will continue as Schedule 1 under Bill S-5. It should be noted that there cannot be any discharge of tailings ponds in the waters of the Athabasca River right now, and we’re not contemplating doing that either.
More broadly, in terms of the answer to your very broad question, let’s move with the adoption of Bill S-5. Let’s include a right to a healthy environment and let’s define under CEPA how we would implement this right. Then, as you know, we will see how it can apply to different elements of industrial production or industrial pollution in Canada. It’s really hard to tell you in advance how it will be implemented, but I understand your point. It’s a very important one.
Senator Galvez: The bill retained the risk-based approach in the current act, and the amendments will require that the minister give priority to prohibiting activities in relation to, say, toxic substances of the highest risk. But we know that the issue with risk assessment — and as an engineer, I have been working with risk assessment — is this: What level is risk is acceptable? The bill signals to consider progress in science, but science is already clear that low levels and cumulative effects render a mixture of contaminants more toxic, as you were saying about the oil sands tailings. So how will industry under protection of commercial secrets or patents not interfere in risk assessment and management?
Industry will claim that because of commercial secrets, intellectual property or patents, they are incapable of doing risk assessment — all the studies that Senator Patterson talked about. It will take a long time, but we already know that science is already saying that cumulative effects are, in fact, making things more toxic, not less toxic. So why don’t we use the precautionary principle?
Mr. Guilbeault: What industry will or won’t do is difficult to predict ahead of time. What I think we’re trying to do is to ensure that our body of laws and regulations, and more specifically CEPA, evolves as science evolves on these matters.
This is a very robust regime that we’re trying to make even more stringent when it comes to toxic chemicals, paying special attention to vulnerable populations. Ensuring that we are looking at cumulative effects is not something we have done in the past in this piece of legislation. In many ways, I think we are doing what you would like us to do, but we’ll have to see how this gets implemented. I think we are moving in the right direction of strengthening this body of law and, more specifically, chemical management.
[Translation]
Senator Carignan: Minister, you stated in a news release when the bill was introduced that Bill S-5 emphasized protection for vulnerable Canadians, including environmental protection. You say that everyone deserves to live in a healthy environment.
Historically, I see that you voted against Mr. Davidson’s Bill C-204, to ban the export of plastic from Canada. You have undoubtedly seen the Fifth Estate report which was pretty clear on the destruction caused. You will remember Nina Azzahra, from Indonesia, who asked you:
[English]
“I really want you to stop — stop exporting your plastic waste to Indonesia. Just stop.”
[Translation]
So looking at Bill S-5, I don’t see any ban on exporting plastic. When you say that everyone has a right to a healthy environment, we might say that this statement doesn’t include Nina in Indonesia. Would you be prepared to amend Bill S-5 to include some of the provisions of Bill C-204 or the new Bill C-234?
Mr. Guilbeault: Thank you for the question, Senator. You will have understood that the amendments we are proposing to Bill S-5 deal with chemicals and the right to a healthy environment. Those amendments are not the entirety of what we are doing when it comes to the environment. The department, the government and I are working on an entire strategy concerning plastics specifically. Canada played a leading role in the negotiations that took place recently in Nairobi. We have started negotiations to define a new legally binding international treaty specifically on plastic. The fact that you don’t see what you would like concerning plastic in Bill S-5 doesn’t mean that the government is doing nothing about the issue, and in particularly the export of plastic waste. In fact, I have asked the department to review Canada’s position on the Basel Convention on exporting, and we are looking into what more could be done regarding exporting.
What the industry is telling us about plastic is that if we want to move toward a circular economy for plastic waste, plastic has to be circular worldwide, and it has to become an easily recyclable product in some way. You are right to say that this is not the case now. To all appearances, there are people who exploit the system. The team and I at the Department of Environment and Climate Change are working to make sure that these kinds of things can’t continue happening.
Senator Carignan: Since we are studying Bill S-5, why not take the opportunity? The purpose of Bill S-5 is precisely to make amendments to the same act. While we’re there, why not do it immediately?
Mr. Guilbeault: Senator, you can certainly propose amendments when the bill is sent to committee and you will have every opportunity to do so.
Senator Carignan: That’s what I’m going to do, but are you going to accept them?
Mr. Guilbeault: It’s up to the senators to decide what they will and will not accept. Then it will be sent to the House of Commons.
Senator Carignan: You’re not offering Nina much reassurance.
Senator Miville-Dechêne: Hello, Mr. Guilbeault, and thank you for being with us. I am interested in transparency in your bill. We are seeing improvement when it comes to the many requests for confidentiality that companies will make; you want them to explain themselves. With that said, the bill provides an exception that I haven’t managed to understand. It says that a regulation, order or notice may specify the reasons why they don’t want to explain the danger posed by a substance. It seems to me that there are loopholes in that provision. I wonder what you are going to do with a recalcitrant company that refuses to cooperate. I’m thinking of all the investigations, and, among others, of glyphosate, where we learned, years later, that the company had studies on the toxic nature of the substance. I would like to hear your thoughts on that provision regarding confidentiality, which is often a reason for companies not to be transparent.
Mr. Guilbeault: Thank you, Senator. The bill actually is intended to force greater transparency on the question of data about the use of chemicals and the impact of certain substances on health and the environment. That is exactly what we are trying to do. However, on the question of pesticides, as you probably know, that category of chemical substances is managed by the Pest Management Regulatory Agency, which comes under Health Canada. It doesn’t fall under CEPA. With that said, our government undertook to do a review of the enforcement of the pest management rules in force in Canada at the end of the last Parliament.
It is included in Mr. Duclos’ mandate letter, if I recall correctly, so I could collaborate with him on that issue.
Senator Miville-Dechêne: More specifically, I don’t understand why there is a provision in the act that allows companies not to give reasons for not being transparent.
Mr. Guilbeault: Can you tell me exactly where that provision is found?
Senator Miville-Dechêne: In clause 50 and the clauses of the bill that follow it.
Mr. Guilbeault: To save time, I could ask someone from the department.
Senator Miville-Dechêne: It’s on page 25:
Exceptions to requirement to give reasons
(3) 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.
Mr. Guilbeault: I don’t think we have the same page numbers, you and I. What I could suggest is that I follow up on this specific question in the very near future.
Senator Miville-Dechêne: Yes, it’s a bit specific.
Senator Gignac: Hello, Minister. Thank you for being with us this morning. Although a majority of Canadians and senators are very pleased with your desire to protect the environment, and Canada is essentially the best in the world when it comes how managing chemicals is handled, I would like to hear your thoughts on the potential impact of this bill on our businesses’ competitive position. Although Canadian Manufacturers & Exporters supports the bill, some of its members have voiced concerns about the fact that imported products are not subject to the same standards as local products. So in a context in which Canadian businesses, particularly in the petrochemical sector, have to deal with a carbon tax, which is not the case south of the border, can you confirm that your bill is not going to cause jobs to move to the United States?
Mr. Guilbeault: Thank you, senator. I think our system is one of the best in the world. Is it actually the best? I think it’s hard to make that claim. Just now, when I answered Senator Carignan’s question about plastics, I said we adopted international treaties so that there would be a relatively comparable level, planet-wide, for environmental legislation and regulations about climate change. You said there were no prices on pollution in the United States, but we see a whole series of legislative and regulatory measures there that show that efforts are being made with companies and there are requirements similar to what we have in Canada.
We are working with our partners on border adjustment taxes, specifically regarding carbon, so that recalcitrant countries don’t get special privileges and we can tax certain items coming from countries that don’t have environmental standards that are as high as or similar to ours. Can I give a guarantee? We have done extensive consultations with companies, NGOs and Indigenous communities concerning the amendments proposed in Bill S-5. We have struck a good balance, and as you said yourself, Canadian Manufacturers & Exporters and a number of other industrial associations or private sector organizations have welcomed the proposed amendments and said that the amendments made in the bill have struck a balance.
Senator Gignac: Have you consulted with your American counterpart? Eighty-five per cent of our exports go to the United States. It is actually important to have a degree of harmony when we’re talking about the environment and the regulatory burden between the two countries.
Mr. Guilbeault: We have had extensive discussions with the Americans on this subject. I will be in Washington next week to meet some of our counterparts. On certain subjects, they are even a bit ahead of us, and on others, we are a bit ahead of them, but I think that ultimately we are equivalent.
Senator Gignac: Thank you, minister.
[English]
Senator Arnot: Thank you, minister, for coming today and outlining this. I commend you for placing the right to a healthy environment in this act. It is a positive duty on the government to protect the rights of every individual and a positive duty on ministers to consider vulnerable populations and the cumulative effects on individuals.
My question is a simple one, really: In terms of a long-lasting legacy, is it your plan to actively advocate for constitutional change by placing this right into the Canadian Charter of Rights and Freedoms, and if not, why not?
Mr. Guilbeault: Thank you for your question, senator. The short answer is no. Neither I, nor my government, have intentions to try to reopen the Constitution or the Charter at this point, either to include this or any other constitutional changes.
Senator Arnot: A second question in follow-up: One of the things I see in here is that you’re going to take two years to figure out the regime. It seems to me that litigators love to litigate, and this could be a field day for litigators. We know it takes ten years or so to get some issues resolved by moving to the Supreme Court of Canada. What is the mechanism for resolution?
One of the things I commend to you when you’re thinking about this and during your consultations is having a first stop at mandatory mediation for the parties, because it is less costly to vulnerable people and people who may be complainants, and it’s more effective and efficient, because it provides a quicker answer and a speedier resolution due to the issues.
I’m concerned about the fact that this is just a right under the act. I’d like to know, is it that you have in mind that the respondents to this could be the minister, could be ministers of government, or is it polluters? And where is this going to be justiciable? Is this going to go to the Federal Court? How do you see that being resolved? You must have some ideas on that, notwithstanding the fact that you are going to take two years to look at this and provide answers to some of these questions.
Mr. Guilbeault: Thank you. There is a lot to unpack in your question, senator. I think we have someone from the Justice Department online with us, so maybe I will turn to them.
Before I do, I mean, you’re right. This may be litigated, which doesn’t preclude the government — as was the case for the price on pollution; it was litigated all the way to the Supreme Court of Canada — from moving ahead with the deployment of that specific piece of legislation. In the end, we were vindicated in the Supreme Court. I think the same parallel could apply to the new elements we are introducing under the Canadian Environmental Protection Act.
Specifically on the justice aspect of the question, Mr. Moffet, do we have someone from the Justice Department online?
John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada: We do, but I think Laura Farquharson is best positioned to respond to the question about rights and the various ways in which the right could be enforced and the extent to which it is justiciable.
Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, Environment and Climate Change Canada: The approach in the bill, as everyone has noted, is to elaborate on the meaning of the right and how that right will be considered in the administration of CEPA itself, through that implementation framework. The idea is that the elaboration of the meaning — which has some markers already in the bill in mentioning environmental justice, participation in decision making and non-regression — that the meaning will be elaborated through that framework.
In terms of the justiciability, CEPA already sets out numerous ways that individuals can enforce the act itself. If there are infringements or violations of CEPA itself, then individuals can even go so far as to seek an injunction. Then, of course, there is always the possibility, as exists under any kind of legislation, to take judicial review of government decision making. Then the courts would have a chance to opine on the reasonableness of government decision making, including on this aspect of the law.
Senator Sorensen: Good morning, minister. Welcome to the meeting, as I sit in Banff National Park. This is the first piece of legislation that I have been involved in as a senator. I’m learning a lot about process through Bill S-5 and about CEPA. Some of the meetings I have had to date suggest that CEPA needs more amendments now, just generally. Some say Bill S-5 needs more amendments before moving forward. And some say Bill S-5 needs to get through the Senate and the House as is, quickly — and I filter that with “as possible” — to take a positive step in the right direction now.
My question is to you personally, as a strong advocate for the environment: Are you happy with the legislation as it stands? Just to follow that up, what would you suggest for any future timelines when CEPA may come back to us again for other reasons?
Mr. Guilbeault: Thank you, senator. That is a very good question. I would agree with those who say that other amendments or changes are needed to CEPA. I’m not saying that Bill S-5 is the be-all and end-all of the changes we want to see happen in CEPA, but if we tried to put everything that everyone wants under one bill, it would be extremely challenging to get that through Parliament. We thought we would limit this round of changes to the concept of a right to a healthy environment and the chemical management.
The team at Environment and Climate Change Canada and I are working on, in the not-too-distant future, another round of amendments that we would like to see happen in CEPA. By proceeding with more manageable pieces of modification at a time, we have more chances, especially in a minority government Parliament, to get some of them through. Then if we have more time, we will come back to the House and to the Senate with new amendments.
The team and I would welcome proposals for changes from the Senate and, when it gets to the House, from members of Parliament. But it is a good balance that we’ve put on the table. Can it be improved upon? Absolutely. Do I want this to be adopted in as timely a manner as possible? Also, yes. We’re trying to achieve that.
Senator Seidman: Minister, I’m going to ask you a question that is dear to my heart, in a way. For me, Bill S-5 is an important piece of legislation, especially because it requires the Minister of the Environment and the Minister of Health to work together when assessing substances for their risks of environmental toxicity. In fact, as testimony to that, it even makes some amendments to the Food and Drugs Act.
We know that ministerial departments and government departments often tend to work in silos. I would like to know how you intend to operationalize this particular authority in the bill.
Mr. Guilbeault: Thank you, senator. You’re right in saying that governmental departments have a tendency to work in silos. I’ve only been a member of Parliament for three years, so I don’t have a whole lot of experience, but I’m seeing more and more cross-departmental cooperation on environmental issues, on health-related issues, in ways I wasn’t seeing in my previous career as an environmentalist. Before, when you were an environmentalist, you worked with Environment Canada, and that was pretty much it.
The last climate change plan that I tabled in the House of Commons three weeks ago, the 2030 Emissions Reduction Plan, was the result of collaboration with Environment Canada; Natural Resources Canada; Transport Canada; Innovation, Science and Economic Development; the Department of Finance, Treasury Board, Health Canada — and I’m probably missing one or two. We are learning to better work together and to start to break down those silos, especially on issues such as health and environment. I can tell you that there is really good collaboration at the departmental level as well as at the political level on these issues.
Senator Seidman: I will leave it there. That’s a good start. I won’t get into antibiotic resistance issues and the dumping into the environment that I think the Minister of Environment and Minister of Health ought to be considering. I will leave that on the table because I see two of my colleagues who haven’t yet had a question. I’ll let them move on to it.
[Translation]
The Chair: Minister, I know that you have to leave at 10:00. Can you give us another five minutes?
Mr. Guilbeault: Yes, we can take another five minutes.
The Chair: Thank you.
[English]
Senator Anderson: My question is about rights not always being guaranteed nor applied equally. I say that because one of the groups I dealt with, in regard to this bill specifically, is a Canadian group, but that Canadian group has no northern representation within it either. When I queried whether they made the regulations that apply to the territories as well as the provinces, they said they did, but there is no N.W.T. representation, no northern representation, not from any of the three territories.
What does the government do to ensure that a Canadian, or a national group or organization that makes decisions for all provinces and territories has representation on it that actually reflects the voices and the realities of the Yukon, the Northwest Territories and Nunavut?
Mr. Guilbeault: Thank you for the question, senator. I’m not exactly sure which organization you’re referring to. What I can tell you is that Environment and Climate Change Canada has ongoing conversations and discussions with all of the provinces and territories in terms of the implementation of our laws and regulations, and the applications of those throughout the country.
Senator Anderson: In the Northwest Territories, that I know of, we have over 200 sumps, and a quarter of those are in Inuvialuit lands. We have the degradation of an artificial island occurring in the Arctic Ocean. We have distant early warning sites, or, currently the North warning sites, that have left pollutants behind. There is Port Radium, the uranium mine in the Sahtu that was running from 1932 to 1982. We have the Yellowknife Giant Mine arsenic poisoning, with high arsenic levels in Ndilo, Dettah and the Yukon. For decades, we have been dealing with the cumulative effects of these pollutants. How does Bill S-5 apply to these historical sites?
Mr. Guilbeault: Well, that’s a good question. In many ways, what we’re trying to do with Bill S-5 is to ensure that these types of environmental legacies aren’t possible anymore, that companies can’t run and operate a mining operation for certain number of years, and then just abandon everything and leave the people cleaning up the mess. We know and we are well aware of the fact that we have this environmental legacy that needs to be dealt with, and that’s what we are working on. It will take some time, but I think what we’re doing with Bill S-5 is giving us, as a government, as a nation and as a society, more tools to try and ensure that these things don’t happen anymore in the future.
[Translation]
The Chair: Thank you.
We will now take another few minutes of the minister’s time; I would like to ask Senator Carignan and Senator Miville-Dechêne to each ask their question, and the minister can then answer both questions at the same time. I would also remind you that even though the minister is leaving us in a few minutes, his colleagues will be with us until 11:00 to answer questions.
Chantal Cardinal, Clerk of the Committee: Forgive me for interrupting you, Mr. Chair; Senator McCallum had raised her hand for the first round, while for Senator Carignan and Senator Miville-Dechêne it’s for the second round.
The Chair: I didn’t see her on the list.
[English]
Senator McCallum: Thank you, minister, for coming. The Athabasca Region First Nations have been interested in solutions for the crisis they face over the tailings ponds for years now. It’s been almost 30 years with no solution, and it’s not of their making.
As a way of working collaboratively, would you commit to a meeting with the Indigenous groups in the Athabasca oil sands region to review how Canada’s approach to waste management in the oil sands region conforms to the United Nations Declaration on the Rights of Indigenous Peoples? And would your government also discuss its commitment to identify and prioritize the cleanup of contaminated sites and areas where Indigenous peoples and racialized and low-income Canadians live and recognize the right to a healthy environment in federal law, and introduce legislation to require the development of an environmental justice strategy and the examination of the link between race, socio-economic status and exposure to environmental risk?
Mr. Guilbeault: Thank you very much, senator. Thank you for your question and your advocacy on this. In fact, about two weeks ago, I met with some of these groups in Edmonton, and that was the first meeting I had with them. It’s certainly not the last. You may know that in January 2021, Environment and Climate Change Canada launched a Crown-Indigenous working group specifically on the issue of tailings ponds. Through this group, the Government of Canada and Indigenous groups are working together to explore options that may include the development of regulations under the Fisheries Act to authorize releases of oil sands mining effluent under strict effluent quality standards that are protective of the fish and fish habitat. At present, tailings ponds are not allowed to discharge effluent that contains deleterious substances.
On your third point, as you may have seen in Bill S-5, we are making specific reference and paying special attention to populations that are being victimized or that are bearing the brunt of environmental pollution; definitely Indigenous populations, but also marginalized populations across the country. You may have seen that in the House of Commons, the government is supporting a bill that was introduced by Elizabeth May. It’s Bill C-226 on environmental racism. It’s a private member’s bill that the government is supporting. We will be working with Ms. May to develop this and try to make sure that it is adopted in the House of Commons. Then the Senate will be able to tackle this issue as well.
Senator McCallum: The request for the meeting just came in this morning before this meeting, so they are re-requesting a meeting.
As to my second question, can the minister ensure that the liability for cleanup of oil sands tailings belongs to industry and will not be downloaded to municipalities, the province or Indigenous communities?
Mr. Guilbeault: As I said, I had a first meeting with some organizations a few weeks ago, but it’s certainly not the last time I will meet with them, and I would be happy to do that again.
In terms of your second question, we are working with the department and Indigenous communities as part of this Crown-Indigenous working group on tailings ponds to define how we move forward, specifically with the issue of tailings ponds. So we will be in collaboration with Indigenous people defining the path forward.
[Translation]
The Chair: Thank you, minister.
Senator Carignan and Senator Miville-Dechêne, please each ask your question so the minister can then answer both questions at the same time.
Senator Carignan: Bill C-12 provides a specific obligation to consult the provinces; we don’t see that obligation in Bill S-5 regarding the implementation framework to be adopted, and that presents a risk of overlap in areas of provincial jurisdiction. Are you considering the possibility of an amendment to include that specific obligation to consult the provinces?
Senator Miville-Dechêne: My question is about the right to a healthy environment and it will be direct and concrete.
Minister, when do you think the economy has to be put ahead of the planet? It’s a concept that was actually dismissed and ridiculed by Al Gore, quite a few years ago; in 2006, I think.
Mr. Guilbeault: On the jurisdiction question, the environment is an area of shared jurisdiction between the federal government and the provinces and territories, of course. We hold consultations on a regular basis on a whole range of items, in particular through the meeting of federal, provincial and territorial ministers of the environment. The department is also in virtually constant discussions with their counterparts in the provinces and territories.
On your question, Senator Miville-Dechêne, I think we can’t hope to live in a prosperous society if the development of the society comes at the expense of living conditions on Earth. I think that the question answers itself.
Of course, human activity has impacts on the environment, and our role as a society is to work to constantly minimize those impacts so we are able to leave our children and our grandchildren a planet that will be in better health than when we inherited it.
The Chair: Thank you for being with us this morning, minister. This is an excellent introduction to Bill S-5.
I believe I understand that your colleagues will be staying with us for another 50 minutes, and that is much appreciated. Thank you, minister.
Mr. Guilbeault: Thank you.
The Chair: Senator Miville-Dechêne, I think you have a question for the officials.
Senator Miville-Dechêne: Absolutely. So, I’m interested in labelling, because it’s a fairly complicated field and one I’ve worked on in the past. There isn’t a lot of space on labels.
You want to warn consumers about toxic and harmful substances. What are you going to do? I can’t imagine — even though it would be wonderful to do it — that you can give information about toxicity. If you give only the incomprehensible and unknown name of some chemical on the label, nobody is going to be able to understand that the product is toxic or hazardous in the long term.
What are you planning in this regard? It’s actually a little revolution in labelling.
Mr. Moffet: We already have the necessary authority in the act to impose obligations concerning public information. So it isn’t a question of amending the act, but there actually are possibilities for expanding the information given to consumers. We have started a consultation on this. I’m going to ask my colleague to give you some more information about this initiative.
Ms. Farquharson: As you mentioned, the government has committed to improving transparency in the supply chain and strengthening mandatory product labelling. There are national consultations going on how about this and those consultations will be a chance to introduce the government’s measures regarding consumer products such as cleaning products and flame retardants in upholstered furniture.
As well, Health Canada is having Canadians participate in potential changes to the Cosmetics Regulations under the Food and Drugs Act, to increase transparency concerning the presence of allergens and perfumes used in cosmetics.
Senator Galvez: I have two quick questions. One of the questions will relate to a technical amendment I’d like to make.
[English]
In our entire bill, for every single mention of the Schedule 1 list, it says the list of toxic substances in Schedule 1. When we go back to the actual list, it just mentions Schedule 1. The part on the list of toxic substances is not there. I think this is a clerical mistake and, for clarity, we should be adding that.
Bill S-5 creates a list of substances capable of becoming toxic. I understand it’s intended as a watch list and could encourage business to avoid these substances until more information can be collected to determine if the substances are indeed toxic or not. But I’m afraid that this list might become like a parking lot and create uncertainty for businesses. There seems to be no conditions or obligations once a substance has been added to the list of those capable of becoming toxic.
Actually, section 77(1) of Bill S-5 says, “If the Ministers have conducted an assessment . . . .” The question is: Could a substance appear on this list forever? Is there a deadline for action when a substance is added to the list? If not, why not? Finally, if these substances are added to the list because they require more study on their potential toxicity, do we have the capacity to assess all the substances included on the list, especially given the already lengthy timelines for substances to appear on the toxic list? Thank you.
Mr. Moffet: Those are interesting questions, senator. First of all, your point about the labelling of the list is quite deliberate. As you know, the test in CEPA under section 64 is whether a substance is considered toxic as defined in the act. That is the term in the act, but then if a substance is found to be toxic, ministers can recommend that the Governor-in-Council add the substance to the schedule.
The schedule doesn’t have to have the name “toxic.” It has in the past. We are recommending removing that term from the list. The reason for that is because the test for the term to be considered toxic is not what one would normally think of as toxic. In other words, the criteria go well beyond what one normally thinks of as a toxic substance and includes substances that pose a risk to health and environment for various reasons, including, for example, greenhouse gases.
To avoid confusion, we’re suggesting the public list doesn’t need to be called a list of toxic substances. It can be the list of substances or it could have a different name that makes more sense in common language.
Your other questions were about the watch list. I want to clarify that the watch list is not intended to be a list of substances for which the government has insufficient information. It’s not a parking lot where we look at something and say, well, we’re really not sure. The idea of the watch list is that there will be some substances that have hazardous characteristics, but in their current use, there is no risk of exposure. They may be created in an industrial process and it is entirely self-contained, and then transformed before any emissions occur, for example. Or they may be a substance like a cancer drug that has harm, but we absolutely know it’s only used for one purpose. It’s designed to be harmful, but we need to use it to address cancer, so we’re not going to regulate it under CEPA.
What we’re saying is that if there is some other use that emerges in the future, we’re going to look again at this substance and determine whether there is a risk associated with the new exposure. That’s why a substance would be placed on the watch list.
If we need more information to conclude an assessment, we won’t conclude, and we will continue assessing until we have sufficient information to draw a conclusion. I just want to clarify the purpose of the watch list.
Senator Kutcher: I would like to continue along the same lines of the earlier question. Maybe this question would be best directed to Mr. Moffet.
Can you give us specific areas of current biomonitoring and research that you think need to be enhanced to meet the new additional demands for Bill S-5 and to ensure that they are not project based — as some of the research currently is — but are generationally sustainable, and advise how that would be achieved? That would be the first question.
The second question which follows from that is that the National Institutes of Health have a National Toxicology Program, which is not a bad one. Are there links with Canada to the National Toxicology Program in the United States? If so, what is the relationship, and do you share information and assessments so that we don’t have unnecessary duplication and waste of time and resources? If so, how are those links established? Thank you.
Mr. Moffet: Both excellent questions. I’ll start and then turn to my colleague Mr. Carreau from Health Canada.
In general we recognize that there will be a direct linkage between the implementation of both the general obligations established by the creation of a right to a healthy environment and the focus on environmental justice and vulnerable populations, the link between those concepts, and the need for continued biomonitoring to identify adverse effects on vulnerable populations.
Mr. Carreau can explain the current program and the plans for augmenting that program, but I would emphasize at the outset that all of our work, both on the health and the environment fronts, is done in close collaboration with academia and counterparts in the United States and the rest of the world. In particular, we have a very close working relationship with the OECD and the European Union so that, as you said, we’re not reinventing the wheel. Of course, we need to do monitoring in Canada, but for basic scientific tests, scientific methodologies and emerging science, we have ongoing information-sharing processes that have been in place for decades.
Mr. Carreau: Thanks, Mr. Moffet, and thanks, senator, for the question.
Indeed, at Health Canada there is a recognition that we need to enhance our biomonitoring programs moving forward. I see two key areas we have identified for enhancement. The first is in recognition of Bill S-5 and the emphasis on vulnerable populations that are more predominantly exposed or more vulnerable to being exposed to chemicals, including Indigenous and marginalized communities.
We certainly need to get a better understanding of the biomonitoring data from those communities that are more predominantly impacted by chemical exposure, because currently it is recognized as an area to improve.
You also mentioned study-based initiatives in Health Canada, and you’re quite right. As I mentioned in my previous interventions, we have some very key study-based biomonitoring programs, which have been integral to informing our programs. We see the need to enhance and enlarge those in collaboration with the academic community domestically to ensure we have longitudinal studies making the best use of biobanks, as you mentioned, and other pieces of information to ensure there is a long-lasting data set to inform the risks of chemicals to Canadians.
Lastly, I’ll build on Mr. Moffet’s point that we work collaboratively with our colleagues in the U.S. and jurisdictions internationally, including the European Commission, the World Health Organization and others, to collaborate on biomonitoring efforts to enhance the global scientific weight of science that is used to inform our actions in Canada.
[Translation]
Senator Carignan: I’m going to come back to the question I asked the minister, who gave me an answer by referring me back to shared jurisdiction. I studied shared jurisdiction in my constitutional law class over 30 years ago. So I didn’t need a clear answer from the minister. Regarding the ongoing consultations that officials are holding, I’m already aware of them. That is also true for carbon neutrality, although that is a specific provision under which the minister may take the views of the Indigenous peoples and the provincial and territorial governments into consideration. That provision is set out in Bill C-12. Again, this is the same context of shared jurisdiction and officials talking among themselves. Do you plan to include this specific obligation, that requires that the provinces and Indigenous peoples be consulted, in Bill S-5? If so, why was it rejected? If not, why?
Mr. Moffet: I’m going to ask my colleague, Ms. Farquharson, to answer in greater detail, but I will say that there is already an institution, a process and an obligation in the existing act. There are national advisory councils, and we have to consult them for every key decision made under the act. The councils are made up of representatives of each province and territory and several representatives of the Indigenous peoples.
There is also a new provision in subsection 73(3). Perhaps Ms. Farquharson can explain that provision?
Ms. Farquharson: Mr. Moffet referred to a new requirement that a plan of priorities be created for evaluating products and substances and for other priorities in the chemicals management program. The priorities plan will have to be prepared in the two years after the act comes into force. That requires consultation with all the interested parties, including the provinces and territories and the Indigenous peoples. There are also, everywhere in the bill and in CEPA, a number of opportunities for consultation. We talked earlier about the implementation framework for the right to a healthy environment and the opportunities for consultations on each regulation or on the other instruments used to manage chemical risks.
Senator Carignan: Would it be possible to get a table or a representation of the various sections with the obligations associated with the consultations? I don’t know whether you would have that information internally, but it would be useful for the committee to know the various specific obligations. We could then assess whether the obligation provided in the act is sufficient and determine whether we should propose specific amendments.
The Chair: Mr. Moffet, if you could send that information to our clerk, we will make sure that committee members receive a copy.
Mr. Moffet: Yes, certainly.
Senator Carignan: Thank you, that is much appreciated.
Senator Miville-Dechêne: I’m interested in the protection of vulnerable populations and the documentation needed for proving there are cumulative effects of this chemical pollution. Those effects are hard to prove and document. I wonder why this bill doesn’t specify the powers of the minister to order the companies in question to do mandatory testing on certain products that, for example, are suspected of having cumulative effects.
Mr. Moffet: People should read these new amendments to the current act. CEPA already contains that kind of provision. I would ask my colleague from Health Canada to explain how they use section 70, for example.
Senator Miville-Dechêne: Has that provision been used in the past?
Mr. Carreau: You’re asking an excellent question about cumulative effects. You’re right, the scientific evidence is not yet sufficient to establish all cumulative effects. It will take an investment in science to identify the cumulative risks for all Canadians. As my colleague Mr. Moffet said, the act contains a provision for asking that tests be done by industry, academia, or another source. That provision is already in the act.
Senator Miville-Dechêne: Has that provision been used in the past to require that industry do tests?
Mr. Carreau: I would ask my colleagues at Environment and Climate Change Canada to say whether the provision has been used in the past. I know it hasn’t been used recently, because the information was already available for managing human health risk assessments. Mr. Moffet or other witnesses could confirm whether it has been used in the past. That information is certainly available.
Senator Miville-Dechêne: Thank you.
The Chair: Mr. Moffet?
Mr. Moffet: We can give examples to the clerk.
Senator Miville-Dechêne: In writing.
The Chair: Excellent.
Senator Miville-Dechêne: Thank you.
[English]
Senator Patterson: I do have some questions that are based on my discussions with the Chemistry Industry Association of Canada, with which I know the department has been interfacing.
First, will the revised CEPA preserve exceptions which are in place under the current prohibition regulations, which include the use of transformative chemistry, inside-the-fence uses, and research and development?
Mr. Moffet: The way in which the government imposes restrictions on substances that have been identified as meeting the criteria of toxic in the act is via regulations or other risk-management measures, not pursuant to the statute directly. The statute then gives us authority to design those measures, including regulations, in a way that we can make, for example, an absolute prohibition, or we can carve out exceptions, as you said, senator, for things like research and development. That broad authority to tailor a risk-management measure to circumstances will be retained in the act. That is for existing substances. There is a similarly flexible approach for new substances. The short answer is that yes, we will retain the broadly flexible approach for new substances as well.
Senator Patterson: Thank you. I would like to ask about the watch list. This may be a little technical, but is there a duplication or ambiguity in connection with the provisions respecting the watch list and CEPA? I’m thinking of section 64 criteria, which refers to “constitute or may constitute a danger,” versus the wording in the watch list, “capable of becoming toxic.”
How will substances be added to the watch list and how will they come off?
Mr. Moffet: Thank you, senator. That’s an important insight and recognition that there is some overlap in the language. You’re right, the test in CEPA under section 64 includes the concept of “may” or “might.” We have tended to interpret — the goal is to add substances to the list of toxic substances that need risk management based on current or planned uses. Then, as I explained in an earlier answer, if a substance does not need risk management now based on its current and planned uses, but has characteristics where we think there could be a risk if it is used differently, then we would add it to the watch list.
We appreciate that it will be important to provide further clarification to Canadians and to industry about the basis on which we will make this decision. We’ll do that in two ways. There is a two-step process to add a substance to Schedule 1. First, there needs to be a scientific assessment that the substance meets the criteria. That has to be published, commented on and then put in a final publication, so there is a full explanation provided to Canadians with opportunities to comment.
Then there is also a two-step process to add the substance to Schedule 1: again, a publication with a rationale, a comment period and final publication. Ministers will be obliged to explain the reasoning for putting a substance on Schedule 1. Similarly, we will provide as a matter of policy an explanation for why we are adding a substance to the watch list and not adding it to Schedule 1.
Over time, we expect to provide additional clarifying material both to guide internal decision making and to provide some public clarity about the basic process and considerations that will go into these decisions.
Senator Patterson: Thank you.
Senator McCallum: When I looked at the subclauses under clause 10 of Bill S-5, they were going to extend the pollution prevention planning authority, which is good to see because prevention of pollution is critical for First Nations lands and lives, which have always been subordinated by industry.
Will pollution prevention be possible in the area of tailings ponds? Right now they are in an extremely precarious position of breaching the dams because they have reached holding capacity and tailings are seeping into groundwater. Mismanagement of this issue will impact areas of federal jurisdiction, such as transboundary water issues, migratory birds and the health of the Mackenzie River basin as well as Wood Buffalo National Park.
When we look at the pollution prevention authority, as an example, would the government look at proactively placing Wood Buffalo National Park on the list of world heritage sites in danger due to the risks associated with the oil sands until such time as Alberta addresses its tailings obligation under the action plan? Thank you.
Mr. Moffet: Senator, there are a number of important questions there.
First of all, it has been our advice to successive ministers, including to Minister Guilbeault, that the most significant legislative authority to be used to address potential risks to the Athabasca Watershed from the tailings ponds and to the rights and activities of the Indigenous people who live in that area is the Fisheries Act. The reason for that is that under CEPA — in a very simple sense — an activity can be carried out unless it is regulated. It’s the opposite under the Fisheries Act. Under the Fisheries Act, the discharge of deleterious substances, including substances from tailings ponds, is prohibited unless regulated. In other words, if we don’t have a regulation — and we don’t have one — any discharge of deleterious substances from the tailings ponds is illegal, and that is the case at the moment. If we find there are discharges from tailings ponds — and we are actively looking into this matter now — then that would constitute a violation of the Fisheries Act. That’s the first point — that we intend to rely on the Fisheries Act.
Secondly, as you know, we have been approached by the government of Alberta and by the industry telling us that the tailings ponds are getting full, there is a risk of leaking and, therefore, they want authority to release some of the water.
We have established a working group with all of the neighbouring First Nations, and we have for the very first time in the history of Environment and Climate Change Canada committed to collaboratively developing an approach — not just through consultation — to this issue.
This exercise has two main lines of work. The first line of work is this: Are there opportunities to reduce the amount of material that is actually going into the tailings ponds? In other words, let’s question the basic premise, which is that they’re filling up, they’re going to continue to fill up and therefore we need to release. Is that actually the case or can you actually reduce the amount that’s going into them? That’s the first line of work, and we’re doing that with First Nations in the area, and we are commissioning studies. That work is under way.
The second line of work, in parallel, is this: If we conclude that we do need to allow some release — only if, but if we do — what would the regulations say? What standards should it set? Again, we are working with the Crown-Indigenous working group to determine what those standards should be, and they will be set to the satisfaction of the relevant Indigenous communities. That is a multi-year project that we have initiated, starting last year.
Senator McCallum: Thank you for the information and for the work that you do.
Senator Galvez: My question is regarding animal rights and testing. Bill S-5 adds a reference in the preamble to the importance of promoting the development of scientifically justified alternative methods to testing substances on animals. There are otherwise no measures for these whatsoever in the text of the bill.
I’m sure most of us would agree that when alternatives are scientifically possible, we should minimize or eliminate the testing of substances on animals. Actually, the phasing out of toxicity testing on animals by 2035 was a promise in the Liberal Party platform last year. This CEPA modernization and reform is the perfect opportunity to start acting on that promise. Is there a reason why you didn’t include that in Bill S-5, and are you working in parallel on another project or in the future to amend a bill that would reflect this promise? Thank you.
Mr. Moffet: Can I suggest that we turn to my colleague from Health Canada to explain the process that is under way to fulfill this commitment? As you noted senator, it was a Liberal Party of Canada commitment but it has been included in the Minister of Health’s mandate letter.
Mr. Carreau: Thank you for the question, senator, and thank you, Mr. Moffet. Indeed, as you mentioned, there is a mandate letter commitment for the Minister of Health to call for the introduction of legislation to end testing on animals.
First, I would like to clarify that within our current construct of the program under the Canadian Environmental Protection Act, as well as other activities under the Food and Drugs Act and the Pest Control Products Act, the department does currently promote non-animal testing as a basis to inform its regulatory decisions when the body of science and those testing methods are scientifically defendable. We do that through using new methods or waiving the requirement to do the testing.
We are also moving forward with a first step to introduce legislation to ban cosmetic testing on cosmetics. That will be done as soon as possible by Minister Duclos, and that will be an important first step to meet the mandate letter commitment, but more importantly, as a mechanism to move forward with reducing the reliance on animal testing for the purposes of informing regulatory decisions.
We also think that amendments to CEPA, as you noted, senator, in the preamble do provide an important step forward to continue to move in the direction of investing in science to inform alternative methods that would reduce the reliance on animal testing. Through both the commitment to introduce legislation on cosmetic testing and through the text in Bill S-5, both myself and my colleagues at Health Canada across the regulatory programs, as well as my colleagues at Environment and Climate Change Canada, continue to have a commitment to invest in science, to generate alternative testing and work with our international colleagues, recognizing that our colleagues in the Environmental Protection Agency as well as the European Commission are actively working in the same regard. In conclusion, we are working on and have some pieces to move forward to meet this mandate letter commitment.
Senator McCallum: If there is a violation of the Fisheries Act, will CEPA then play a role? Because now you have the toxic substance in the environment. Do you work with the Fisheries Act, or how does this work?
Mr. Moffet: Most of the Fisheries Act, of course, is implemented by the Department of Fisheries and Oceans. However, the provision I referred to, which is in section 36 of the act that establishes a prohibition, is implemented by the Minister of Environment and Climate Change.
Environment officials have full authority to enforce and take action against violations of that provision. We also have authority to develop regulations and to implement and enforce those regulations. So we don’t need to move authority from the Fisheries Act to CEPA. We have full authority to address water pollution under the Fisheries Act itself.
Senator McCallum: You look at the rights of individuals to a healthy environment, but there is always a “but” to that. What level of pollution would then trump economic rights of corporations? Because it always seems to be that it’s the economy that allows Indigenous peoples to be put under threat. “Vulnerable populations” doesn’t really convey the situations in which First Nations live. They are under threat with their lives here. How do you look at this? How do you balance that right?
Mr. Moffet: Senator, that’s a very important issue. I can’t give you a specific answer and say this level of pollution is acceptable or that level of impact is okay in a particular circumstance.
I think the important thing to understand about the amendments that the government is introducing to CEPA in trying to address this issue is that we are both establishing a right and explaining a very general content of the right in the act. But then we are, as a number of your colleagues have noted, requiring ministers to develop an implementation framework. The important aspect of this that I want to emphasize and encourage senators to consider is that process to develop the implementation framework will be a public process. The goal is to engage all Canadians, including affected Indigenous people, in the appropriate articulation of the right and explanation of the way that the right should inform decisions in the future. So rather than us sitting at our desks in Ottawa, trying to write this up and say this is the way it should be going forward, our advice to ministers and as it is reflected in the act is that this should be a public process that we should go through before providing any kind of further details.
To supplement that, as we have also discussed during this meeting, there is an ongoing obligation to account for the impact on vulnerable populations, and Indigenous people in particular, in all decision making under the act. While we have done that as a matter of practice in the past, it will now be a legal obligation.
Senator McCallum: Thank you.
[Translation]
Senator Miville-Dechêne: Thank you again. I am wondering about the ambitious challenge you have in front of you, looking at that figure. Every year, 400 to 500 new substance notifications are received for review. I understand that those reviews are done at the Department of Health, under the Food and Drugs Act. I understand that they are completely overloaded, particularly when it comes to new medicines. How are you going to be able to start the ball rolling? I know you may not be able to answer my question precisely, but it seems to me to be enormous. Do I understand correctly, that even if it takes you two years to analyze a substance, the company can’t use it before getting the green light?
[English]
Senator Kutcher: Could you say more about what you mean by products that may release a toxic substance?
Mr. Moffet: Let me respond to Senator Kutcher’s question and then I will turn to my colleague Ms. Gonçalves to explain the timelines in the new substances notification regime, which are much tighter than previous.
Regarding the idea of a product that releases toxic substances, at the moment, we have under CEPA the authority to assess and manage substances themselves that are toxic and that pose a risk. In some cases, however, it might be much more efficient to address a product — for example, a jerry can — that, in and of itself, is just a piece of plastic or metal, so there is nothing harmful about it. However, it’s designed to be used with a toxic substance, so it can be designed to have a tight seal or a loose seal. If it has a tight seal, it won’t release fumes that might be toxic. If it has a loose seal, it will release.
A wood fireplace, for example, can combust efficiently or inefficiently. We can either regulate everybody who uses a jerry can and say we have to use tightly sealed jerry cans, or we have to use fireplaces that are efficient and don’t emit particulate matter above a certain level. Or we could regulate only the handful of manufacturers of those fireplaces. Again, the fireplace itself isn’t toxic, but the way it’s used would create and emit a toxic substance.
It allows us to get at the emission of a toxic substance, but in a more efficient manner than might be required under the current act. That’s the idea with that amendment there.
Then, again, on the timelines, maybe we can give you a brief overview. If you want, we could give you more follow-up information with the specific timelines associated with the new substances regime.
[Translation]
Ms. Cardinal: Mr. Chair, I’m sorry to interrupt you, but we really have to stop at 11:00. I don’t know whether you want to request an answer in writing for the other question.
The Chair: Mr. Moffet, can you share the timeline you’re referring to with us?
Mr. Moffet: Yes.
The Chair: I’d like to thank our witnesses for being here today: John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada; Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, Environment and Climate Change Canada; Jacqueline Gonçalves, Director General, Science and Risk Assessment, Science and Technology Branch, Environment and Climate Change Canada; Gordon Hill, Senior Counsel, Department of Justice Canada; and Greg Carreau, Director General, Safe Environments Directorate, Health Canada. Thank you, everyone, it has all been very important and useful.
(The meeting is adjourned.)