THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Thursday, May 19, 2022
The Standing Senate Committee on Energy, the Environment and Natural Resources met with videoconference this day at 9 a.m. [ET], in camera, to study Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act.
Senator Paul J. Massicotte (Chair) in the chair.
[Translation]
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: Today we’re going to talk about An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act.
Before we begin, I’d like to inform members that we have two departmental representatives on Zoom, in the event that a member has a technical question to ask as we conduct the clause-by-clause consideration of the bill. From Environment and Climate Change Canada, we have John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, and Bryan Stephens, Acting Manager, Legislative Policy, Environmental Protection Branch. We also welcome Greg Carreau, Director General, Safe Environments Directorate, Health Canada.
I want to remind senators of a few things. If at any point you are not sure where we are in the process, please feel free to ask for clarification. I want to make sure that all of us know where we are at all times. Just a quick clarification: If a senator objects to a clause in its entirety, the normal committee procedure is not to pass a motion to delete the entire clause, but rather to vote against keeping the clause in the legislation.
As the chair, I will do my best to ensure that all senators who wish to speak are able to do so. However, I will need to rely on your cooperation, and I ask you all to stick to the facts, and to speak as briefly as possible.
I’d like to mention to you that, to make it easier to make decisions at this hybrid meeting, rather than asking if the motion carries, I am going to ask those senators who support a motion to speak by raising their hands. We will use a show of hands if you agree. If you don’t agree, please don’t raise your hand. If the majority is not clear, we will hold a roll call vote on each occasion, but raise your hand if you agree. If you don’t agree, do nothing. Three, if there is any hesitation or comment on your part, we will hold a roll call vote.
Is it agreed that the committee proceed to clause-by-clause consideration of Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act? If you agree, raise your hand. Agreed.
Shall the title carry? Agreed.
Shall clause 1, which contains the short title, stand postponed? Agreed.
Shall clause 2 carry? Agreed.
There is an amendment to clause 2; one amendment proposed. Senator Galvez?
[English]
Senator Galvez: Chair, would it be possible to go by line, not only by article? Are we on page 2 clause 2?
The Chair: I have it by article.
[Translation]
Chantal Cardinal, Clerk of the Committee: Mr. Chair, may I interrupt you for a moment?
The text you should be reading is the one in black, not the one in red. The text in red is provided for information purposes. You need to ask if clause 2 shall carry, if someone has an amendment; they will propose an amendment if necessary.
The Chair: Shall clause 2 carry?
Senator Galvez: I feel that in clause 2—
[English]
My amendment comes in close to page 2, and I move:
That Bill S-5 be amended in clause 2, on page 2, by replacing lines 22 and 23 with the following:
“ment of substances to reduce or replace the use of animals;”.
So it would strike the words “refined” and “vertebrate.” The reason for that is we have heard from, I think, all of the witnesses who expressed themselves concerning animal testing who said they were in favour of reducing and replacing. The word “refined” opens the door to further animal testing and not necessarily thinking they are reducing it.
And I’m striking the word “vertebrate” because there are other animals that are not necessarily vertebrates. I think about octopuses, for example, that are prescient invertebrate animals that could be used in testing. We want, again, not to refine but to reduce or replace these.
The Chair: Senator McCallum, do you have a question?
Senator McCallum: No, I have an amendment to clause 2 as well. Aren’t we still on Senator Galvez’s amendment?
The Chair: Yes, we are. I thought you had a question for her.
Are there any questions or comments from other people to Senator Galvez’s motion? Senator McCallum, you raised your hand?
Senator McCallum: Yes. I just wanted to say that with this amendment that —
Ms. Cardinal: Chair, Senator Kutcher has a point of order.
Senator Kutcher: I am sorry, I’m confused. Is this the preamble? It says, “the third paragraph of the preamble to the act.” If it’s the preamble, shouldn’t we be doing it at the end?
Ms. Cardinal: There is no preamble.
Senator Kutcher: It says, “the third paragraph of the preamble.” I am just confused, as is Senator Seidman, so I feel I am in good company.
Senator Galvez: That’s why I was suggesting that we go line by line. We usually do line by line.
The Chair: The way I got organized was clause by clause.
Senator Galvez: You say “clause by clause,” but there are so many instances of number 2 and we won’t know exactly which number 2 we are on.
Ms. Cardinal: We are using the bill.
Senator Galvez: Yes. We are using the bill. I have the bill.
The Chair: Chantal, what did you organize?
Ms. Cardinal: The preamble is in the parent act; it’s not an actual bill, so in CEPA. You can look at it now.
The Chair: Which means what? Where are we at?
Ms. Cardinal: We’re on Senator Galvez’s amendment right now.
Senator Galvez: Okay.
The Chair: Senator McCallum, did you have a question of Senator Galvez?
Senator McCallum: I just wanted her to confirm that, with her amendment, she is including all animals that are to be tested. Is that right?
Senator Galvez: Yes. Exactly, yes.
Senator McCallum: Okay.
[Translation]
Senator Carignan: I want to make sure that we get the officials’ comments on each amendment. I don’t need to request it every time, unless you want me to.
The Chair: Maybe we can specify which official we’re talking about.
Senator Carignan: The one in a position to respond. I don’t know them personally, although I’d like to get to know them.
The Chair: All five are present. Can they identify themselves and answer Senator Carignan’s question?
[English]
Senator Patterson: Chair, I would like to ask a question of the officials.
The Chair: Let’s get them on the line. I know they are there physically.
Senator Galvez: I have reviewed my amendments with the officials. When I will be presenting, I will say this one was not in agreement with the officials. Then, if you wish, you can ask them. In general, I consulted with them. I have either complete support or it is open for discussion.
The Chair: Mr. Moffet, are you going to be able to answer this request?
John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada: Senator, can I suggest as an operating procedure that the senators can start by directing their questions to me? I will then farm them out to the appropriate colleagues so that you don’t have to guess who to ask. That might make things easier.
The Chair: Okay.
Mr. Moffet: On this one, yes, we have discussed it.
I would like to turn to my colleague Ms. Farquharson to make some initial remarks about Senator Galvez’s amendment. Then, if there is more detail required, we can turn to Mr. Carreau from Health Canada who can explain the overall approach being taken at Health Canada with regard to reducing animal testing.
If that’s okay, I’ll turn to Laura now.
The Chair: Good idea.
Mr. Moffet: Thank you.
Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, Environment and Climate Change Canada: The preamble includes those Three Rs: reduce, refine and replace. It also includes vertebrate animals. I think it’s the “refine” that is being suggested we take out, as well as the vertebrate animals.
Right now, animal testing is still necessary to ensure the safety and health of products; it’s governed internationally, as well as by Canadian organizations. The Three Rs are integral to that approach.
The thought is that, as long as animals are still used in testing, we should keep the “refine,” though the hierarchy may be important — replace, reduce, refine. The “refine” is principally about making sure that the welfare of the animals that are used for testing is looked after.
As for vertebrates, as far as removing that, there is quite a bit of toxicity testing that goes on right now that is on invertebrates, so I’m not sure that that’s realistic at this point.
[Translation]
The Chair: Does that answer your question, Senator Carignan?
Senator Carignan: Yes, it does.
Senator Miville-Dechêne: I have a question about vertebrates and invertebrates. Ms. Farquharson, percentage-wise, are more tests done on invertebrates than vertebrates? I confess my ignorance on this subject.
[English]
Ms. Farquharson: I think I have to turn to those who are in the science field to answer that question.
Mr. Moffet: We can start with Health Canada. Environment and Climate Change Canada also does testing, for example on benthic organisms, which are invertebrates.
Again, the overall approach that the Government of Canada is taking on animal testing is being led or coordinated by Health Canada.
Mr. Carreau?
Greg Carreau, Director General, Safe Environments Directorate, Health Canada: Thank you, Mr. Moffet and thank you very much for the question.
Indeed, pursuant to Laura’s commentary, animal testing continues to be an important indicator of risks to health. As we strive to develop alternative methods to replace animal testing, which continues and is promising, the replacement methodologies aren’t yet in place for the broad spectrum of health end points. While those alternative methodologies aren’t in place yet, testing will need to continue on both vertebrates and invertebrates.
In terms of the percentage, we don’t have a specific figure in mind. But a majority, particularly from a health perspective, is done on vertebrate animals. I’ll pass it over to my colleague, Ms. Gonçalves, who may have additional information from an ecological perspective.
Jacqueline Gonçalves, Director General, Science and Risk Assessment, Science and Technology Branch, Environment and Climate Change Canada: Yes, thank you.
Unfortunately, I don’t have specific percentages. But as my colleague from Health Canada indicated, it’s still a mix of both invertebrate, for example water fleas, or fish, which are important in terms of toxicity testing in freshwater, for example. It is still a mix of animals that are used.
Senator Patterson: Thank you, Mr. Chair.
I understand from the officials that testing is taking place on both vertebrate and invertebrate animals. We are not sure of the percentage. So it would seem to me in that case that it would make sense to remove the adjective “vertebrate” so that the preamble applies to all animals rather than just vertebrate animals, since all animals, vertebrate and invertebrate, are currently necessary for testing.
I would like to confirm that it would make sense to the officials that the adjective “vertebrate” be removed.
As far as the word “refined,” I understood from Ms. Farquharson that we are part of an international approach in which animal testing is still necessary to ensure public safety, and the word “refined” was in there to ensure the welfare of animals. If I understand that correctly, I would ask you to confirm that if the word “refined” is removed, may we actually be taking away a protection to ensure the welfare of animals? There are two questions there, thank you.
The Chair: Thank you. Can officials respond to that?
Mr. Moffet: First, in terms of the Three Rs, those are standard. Those are the terms that are being addressed by the broader international scientific community, and indeed, “refined” has a specific meaning and is intended to address animal welfare, as my colleague explained. Taking that term out could, in fact, limit Canada’s approach here.
Second, in terms of vertebrate versus invertebrate, while we do continue to do testing on invertebrates, the current focus internationally, including in the U.S. in their work under the Toxic Substances Control Act, and in the EU under the REACH program — the equivalent to our Chemicals Management Plan — is exclusively on reducing and refining the testing of vertebrate animals. In order to stand with international scientific activity and not limit the ability to use scientific testing methods that are in use in other jurisdictions, the bill is currently drafted to focus exclusively on vertebrate animals.
Senator Kutcher: Thank you very much. I have two questions. One picks up on Senator Patterson’s question but is slightly more nuanced.
If the phrase “refined” is removed, is there a concern that will diminish the necessity for good care of animals that are used in testing? My understanding is that the word “refined” is to ensure there is good care of animals that are used in testing. If that word is removed, would that put animals in jeopardy?
Second, if we remove the word “vertebrate,” what would be the risk to the ability to test toxicity for human health at this point in time? I’m probably the only one in this committee that has actually done this work in the laboratories. But at this point in time, when we still don’t have methods yet — they are coming, some are really good, and we should use them instead of animals, absolutely — what would the risk be to human health if we remove the word “vertebrate” at this point in time?
Mr. Moffet: Let me direct your first question, senator, to our Health Canada colleague, Greg Carreau, and then the second question to our ecoscience representative, Ms. Gonçalves.
Mr. Carreau: Thank you very much for the question, senator. Indeed, from the Three Rs perspective, there is international consistency in the use of the Three Rs, including the Canadian Council on Animal Care, which is the Canadian standard that sets standards for ethical animal care in science throughout Canada.
Our close colleagues in the United States and Europe also use the Three Rs in the basis of animal toxicity testing. International collaboration is important from a Canadian context to ensure there is alignment internationally in this regard but also to enable leveraging of the science and research from our colleagues around the world.
With respect to refinement, indeed, senator, it does introduce the concept of that while animal testing continues, it does so in a manner that protects animal welfare to the extent possible. As other officials and I have indicated, animal testing will need to continue for areas where alternatives have not yet been scientifically proven. While that animal testing continues to ensure the protection of Canadians, refinement provides the basis to ensure animal welfare during that transition period.
Ms. Gonçalves: With regard to toxicity testing for the environment, in order to be able to identify impacts of substances in the environment, we do rely quite extensively on testing invertebrates, so very small invertebrate creatures like daphnia that are found in a variety of media. Right now, at the international level, there is no substitution for those types of tests.
The focus, obviously, is on reducing the use of vertebrate animals, as it should be.
The Chair: Senator Kutcher, does that respond to your question totally?
Senator Kutcher: Not completely. I asked about the risk of taking out vertebrate testing. As we develop the methodologies and science to have no animals used in testing, if we remove the word “vertebrate,” what risk does that pose to us now? Does that compromise our ability to do the testing that we need to do right now to protect human health? That question was not answered.
Mr. Moffet: I think the answer is yes. We want to retain the ability to do the same types of testing that are done on a standardized basis with our colleagues around the world while joining them in overall efforts to reduce testing and refine the approach to testing for vertebrates.
The Chair: Does that answer your question, Senator Kutcher?
Senator Kutcher: We’re getting closer.
The Chair: Are you warm?
Senator Kutcher: Well, I’m warm, but I’m not warm and fuzzy. I’m still trying to find out in more precise detail whether removing this would hamper our ability to do the testing we need to do at this time to support public health. That’s the question.
Senator Galvez: I think that the answer is no, because we are not banning animal testing. We are saying it has to be scientifically justified.
I agree with the comment from the officials that there should be a priority mentioned in the Three Rs. So instead of having “reduce, refine or replace,” we can say “reduce, replace or refine as a last resort,” because animal rights groups have said that refining animal testing could also be detrimental because it will encourage the continuation of refining and using animals. I think that is contrary to the purpose and the goal of the change that is being brought here.
As Senator Patterson and the officials have said, today we use vertebrates and invertebrates, so taking out “vertebrate” would leave us with just “animals,” which will include any kind of animal.
Do you think I can change my amendment? I can move an amendment that says “assessments of substances to reduce, replace or refine the use of animals.”
The Chair: Senator Kutcher, does that help you a little bit? Does that answer your question?
Senator Kutcher: No. I’d asked the question of the officials.
The Chair: I know.
Senator Kutcher: I’d like to hear from the officials, please.
Mr. Moffet: I think that Senator Galvez is correct that this is a preambular text, so it’s direction setting. But the way we had drafted this was to reflect the alignment with the overall approach being taken in the U.S. and the EU, with the exception that Senator Galvez has just pointed out, which is that, in fact, there is a bit of a priority sequence that could be better reflected in the current text. In fact, internationally it’s “replace, reduce or refine” in order to reflect that priority setting.
The Chair: Senator Kutcher, does that help you?
Senator Kutcher: Yes, thank you very much. I do have a subamendment about this. When the time comes, I’d like to raise that.
Senator Seidman: I would like to clarify Senator Kutcher’s efforts to ask the officials about whether this will endanger the health and safety of Canadians. If I understand Mr. Carreau correctly, this is a process of replacing. At this point in time, we are working towards replacing all animals. But will it endanger the health and safety of Canadians to take “vertebrate” out completely and just leave “animals”?
I think that’s what we’re trying to get at here. We understand it’s a process. If you remove the language completely now, you take us to the end point of the process that we’re working at with our U.S. and U.K. colleagues. Are we ready to get to the end point, which is to remove “vertebrate” and have all animals, basically? Are we ready for that right at this moment when we’re signing off on a piece of legislation?
That’s a question addressed to Mr. Carreau to try to get to some conclusion on Senator Kutcher’s question. I’m still trying to understand the answer.
Mr. Carreau: Thank you for the question. The current efforts to replace animal testing are about replacing animal testing done on vertebrates. That has been our effort consistently internationally. We think we’re making significant progress and that it’s an important milestone to continue to move towards.
As to why the officials include vertebrates in the language, it’s because the preambular text talks about efforts to reduce testing on vertebrates. As my colleague Ms. Gonçalves mentioned, there are currently no efforts to reduce testing on daphnia, for example. That is an important indicator for ecotoxicity and will continue to be so for quite some time.
[Translation]
Senator Carignan: My question is about direction in relation to the United States and the European Union. There seems to be a desire to align ourselves with what’s being done internationally in countries more actively engaged in research and development. Why do we want to move towards or stay in step with the EU and the United States in this area? If we’re different, could that have economic implications, particularly on factory location, systems or research and development centres, or centres of excellence in Canada as opposed to the United States and Europe?
The Chair: To whom are you addressing your question?
[English]
Mr. Moffet: I can take that, senator. I think there are a few points that have arisen here. First of all, with respect to the question about economic implications, I don’t think the implication of decisions that we’re making on this clause can be drawn directly to economic outcomes or research and development outcomes.
When we say we’re trying to align with EU and U.S. research and assessment procedures, we have done that for decades. We want to continue to do that because we share toxicological testing across jurisdictions so we can take action when another jurisdiction has identified risk and vice versa. Then we don’t all have to do that work independently. If we restricted our ability to rely on certain types of testing, then it might take us longer to come to a conclusion about whether there is a risk, and we would be out of sync with other countries.
In terms of the legal implications here, we need to be clear that the legal implications are minimal in terms of changes to the preamble. However, the preambular text is intended to indicate the orientation — the intended focus — of government work in this area. As my colleagues have explained, there is currently no government work under way to reduce, replace or refine testing of invertebrates. The focus is exclusively on vertebrate animals at this time.
The Chair: I see no other hands up. Senator Galvez, you wish to —
Senator Kutcher: I have a subamendment.
The Chair: Go ahead.
Senator Kutcher: Thank you very much. As I understand the discussion and the information that we received from the officials, the information does not support the amendment. I have a subamendment to suggest that we keep the Three Rs but reorder them so it reflects the order of precedence. So it would be “replace, reduce, refine.”
Then I would like us to consider the issue here about keeping the vertebrates because the risk to human health protection at this time, as we move to get rid of animal testing, is such that we shouldn’t remove that. So I would keep the word “vertebrate” in.
Senator Patterson: Agreed.
The Chair: Is there any debate from anyone else?
Senator Galvez: Yes, I just want to be clear on the order that Senator Kutcher is proposing.
Senator Kutcher: “Replace” comes first: “replace, reduce, refine.”
Senator Galvez: Okay.
Senator Kutcher: You’re okay with that?
Senator Galvez: Yes.
The Chair: There is no question? Is there agreement? Hands up for those who agree.
The subamendment is adopted. Thank you.
That only took us an hour for one question. We’re doing great.
Shall clause 2, as amended, carry?
Senator McCallum: I have an amendment in clause 2.
Ms. Cardinal: For the subamendment, can we confirm that we have the French version of the subamendment? We’ll consult with the law clerk.
[Translation]
Senator Miville-Dechêne: It’s “replace, reduce and refine”.
[English]
Senator Kutcher: It was “replace, reduce, refine” and keeping “vertebrate” in.
The Chair: I think we passed that. That’s okay.
Senator Kutcher: But I don’t have it in French.
[Translation]
Senator Miville-Dechêne: I have it, would you like me to—
The Chair: Yes, please read it out loud.
Senator Miville-Dechêne: So it should read as follows in French: “Pour l’essai et l’évaluation des substances afin de remplacer, réduire et raffiner l’utilisation des animaux”. Sorry, it’s the use of vertebrate animals. We’re keeping “vertébré”.
[English]
The Chair: Is that all right in French?
[Translation]
Senator Carignan: I’m sorry, I missed something. Could you read that again, please?
Senator Miville-Dechêne: So we’re using the three adjectives: “l’évaluation de substances afin de remplacer, afin de réduire et afin de raffiner l’utilisation des animaux vertébrés”.
Senator Carignan: So we’re just reversing the order?
Senator Miville-Dechêne: Yes, it’s just a reversal. Compared to the amendment, the subamendment puts the term “vertébré” back in. It’s the same thing.
The Chair: I repeat: We’ve approved the amendment and we can proceed. However, there are other proposed amendments. Senator McCallum has an amendment to propose for clause 2.
[English]
Senator McCallum: Yes. I move:
That Bill S-5 be amended in clause 2, on page 2,
(a) by replacing line 3 with the following:
“of Indigenous Peoples, including free, prior and informed consent;”;
(b) by replacing line 17 with the following:
“of science and Indigenous knowledge in the process of making decisions related to”;
(c) by replacing line 20 with the following:
“and timely incorporation of scientifically justified and Indigenous knowledge–based alter-”.
This came from the Assembly of First Nations, and they had wanted it removed from the preamble. When I tried to do that with Bill C-69, it didn’t work. It was voted down in the Senate, so at this point, I wanted that added.
This is what they have said:
The Canadian Environmental Protection Act, 1999, and the proposed amendments contained in Bill S-5 do not uphold or adhere to the minimum standards recognized by the United Nations declaration, in particular, those minimum standards pertaining to self-determination, the conservation and protection of the environment and First Nations’ lands and resources and to consent-based decision making through consultation towards free, prior and informed consent.
Now that An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples has received Royal Assent, the Government of Canada must, in consultation and cooperation with First Nations, take all measures necessary to ensure that the laws of Canada are compliant with the minimum standards contained within UNDRIP.
The Canadian Environmental Protection Act, or CEPA, 1999, must be amended to ensure this consistency, including Article 18 of the United Nations declaration, which states that Indigenous peoples have the right to participate in decision making in matters which would affect our rights, and article 32.2, which mandates good faith consultation and cooperation with Indigenous people to obtain our free, prior and informed consent for projects affecting our lands and our resources.
Current First Nations involvement under CEPA, 1999, does not constitute meaningful consultation toward free, prior and informed consent, and a national advisory committee has been limited to one Aboriginal government, which is the Cree Nation from Quebec. Clearly, a ministerial advisory committee with limited First Nations representation and a mandate to provide policy-like advice and recommendations does not constitute meaningful consultation toward free, prior and informed consent in decision making with respect to the approval of toxic or harmful substances, nor does it uphold the government’s commitment to a nation-to-nation relationship with First Nations.
As we know, free, prior and informed consent is the most contested part of UNDRIP, and First Nations have found that they have been forced to go to court to assert sovereignty over their lands. That’s the reason behind my amendment.
The Chair: Just to clarify, Senator McCallum, is that part of the amendments that we got this morning?
Senator McCallum: Yes. I sent them yesterday. There are three amendments, and I’m just doing the first one now.
Senator Kutcher: I thank Senator McCallum for bringing this forward. I appreciate that very much.
My challenge is that I’ve only just seen it now. I don’t understand whether there is any interplay with other pieces of legislation or how this fits best. I wonder if the officials could give us a hand in explaining this.
The Chair: Can somebody clarify the relevancy and whether it affects the rest of the bill?
Mr. Moffet: Certainly, senator. As the senators no doubt are aware, the Government of Canada recently passed the United Nations Declaration on the Rights of Indigenous Peoples Act, and that act is intended to provide the legal framework for all activities in the Government of Canada to guide them and ensure that they are undertaken in a way that respects the full text of UNDRIP.
The preamble in the bill itself now does refer to the government’s commitment to implementing UNDRIP. It does not, however, as Senator McCallum has noted, specifically refer to free, prior and informed consent. The reason for that is that free, prior and informed consent is important, but is only one element of UNDRIP. It appears in UNDRIP with respect to four specific types of decisions. Whereas other considerations and terms are also used in the declaration, singling out one particular term could have unforeseen and unpredictable legal consequences in terms of the implications for the implementation of CEPA. It’s the government’s intention that CEPA, as with all other federal statutes, be guided by the overall declaration as codified in the UNDRIP act that was passed recently.
The Chair: So the short answer is you didn’t want to take the risk that it would affect the rest of the legislation or extend powers that were not intended. Is that a good summary?
Mr. Moffet: Thank you, senator. Perhaps I need an interpreter. Yes, exactly.
Senator McCallum: If it is one element of UNDRIP, why would you then hesitate? Is there going to be a limitation to free, prior and informed consent? Is that why you don’t want it there? Would it be possible, then, to insert free, prior and informed consent into the areas of the bill where they will be affected so the bill is uniform? Is that an option that I have?
First Nations — and I represent First Nations so that’s why I use that term — the reason we are in this mess with Canada on very many issues is because we have not been given the right to practise free, prior and informed consent in our lives. So why are the toxic materials in and around First Nations communities? Why is it that they have higher rates of disease and that there are premature deaths? It’s because they don’t have free, prior and informed consent.
When I look at that, that is one of the most prominent articles in the United Nations declaration.
The Chair: Is there a question to somebody in that or just an observation you wanted to make, Senator McCallum?
Senator McCallum: It’s an observation, and it’s something that the government officials need to take into consideration when they’re limiting the sovereignty of First Nations, especially in legislation, because that’s what we’re trying to change, to make certain that we are not recolonizing First Nations with the legislation that we pass.
The Chair: Mr. Moffet, could you comment? Are you limiting the rights and authorities of the First Nations by this introduction as you currently have it?
Mr. Moffet: Senator, I want to be extremely careful in answering and respect Senator McCallum’s concerns. That said, the key point I wanted to reiterate is the federal government is committed to implementing the declaration but is being guided in its implementation by the overarching statute that was recently passed, which does not single out free, prior and informed consent. Singling out that one term in this act could have unforeseen legal consequences.
I am not taking a position one way or the other, and it’s not my place to take a position about the importance of free, prior and informed consent. I am trying to explain the government’s overall position on the declaration and the potential consequences of taking a slightly different approach in this statute when the government is attempting to take a consistent overall approach.
[Translation]
Senator Galvez: I would like to support Senator McCallum’s amendment.
[English]
I am in full agreement with the last argument that she mentioned. As well, in the last Parliament we passed the bill that urges the government to harmonize all our legislation with the United Nations Declaration on the Rights of Indigenous Peoples.
I am of the opinion that it’s this first right of free, prior and informed consent that must have priority in the implementation. Because we are still in the preamble, this is the time to give orientation. As somebody said, the legal implication is minimal. We are in the preamble, so clarifying free, prior and informed consent needs to be included. It is just a redundancy, but it gives security and assurance that the engagement of the government to implement UNDRIP is real. Right now, we are doing it. So I am in complete support of this amendment. Thank you.
[Translation]
Senator Carignan: If I understood the officials correctly, this is already in the general statute that was passed, and if we start putting it in some specific statutes, as in this case, we’re concerned that the principles of interpretation may have some unintended impacts, particularly if we say that it was provided for in a statute; it may be because it’s not provided for in another statute. It may even risk undermining Canada’s commitment.
Do I understand the officials’ position on the risk? That’s how I see it. I just want to make sure I understand it correctly.
Mr. Moffet: Yes, that’s right.
[English]
The point that I’m making is that there is, at the moment, one approach defined by the UNDRIP Act that applies to the whole of the government. If we take a slightly different approach in this act, then we risk — and I can’t tell you what they are; I’m saying they’re unforeseen — legal implications either for the application of this act or for the interpretation of the overarching statute, which is why I’m urging senators to consider retaining a consistent approach, which would involve simply referring to the importance of respecting the declaration in the preamble as it’s currently drafted. Thank you.
Senator McCallum: I wanted to say that I have highlighted this part and singled it out because free, prior and informed consent is the area that has been the most denied. It is because of this lack of free, prior and informed consent that there is devastation of lands and peoples.
If you say we want to retain a consistent approach, when will you decide to take an inconsistent approach to apply the rights of Indigenous peoples? When will that happen, or is that an excuse that will continually come up and stop progress for First Nations?
The Chair: Mr. Moffet, do you have the answer to that?
Mr. Moffet: I don’t think I can answer that in general. I would note, however, that as we proceed through the bill, we will start to discuss some of the other amendments to CEPA that emphasize the importance of the government considering potential adverse impacts on vulnerable populations. While that has been a practice, it has not been a legal obligation in the past, whereas we are now proposing to make this a legal obligation which would compel our risk assessors and risk managers, both from an environmental and health perspective, to account for vulnerable populations, including, to the extent that the issue arises, impacts on Indigenous people and their communities.
Senator Seidman: The official’s response to Senator Carignan’s question clarified my question. I will just run it past us again, if I might.
In this piece of legislation, we’re amending CEPA in certain elements, but there is the overarching act that remains, and the official was cautioning us that we could have unintended consequences to the overarching act, as well as any other act that’s out there in terms of the legal consequences.
I think I’m clear on that now. I’m clear on the reason that even though on the surface it seems simple, and almost obvious, it could have unintended consequences to CEPA itself and our legal obligations.
Senator Kutcher: I wanted a clarification. We have been having a good, fulsome discussion on subclause (a) in the motion, but I want to make sure that I understand that the motion is not only about subclause (a) but about subclauses (b) and (c) as well. That’s all one motion. If we’re taking it as one motion, I’m raising the issue that we will also need official assistance with subclauses (b) and (c) before we are able to vote on the entire motion.
The Chair: Mr. Moffet, can you help us clarify the issues?
Senator McCallum: Could I make a comment? When I did these, I did them all as separate motions because I knew that would happen. It’s the law clerks who have brought them forward in this way. These are all separate issues. We had “free, prior and informed consent” separately, and then we had the Indigenous knowledge section, which is coming up, separately. They don’t belong together.
So if you want, we can have the law clerks put the one with “free, prior and informed consent” separately and you vote on that, and then we do the second half, and that will be separate. I think that might make it easier for people.
The Chair: If I could suggest, Senator McCallum — I don’t know if you agree; you can disagree, if you wish — maybe it would be better if we simply punt on your three amendments. We’re half an hour away from finishing. There’s a very high probability we will be sitting again on this to review the amendments. Maybe we can review your amendments at that time? Would you agree with that — to delay a little bit?
Senator McCallum: Do you want me to finish what is on this page and go on, and then people can decide?
The Chair: Or delay it all until we get more time. But it’s your call.
Senator McCallum: What are you going to do with the rest of the time? Are we going to somebody else?
The Chair: Yes, because we got 30 minutes left. But we’re not going to finish with the bill, obviously.
Senator McCallum: Okay, I want to finish this one page, and then people can think about it. I don’t really know what you’re planning here.
The Chair: Let’s see if other people want to comment on the issue.
Senator Plett: I want to comment on your suggestion. We have been an hour and a half now, and we haven’t gotten anywhere. Now you’re suggesting that we just kind of put this in abeyance. That doesn’t solve any problems.
We have clear direction here from the officials. If you’re not going to bring this to a close — we had also agreed at the start of the meeting that if we have an agreement to revisit, we can revisit. But if you’re not going to call the question on any amendment here that will have a half-hour debate, because I have a feeling there will be a whole lot of them, you’re not going to get this bill out of the Senate before Christmas two years from now.
We’d better start bringing things to a close. We have officials here. If we aren’t going to take the recommendations of the officials, then we are also wasting their time.
Those are my observations and comments.
The Chair: Senator McCallum, how do you want to proceed? Do you want to proceed with your amendments?
Senator McCallum: I want to get the law clerks to separate these. They included them because they are all in clause 2. I would like them separated, so if you want to have a vote about “free, prior and informed consent,” then have the vote now. Then I will start my other one with the Indigenous knowledge, which I don’t think will take much time.
The Chair: How does the committee feel? We can do as you wish, obviously. Senator Sorensen is saying to proceed.
Ms. Cardinal: Senator Massicotte, we could stand this, and then the law clerk can separate them as Senator McCallum is asking. We revisit this at the next meeting.
The Chair: Do you agree with that?
Senator McCallum: Okay. I will do that.
The Chair: Does the rest of the committee agree with that? Okay. So delayed; stand.
Are there any other amendments to clause 2 to be proposed?
Senator Patterson: Mr. Chair, I will just note that the ordinary procedure, in my experience, in dealing with bills is to do the preamble at the end, but that’s not our practice today.
I have an amendment to propose for line 13 in clause 2. Is that in order, Mr. Chair?
The Chair: Yes, it is.
Senator Patterson: I move:
That Bill S-5 be amended in clause 2, on page 2, by adding the following after line 13:
“Whereas the government of Canada is committed to the development of an internationally integrated approach for the assessment and management of chemicals;”.
This is a new “whereas” that I’m proposing, Mr. Chair. May I speak to the amendment?
The Chair: Please do.
Senator Patterson: We have heard from the chemical industry, Dow Chemical Company and also, I think, from government witnesses that Canada’s chemical-management process plan is the gold standard. It’s supported by industry and is an example to the world, because it’s transparent, conspicuous and there is robust public consultation, as was mentioned by Mr. Scott Thurlow of Dow Chemical Company. He noted that the European system actually places the onus on industry; in Canada, the Government of Canada does the assessment.
We have something to be proud of here. I’m proposing that the preamble acknowledge that CEPA sets a global standard and that we want to export this integrated approach, which is working. So this is an aspirational amendment that I believe the government and the chemical industry, in particular, are proud of and would endorse.
Senator Galvez: I have a point of information. We don’t have that amendment from Senator Patterson. It’s difficult to follow. Can you send it by email or somehow?
Ms. Cardinal: We’re sending it by email as Senator Patterson moves his amendment. An email should have gone out just now.
The Chair: I urge all of you that if you have other amendments you haven’t received, send them out as soon as possible. It would make the process more efficient.
Senator Kutcher: Thank you very much. Thank you, Patterson. If my memory serves me correctly — this is why getting the amendment right now is so hard — it was testimony from other witnesses that said that Canada’s approach is not the gold standard. I would just like the officials to help me out here as to which it is. I did not have time to go back and look at the testimony of all the witnesses. I do remember, Senator Patterson, that industry said that, but I also remember that other witnesses said that was not correct.
The Chair: Mr. Moffet, could you add to that?
Mr. Moffet: Senator, I think it’s appropriate to acknowledge that the Senate heard a variety of views, including from some members of civil society who recommended that the approach in Canada be strengthened, whereas others said that our approach is the “gold standard.”
If I might, I would observe that I think everybody would agree that, in an ideal world, there would be alignment in terms of the overall approach to assessment and management of risks from chemical substances. That is not the case now. I worry that endorsing alignment could have the unintended consequence of creating pressure on Canada to align with another jurisdiction as opposed to encouraging other jurisdictions to align with where we’re going. Indeed, if the language is adopted as proposed, it would be “integrate” rather than “align,” which would be an even stronger signal.
While I’m not in any way expressing a concern with the intention of the amendment, I’m not sure that putting it in a statute will have the intended effect.
Senator Kutcher: Thank you very much. Maybe you could help me with a more nuanced understanding. I apologize for these questions, but I haven’t had time to read it thoroughly. It talks about the development of an internationally integrated approach. I’m not sure what that is. Could you help me understand what an internationally integrated approach for chemicals management and assessment would be?
Mr. Moffet: Senator, there are efforts under way through various processes sponsored by the United Nations, the OECD and various bilateral and multilateral efforts to create as an aligned approach as possible, including under the Strategic Approach to International Chemicals Management. That said, these are sort of working arrangements that involve shared approaches; however, obviously, each jurisdiction has retained the right to put in place their own legislated and regulated approaches, and they differ.
Again, I’m expressing a concern that codifying an obligation or even a desire for an integrated approach without any clarity — as you’ve emphasized, senator — as to what that approach is could create some uncertainty for the implementation of the act.
[Translation]
Senator Miville-Dechêne: I therefore see no need for this amendment, inasmuch as our meetings demonstrated that there were essentially two camps, the rather European camp of the precautionary principle, and our approach that was more focused on risk management.
They are two very different approaches that I think have advantages and disadvantages for the different stakeholders. Some people agree that the European approach is very cautious, so fewer potentially dangerous chemicals are authorized. I have to say that it’s too early at this point to submit our own right to legislate in an area where we’re seeing so much uncertainty about international consensus, and I don’t feel we have enough consensus on the right way to go about drafting an amendment like this and passing it.
[English]
Senator Patterson: Bearing in mind the helpful advice from Mr. Moffet and the comments of my colleagues, Mr. Moffet has stated there are efforts under way through the UN and the OECD to create an aligned approach. I think the concern was that an “integrated” approach was a stronger word and suggested that we might have to cede jurisdiction to other countries’ approaches to assessment.
This would be a subamendment to my amendment. I’m wondering, Mr. Chair, to resolve this, if I could suggest that the word “integrated” be replaced with “aligned.” So it would read, “Canada is committed to the development of an internationally aligned approach.” This would be aspirational and would reflect what is already going on, as Mr. Moffet has said, with the UN and the OECD to create an internationally aligned approach.
I would like to propose that change, to respond to the officials’ helpful advice. Thank you.
The Chair: Before we vote, can I ask, Mr. Moffet, do you agree with that amendment?
Mr. Moffet: Again, I want to be careful. It’s not for me to agree or disagree. I’m here to help with understanding the implications of the amendment.
I would reiterate that while “integrated” would be a stronger signal, even with “alignment,” I urge senators to consider the concern that I expressed earlier, and that is: Align with what? And is it align up or align down in terms of the rigour of testing, assessment and protection? I’m starting from the assumption that the Government of Canada and the senators here are interested in robust assessment and protection, regardless of where certain international peers may or may not be moving.
Senator Kutcher: If we put something like this in, even using the word “aligned,” would that limit us? For example, if we wanted to go above and beyond or to make it even better — go for a real gold standard and make it better than anybody else has — could that potentially limit us to being worse than we want to be?
Mr. Moffet: I don’t think so. Again, we are in the preambular text. If the desire is to move toward shared approaches, perhaps alternative language such as “collaborate for the robust management of” might be more consistent with the intention I think I’m hearing from senators, as opposed to simply the undirected concepts of “integrate” or “align;” maybe we should be adding a directional component.
Senator Seidman: Once again, it is aspirational, as Senator Patterson said. However, we have now moved ourselves from “integrate,” because we weren’t quite sure; that was quite restricting in terms of allowing us to move forward as a country, and jurisdictional issues. We have gone from “integrate” to “align,” and I think I am hearing more that we’re collaborating and being collaborative.
I get this feeling that we don’t really know what we’re signing on to with this amendment. We heard witness testimony about the U.S. and Europe and working together, but I’m not sure why we’re putting it in the preambular language. That’s not so much a question as a statement of reaction.
[Translation]
Senator Miville-Dechêne: I’d just like to add that if we end up saying we want to collaborate, I don’t see how and why we would put that in a preambular text that has to lay out the objectives. Collaboration is a word most often used to mean very little. I’m not sure it’s absolutely essential to have an amendment about it, since collaboration is in many ways the most common word in politics.
[English]
The Chair: Senator Patterson, it may be useful if you repeat your proposed amendment and we will vote on it.
Senator Patterson: I must say, I was intrigued by Mr. Moffet’s suggestion that perhaps the phrase could better be “collaborate” — Canada is committed to collaborate internationally for the robust management of assessment and management of chemicals.
The Chair: Which one do you want us to vote on?
Senator Patterson: You asked me to read my amendment.
The Chair: But now you are proposing an amendment to your amendment, if I understand you correctly. Is that accurate?
Senator Patterson: Yes. Mr. Moffet has presented us with a better alternative. I respectfully disagree with Senator Miville-Dechêne. I believe we have a regime in Canada that we can be proud of. The government’s own website says that the act is fundamentally sound. I would suggest that international collaboration is desirable.
We have heard that we need to make sure imports fit our high standards from other countries.
If I may, to assist, Mr. Chair, what I would now suggest is that the amendment would read: Whereas the Government of Canada is committed to collaborate for the robust assessment and management of chemicals.
The Chair: Could you repeat that, please?
Senator Patterson: Yes.
Whereas the Government of Canada is committed to collaborate internationally for the robust assessment and management of chemicals.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment? If you agree, raise your hand or raise your electronic hand.
Senator Patterson, I do not see you.
Ms. Cardinal: There are three hands in the room.
The Chair: Three hands up in the room.
To be clear, those who don’t agree or refuse the amendment, could you raise your hands?
Okay. So refused.
Are there any other amendments proposed in clause 2?
Senator Gold: Thank you, chair.
This is not an amendment. Because time is running out, I wondered if I might make a request not only of Senator Patterson but any other senators who have amendments that have not yet been shared with the members of the committee.
As we head into the break week, we know we’re coming back, I would respectfully ask that all of the amendments that are currently in the hands of the clerk, or indeed might be forthcoming even after this meeting, be shared with all members of the committee so we have time to consult with our staff over the break so that, when we come back, we have a really informed discussion on these important matters.
Senator Patterson: Agreed. Mr. Chair, I’m willing to have my package circulated, and I gave it to the clerk with that intention in mind. It’s fine with me. I think it’s a good suggestion for all the amendments. We’ll have some homework to do over the break week.
[Translation]
Senator Carignan: I don’t want to rub salt in the wound, but what Senator Gold just proposed is exactly what I proposed earlier and he opposed it. I was adding that we could take two hours and, rather than doing two amendments or two discussions, we could have had everyone propose their reasoning, so that we could be more efficient in our study during the break and come back with a better pace to deal with amendments more efficiently when we return. I have a feeling that this may take a while, actually.
The Chair: I’m sure we will have lessons learned from this process and next time we’ll be better prepared and, of course, we will have received the amendments and will work more efficiently.
[English]
Senator Galvez: Yes. Senator Sorensen has her hand raised as well.
I wish to say that usually the way we send the amendments, of course it is the way that the clerk has sent it, but the explanation is not there.
If you look at the table that I sent with my 20-plus amendments, there is the amendment in English, the amendment in French and an explanation. Of course, this explanation is short, but it tells you the fundamental arguments because I am presenting this amendment.
By reading that, we don’t need to go, as Senator Carignan is saying, where everybody goes because it’s already there. It’s created.
So I invite my colleagues to write some of their arguments in a table so we can read them over the time that we have available to us now. Thank you.
The Chair: That’s a useful comment. The presentation is good.
Senator Sorensen: Quickly, Mr. Chair, you have your work cut out for you. This is going to be a very complicated process.
If I may, I believe that in every instance with an amendment all of the members are interested in what the officials have to say. Moving forward, if it makes sense that the presenter presents their amendment, perhaps we can automatically go to the officials so that they can generally comment.
This is my first piece of legislation. I don’t know if you ever put time limits on the debate before the question is called. But in this instance, it may have to be something we do to perhaps have the presenter close after debate and call the vote. I will leave that to you. Those are just my suggestions.
Hearing from the officials right off the bat may make some sense.
The Chair: It’s tough.
Senator Patterson: A point of order, Mr. Chair?
The Chair: Go ahead.
Senator Patterson: My point of order is while we very much appreciate the attendance of officials, they are a resource to the committee to be available if there are questions to be asked of the officials, as we did this morning.
The officials are not part of the committee. They are no longer witnesses. With respect to Senator Sorensen, it would not be appropriate for the officials to speak to every amendment; rather, they should be available as a resource to the committee if there are questions. We saw how that happened this morning. It can be very useful. But they are a resource only.
Second, I would like to mention to Senator Galvez the package I have circulated does include a defence or an explanation of the amendments. I agree with her. That would be useful for every amendment that is going to be circulated for us to review.
Thank you.
Senator Sorensen: Thanks, Senator Patterson. I’m learning every day.
The Chair: Thank you very much, all of you. I think we’ll be a lot more efficient. It will be a little more difficult to get the process going because I think we’re getting a feel for one another and how to proceed. We have to get there faster next time.
Thank you very much. Have a good break. We’ll see you when we return. We will have a lot of work for you. Thank you.
(The committee adjourned.)