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Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources

Issue 19 - Evidence, June 15, 1999


OTTAWA, Tuesday, June 15, 1999

The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-32, respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development, met this day at 8:38 a.m. to give consideration to the bill.

Senator Ron Ghitter (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, this morning we are embarking on what will probably be the largest task this committee has faced in the years I have been a member of it. Our task is to examine Bill C-32, respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development.

It is, indeed, an important bill which I know members of our committee will very much want to have explained to them. It is not a simple bill. I look forward to some enlightenment from our witnesses today and from, I am sure, others who we will hear in the future.

We have with us this morning representatives from the Office of the Canadian Environmental Protection Act, Department of the Environment.

We welcome you and thank you for coming. I understand, Mr. Lerer, your intention is to take us through the bill clause by clause.

I would ask my colleagues to refrain from asking questions so as to allow the witness to go through each clause, after which we will have questions.

Please proceed, Mr. Lerer.

Mr. Harvey Lerer, Director General, Office of the Canadian Environmental Protection Act, Department of the Environment: Mr. Chairman, we have already provided to the committee a synopsis of the bill which goes into a bit more detail than the presentation I will make. As well, we have provided to your researchers a detailed clause-by-clause analysis of the bill in both official languages. While it is called the "black book," it is contained in white binders and is big enough to need an 18-wheeler to carry to your offices. It is a detailed clause-by-clause analysis of the bill, should you get into that kind of depth of analysis later on in the committee hearings.

With your permission, our intent today is to present an overview of each of the clauses of the bill and to highlight those areas of the bill that were changed from the time it was originally tabled in the House, and as it has been presented for consideration in the Senate.

Senator Spivak: Would you outline those changes which were considered at report stage of the bill?

Mr. Lerer: We will do that as well.

I should like to begin with a brief explanation of the existing Canadian Environmental Protection Act which was proclaimed in June 1988. It, too, was an omnibus environment bill which, at the time, took components of different pieces of legislation and combined them into the Canadian Environmental Protection Act. It had a number of objectives, including toxic management and regulation of the federal house. It spoke to intergovernmental cooperation and enforcement of the law. Embedded in that legislation, just as there is in the bill before you, was a clause that required a review of the act after a period of five years.

That review of the act was begun by the House in 1994. After much study and a great deal of debate, Bill C-32 is the result of the review and incorporates the amendments which are required to the legislation. That review process is also in Bill C-32 as you see it.

The objectives of the proposed new CEPA speak to many of the same issues. However, in my view, they also speak to an evolution of our understanding of the issues. The objective is still the protection of the environment and human health. We focus more in this legislation on pollution prevention rather than simply the remediation and the control at the end of the pipe. We still speak to the effective management of toxic substances and virtual elimination, which I am sure is an issue we will get into as we deal with the toxics component of the bill. It also speaks to partnerships, both intergovernmentally and with other stakeholders. However, it speaks to them with a firm objective in mind, which is to achieve the highest level of environmental quality.

The preamble sets out the general principles and philosophy which is to guide the act. While it speaks to pollution prevention, to science and the precautionary principle, to biological diversity and intergovernmental cooperation, the preamble received considerable consideration in the House. A number of key changes were made to it during the house process. I will highlight those.

Among those key changes was the recognition of traditional aboriginal knowledge as a legitimate factor in decision making. What I mean by that is that we have always said that we make our decisions based on sound science. The evolution of the thinking that has gone from 1988 through to this point in time has resulted in the recognition that the knowledge which is inherent in our aboriginal communities should be and must be a factor in the decisions that are made in environmental conservation and environmental protection. That is explicitly recognized in the preamble, as it is later on in the administrative duties clause of the bill.

Consistent with the operational clauses of the bill, the preamble acknowledges the need to virtually eliminate that special class of toxic chemicals. That class is those chemicals that are toxic and which are deemed to be toxic, and which also persist in the environment and bioaccumulate. By "bioaccumulate," I mean those that build up in the food chain and therefore accumulate not only in the tissues of animals but also in those of humans as well. This is a special class of toxic chemical, the one that we consider to be the most dangerous. We speak to the virtual elimination of them in the toxics management component of the bill.

Senator Spivak: What is the change that was made at report stage?

Mr. Lerer: The language that came out of the standing committee was, "to phase out." At report stage that was changed to, "the virtual elimination of persistent bioaccumulates."

Senator Spivak: Was the word "generation" not also used?

Mr. Lerer: Yes, "generation and use."

The principle of the bill pertains to the virtual elimination of releases, which is the essence of the difference. Out of the standing committee, the words were "the phase out of generation and use," and at the report stage the wording of the amendment was the "virtual elimination of releases."

The Chairman: In your view, what is the difference between the two wordings?

Mr. Lerer: The basis of toxics management in Canada is risk assessment and risk management. The essence of that is controlling exposure. That is to say you may have a toxic chemical that is used in contained areas where there is no or little exposure. The risk is deemed to be lower than if the exposure is greater. Therefore, what we are focusing on is the diminishment of exposure, or ensuring that exposure is as low as possible. In those instances where exposure cannot be controlled, then the bill enables us to ban generation and use.

Senator Spivak: Am I correct that this deals with the 12 most persistent chemicals and does not refer to the 23,000 which currently exist?

Mr. Lerer: No, it does not.

Senator Spivak: Am I correct in thinking that it refers to the 12 most persistent?

Mr. Lerer: That is correct. There are now 12 on the list, nine of which have already been banned in Canada. They are not used domestically. The environment is still exposed to some of them because of global wind currents. They are the subject of international protocols. Nine of the twelve have already been banned. Our best scientific guesstimate is that, over the next five to ten years, we may see another dozen of these among the 23,000 that the bill commands us to categorize and assess.

The Chairman: While we are on this point, the legislation originally read that the Government of Canada acknowledges the need to phase out the generation and use of these chemicals. Does that refer to the most persistent chemicals?

Mr. Lerer: For clarity, again, when the bill was tabled originally in the House, it did not contain the phrase "phase out of generation and use." That was added during the standing committee process. At report stage, the government then introduced an amendment that spoke to the virtual elimination.

The Chairman: Is this a whole new paragraph in the preamble that came about later, Mr. Cameron?

Mr. Duncan Cameron, Legal Counsel, Justice Department: It was an addition to the third "whereas" clause in the preamble. The clause in the bill, as tabled in the House read:

Whereas the Government of Canada acknowledges the need to control and manage pollutants and wastes if their release into the environment cannot be prevented;

The House committee amended that clause to read:

Whereas the Government of Canada acknowledges the need to phase out the generation and use of the most persistent and biocumulative toxic substances and the need to control and manage pollutants and wastes if their release into the environment, cannot be prevented;

It was the House committee that added that extra qualifier.

At report stage, the government felt that those words were inappropriate for the reason that Mr. Lerer has explained. However, in order to retain some of the essence of what the committee was after, we changed the words "generation and use" to "the virtual elimination," which is a key component of the regulation of toxins which is dealt with later in the bill.

Senator Kroft: Obviously, it will be very important for us to understand these changes. It would be helpful to have a page explaining to us what was, and what has come to be. If that is not possible, could you refer me to a document that is readily available? I do not want to be preoccupied with what existed before because, by definition, that is no longer in existence.

Senator Spivak: It is important, though.

Senator Kroft: Yes, it is important to know the thought process.

The Chairman: I have not seen that broken down in our material.

Senator Spivak: I was just handed that material, which includes a copy of the bill as it came out of committee and into report stage. This has everything in it as the committee presented it.

The Chairman: Does it have the synopsis Senator Kroft requested, namely, the bill before and after the amendments, or would he have to read the entire document?

Mr. Lerer: It would not have the synopsis. It is the language as tabled at report stage, and there were many amendments. We can provide a synopsis of some of the key amendments on one page, but a synopsis of all the changes would not fit on one page.

The Chairman: I think you are well aware of the key issues. That is what we are concerned about.

Mr. Lerer: Yes. We will provide them to you.

The Chairman: Approximately 400 amendments were proposed and many of them were more political than real. I do not know if I am concerned about that.

Senator Spivak: What do you mean by that?

Mr. Lerer: Over 500 amendments were considered by the standing committee in its deliberations. It involved an 11-month process. Over 150 amendments were accepted by the committee and 90 of those were put forward by the government. At report stage, the government put forward a number of amendments which, because of the number of changes, were for consistency of language, and so on. However, I believe we have a good sense of the ones in which this committee might be interested. That being so, we will be pleased to provide that synopsis to you through the clerk.

Senator Spivak: Mr. Chairman, this bill was studied for four years by the House of Commons committee. It took 18 months to go through it before it finally came down. I think they spent about 90 hours on clause-by-clause consideration.

Mr. Lerer: It was 93 hours, senator.

Senator Spivak: We are being asked to review a bill in a very short time and we are trying to get information about it. We need to have a proper understanding of what took place because this is probably one of the most important government bills. Therefore, it behoves us to get a clear understanding of what the differences are so that we can make a decision.

The Chairman: That is a fair comment. I have seen a list of all of the amendments -- those that were accepted and those which were not. That crossed my desk and I remember browsing through them. It included all of the amendments, the majority of which, ultimately, were not accepted.

If you could provide that synopsis, Mr. Lerer, that would be very helpful. I totally concur with what Senator Spivak is saying: That under no circumstances will we deal with this bill in a cursory way.

Mr. Lerer: I understand. We will provide a synopsis of what, in our view, are the major issues. If there are additional ones that this committee wishes to study, then we will provide those at a later date. We will provide that, in writing, through the clerk.

Senator Spivak: Will you deal, then, with one of the key points, the virtual elimination, now or later on? It is important we have a clear understanding of that key issue. We should know the differences of opinion between members of the committee, what the government thinking was, what industry wanted, and so on. It is important that we understand all of that.

Mr. Lerer: Yes. We will be dealing with the topic of virtual elimination later this morning.

The Chairman: By way of direction to the committee, rather than immediately dealing with the preamble, which contains the precautionary principle, the virtual elimination, and the matters where it has been suggested that it has been watered down, I take it that we will deal with it in more detail later. Would that be the easiest way to do it, Mr. Lerer?

Mr. Lerer: I think so. You will discover that, after I am done with the preamble, I will leave the difficult tasks to my colleagues as we get to clause by clause.

The Chairman: Let us continue, then.

Mr. Lerer: I anticipate that, when we get to the toxic section, the committee may want to talk about virtual elimination.

Another change made in the preamble during the House process was a new statement in the preamble which specifically speaks to biotechnology. That is a new area of scientific and commercial endeavour in Canada. The preamble speaks to the safe and effective use of biotechnology.

The Chairman: I am sorry to interrupt, but I have a question about the declaration before the preamble. I am not clear what a declaration is, but if that is the overall declaration, then in my notes I have called it "a very weak statement." Is the declaration intended to be the general purpose of this legislation?

Mr. Lerer: Yes, it is.

The Chairman: There is one paragraph which states that:

It is hereby declared the protection of the environment is essential to the well-being of Canadians and that the primary purpose of this Act is to contribute to sustainable development through pollution prevention.

I stress the word "primary." Is that the statement of the government as to what this is about?

Mr. Lerer: Yes, it is.

The Chairman: I will come later to the definition of "sustainable development," on which I should like to have an explanation. I looked upon that statement as being a narrow statement as to the broad purposes of this legislation. Was there ever a comment made on that elsewhere?

Mr. Lerer: I do not recall any discussion on the declaration in the time I have been involved with this bill.

The Chairman: We will come back to that.

Mr. Lerer: Were there any other general questions on the preamble, Mr. Chairman, before we move into the administrative duties?

Senator Spivak: It would be informative if you would point out as you go along how the bill seeks to implement what is in the preamble.

Mr. Lerer: We will endeavour to do that.

The Chairman: We are now out of the preamble. We will come back to it.

Mr. Lerer: Mr. Chairman, in our short meeting before the committee started, you admonished me to take my time. I do not think I will have any difficulty in doing that. The bill contains only 356 clauses.

The Chairman: Let us start with the first one.

Mr. Lerer: There are definitions in this part as well. The administrative duties outline the duties not of the Department of the Environment but the administrative duties incumbent upon the government as a whole, and they are based on the guiding principles in the preamble.

A number of key changes were made during the House process. The first is that there was the addition of the Rio version of the precautionary principle in clause 2(1)(a). A change was made in the standing committee process and a change was made at report stage. The preamble always had the Rio version of the precautionary principle in it.

I would refer you to clause 2(1)(a), which says:

...where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures --

That version of the precautionary principle, the Rio version, was always in the preamble. During the standing committee process, an amendment was introduced, voted upon and accepted by the standing committee that incorporated the precautionary principle but struck the phrase "cost-effective," making it different from the Rio version of the precautionary principle.

At report stage, the government reverted to the Rio definition of the precautionary principle in the administrative duties. It was the precautionary principle accepted by nations at the Earth Summit in Rio de Janeiro.

Senator Spivak: Do you have a definition of "cost-effective"? Would "cost-effective" include the savings in health and well-being, the actual monetary savings that would accrue if the precautionary principle were employed, or does it mean whether industry finds this cost effective? What is the definition of "cost-effective"?

Mr. Lerer: There is no definition of "cost-effective" in the bill. However, the point that you are raising was considered during the standing committee process and it was not changed at report stage. There was a new requirement in clause 2(1.1) which sets out that there is a requirement to consider the positive ecological and economic benefits of environmental protection measures. The sense there is that it is not simply whether industry considers these measures cost effective.

Senator Spivak: "Cost-effective" will be defined not by the Minister of the Environment but by the total cabinet. Who will determine the cost effectiveness?

Mr. Lerer: All control options within the bill, regulations to actually regulate, to demand certain things, are under the Governor in Council.

Mr. Steve Mongrain, Representative, Office of Canadian Environmental Protection Act, Department of the Environment: I may add, Mr. Chairman, that the analytical work, the economic analysis and so forth, is done by Environment Canada. The decision making is in the hands of the Governor in Council, but the analysis is done in our own shops at Environment Canada.

Senator Spivak: I have further questions on that which I will pose later.

The Chairman: Let us pursue this point for a moment. It is obviously very important to understand the proposed legislation. Although Rio contains that wording, Canada also signed the Biodiversity Convention which contains a similar clause that makes no mention of cost effectiveness. I am also told that the London Convention on Disposal at Sea defines the precautionary principle again without reference to cost effectiveness.

What was the push or the reasoning behind that? It sounds to me like it weakens the situation and brings an uncertainty into the matter. Can you tell me why it was decided to stay with the wording of the Rio declaration?

Mr. Lerer: The long period of time of study of this bill started with the standing committee report and a government response. The government response, to the best of my recollection, was that the precautionary principle to be utilized within the context of this bill was the Rio principle. That was always the position of the government even before the bill was tabled. That is my recollection.

The Chairman: Let's assume Canada is committed, under Kyoto, to certain standards. Let us also assume that someone comes forward and suggests that the oil and gas industry, by virtue of flaring or even the sale of gasoline, is doing something very seriously deleterious to the environment, although there is incomplete scientific information. The government moves on that basis. Then industry comes in and says it is not cost effective. Where are we? How does this work?

Mr. Lerer: That debate or discussion goes on all the time, but the Governor in Council makes the decision based on the analysis and information available. Generally, a regulation is based on the need for environmental or human health protection. Then one considers how to go about getting to that point and making that regulation. You consider whether the technology is available and the cost, because there are always costs and benefits, not simply economic, and usually that is considered in the timing considerations. In regulations, we often say, "Within two years, you shall reach this level of release, and within another three years, you will reach that level." We have an objective in mind, which is the protection of human health and the environment. There are always public comment periods associated with that, either through the Gazette process or through the consultative process that we undertake. In the end, we set out a regulation that will meet that objective, which is the primary consideration, but we will do it without irreversible dislocation in other sectors of our society.

The Chairman: Is that your definition of "cost-effective"?

Mr. Lerer: That is my explanation, yes, sir.

The Chairman: Why is "cost-effective" not defined in the legislation?

Mr. Lerer: I do not know. It was discussed at the standing committee, and I believe that the standing committee in inserting clause 2(1.1) believed that they had adequately put forward all the efforts here.

The Chairman: We will leave aside the standing committee procedure, because although it is interesting to know what they were doing, under our rules that is inconsequential. Would it not be better to have a definition of "cost-effective" so that Canadians and Canadian industries would know what is meant by that, or is that not possible? We have many definitions in this legislation, but we do not have one for "cost-effective" when so much depends on it.

Senator Wilson: Does the Governor in Council decide that?

Mr. Lerer: Yes.

The Chairman: Is the legislation lacking because it does not have a definition of "cost-effective"?

Mr. Lerer: I do not know how to respond to that. I do not think the legislation is lacking, but I am not sure how one would define "cost-effective" in the broad way the term is used.

The Chairman: You defined "sustainable development," which is an important term. We may question the definition, but it is defined. It seems to me every key word in the legislation has a definition, yet with a term as fundamental as "cost-effective" the bill is silent. Are Canadians just to accept the intransigencies of the Governor in Council as to what the meaning of "cost-effective" is for that day?

Mr. Mongrain: Mr. Chairman, the term "sustainable development" provides a good example with which to compare "cost-effective." The definition of sustainable development in the bill is based on the Brundtland definition, which is generally well accepted. We had discussions with our economists on a definition for "cost-effective." One of the difficulties we ran into was that there were so many different definitions of that term within the field of economics. For that reason, we became entangled when trying to grapple with the issue.

As my colleague Mr. Lerer pointed out, certain provisions in the administrative duties emphasize and focus on the positive ecological and environmental benefits associated with measures and when considering whether they are cost effective or not. There is that precise requirement to look at these benefits. There is a balance within the bill.

As for a definition, as I indicated before, it was a very difficult task given the number of different definitions in the field.

The Chairman: If it is so difficult to define, and there are so many different interpretations, why include that term? One could argue that, if it is so difficult to define and defies proper definition, then it would be better to leave it out.

Mr. Mongrain: The government is committed to the precautionary principle as stated in the Rio declaration, which has been our policy since the 1995 government response. The administrative duties are general in scope. We have experience in looking at costs and benefits when we develop our regulations, so I do not believe it sets out an onerous test or that it will present a difficulty when it is time to implement this legislation.

Senator Spivak: This will be a residual act in the sense that other acts, such as the Pesticides Management Act, will take precedence. As well, where there is an equivalent regulation in the provinces this act will not apply.

Does the Governor in Council alone decide the question of cost effectiveness or must there be consultation with all the provinces?

Does this have any bearing on Canada's role in the International Convention on Persistent Organic Pollutants?

Are you not setting yourself up a Herculean task to move through this quagmire to get at what we want to get at?

Mr. Lerer: If I may respond to some of those points. I do not characterize this as a residual act. In fact, in other acts of Parliament for which other ministers are responsible, there must be consideration of environmental and human health aspects. The perception of what is being called, "the residual nature" of this bill was changed during the House process. I can be more specific if necessary.

Senator Spivak: The bill does state that when certain acts, such as the Pesticides Management Act are in play, then the provisions of this act will not apply. For instance, clauses 104 to 115, indicate, under the Seeds Act, that the requirements for notification and assessment in Bill C-32 do not apply if the new living organism is manufactured and imported for use that is regulated under another act of Parliament. The same situation applies to the Pesticides Act, the Fertilizer Act, the Shipping Act, and others. What is the meaning of saying that this is not a residual bill? This is an important point. You must be more specific.

Mr. Lerer: It is an important point, and as we go through these clauses there will be a number of concerns to deal with.

Senator Spivak: It says that this proposed legislation, Bill C-32, cannot be used to regulate an aspect of a substance that is regulated under another act in a manner that provides, in the opinion of the Government in Council, sufficient protection to the environment and human health.

Mr. Lerer: Yes, it does. That test has been set up through the House process.

Senator Spivak: It does not say that this act will be paramount to other acts.

Mr. Lerer: No, it does not.

The Chairman: It is clearly not primacy legislation, and it is not purported to be.

Mr. Lerer: No, it is not.

Senator Spivak: The original Bill C-32 was intended to be that.

Mr. Lerer: No. In fact, in determining whether the other act of Parliament was sufficient, the bill, as tabled, gave the authority for that determination to the other minister. If it were the Seeds Act or Food and Drugs Act, it would have been the Minister of Agriculture. That minister would have made that determination under the bill as tabled. Through the house process, that is now the exclusive jurisdiction of the Governor in Council, not the other minister. As well, the test of sufficiency was added.

Senator Spivak: The commissioner has made a devastating report stating that departments cannot decide, that there is fighting, and that there are all kinds of things going on. Is that not worse? Is that not a weakening of the bill?

Mr. Lerer: Not in my view.

Mr. Mongrain: When we get into the clauses, we will show mechanisms that will help us address some of the commissioner's concerns in deciding which act shall apply.

I also want to make the point that the CEPA, which was passed in 1988, is based on a similar model. We do not use the CEPA to regulate pesticides. Where there is expertise and responsibility in other departments, other ministers have responsibility. That has been the model. As we go through the specific clauses, you will see that there are specific mechanisms, improvements and strengthening of the transparency in decision making that should address some of the commissioner's concerns.

Senator Spivak: What is Canada's position regarding the International Convention on Persistent Organic Pollutants? Is it cost effective?

We are talking only about the 12 most dangerous and awful substances on earth that we should eliminate totally -- not virtually, but totally.

Mr. Lerer: I had taken three points from your original questions. One had to do with this being "residual" legislation, which we have tried to deal with and which we will continue to deal with as we go through this.

There was also a question regarding our statement that, if there were a provincial act and there were equivalent regulations, the act did not apply. That is only if there are equivalency agreements and those acts have the same meaning and effect.

Senator Spivak: If there are equivalent provisions, and there is a disagreement, which there usually is, which act will take precedence?

Mr. Mongrain: Mr. Chairman, if there are equivalent requirements, or there appear to be equivalent requirements in a provincial jurisdiction, and the federal minister does not believe they are equivalent, then there is there no equivalency agreement. There has to be agreement between the two governments,

Senator Spivak: I understand that.

Let us talk about the definition of "cost-effective." The provincial and federal governments may have two different ideas about cost effectiveness. How would you proceed with implementation?

Mr. Lerer: In that situation there would be no equivalency agreement, and the federal law stands.

Senator Spivak: The federal government has the right to impose upon the provinces its definition of cost effectiveness.

Mr. Lerer: It is not the definition of "cost effective" that would be in question. It would be whether in fact the regulations that are put in place are equivalent.

Senator Spivak: In other words, it is not just the legislation but it is also the regulations of the provincial government, and if it is felt they are not equivalent, the federal government has a right to override.

Mr. Lerer: In its areas of jurisdiction.

Senator Spivak: That is what I thought.

Mr. Cameron: For those who are interested clause 10 in the bill sets out the process by which equivalency agreements can be entered into. These are discretionary agreements.

Equivalency is not de facto. It does not happen as a right. It is discretionary, and it only happens if the Governor in Council is satisfied that a province has in place regulations that are equivalent to what can be accomplished under the CEPA. It is a decision that the Governor in Council can make based on the GIC's discretion.

If there is any question along the lines that Senator Spivak is raising, then clearly an agreement will not be entered into and this process becomes moot. In fact, there is only one equivalency agreement in place right now.

We have had this mechanism under the CEPA, 1988 for the last 10 years, and there is only one equivalency agreement. That speaks to the fact that it is a very high threshold and the Governor in Council does not enter into these agreements lightly.

The Chairman: This is a very important area and we will come back to it in due course. We are still dealing with clause 2.

Senator Spivak: This might take 18 months.

The Chairman: That would be fine. However, let us return to clause 2 in order to be sure that we understand it before we go on. If there are no questions from other senators, I have some.

Clause 2(1)(a.1) states that the government can --

...take preventive and remedial measures to protect, enhance and restore the environment;

However, that is subject to the wording in clause 2(1.1) When the government is deciding whether to take preventive and remedial measures to protect, enhance and restore the environment, they must take into consideration certain items. Those are: positive economic impacts, any other benefits accruing, and the short-term and long-term human and ecological benefits. I have trouble with that.

Let us talk about Kyoto again. The government determines that there is a problem with global warming. The scientific information of 4500 scientists around the world indicates we have a problem with global worming. The government can then take preventive and remedial measures to protect, enhance and restore the environment. The government then considers the short- and long-term human and ecological benefits. Are the "benefits" things such as the good health of Canadians?

Mr. Lerer: Yes.

The Chairman: They determine that for the good health of Canadians, they have to do something. Would the other two subclauses (b) and (c) not apply?

Mr. Lerer: Yes, they would, sir.

The Chairman: Would clause 2.(1.1)(b) apply?

Mr. Lerer: Yes, it would, sir.

The Chairman: The government must ensure that, in addition to meeting the criteria set out in (a), (b) and (c), it is a cost-effective measure, whatever that means. Is that right?

Mr. Lerer: Yes, sir.

The Chairman: That decision is made ultimately by the Governor in Council?

Mr. Lerer: Yes, on the recommendation of the minister or ministers, depending on the section, for regulation purposes.

The Chairman: Perhaps this is an inappropriate question, so stop me if it is. Your department is obviously concerned and intimately involved with the environment. Is your department satisfied with the use of the wording, "cost-effective"? Perhaps you cannot answer that question.

Mr. Lerer: I have a sense of preservation, Mr. Chairman -- conservation, protection and preservation.

The Chairman: That is an excellent answer. I will not go any further.

Mr. Mongrain: We are delighted to have the precautionary principle in the administrative duties. Bill C-32, as originally tabled, only had it as a guiding principle in the preamble. Having it in the administrative duties and binding on the Government of Canada is something that we are pleased to see.

The Chairman: However, there is an inconsistency if the government signs the Rio declaration and then two other international agreements where there is no mention of cost effectiveness. Why are we not consistent? Why do we not adopt an identical definition in any international agreements we enter into? Perhaps there is no answer to that because it is a political question.

Mr. Lerer: It is a political question.

Some of the other changes made during the House process were contained in clause 2(1)(i). During the standing committee process, when we talked about the application of knowledge, science and technology to identify and resolve environmental problems, it was decided that there be a specific statement that it include traditional aboriginal knowledge.

There was also a modification to clause 2(1)(l) that related to intergovernmental agreements.

Senator Spivak: You stated that it was to include traditional aboriginal knowledge. Does that mean that decisions such as the Delgamuukw decision will then apply?

Mr. Lerer: It is the consideration of traditional aboriginal knowledge. Our original intent here was related to traditional aboriginal knowledge in the science and information gathering areas.

Senator Spivak: Yes, but does that strengthen the position of the aboriginals in relation to, say, land claims?

Mr. Cameron: The Delgamuukw decision dealt with aboriginal rights under section 35 of the Constitution Act, 1982. In the bill before you, we have a non-derogation clause, as we have in many pieces of legislation these days, namely, clause 4, which states:

For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution.

Mr. Lerer: In response to the other question, I believe that this strengthens the input of aboriginal governments and aboriginal peoples in environmental protection measures.

There was another modification to clause 2(1)(l) which dealt with intergovernmental agreements. Specifically, there was a discussion about the harmonization initiative that was undertaken by the government and the provinces. The change was made to ensure that that political agreement, the harmonization accord, could not be presumed to be legally binding by the language that was incorporated into Bill C-32. It was changed to ensure that that could not be the case.

At the time of tabling in the House there was a general provision, clause 2(2) which no longer exists. That provision was struck. It was a general mechanism to avoid duplication of other acts. It was referred to, as the "residual" clause in the bill. I have talked to some of the other changes that were made in specific clauses but this particular provision, which was contained in the administrative duties of the bill, was struck. The decision was made that, where there was the potential for overlap and duplication, we would deal with it in the individual clauses and we would add the test of sufficiency.

Clause 6 of the bill establishes a national advisory committee. This national advisory committee has changed from CEPA, 1988. It was always a federal-provincial advisory committee.

The Chairman: Can we go back to the definitions?

Mr. Lerer: Yes. If you have specific questions on definitions, I would be pleased to answer.

The Chairman: I should like to understand better the definition of "sustainable development." I am on page 10 of the bill. That terminology is used frequently throughout the bill. Mr. Mongrain, you said that is a definition that has been used internationally.

Mr. Mongrain: That definition originated with the 1987 Brundtland commission and was then incorporated and agreed to as part of the 1992 Rio declaration.

The Chairman: As I read it, I immediately began to question the this important definition. It is considering today's needs in light of future needs.

Mr. Mongrain: That is precisely correct.

The Chairman: That is to say, "Do not do anything today that will affect the future adversely."

Mr. Mongrain: We do not want to compromise future generations.

Senator Spivak: If the government were to absolutely apply that, they would have to preserve, for example, old growth forests, which have a lot to do with biodiversity, and so on. Do you believe that this definition commits them to something as broad as that? Another example, is the habitat for grisly bears. What does this mean exactly in terms of considering those types of issues?

Mr. Lerer: It commits the government to seriously consider all of those issues, yes.

Senator Spivak: That is very interesting. Is that a legal opinion?

Mr. Lerer: No. You asked me for my views.

Mr. Cameron: Mr. Lerer is not a lawyer.

Senator Spivak: I want to know if this is legally enforceable. The minutes of these proceedings will be looked at by the lawyers for the environmentalists.

Mr. Cameron: If you are asking for my view, I would point out that the CEPA does not regulate forestry. It does not deal with old growth forests.

Senator Spivak: No, but this is said to be an umbrella statement to which the government is committed for future generations. Will the legislation empower the government to do this or not? That is what we are here to discuss.

Mr. Cameron: A little focus is important here. The opening words of clause 2, are:

In the administration of this Act, the Government of Canada shall --

Then it lists the things that are important. My comment about the CEPA not regulating forests is on point. We may be committed to sustainable development in other areas, but forest management largely falls under provincial jurisdiction in this country.

Senator Spivak: Now, I understand. In other words, it does not apply to the protection of habitat.

Mr. Cameron: This is not a habitat piece of legislation.

The Chairman: At the outset, let us determine where this bill does have application. The bill is over 200 pages in length. The more I read and understand it, the more I hear about what it does not apply to rather than where it does have application. To what areas will this act apply? Is that a fair question?

Mr. Lerer: Absolutely.

Mr. Mongrain: I can endeavour to give you a snapshot of its many areas of application.

It provides for information gathering authorities so that we can have sound science. That gives us the scientific basis for action. It applies to toxic substances and animate products of biotechnology. It applies to environmental aspects of emergencies. It has authorities for fuels and engines. It has measures to protect the marine environment from land-based activities or land-based sources of pollution. My colleague has refreshed my memory that it applies to ocean disposal. It applies to the transboundary movement of hazardous wastes, hazardous recyclable materials, and other wastes. It applies to the federal house. It has authority to regulate federal government operations and lands. Finally, it applies to Canadian sources of international air and water pollution. It has very broad and strong enforcement powers.

The Chairman: Do you mean in those areas you have enumerated?

Mr. Mongrain: Exactly.

Senator Hays: Mr. Chairman, I have a matter of order and possibly privilege. What the witnesses have just said in response to your question is material they will be covering in their presentation. Could we give them an opportunity to make a presentation and perhaps interrupt at half-hour intervals so that we can have a body of evidence before the committee and then we can review it in the form of questions? We are now on page 3 or so, but, in my opinion, we are getting ahead of ourselves with many of our questions. If we give the witnesses an opportunity to proceed with their presentation, many of our questions might be answered.

Senator Spivak: Mr. Chairman, I happen to disagree with the senator. This is a very complex bill, and there are too many questions to be held in abeyance as we go through the presentation. If this procedure takes a longer time, then we will invite our witnesses to return. As I mentioned before, it took four years for the House of Commons committee to go through this bill, and 93 hours to go through the clause-by-clause consideration. I personally do not have the ability to remember all the questions I may want to ask after a lengthy presentation.

Senator Hays: I appreciate Senator Spivak's desire to have a thorough discussion and I certainly would not want to suggest anything that would depart from that.

Senator Spivak: Yes, you would.

Senator Hays: No, I would not. I would like to see, quite frankly, the bill passed.

Senator Spivak: Right.

Senator Hays: I hope Senator Spivak will join in that.

Senator Spivak: So do I.

Senator Hays: Perhaps I have not spent as much time as some of you have on it. It would be helpful to me, and it is normal, it seems, in committee meetings, to give a witness an opportunity to at least put a fair amount of their testimony on the record before we start examining them. Many of the questions we have would be answered by the presentation as opposed to interrupting them as we go along clause by clause by clause. Senator Spivak and I disagree. Perhaps other members have an opinion.

The Chairman: At the outset, we determined we would go clause by clause and allow the witnesses to deal with each clause. The problem is that much of the terminology, even in the preamble, flows elsewhere. There is such an interrelationship of terminology here that sometimes we get off track. I would prefer to proceed in the way Senator Hays suggests, but it is not quite that simple. I do not want to in any way inhibit members of the committee to deal with questions as they arise. I hope our witnesses will be sympathetic to our endeavour to understand. I think it is important that we have that dialogue.

Please carry on.

Senator Hays: We should not enter into a debate with the witnesses.

The Chairman: No, not a debate. That is a fair comment.

Mr. Lerer: Mr. Chairman, you said you had a number of questions associated with definitions before I moved on.

The Chairman: The one I was dealing with before we became sidetracked was "sustainable development." It is in the preamble that the primary purpose of this act is to contribute to sustainable development through pollution prevention. We then go to the definition of "sustainable development," which is:

...development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

Is that the approach of other jurisdictions in Canada? There are so many areas that are not covered, such as habitat and forestry. Is there some consistency in this in other jurisdictions, or are we dealing with different definitions?

Mr. Lerer: This particular definition, as was mentioned by my colleague, arose out of the Brundtland commission report and was the definition that was accepted by a great number of nations during the Earth Summit at Rio.

The Chairman: I am referring to jurisdictions within Canada.

Mr. Mongrain: Mr. Chairman, there are intergovernmental agreements that reference sustainable development, and some may have this definition. The one I am most familiar with is the Canada-wide accord on environmental harmonization. It includes sustainable development as one of its principles. I will have to check, but I believe it is included in the environment chapter of the Agreement on Internal Trade.

The Chairman: If you could provide us with information as to the consistency of that definition across the borders of this country, that would be most helpful.

Senator Spivak: If I could make a supplementary comment, there was a court case which talked about the harmonization accord as being so vague as to be inapplicable. I take it you are aware of that court case. It pertains directly to the necessity for consistency in definition. That is a legitimate question which has been upheld by a court case.

The Chairman: Thank you. Let us carry on, following Senator Hays' suggestion. That takes to us to: "Administration," "Part 1."

Mr. Lerer: The first item I would mention under the heading of "Administration" is the establishment of a national advisory committee. That national advisory committee exists in the CEPA, 1988, but the difference -- and this was in the bill as tabled in the House -- was that there was an explicit recognition of the rights of aboriginal governments to participate on an equal level with the provinces in this national advisory committee.

The national advisory committee is a government-to-government forum. Many provisions in the administrative and other clauses in this bill allow the minister or ministers to strike other advisory committees which could involve a broader representation of interests, but the national advisory committee itself is a government-to-government forum.

The minister that chooses the representation on the committee, but the governments themselves are invited to participate.

There is also explicit recognition in the administrative clauses of the authority to enter into administrative and equivalency agreements. We have spoken somewhat about equivalency agreements in response to questions. Administrative agreements are really work-sharing agreements with other jurisdictions or with other interested parties. These do not restrict or limit the minister's authority to administer and enforce the act. That is explicit. That change was made, through the house process, for clarification.

Senator Adams: What aboriginal government now has any power to deal with the environment or to stop environment damage from occurring? This goes all the way back to 1953, beginning with the DEW Line in the Arctic. In the west, there is clear-cutting in the forests and industries pollute the rivers. Will aboriginal people have the power to deal with these things under Bill C-32, and will it only be aboriginal governments?

Mr. Lerer: In the definitions, aboriginal governments are enabled to make environmental law, and I believe there are a total of some 15 aboriginal governments that meet that definition in Canada. I can get you a specific list, if that would assist.

Senator Adams: Is Nunavut included?

Mr. Cameron: It is a territorial government, and it therefore will have its own representative under the territorial provisions.

Senator Adams: Will there be representatives from Nunavut on the committee?

Mr. Cameron: We were forward-looking in drafting the legislation to take into account that Nunavut would become a territory. Nunavut will have a representative on the advisory committee.

Senator Taylor: I think having only one representative out of six or 10 to speak for all Inuit aboriginal governments is a little low, as provided in clause 6(2)(c)(vi). The reason I raise that is that a great deal of environmental problems are attached to geography more than population. In other words, the Inuit go all the way from Labrador to the U.S. boundary at Alaska and also over the 60th parallel. We are talking about perhaps 35 or 40 per cent of the geographic area of Canada, which is very vulnerable to environmental problems and yet only has maybe 2 per cent of the population. Just because they do not have a larger population is no reason to keep their representation down. It will be very difficult for one Inuit to represent that tremendous area from the North Pole, through the Arctic islands, all the way down to the edge of the timber area, which has all sorts of economic activities such as whaling, fishing, and mining. I believe there should be more than one representative.

It may even be insulting to relegate our aboriginal people to advisory bodies. The deals we made with them predate the constitutional deal we made with the provinces. We have a fiduciary and a constitutional responsibility to knit them in as partners in government, not on advisory bodies.

However, I have not read the whole bill, and that may be covered in other clauses.

Mr. Lerer: Mr. Chairman, as I mentioned before, this clause enables ministers to seek advice and set up advisory bodies in a number of areas, based on specific expertise or geographic locale. The national advisory committee itself is meant to be a government-to-government forum. This is the federal government speaking with its partners, both in the provinces and amongst aboriginal governments. There are always advisory bodies, and the law enables advisory bodies for various interest groups to be selected by the minister. This national advisory committee is a government-to-government body.

Senator Taylor: You are asking in subclause 6(2)(c)(vi) for a representative from all Inuit aboriginal governments. Nunavut is dealt with somewhere else in the bill, as I understand, but when you speak of aboriginal governments, they seem to have reached that paradise that everyone in a non-aboriginal society hopes for, no government. Can you tell me: What is an "Inuit aboriginal government"?

Mr. Mongrain: These provisions are forward-looking. Mr. Lerer pointed out that there are approximately 15 aboriginal governments that meet the definition in the bill. We anticipate there will be many more over the life of this bill, as the government furthers the implementation of self-government and signs self-government agreements with aboriginal peoples. It is forward-looking in that sense.

Where there is no aboriginal government for a particular region in Canada, there is authority for the minister to set up the mechanism to allow for representation of aboriginal peoples from that specific region. In a sense, it is forward-looking to the day when there are an increased number of aboriginal governments. At the same time, it recognizes we are not all the way there and includes a mechanism that permits full aboriginal representation on the national advisory committee, in essence on the same footing as provinces and territories.

Senator Taylor: The Inuit have not gone to aboriginal government the same way our First Nations people have. It is my thought that, because of the size of the areas they represent, Inuit representation should be by area rather than by government. However, that is another debate and might be the subject of an amendment.

Mr. Mongrain: The bill looks forward to where there are governments, but it also provides for Inuit representation where there is a lack of government. If you look to subclause 6(3), you will see that, where there is no Inuit aboriginal government or aboriginal government for a region, it allows for the development of regulations. Essentially, this would be a mechanism for the Inuit to choose a representative to sit on the national advisory committee.

Senator Adams: I have a little difficulty with that, Mr. Chairman. We settled land claims and now we have the Territory of Nunavut. Are we not included with the other provinces? You mention other provincial governments earlier to Senator Spivak. Those people had input into the making of environmental protection provisions. The Nunavut government is no different from the governments of Ontario or Quebec. Why do you not mention the Nunavut government but, rather, refer to the Inuit?

Mr. Mongrain: Nunavut as a territory also has a representative on the national advisory committee. I believe that since Nunavut became a territory, it has joined the current advisory committee under the existing act. It is double representation if you will. There is the Government of Nunavut as well as an Inuit representative, either drawn from a form of self-government, Nunavut aside, or as a representative of the Inuit where there is no aboriginal government. This is "aboriginal government" as defined in the bill.

Senator Adams: Bill C-62 has not yet been passed by the House of Commons. It is the same as Bill C-32 in that it deals with surface rights and water. If Bill C-62 passes, will it affect Bill C-32?

Mr. Mongrain: I have been living with this bill for quite some time and have not been able to follow other pieces of legislation. This is more than enough.

Senator Taylor: Under the bill will aboriginal peoples be treated as partners as are the provinces, rather than being restricted to being representatives on an advisory board?

Mr. Mongrain: This is one aspect of it. It is an advisory committee but it looks at all proposed regulations. It plays a fundamental role in the administration of the legislation.

In addition, as we go through specific provisions, you will see that there are requirements for consultation throughout the bill, whether it is on a proposed toxics regulation, fuels regulations, et cetera. In specific areas where there is an interest and an area of shared responsibility there are requirements for consultation.

Senator Wilson: To what extent were aboriginal governments involved in shaping the bill?

If there are to be up to six representatives of aboriginal governments, and there is more than that already, who decides who will be the representatives? I know it is on allocated on a regional basis but who decides who will it be? You said that this was a future-looking bill, but conceivably there could be a large number of aboriginal governments in the future. What is the mechanism for deciding which of those will be represented on the advisory committee?

Mr. Lerer: With respect to who makes that decision, it would be those individuals themselves. The minister does not decides on the representation.

Senator Wilson: Do you mean the aboriginal governments have to fight it out amongst themselves?

Mr. Lerer: They have to discuss the kind of representation that they wish to have, as opposed to it being a ministerial appointment.

Senator Wilson: They can decide if, in the regions, they will use rotation or some other means of representation?

Mr. Lerer: Yes, it is their decision.

With respect to the consultation, there was a great deal of consultation on this bill as it was moving through its review process. Aboriginal peoples were invited to participate in that consultation.

Senator Wilson: To what extent did they participate?

Mr. Lerer: That is before my time, perhaps Mr. Mongrain can help you. We have gone through several managers over the past three years.

Senator Wilson: That is why I am asking the question.

Mr. Mongrain: Dating back to 1994, there was a fair bit of consultation with aboriginal peoples during the standing committee review. As well, the House standing committee travelled extensively across Canada, including the north, and met with aboriginal peoples in particular regions. The government responded to the report of the standing committee in 1995 and that response was sent to all band councils, national organizations, and representatives of the Inuit and the Métis. Following the government response, there was some consultation and information packages on the legislation that preceded Bill C-32 but which died on the Order Paper.

Senator Wilson: I know the government send out a lot of material, but did you receive a response?

Mr. Mongrain: I believe we received 14 responses out of more than 600. A number of aboriginal organizations also appeared before the House standing committee over the course of a couple of hearings when it was reviewing this legislation.

Senator Wilson: When it comes to adding on or acknowledging the aboriginal governments that are coming into being, who makes that decision? Do they get into regional trade offs?

Mr. Mongrain: Precisely.

Senator Wilson: If there are 60 aboriginal groups and governments in a region, they have to decide how they wish to be represented.

Mr. Lerer: Yes.

Mr. Lerer: I was about to leave the administrative section of the bill.

Senator Spivak: My question concerns equivalency agreements. What happens if the provinces do not enforce it.

In that context I would refer to the court case, Canadian Environmental Law Association and The Minister of the Environment which touches on the harmonization accord. I am referring to the Federal Court case which, in effect, found that the accord was so devoid of factual content that it was impossible to say what it meant. What is your comment on this? That was a statement by the Federal Court, not the opposition.

Mr. Cameron: That was a Federal Court Trial Division decision, and the judge was Madam Justice Barbara Reed. We won that case.

The Chairman: Can you tell us about that case, Mr. Cameron?

Mr. Cameron: It was a judicial review of the harmonization accord. The Canadian Environmental Law Association had challenged the accord on the ground that it fettered the discretion of the minister and exceeded her jurisdiction. We won that case.

Senator Spivak: On what grounds?

Mr. Cameron: On the ground that the accord is an agreement in principle. It is a political agreement that sets out principles under which future agreements will be entered into, such as equivalency agreements or administrative agreements.

Senator Spivak: It also said that it was devoid of factual content, so it was impossible to say what it means.

Mr. Cameron: That was our position. That is what we pled in front of the trial judge. We did that on the grounds that the accord, because it is a statement of general principle it is a framework agreement under which future specific will be entered into. Since it is an umbrella agreement, you would not expect to find the kind of factual content that you would find in a contract or in an equivalency agreement, per se. Rather, the accord sets out broad principles that set the stage for the negotiation of future implementation agreements.

We did not take the comment that it is devoid of factual content as some sort of criticism, we took it as an accurate description of what the accord is aimed at accomplishing.

I brought a copy of the case with me. I would refer to paragraph 10 which is the judge's characterization of what the accord does. In our view, she characterizes it quite rightly in our view. In speaking of the harmonization accord and the three sub-agreements she said:

I characterize the agreements as agreements in principle, under which further decisions must be taken before the specific matters to which they apply can be known. The agreements contain statements of political intention, objectives that the respective governments hope to implement.

That is exactly the position that we put before the courts. You would not expect the judge to say that there is that factual content yet, because it is premature in the process.

Senator Spivak: Let us consider the question of enforcement. You have a practical situation where a province, say Ontario, is not enforcing. How would you proceed? Under this act the minister cannot take any further action. Is that correct?

Mr. Mongrain: If I may, Mr. Chairman, I will give a brief description of how an equivalency agreement works, and then I will give you the steps available to the federal minister in such situations.

Where there is a CEPA regulation in place and a province determines that it would prefer to develop its own measure to address exactly the same environmental problem, it can seek equivalency with the federal government for a specific regulation. A number of criteria have to be met, the first of which is that the provisions they put in place must be equivalent to the CEPA regulation. It does not have to be a regulation but, normally, that is the type of measure that is taken. That is the case with the equivalency agreement that is in place with the Province of Alberta now.

The second criterion is that province must also have provisions that allow for members of the public to request an investigation of an alleged offence. This is an instance where they have a measure in place, and they must also have this opportunity for public participation. This exits in Bill C-32.

The third criterion is that the two governments have to agree that what is in place is equivalent. These agreements, as a result of some of the new provisions in Bill C-32, undergo a public comment period and then they are brought into force by an order in council.

Where there are questions of enforcement, the federal minister, or the other party -- the provincial, territorial or aboriginal government -- can terminate the agreement with three months' notice. There is also a new provision that these agreements terminate after five years. Therefore, there must be a conscious decision to renegotiate and renew them. They must undergo the same public transparency aspects.

The government with which we have the equivalency agreement must provide us with certain information that must be contained in the annual report to Parliament. Therefore, there are safeguards to ensure that these agreements result in enforcement of the law.

Senator Spivak: In other words, the government has various sanctions that could terminate the agreement, but it has no power to enforce. If a government terminates the agreement, and satisfies all of the necessary criteria but does not enforce the provisions, what will happen?

Mr. Mongrain: If the agreement is terminated, the federal CEPA regulation comes into force.

Senator Spivak: The federal government can intervene.

I asked you a question earlier about habitat. Let us say a province is not implementing the provisions under which a pulp mill cannot emit pollutants into the water, and the agreement is terminated because the federal government does not like what is happening. The regulation comes into force and the federal government can then order the mill to do what it should be doing under the provisions of the act. Is that correct?

Mr. Mongrain: That is correct. I want to be clear. This is to comply with the federal regulation.

Senator Spivak: Navigable waters, streams and fish are a federal responsibility.

Mr. Mongrain: It is a specific federal regulation under this act.

Senator Spivak: There will be regulations under this act for that sort of situation, right?

Mr. Mongrain: There are regulations related to pulp and paper effluent.

Senator Spivak: That is just one example. The federal authority can, may, should, or will step in? Which is it?

Mr. Mongrain: The Government of Canada has to.

Senator Spivak: It is obligated under this act to enforce that regulation.

Mr. Mongrain: We enforce our own regulation. We have an administrative duty to apply and enforce the act.

Senator Spivak: That is very helpful.

The Chairman: What if the agreement is not terminated and the province is not doing anything? I can look to my own province in the example Senator Spivak referred to, that is, the pulp and paper industry. The province has an "F" rating for their lack of attention to this particular area of pollution. They are not doing anything, but there is an agreement. Is the federal government powerless?

Mr. Mongrain: I want to be clear. This is not a question of the province not administering its own laws and regulations, it is a question of it not administering an equivalent regulation that exists under this act.

If the government decides not to terminate an agreement, then the agreement remains in force, and the federal regulation is not applicable in that province.

Senator Spivak: Therefore, it cannot be enforced.

Mr. Mongrain: That is correct, as long as there is an agreement. If I may, I will confer with my colleague from Justice for a moment.

I should also point out to members of the committee that there is an emergency authority within the bill. We will get to that when we describe some of our tools for dealing with toxics.

The Minister of the Environment does have authority to issue an interim order where a substance poses a grave and significant danger and action is needed on an emergency basis to deal with the situation.

The Chairman: That is a somewhat unprecedented action, is it not? Can you give us an example of where that has been done?

Mr. Mongrain: We have used the interim order authority on PCB exports.

The Chairman: Have you ever gone into a provincial jurisdiction where they had the power and entered into that harangue?

Mr. Cameron: Not in a provincial jurisdiction, but we have where there is concurrent jurisdiction. In fact, the main Supreme Court decision that underlies much of our constitutional jurisdiction for this bill is the Hydro-Québec decision of 1997. That was a prosecution under the PCB interim order that was issued under the current CEPA of 1988.

We have used the interim order power, but not in the specific context that we are describing now where we have an equivalency agreement in place. It has never been used in that context.

The Chairman: Where there is no equivalency agreement yet something is occurring in a province that is "inappropriate" are you, as a federal authority, still powerless other than under these emergency provisions?

Mr. Mongrain: The emergency provisions apply to the subject matter of this act. We have authority for Canadian sources of international air and water pollution. That includes pollution that violates an international agreement. We will be getting to that in more detail later. There is some authority, but in an area strictly of provincial jurisdiction the federal government does not have the authority to act.

Mr. Cameron: Where you have toxic substances and the process of developing a regulation -- and, this takes some time -- has not yet been completed, the interim order power is designed to give the minister an emergency option to step in even in the absence of a regulation and impose a regulatory prohibition with respect to that substance. It is an expedited, emergency, stop-gap process that would apply while the process of developing a regulation is ongoing.

The Chairman: You said there is an equivalency agreement with Alberta. Does it involve the pulp and paper industry?

Mr. Mongrain: We will have to get back to you on the details. If the committee breaks this morning for a few minutes, we can confirm if there are CEPA regulations for chlorinated dioxins and furans and whether they are subject to an equivalency agreement with Alberta.

The Chairman: You can return to us with that information later, but is there an equivalency agreement? If there is one and the Province of Alberta is not adhering to it, what are the powers of the federal government in that regard, if any? Should there not be some ultimate powers respecting a province that is not fulfilling its environmental obligation, as is the apparently the case in some of our provinces? I should like to understand that area a little better.

Mr. Lerer: With respect to all those questions, the government has the powers and authority provided to it under Bill C-32. There is environmental legislation in the provinces. In fact, even municipalities have legislation through their by-laws. We are talking about the authorities and the enabling provisions provided under the Canadian Environmental Protection Act.

Senator Spivak: My question is about the criminal power. That court case says that pollution is an evil -- and, this is directly related to pollution prevention -- and Parliament can exercise its plenary power over criminal law.

Is the criminal head of power, for example, sufficient to look at things such as failure to do an environmental assessment? It is the case that environmental assessments or transboundary impacts are not routinely done. We are dealing with a whole field of law. Where is the criminal power here that the court has specifically said that the federal government has?

Mr. Cameron: The best way to answer that question is to let the committee know that in the 1997 Supreme Court decision in Hydro-Québec, the majority of the court held that the regulation of toxic substances, because of their inherent harm to human health and the environment, should fall under the federal government's power to enact criminal law. Much of this piece of legislation is based on the criminal law power insofar as it is aimed at eliminating that evil.

Senator Spivak: I understand that. The whole point here is that there is a law which stipulates that there must be an environmental assessment, which is routinely ignored in my province. All of those matters could fall under the criminal power. How does that relate to the questions that Senator Ghitter was asking about where there is no enforcement or equivalency agreement? If it chose to do so, can the federal government, or, is it obligated, as a result of this precedent, to use the criminal power in that situation? I may not have made myself clear.

Mr. Lerer: It would use the powers that are enabled under this specific piece of legislation that we are talking about. I believe you asked, if an environmental assessment was done improperly or not done at all, would the Canadian Environmental Protection Act provide the authority necessary to enforce an assessment in that case? If that is the question, then the answer is, no.

Senator Spivak: The situation that Senator Ghitter outlined is that, having exhausted all the provisions under this act, there is still, theoretically, a breach of law. Therefore, according to this precedent, why would the criminal power not apply? That is my question.

The Chairman: The breach of law involves another government.

Senator Spivak: Not necessarily. It could be the federal government.

The Chairman: The example to which I was referring was that other governments are not involved. As the witness is saying, we are powerless under this legislation if another government is not adhering to their own legislation.

Mr. Lerer: Yes, but you may not be powerless under another piece of legislation. We are dealing with the powers that are enabled under this piece of legislation, are we not?

The Chairman: Yes.

Mr. Mongrain: The regulations under the Alberta equivalency agreement are for vinyl chloride releases, secondary lead smelters, pulp and paper effluent, chlorinated dioxins and furans regulations, and certain sections of the pulp and paper mill defoamer and wood chip regulations.

The entire former CEPA regulations on dioxins and furans and part of the pulp and paper mill defoamer regulations are the subject of an equivalency agreement. If the Government of Alberta -- and, they have not done so yet -- stops fulfilling the terms and obligations of that agreement, we could terminate it and take action.

Senator Taylor: I read clause 10. The questions that have been asked and the answers that have been given have been most enlightening. However, I am not sure what happens when a provincial government does not want to sign an equivalency agreement and chooses to ignore the federal government. I have the impression that the equivalency agreement relies on some sort of an understanding that they both want to get somewhere. If a province wants to tell you to fly a kite and that things are just fine without you, I get the impression that you cannot do anything.

Mr. Lerer: Mr. Chairman, the equivalency agreements are discretionary. If there is no agreement, the federal law applies.

Senator Taylor: That probably answers my second question. The "government" interpretation of this agreement means the "government of a province, territory, or and aboriginal government." That means you could have hundreds of equivalency agreements.

Let us use Alberta as an example. An oil refinery is being purchased that is on official Indian reserve land, probably it is being purchased for tax reasons because they have the right to put the refinery on the land, but a refinery, of course, can be a polluter. What happens if this government is an aboriginal government, a First Nations government, and the refinery is not conforming to either the regulations of the province or of the federal government? Could the federal government step in?

Mr. Mongrain: If it is federal land.

Senator Taylor: I am saying it is aboriginal land.

Mr. Mongrain: Part 9 of the bill provides authority over federal and aboriginal land that remains vested in Her Majesty. This is land that has not been subject to a comprehensive claims agreement, for example. There is authority to deal with tenants that occupy this land, such as an oil refinery. They would be obligated to meet the requirements of this legislation.

Senator Taylor: Going back a step further to aboriginal governments that have assets which God put on their land, such as trees, gold or nickel, would those all have to be extracted and processed within the environmental act?

Mr. Mongrain: If the aboriginal group has self-government, then in many cases the self-government agreements include authority for environmental protection, regulations, laws, et cetera. In the absence of that, this bill provides authority for environmental-type regulations. Other federal statutes such as the Fisheries Act include metal mining and liquid effluent regulations that would also apply because this is a law of general application that applies across Canada.

Senator Buchanan: It is interesting to sit around a table like this with federal people, people in the Parliament of Canada, the Senate of Canada. The one thing you forget is that there is a group not present but who have a lot to say about this, and that is the provincial politicians, of which I was one for 25 years.

This is so complex. Over the years, I sat around tables like this and discussed closed provincial jurisdiction, which provincial politicians always believe is much more important than federal jurisdiction unless we are after the federal government to pay for something. The case in point now is the tar ponds. Whose jurisdiction is they? Do they flow into the ocean? Are the pollutants airborne? I lived there for 25 of my 50 years of life, and, to me, the tar ponds were just an inert mass. Now of course we know they are polluting the air and the ocean. As far as the province is concerned, it is a federal problem now and you must look after it.

Whether there are equivalency agreements or not, you have overlapping jurisdictions between the province and the federal government. Senator Spivak mentioned the criminal side, but that all depends on whether the matter is criminal or not.

Senator Spivak: It usually is.

Senator Buchanan: No, it is not usually a criminal matter. If it were, then why bother to do what we are doing here? If it is a criminal matter, it would be covered under the Criminal Code. There is a fine line between these two statutes.

We must all remember that much of what we are talking about here might be in this bill, it might be provincial law or it may involve overlapping provincial and federal legislation. There may be equivalency agreements. It also depends on which way the political wind is blowing at any one time and whether there is a federal election or provincial election in the offing. Those are the comments I have to make.

The Chairman: Thank you for speaking for the provinces, Senator Buchanan.

Senator Wilson: I want to pursue the situation in Ontario because, as you know, in Ontario, the staff has been reduced by 40 per cent. The regulations have been gutted. What is the overlap between the federal government and the Province of Ontario? The province, it seems to me, gets out of a lot of this because you share enforcement but there is no money available for enforcement. I know you have no jurisdiction, but I would like your comments on that.

Mr. Lerer: Again, in the application of the federal law, a law like the Canadian Environmental Protection Act, the federal government is very much involved in enforcement activity. With respect to money matters, there was a time when governments decided that they would pare down the public service. That applies to not only the provincial government. My recollection is that the federal government made a similar decision.

I can just give you the facts. The Minister of the Environment has recently announced two major initiatives. The first is that this bill obligates the Minister of the Environment and the Minister of Health to conduct research. She has recently announced a four-year, $40-million program to conduct research. That research will be conducted, amongst other things, on something we will get into later, I am sure, which is endocrine-disrupting substances. The most recent budget also had an item specifically to enable the Department of the Environment to implement this act, some $42 million for the assessment and management of toxic chemicals.

In summary, there were cutbacks, yes. However, I think we have turned that corner. As a public servant, I hope so. That is most certainly so in the case of the federal government.

This will be a federal act with federal authority, and we are the people who will enforce it.

Senator Wilson: What protection is there for the citizens of Ontario under this act when we witness the province not fulfilling its own environmental obligations?

Mr. Lerer: If you are speaking to provincial laws and provincial responsibility, citizens have all the recourse that is available through their provincial governments.

Senator Wilson: The federal government has no power there?

Mr. Lerer: Where it is an exclusive provincial jurisdiction, no.

The Chairman: On that point, Mr. Lerer, I want to go back to an earlier comment you made. Where there is no equivalency agreement or it is terminated, and there is an act of environmental concern in a provincial jurisdiction, it seemed to me you suggested that you could invoke the powers of clause 94 for an interim order on a provincial basis, and I am unclear as to the federal government's authority to do that. Perhaps Mr. Cameron can give us a legal opinion on that? I am surprised by that.

Mr. Lerer: The point I wanted to make, Mr. Chairman, was that, in areas that are enabled under the authorities of the federal legislation, we have all the authorities we need. My understanding of the questions -- and my understanding may be incorrect, Mr. Chairman -- is that they dealt with areas outside the enabling authorities of this bill. The answer is that, for authorities outside the enabling authorities of this bill, where there is a matter of exclusive provincial jurisdiction, there is no federal authority.

The Chairman: Then you get into the areas like pulp mills and forestry and habitat, where there is nothing you can do.

Mr. Lerer: Mr. Chairman, there are regulations for pulp mills that are enabled under the Canadian Environment Protection Act that is in place, as well as the Fisheries Act.

The Chairman: Does that cover internal waters?

Mr. Lerer: Yes.

The Chairman: Mr. Cameron, is there judicial interpretation of that? I am surprised by what I am hearing. I never thought that the federal government had those powers.

Mr. Cameron: Yes, it does. In fact, Environment Canada administers the fish habitat provisions of the Fisheries Act under an agreement between DFO and Environment Canada.

The Chairman: Are you telling us that, if there is no equivalency agreement or if it has been terminated, and a deleterious environmental act has occurred in a province, in, say, the pulp and paper industry, you can invoke clause 94?

Mr. Cameron: You could perhaps invoke that proposed section or simply follow prosecution under one of our existing CEPA regulations.

The Chairman: Do you do that?

Mr. Cameron: Yes.

The Chairman: Is there a precedent for you doing it?

Mr. Cameron: We have existing regulations that regulate the pulp and paper industry under CEPA. We also have regulations that regulate the pulp and paper industry under the Fisheries Act.

Senator Hays: Clause 94 refers to ministers believing that a toxic substance is not adequately regulated. Your answer is that, if the federal government has jurisdiction, then it will act. In the event of an equivalency agreement being in place that would cover the particular event, I am not sure whether you would act under clause 94 or not. What is this reference to a minister or ministers forming a belief? If it is covered by federal regulation, they need not form a belief. They are simply enforcing federal law. What objective question arises in the mind of the minister or ministers that release of a substance, for instance, is not adequately regulated?

Mr. Cameron: As you can imagine, it may take some time to develop a new regulation under this piece of legislation. It could take perhaps a couple of years to develop a regulation.

Senator Hays: That is why it is in force for two years, I guess.

Mr. Cameron: That was one of the considerations. Two years is a time period that you will see throughout the bill as we get into the details later on.

To ensure that you understand what the interim order power allows us to do, I will give you an example. Let us assume we were in the process of developing a new regulation, and we were conducting consultations with various stakeholders, and receiving comments, et cetera, but an emergency situation, which required immediate action, arose in the interim. We would not have a regulation in force. It would be under development. What would we do? We would fall back on the interim order power, which is the stop-gap measure that allows us, where these criteria are met, to take immediate action.

Senator Hays: That is only in areas where the federal government has authority.

Mr. Cameron: Of course.

Senator Hays: That is part of the decision-making process.

Mr. Cameron: That is right.

Senator Buchanan: I may be wrong, but on Monday of this week, I heard a radio report that the Irving pulp mill had a conviction entered against it last week for pollution of the Saint John River. Do you know anything about that?

Mr. Cameron: No.

Senator Buchanan: In the Atlantic provinces, if there has been a situation as the chairman described, then they move quickly on it. In the west, they do not.

Mr. Lerer: Mr. Chairman, the federal authority moves very quickly.

Senator Spivak: I want to return to our discussion of Ontario. A recent report cited dangerous levels of air pollution in Ontario. The American governors do not want to enforce their laws unless Ontario will do the same.

The air is certainly a federal jurisdiction. A report was issued saying that the health of many Ontarians is being affected. Where is the legislative mandate for the government to intervene, if it had the will to do so? According to this bill, it has the mandate to protect all its citizens. How would the federal government, if it wished, intervene?

Mr. Lerer: The federal government, in fact, has intervened under the existing CEPA. For example, a week or two ago the minister announced regulations on sulphur in fuel, which is one of the primary causes of smog. The minister has announced that she will regulate the content of sulphur in fuel and reduce that sulphur content by 90 per cent. There are provisions in Bill C-32 which will allow fuels and fuel additives and motor vehicle emissions to be dealt with.

Senator Spivak: Under what head of power is the regulation of air pollutants covered?

Mr. Cameron: That would be under a number of different heads of power. I would think that, where those pollutants cause harm to human health and the environment, they would fall under the definition of being toxic. Therefore, they would be regulated under the jurisdiction of the criminal law.

The federal government would also have authority under the peace, order and good government heads of power.

The federal government may also have authority under the trade and commerce power to regulate the interprovincial trade of fuels that contribute to air pollution, and that is dealt with in Bill C-32.

I would also point out that air is a matter of concurrent jurisdiction between the provinces and the federal government, just as much of the water is concurrent jurisdiction.

Senator Spivak: Not in all cases.

Mr. Cameron: No, not in all cases, but in many cases. Therefore, the provinces also have authority to regulate with respect to air emissions under the property and civil rights power.

One of the key statements that the Supreme Court has issued in the last 10 years comes from a decision in the case regarding the Oldman River, where the court said -- and they confirmed this statement in the Hydro-Québec case -- that the environment crosses all jurisdictions in Canada, both federal and provincial, and that all levels of government, but those two in particular, have a responsibility under the Constitution to enact laws to protect it. CEPA is part of our side of the equation, if you will.

Senator Spivak: If the federal government is not regulating under air pollution, some citizens can take the government to court; correct? I will get into that later on.

Senator Taylor: I am looking at this from the point of view of an aboriginal government. There has been much danger in the last number of years about the federal government being over-enthusiastic in enforcing environmental regulations. Quite the contrary, the federal government has often been accused of being asleep at the switch when it comes to environmental damage.

Suppose we do get a government that is enthusiastic about enforcing regulations -- maybe unreasonably so. I am not worried about the provinces because they can afford to fight it. I am thinking of a small aboriginal band that may have some unreasonable regulations slapped on it.

Is there any provision for that band to have its court costs covered, if it wished to defend itself?

Mr. Mongrain: There is no provision for that sort of intervenor funding. However, when we develop regulations, we consult closely with all the affected parties. The bill requires that.

Senator Taylor: I am not questioning present practice; if anything, when in doubt, you do not enforce things. I am saying that the day may come when this proposed legislation would be over-enthusiastically enforced.

Mr. Mongrain: There are two aspects here. First, we work closely with others when developing these regulations. Second, when it comes to the enforcement, it becomes a decision of the court if there are charges laid. If the charges are not substantiated, the court will make its decision.

Senator Taylor: That process could result in tremendous legal costs to a small band. However, that may be covered in some other place. I just wanted to explore it.

Mr. Mongrain: When we get into the enforcement provisions, there are alternative dispute resolution measures that act to divert some cases from the courts, thus avoiding the exorbitant costs that a lengthy proceeding can entail.

We will get into those details when we get to Part 10.

The Chairman: We have now completed to clause 10.

Mr. Lerer: I was about to begin Part 2, Public Participation. There are a number of items here that I will highlight for your consideration.

The first is the establishment of an environmental registry of CEPA-related information. The concept of the environmental registry was always in the bill. However, during the house process, more precision as to what would be required to be placed on the environmental registry was added to the bill.

The registry will be a computer-based Internet site, which is an obligation under the proposed act. This site will provide information on all notices, approvals, and proposed regulations. In addition, it will provide links for those who are interested in obtaining more detail on what is going on in their communities or for those who may wish to order the Canada Gazette, et cetera.

It is intended to be the first stop in the shopping for information about what is going on under the Canadian Environmental Protection Act; it will lead you to more detailed explanations, if required.

The second item is that, during the House of Commons process, what is being called "whistle-blower protection" was expanded. You will find that in clause 16. Essentially, the whistle-blower protection was expanded to cover all employees, not only the employees of federally regulated facilities. The whistle-blower protection is there for those who report an alleged offence under the Canadian Environmental Protection Act.

This part of the bill also includes provisions for the right to sue. Those are the environmental protection actions that begin in clause 22. They include the right to sue the alleged offender in instances where the government has failed to enforce the legislation and where significant harm has been done to the environment. It is a citizen's right to civil action against the alleged offender.

Those are the highlights associated with this particular part of the bill, and the changes made during the proceedings in the House of Commons.

Senator Taylor: It seems that under clause 17 -- and I do not know any way around it -- you could have unsubstantiated or frivolous cases, which have to be answered, according to clause 18, within 20 days. Those cases tie up a huge administration. For example, if somebody over-greases his or her bicycle, anyone in the neighbourhood can lodge a complaint.

How is it possible to report back in 20 days?

Mr. Lerer: Mr. Chairman, we have lived with these provisions for some time. They are not new. Any individual who is a resident in Canada and is at least 18 years of age may apply to the minister for an investigation.

Clause 21 states:

The Minister may discontinue the investigation if the Minister is of the opinion that...

It continues from there. Anyone can apply to the minister for an investigation but the minister has the discretion. The minister can decide not to pursue a case if he/she believes that the case is frivolous or that it has been dealt with in some other satisfactory manner. Of course, there is another due process if that individual still believes that he or she has not been listened to. There is always the process of judicial review.

However, to come back to your questions, yes, it is an individual's right to ask for an investigation, to apply to the minister for an investigation. It is also the minister's responsibility to ensure that the alleged actions are not frivolous.

Just to be clear, Mr. Chairman, these provisions apply to offences under the CEPA, not to offences under any other act.

Senator Spivak: My question refers to the Access of Information Act and the Privacy Act. In the Standing Senate Committee on Agriculture and Forestry, there was some difficulty in obtaining information for the committee. What is your view as to a committee's right to information? I do not know what the House of Commons does about it, but the Senate committee I mentioned experienced a great deal of difficulty obtaining information. Actions on the part of the bureaucracy were very improper. There is always, of course, the dodge that the information cannot be divulged.

What is your view as to how easy it would be for a committee of Parliament to get the proper information?

Mr. Lerer: I cannot comment on what has happened in other committees or on the actions of others. Public servants who appear in front of any committee of Parliament, or anywhere else, will obey the law. We will obey the law.

Senator Spivak: You are saying that, if it is not mentioned here, other areas cover that particular question.

Mr. Lerer: I know that I have specific duties and obligations under the Access to Information Act and the Privacy Act.

Senator Spivak: That does not apply to committees.

Mr. Lerer: If that is the case, then what I will do is, under instruction, I will obey the law, if I am the one in front of you.

I do not know how else to answer that question, Mr. Chairman.

The Chairman: I have a number of questions. Let us start with the environmental registry. Why would clause 13 not also include all documents brought before the court?

In other words, why not expand the registry, Internet or otherwise, so that the reader is able to get both sides of an argument rather than only copies of documents that the minister is submitting? Why not, subject to the Access to Information Act and the Privacy Act, expand the registry to make it complete? It only seems to present the government's point of view, at this stage

Mr. Cameron: The purpose of the registry is to provide access to all documents that originate within the Department of the Environment. Other documents -- for example, court pleadings, et cetera -- that may be filed by other litigants with a court are a matter of public record and would be available from the court. The distinction here is that we put on the registry everything that we create. Documents that others create may be available through other mechanisms.

The Chairman: Why not complete the public record?

Mr. Lerer: The environmental registry was designed, and was intended, to be the first point of access to information about what is going on within the Department of the Environment. The registry is intended to include notices and other documents by the minister.

We never intended, nor did we aspire to be, the central repository for all information that might be available, regardless of its source. As you can imagine, that could become quite burdensome. The environmental registry will be the first point for public access to documents that originate from the department. We never intended it to be the source of all information, regardless of the source of that information.

The Chairman: I am more specifically referring to clause 13(c). First there is the complaint, followed by the actions of the minister -- which relates to documentation.

What about the responses to the actions of the minister? Should not that information be available to the public as well?

Mr. Cameron: They can get that information from the court, Mr. Chairman.

The Chairman: We can get your information from the court, too, Mr. Cameron. The purpose of the registry is to make information to the public available. I take it the decision was made to limit the registry to government documentation and no further.

Mr. Lerer: That is right; the minister's documentation.

The Chairman: What is the reason for that? Why have the registry?

Mr. Lerer: The ministry issues policies, permits, regulations, and things of that nature. The intent of the environmental registry is to provide the public with access as to the activities of the minister.

The Chairman: I understand that. I am referring again to clause 13(c). Once you do that, why would you not expand it so that a reader could get some balance and understand what is going on? Why have the registry then?

Mr. Mongrain: Mr. Chairman, in an environmental protection action, a citizen is suing an alleged violator.

The Chairman: Not yet. It is only at the complaint stage.

Mr. Mongrain: An environmental protection action under clause 22 is the right to sue.

The Chairman: Correct me if I am wrong. The complainant first tenders the complaint. The government can then start its investigation.

Mr. Mongrain: That is correct.

The Chairman: Later on, the complainant may take an action, if certain conditions are fulfilled.

Mr. Mongrain: Not under clause 13(c), which refers to the actual environmental protection action.

The Chairman: Clause 22 states:

An individual who has applied for an investigation may bring an environmental protection action if...

I will get to the "if" in a minute.

I am talking about the preliminary stage right now. Can I take the action without laying a complaint?

Mr. Cameron: No.

The Chairman: Therefore, the precondition to that is that I must first lay the complaint. Following that, the minister has some obligations. Then, under certain circumstances, I can sue. Is that not right?

Mr. Cameron: Yes, that is right.

The Chairman: Therefore, the first step is the registry. Your case will be put on the registry. The minister's order will be put on the registry. You stop there. One is not privy to what the industry has to say about its position. You are saying, "Mr. Citizen, you can go to the court to find that out. We are only going to give you the government's position here."

Why? There is no balance.

Mr. Cameron: The point Mr. Mongrain is trying to make is that 13(c) assumes the action has already begun, that an environmental protection action has already commenced. Once the action has commenced, any documents that the minister files with the court will, at the same time, be put on the registry, thereby making them available to the public at large.

What we will not do, and this was an intentional policy decision based on resources and the administrative burden, is take all the other litigants' pleadings and put them on the registry as well. If an individual is that interested in the case, he or she can get those pleadings from the court.

The Chairman: I understand what you are saying. However, leading up to the environmental action you are not putting on the registry what the minister is doing as a result of the complaint. Does that go into the registry anywhere?

Mr. Cameron: If the documents are published and made publicly available, yes. However, if it is a matter of internal consideration within the department, the answer is no.

The Chairman: I do not see that in clause 13.

Mr. Mongrain: Mr. Chairman, if I may. An investigation becomes a question of enforcement of the proposed act. We deliberately do not telegraph many of our enforcement actions for the simple reason that, if we were investigating an alleged offence, we would not want to tip off any potential alleged violators, for example.

The Chairman: Mr. Mongrain, in fairness, the minister has to provide progress reports every 90 days as to what the minister is doing.

Mr. Mongrain: That is correct.

The Chairman: That does not go into the registry, does it?

Mr. Mongrain: It was not our intention to include those correspondences between the citizen and the minister in the registry, no.

The Chairman: Why? Is that not a matter of public record? It is going to the complainant. There is no confidentiality. Why not include it so that the public will know what is happening on that complaint?

Mr. Mongrain: As Mr. Lerer has said, it is a matter of not wanting to overburden the registry with correspondence between a citizen who requests an investigation and the minister. Many things are posted on the registry, including material that is published under the act in other places such as the Canada Gazette. I do not think many Canadians read the Canada Gazette. Our intention was to facilitate access to information such as proposed regulations and policies so that the public can comment on them.

In the case of paragraph (c), where there is an environmental protection action in play and a suit has been launched, the policy decision was that the public should also know what sort of documents the minister is providing to the court. As to the two parties in the case, that documentation is a matter of public record and is available from the court.

The Chairman: I am all in favour of the registry. It makes a lot of sense. All our offices are continually receiving government notices. I suppose all of that will be put in the registry, and no one will read it, which is probably what most of us do now.

However, in terms of something meaningful -- for example, an investigation and a government report that must submitted every 90 days -- that information is not included in the registry. I have trouble with that; in all likelihood, an amendment will be forthcoming. A registry should include active and ongoing complaints so that the public can inform themselves. I am stating my own point of view here, obviously.

Under the environmental protection action, is it conceivable that the minister can be carrying on an investigation at the same time an action is ongoing? Or is the intention that the action can only be commenced if the minister, under proposed section 22, fails to conduct the investigation or is unreasonable in the response? Can two things be ongoing simultaneously?

For example, can I start an action without going to the minister with a complaint?

Mr. Cameron: No.

The Chairman: I must lay a complaint; is that correct?

Mr. Cameron: You must request an investigation first. That is a prerequisite.

The Chairman: In other words, I may never get a chance to request an investigation -- that is, unless I can show that the minister is failing to conduct an investigation and report within a reasonable time. You are saying that a "reasonable time" is every 90 days. The minister can say, "The investigating is ongoing," and another 90 days can go by. The response could also be unreasonable. There is no cap on this, such that if the matter is not dealt with satisfactorily you can start an action within two years, for example. In other words, the matter can go on forever, in which case the complainant may abandon the matter or become worn out pursuing the matter.

Should there not be a cap, so that, if the matter is not resolved quickly, the action can be started?

Mr. Cameron: We gave a lot of thought to that matter, for the very reasons that underlie your question. The conclusion we reached was that we do not want to have a cap because some investigations may take considerably longer than others. We want to have the flexibility built into the legislation to allow a court to decide what is reasonable in the circumstances. That is why we have used the words "reasonable time" in clause 22. We feel that we act reasonably in most if not all cases and, therefore, would be able to defend a claim that the department has taken an unreasonable length of time.

The 90-day updates are intended to facilitate that, namely, to allow the applicant to know what it is that we are doing in addition to giving us a defence to show that we are on track and that we need to continue to pursue the investigation.

However, if, as you suggest, two years later an applicant said, "Enough is enough, This matter has dragged on long enough. I am filing an action pursuant to clause 22," one of the first steps in that action would be for the minister to justify that he or she has not taken an unreasonable period of time to conduct the investigation. From my experience, the court might want to conduct an in camera hearing to determine what has been going on and why there has been a protracted investigation. If we defend our actions on the basis of them being reasonable and the time period being necessary for various factors that we present to the court, then the action may be dismissed at that point.

The Chairman: Mr. Cameron, can I start a civil action apart from this process, or am I barred from doing so?

Mr. Cameron: There is a clause in the bill that states that no other legal rights or proceedings are in any way altered or diminished by these provisions. In other words, if you have standing to bring an action in common law, then you may do so. You do not have to follow this process.

This process is intended to provide citizens with standing that they would not otherwise have in common law. In common law, some degree of personal harm must be proved in order to have standing to launch a suit in negligence, for example. However, if you are an interest group located in another province, say, or if you are a concerned citizen who is not personally affected by an alleged offence of CEPA, you would not have standing in common law to bring a suit in negligence.

In these provisions, we have created a statutory standing to allow the citizen first to go to the minister and ask the minister to enforce the act. If the minister does not do so in a reasonable period of time or gives an answer that is considered unreasonable, that citizen or group will then be given standing to go to a court and say, "We are concerned about this alleged violation and we want to sue the offender." That is what these provisions do.

The Chairman: In my view, you are wearing down the objector. The process should be quicker. In other words, I can see this matter being delayed over and over, at which point the objector must go to court to determine whether the minister has been unreasonable. That process in itself can take a few more years. The result is total and complete frustration on the part of the complainant. With the greatest of respect, I have seen occasions in my lifetime where governments have not quite responded as quickly as one might reasonably expect them to do so.

I should like to hear more about why you cannot put a cap on it, such that, if the minister has not concluded the investigation within a specific period of time, the aggrieved party can then go to the next stage. Can you give me more information on that?

Mr. Cameron: We would have to go back to talk to our enforcement people. They certainly gave us cogent arguments when we were faced with this situation in the past. Perhaps we can come forward at another sitting and give you that information.

The Chairman: Would you, please? I feel that that may become a real source of frustration. I do not think you want to inhibit someone, if they feel frustrated by the lack of action from the government's point of view, from starting a class action or doing whatever they want to do. I like what you are doing here, but I do not want people to be frustrated by it. I want the government to have to respond in a more timely fashion than just giving reports every 90 days.

Clause 25 of the bill states:

An environmental protection action may not be brought against a person if the person was convicted of an offence under this Act...

Is that really what you want to say? What if an individual has been convicted, under the legislation, of an offence that is unrelated to the objection? Am I missing something?

Mr. Cameron: The last line says, "in respect of the alleged conduct on which the action is based."

The Chairman: I see that.

Mr. Lerer: Mr. Chairman, we were about to enter into the next phase and talk about science and toxics.

The Chairman: It was our hope that you would be available to continue tomorrow morning at 9:00.

Mr. Lerer: We are at your disposal.

The Chairman:The committee will meet for two hours tomorrow morning, after which we will go in camera.

The committee adjourned.