Proceedings of the Standing Senate Committee on Energy, the
Environment and Natural Resources
Issue 20 - Evidence, August 25, 1999 (afternoon meeting)
OTTAWA, Wednesday, August 25, 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 1:37 p.m. to give consideration to the
Senator Ron Ghitter (Chairman) in the Chair.
The Chairman: Honourable senators, we will reconvene.
Mr. Mongrain, please continue.
Mr. Steve Mongrain, Representative, Office of the Canadian Environmental
Protection Act, Department of the Environment: Mr. Chairman, we ended yesterday
with Division 6. I was about to start on Division 7, International Water
Pollution, beginning at clause 175.
This division mirrors exactly what is in the division on international air
pollution except it exchanges the term "water" for "air."
It is dealing with water pollution and Canadian sources of water pollution that
have an impact on another country or which might violate an international
agreement that is binding on Canada.
If you recall from my testimony yesterday, this is an authority that is
available to the minister if the government, whether provincial, territorial or
aboriginal, responsible for the area in which the pollution source -- in this
case, a water pollution -- is either unwilling or unable to take action to
reduce or prevent pollution.
The bill provides authority to seek Governor-in-Council approval to require
pollution prevention planning, to address the water pollution, to recommend
regulations. The minister can recommend regulations to the Governor in Council
using the traditional regulatory authority. In emergency situations, there is
an interim order power.
This is completely new to CEPA. It did not exist in CEPA 1988. When the review
of the existing act was under way, the question was asked, "You have
sections or powers to deal with international air pollution, so why not water?"
The government looked at it, decided it was a good idea, and included an
authority that is similar to the provisions for international air pollution.
The Chairman: Essentially the same approach is taken here as in the other one.
Mr. Mongrain: It is precisely the same approach.
The Chairman: The same solutions are utilized for the jurisdictional problems
that we discussed yesterday.
Mr. Duncan Cameron, Legal Counsel, Department of Justice: That is correct. It is
based on the same constitutional analysis that I presented to the committee
Mr. Mongrain: If I might add, there is the same reciprocal access to American
legislation. The Americans' Clean Water Act has similar provisions to their
Clean Air Act. It allows for the same reciprocal arrangement.
Senator Taylor: I am having a little trouble with this. In my home province,
Alberta, for example, water pollution starts out in a local municipality.
However, as the river flows on, it becomes an international problem. You talk
about international water pollution, but all international pollution in which
Canada is involved begins as municipal pollution.
I wonder about the interface. In southern Alberta, we have a great deal of
agricultural industry. The waste from that industry eventually ends up in the
rivers. The other problem we have is that in the cities people have a tendency,
because of good advertising and the publicity programs put on by fertilizer
manufacturers, to over-fertilize their lawns. That causes a huge run-off from
the cities, polluting the water with phosphates and nitrates.
What happens if you find a polluted river that is crossing the American border
but you must go back 100 miles to the municipalities that are doing the major
Mr. Mongrain: Mr. Chairman, the first step would be to discuss the matter with
the government authority responsible for the area. In this case, it would be
the Government of Alberta, given your hypothetical example.
It would be our hope that the province would take care of the problem.
These authorities come into effect if the province does not have the legislative
capacity to deal with the issue or if they are unwilling to take action. If we
chose to require a pollution prevention plan, it would be applicable to the
source of the pollution. A regulation would be applicable to the particular
factory or plant, for example.
Senator Taylor: From my work on the subcommittee on forestry I have learned that
the problem is not lack of legislative tools but rather a lack of backbone in
enforcing environmental laws. Under our Constitution, in most cases it is the
provinces that benefit the most when polluting is allowed to proceed. For
example, the provinces rent out the right to produce oil and gas and to cut
timber. The fewer restrictions they impose on the production of the lumber, gas
or oil, the more cash they get from the company. Therefore, the provinces turn
a blind eye to the pollution.
I am not trying to precipitate a federal-provincial fight, but if the province
tells you to buzz off with regard to the provisions of this bill, what will you
Mr. Mongrain: The tools for action are in the legislation. It would be up to the
government of the day to decide whether to use those tools and to decide on the
most appropriate means of proceeding. In the hypothetical situation that you
described, the tools are in the bill for the federal government to step in if
necessary. I cannot speak to how future governments might use this, but it is
Senator Taylor: What is the trigger? Is it a certain level of pollution?
Mr. Mongrain: Clause 176 sets out the conditions. The authorities are available:
...if the Ministers have reason to believe that a substance released from a
source in Canada into water creates, or may reasonably be anticipated to
(a) water pollution in a country other than Canada; or
(b) water pollution that violates, or is likely to violate, an international
agreement binding on Canada in relation to the prevention, control or
correction of pollution.
The Chairman: That basically covers any water or air space of an international
Mr. Cameron: The key term in clause 176 is "water pollution," which is
defined in clause 175. This definition sets the parameters for what we are
talking about. It does not include everything. It is pollution that directly or
indirectly endangers the health, safety or welfare of humans; interferes with
the normal enjoyment of life or property, et cetera. The definition
circumscribes the kind of water pollution we are discussing.
Senator Taylor: The Bow River downstream from Calgary is one of the greatest fly
fishing rivers in North America. People come from all over to fish there. When
I was young, you would have had to set dynamite off in that river to catch the
odd fish. However, we polluted it with phosphates, which caused so much grass
to grow that there has been a huge increase in trout. I am not sure about the
eating quality, but catch and release is all the rage.
The point is that sometimes some pollution can have a beneficial effect.
Although the Bow may not be good drinking water, it is lovely for the fish, and
that benefits tourism. If we clean up the river to get good drinking water, the
fish will starve. What do you do in such a case?
Mr. Mongrain: Under the definition of water pollution in paragraph (a), it must
endanger the health, safety or welfare humans. Poor quality drinking water
would certainly fall into that category. It would meet that test and be
considered water pollution. It might not endanger animal life and it might not
interfere with the normal enjoyment of the river; it might even enhance the
enjoyment of the river for fishermen, but for the citizens who must rely on it
for drinking water that would be the paramount concern.
Senator Nolin: In the preparation of that bill were there consultations with our
provincial and territorial partners? If such consultations have taken place, of
what scope and what type were they?
Mr. Cameron: There was consultation by the Department of the Environment.
Therefore, I will ask Dr. Lerer to respond to that question.
Mr. Harvey Lerer, Director General, Office of the Canadian Environmental
Protection Act, Department of the Environment: There was extensive consultation
with the provinces and other interested stakeholders and parties before the
bill was tabled and as we were going through the process of introduction into
the House of Commons. During the House process, there was also extensive
consultation and information exchange. I personally chaired teleconferences at
least once a month with each of the provinces and territories where we provided
information on what was happening in Ottawa. I can assure you that none of the
people participating in the teleconferences representing the provinces or the
territories were shy about telling me what they thought about what was
During that entire process I made myself available to hear the concerns of
anyone who wished to speak to me.
Some people took advantage of that and others did not. However, the provinces
were kept extensively informed throughout the entire process.
Senator Nolin: I was directing my question to you, Mr. Cameron, because you are
obviously using the "national concern" aspect. I was not here
yesterday to hear your testimony on that, but I presume that that is the core
of your argument. With respect to the federal power, you are using the
introduction of clause 91.
Mr. Cameron: That is the core of the power, but it is not based solely on the
national concern branch of peace, order and good government. Insofar as part of
the definition of water pollution involves the endangerment of human life,
there may be some room to argue criminal law jurisdiction there as well. It is
Senator Nolin: I was asking you about discussions with the provinces. I am sure
you have exchanges of notes with legal colleagues in the provincial
jurisdictions. Did they have different views from yours or did they share the
federal position on your jurisdiction over the environment and what is in the
Mr. Cameron: To be honest, I do not recall there being disagreements from
provinces over these provisions.
Senator Nolin: Specifically on clause 175, are you using the Supreme Court
decision from 1988 on marine pollution?
Mr. Cameron: Yes, the Crown Zellerbach case, but also the elaboration that the
Supreme Court gave to the theory. It is important to note that in the decision
regarding Hydro Quebec, the majority of the court were silent on the federal
Crown's arguments that CEPA was based on peace, order and good government. The
minority of the court felt that that head of power was not sufficient to justify
the toxics provisions of CEPA 1988. The majority was silent. They upheld the
provisions on the basis of criminal law, and they refused to enter into a
discussion of whether there would also be concurrent jurisdiction under peace,
order, and good government. The fact that the majority was silent seems to us
significant, in that they had an opportunity to modify the analysis in Crown
Zellerbach and they chose not to.
You are correct in saying that the 1988 Crown Zellerbach decision is the
starting point but it is also important to read it in the context of the
decisions that came after it.
Senator Nolin: You are saying that, from your perception, your provincial
colleagues did not raise any concerns?
Mr. Cameron: Not to my knowledge.
Senator Nolin: I am talking not only about clause 175 but about the preamble of
the bill as well, because the preamble is definitely talking of national
Mr. Lerer: Perhaps I could intervene here as well. In my specific conversations
with colleagues, my counterparts in the provinces, there were instances when
they raised the questions of whether we were sure that we in fact had the
authority to do this and would this not be better left to the provinces? That
kind of push and pull is always there. Were we challenged during the
opportunities that I had to discuss this? The answer is no.
Mr. Mongrain: Throughout the life of the bill -- and the same was true for Bill
C-74 -- the provinces brought forward concerns about specific provisions, such
as the way clauses were worded and so forth, but it was never a fundamental
attack on the basis of the bill. Sometimes they were concerned about the way it
was drafted, and they had suggestions, but there was never that overwhelming
challenge from the provinces in that respect.
Senator Nolin: Clause 2, subclause (1), paragraphs (l) and (m) are the two that
refer to conflicting jurisdictions. The way you are putting it forward is quite
positive. You are favouring consultation, harmonization, and working together
rather than fighting. Who suggested that? Was it the result of a compromise?
Mr. Lerer: Perhaps I might help there because, in a previous life -- and there
was a previous life before Bill C-32 for me as well as for my colleagues -- I
was involved on the federal side in negotiating the federal-provincial
harmonization accord on the environment.
Because we had the opportunity with the revision of the act, we took a policy
decision that we would put into the act as a policy initiative a statement that
would show that we were honouring that agreement.
Senator Nolin: It is a governing principle.
Mr. Lerer: It is a governing principle. The harmonization accord is a political
accord. There was great discussion of the language in subparagraph (l) during
the House process to ensure that it remained a political accord and could not
be construed as legally binding. We honour the accord. We honour the principle
of cooperation wherever possible, and that is the history of the language
associated with subparagraph 2(1)(l).
Senator Spivak: This language does not say anything about virtual elimination or
biological diversity. It does not refer to any previous clauses of the bill.
Mr. Lerer: I am sorry, but are we back to water pollution?
Senator Spivak: Yes, we are back to water pollution.
Mr. Lerer: Which clause are you referencing, senator?
Senator Spivak: From clause 175 onward, and I am trying to find what are the
possible actions. Nowhere is there a reference back to the kinds of constraints
that we looked at earlier.
Also, while we will talk about action later, it seems to be easier to act here.
Let us take the situation of fertilizer going into the St. Lawrence River by
way of the Saguenay River. Does that fall under the Fertilizers Act? That
fertilizer eventually goes into international waters.
I am asking you to clarify this. It seems relatively simple to do as compared to
all the constraints on the minister with respect to all the other actions.
There seem to be a great number of constraints in the bill preventing the
minister from acting, such as exemption from the bill, and CEPA not being able
to be enforced if there are other acts and regulations. It is a general
Mr. Mongrain: This division, as with the previous division on air pollution or
the parts that deal with nutrients, stands alone and is separate from the
toxics part, in the sense that, if a substance has been assessed and is on the
list of toxic substances, the powers in Part 5 are available to deal with it, as
are the powers in Part 4 that require pollution prevention planning.
There may be other substances that are not on the list of toxic substances but
which may contribute to or create air pollution, water pollution or, in the
case of nutrients, may cause the growth of aquatic vegetation. There are
constraints, but these sections of the bill provide authority to deal with those
substances. It is a separate part, if you will, of the legislation.
In the case of international water pollution, if it is not a toxic substance as
defined by CEPA, generally, it is something being dealt with by a province and
is in the area of provincial jurisdiction. That is why there is the requirement
to consult with the provinces first.
Senator Spivak: Let us take fertilizer example. Let us assume, for a change,
that it is coming out of a river in Manitoba. Presume that it goes down through
the river system into Minnesota. Is this a stand-alone provision in that the
Fertilizers Act does not apply? Is this a stand-alone provision in terms of
which you do not have to have cost-effective measures for virtual elimination?
Do you know what I am getting at? I do not understand your answer.
Senator Nolin: Perhaps there are too many questions.
Senator Spivak: The question is whether the constraints that apply normally to
pollution in Canada in the other sections of the act apply or do not apply
here. Surely, that is a simple question.
Mr. Mongrain: I will try to answer as succinctly as possible. If I am not doing
a good job, perhaps you can ask the question again.
The toxics part of the bill sets out the steps to be taken before you can use
the authority. You must do an assessment of a substance.
Senator Spivak: Let us say it is not toxic. That is why I chose fertilizer. Let
us say it is a substance under provincial jurisdiction.
Mr. Mongrain: I am not as familiar with the Fertilizers Act as I am with this
bill. However, to use the authority in this clause, the test of what
constitutes water pollution must be met. I am not sure, but there may be tools
in the Fertilizers Act. I know there are tools in the Fisheries Act.
Senator Spivak: You have answered my question.
Mr. Mongrain: There are a number of tools. This may be the best one to use in
certain instances. We have to look at these on a case-by-case basis. One does
not override the other in this instance. We are looking at the best tool. This
provides authority to deal with water pollution.
Senator Spivak: I understand the answer.
The counterpart provisions in the CEPA section dealing with international air
pollution have never been used; yet they have been available since the CEPA was
passed in 1988. What can we expect here?
Mr. Mongrain: I can give an example of where it may have been applicable.
Sulphur dioxide emissions create acid rain, which is a matter that is the
subject of international agreements. It is a transboundary pollution problem.
We could have used the international air pollution provisions of CEPA, but
there was no need to because the provinces agreed to implement measures to put a
cap in place. The fact that this authority allowing the federal government to
step in has not been used is not necessarily a sign of failure. For example, in
the case of sulphur dioxide emissions, the provinces have taken on the problem.
It does not meet that first test of the government responsible for the area
being either unwilling or unable to act.
There may be instances in which some might say it should have been used; others
would argue otherwise. All I am saying is that the authority is in the bill
Senator Spivak: I point out that those provisions have been in place since 1988
and it is now practically 2000. You would think there might have been one small
instance in which they should have been used. I understand your response.
Senator Adams: Does the term "international water pollution" apply to
both seawater and fresh water?
Mr. Mongrain: We treat the ocean waters the same as fresh water.
Senator Adams: This morning I asked the minister about pollution that is coming
in mostly from Europe and northern Russia. Are there agreements with other
countries about protecting the sea? How does the system work?
Mr. Lerer: Mr. Chairman, I believe, and I will check to ensure that I am
correct, that we are currently party to negotiations on a convention or a
protocol that deals with protecting the oceans from pollution sources, yes.
Senator Adams: In Nunavut, we are affected by both Denmark and Alaska.
Mr. Lerer: Senator, I am aware of a program. If I have misspoken in regard to
the negotiation of an international protocol, I will correct that in writing.
However, I believe we are party to international negotiations in this regard.
The Chairman: I suppose, Mr. Mongrain, ultimately, it is a matter of will. As
Senator Taylor said, I can look to my Province of Alberta and see things to
which the government should be responding. The tools are here. It seems to me
that we now need the political will to act. When I see what the pulp and paper
industry has done to my province, I am not very proud.
As Senator Taylor said, the problem is in weighing the economic benefits against
the environmental ones, which go on forever in this area. I am comforted to
know that the tools are here. I am not so comforted to know that the will is
not there. I suppose that is the bottom line in all of this.
Senator Spivak: I wish to refer to the definition of "water pollution."
For example, in the Lake of the Woods area, those waters go between Ontario and
the United States. Would the government be able to act on the Sea-Doo
situation? Theoretically, would it be easier to act there than it would be under
all the other sections?
Senator Buchanan: I do not think you like Sea-Doos.
Senator Spivak: You are right; I do not.
Mr. Mongrain: It would depend on whether the factual basis is there to establish
that you are dealing with water pollution in the first place.
Senator Spivak: Those waters are contiguous between the United States and
Canada. You are saying that those conditions are met, but it depends on whether
there is a factual case. I will have to look into that.
The Chairman: In clause 175 I notice in (e) the word "alterating." Is
there such a word? I am not sure what that is.
Ms Lloyd: We had put in a motion, I thought at report stage, to correct that.
The word should read "altering."
The Chairman: That is another amendment we will need.
Mr. Lerer: It is perhaps a typographical error.
Mr. Mongrain: Division 8 starts on page 135, clause 185. These provisions, if
the bill is passed, would allow Canada to meet its commitments under the Basel
Convention and also a Canada-U.S. agreement concerning the transboundary
movement of hazardous waste.
There is some authority in the CEPA of 1988 to control the export and import of
hazardous waste. There are, however, a number of new, progressive aspects to
First, it separates out hazardous waste from hazardous recyclable material. The
difference would be hazardous wastes that are destined for final disposal as
opposed to a hazardous recyclable which can, in some form, be re-used.
The bill provides the authority for the minister to establish a permit system
that governs the import, export, or transit of wastes, be they hazardous or
not. It also takes over the environmental aspects of the transportation of
dangerous goods regulations, which I believe are currently with Transport
Canada. It requires that the details of shipments be published either in the
Canada Gazette or in another form that the minister considers appropriate. Our
intent would be to publish the details of shipments on the environmental
It also provides the authority -- and this is new and perhaps the subject of
some controversy -- to require the exporters of wastes to develop reduction and
phase-out plans. Initially, Bill C-32 dealt only with hazardous wastes that
were exported for final disposal. The House of Commons added this authority to
deal with what is described in the bill as "prescribed non-hazardous waste."
In simpler terms, prescribed non-hazardous wastes are identified through the
regulations as, essentially, municipal garbage and municipal wastes <#0107>
those things that are not hazardous and would normally end up in a landfill.
Canada is somewhat unique in its geography. Much of our population is spread
along the Canada-U.S. border. Sometimes a waste disposal facility in the United
States is closer to us than one in Canada. We are trying to reduce exports, but
the bill does have provisions that recognize the need to consider the benefits
of using the geographically nearest waste-disposal facility. For example, it
may be simpler to ship some waste from Toronto to Buffalo than from Toronto to
Swan Hills in Alberta.
The bill recognizes that. However, it does not take away from our fundamental
goal of trying to reduce the export of wastes. Less generation of wastes means
essentially less pollution. Preventing pollution is what the bill is about.
Senator Spivak: There is less cost as well.
Mr. Mongrain: As Senator Spivak points out, there is less cost, which is
The Chairman: In French or in English?
Mr. Mongrain: There is also a new authority for the minister to refuse a permit
even if the receiving jurisdiction has agreed to it. The federal government is
controlling the borders, and there may be a shipment going to a province where
the province has agreed to accept the shipment. The minister may refuse that
import if he is not satisfied that the waste will be handled in a manner that
protects the environment and human health. It gives us greater control over our
international borders when dealing with wastes.
Senator Cochrane: When hazardous waste is being moved from one point to another,
who is notified regarding the transportation issue?
Mr. Mongrain: The minister is notified, and the details of the shipment are made
Senator Cochrane: In what form?
Mr. Mongrain: Currently, it would be on our Internet site. There is a
publication of shipments and where they are headed and so forth.
Senator Cochrane: Not everyone is on the Internet.
Mr. Mongrain: That is something we considered, but an electronic-based registry
is at least a means of getting the information out to the greatest number of
interested people in a fashion that is efficient and does not pose a huge
administrative burden or cost on the department.
In the transportation of dangerous goods regulations, there is a manifest system
that tracks the shipments of dangerous goods so that the government is aware of
where the shipments are going. The provinces are also aware, because they
administer the manifest system that tracks shipments across the country.
Mr. Lerer: Senator Cochrane has a legitimate question about public information.
This general idea is dealt with in the bill before you. There is a requirement
or obligation for the minister to establish an environmental registry of all
matters related to the administration of this bill, and that would include
publication and public accessibility to all permissions, licences and policies
that are conducted under this legislation.
Our intent is that the environmental registry will be an electronic
environmental registry that is available through the Internet so it is
accessible through libraries and through personal Internet access as well. Once
this bill is passed, should it be passed, there is an obligation in the bill
that all permissions and all licences -- all of that kind of material -- may be
made publicly available through the environmental registry.
Our intention is to first make it available electronically, therefore making it
available through public institutions such as libraries across the country.
Senator Cochrane: I have been made aware that fire departments are concerned
about the transportation of hazardous goods. If there is an accident on the
highway involving a vehicle carrying hazardous goods, the arrival of fire
trucks will be delayed if they must search the Internet to learn whether
hazardous goods were being carried.
The various groups concerned with environmental issues should receive
information regarding the transportation of hazardous products.
Mr. Mongrain: The federal government requires a computerized tracking system of
manifests to be operated by the provinces. The various emergency officials in
the provinces have close working relationships. It would not be necessary for
them to go to our environmental registry. There is a much quicker method
through these manifests that are tracked via computer. The purpose of our
registry is to inform members of the public of what is going on.
Senator Cochrane: And that is done through the Internet?
Mr. Mongrain: Yes.
Senator Cochrane: The problem is that some of our smaller communities have only
volunteer firemen, and hazardous wastes are transported through these smaller
towns as well as through the larger ones. Who is responsible in those places?
It is too late when the waste has been spilled. These are the concerns that I
have been hearing from smaller communities, which do not have large fire
Mr. Mongrain: Mr. Chairman, that type of emergency response is a matter of
provincial jurisdiction. It is not something we can legislate through these
provisions. Through these provisions we can ensure that we know what is
crossing Canada's border. We can ensure that the shipments are tracked. We can
ensure that the shipments are disposed of in an environmentally safe way that
protects human health. Those are the powers of the bill. We can make it an
offence to abandon a shipment, but there are limits to our jurisdiction and
what we can impose on other levels of government.
Senator Cochrane: Is there a rule that we can use right across the board?
Mr. Mongrain: Each province has its own emergency agencies, as does the federal
government, and we all work closely together to deal with potential accidents.
This is a good introduction for the next part of the bill, which deals with
environmental emergencies. It is something that Environment Canada takes
seriously. We do what we can, given the authority that we have. This bill
provides numerous tools to control our borders and ensure safe disposal of
waste, and so on.
Senator Spivak: There is a gap in the legislation. The National Transportation
Safety Board does not deal with trucks. We tried to change that through
amendment of that bill and were not successful. Recently, a truck carrying some
substance exploded on a highway in Ontario and neither the provincial
government nor the federal government would deal with it. The issue is how to
investigate an accident in a more general way to find out the cause.
I note that here and in the Motor Vehicles Act you have used the opposite
approach. You have not exempted CEPA; you have moved that portion of the act
under this jurisdiction. Why is it different for these two acts than for feeds,
fertilizer, plant protection, et cetera? What was the reasoning behind putting
certain acts under CEPA and putting the others aside?
My second question is with regard to investigative powers. Does the minister
have the power to investigate hazardous materials carried by trucks, as is the
case for airlines? That would be very valuable. As you have just pointed out,
we have a hodgepodge of provincial standards across the country but we do not
have a national board that investigates hazardous substances that are being
The example of the truck exploding was not the only such incident, but it was a
very interesting one because no one would take responsibility.
Mr. Mongrain: In response to your question about why certain things were
transferred to CEPA, with respect to setting emission standards for engines we
already had the authority for fuels. We were already doing much of the work in
setting emission standards at our labs. With the interconnectedness of fuels
and engines, it made sense to put the two together.
Senator Spivak: Whereas the Canadian Food Inspection Agency has had years of
experience with environmental standards, right? Sorry, I could not resist.
Mr. Lerer: I cannot resist intervening. With your indulgence, Mr. Chairman, I am
going to suggest that it would be out of bounds for my colleague or myself to
answer as to why the government chose not to incorporate the Food and Drugs
Act, et cetera, into the Canadian Environmental Protection Act.
Senator Spivak: Thank you. That is a very good answer.
Mr. Mongrain: With respect to the investigative powers of the minister, there
are information-gathering and research powers in Part 3. For example, the
minister can conduct research and studies relating to environmental
contamination arising from disturbances of eco-systems by human activity. I
think that would fall under that category. That is subclause 44(1)(c) on page
27, if you want to look it up.
Senator Spivak: What about a situation where there are hazardous substances.
Mr. Mongrain: If there has been a violation of CEPA, or if the substances are
regulated somehow under CEPA, then our enforcement officers would have the
power to investigate.
Senator Spivak: People had to be evacuated from the area. Would that fall under
this kind of jurisdiction?
Mr. Mongrain: If it dealt with substances that are regulated under this bill,
Senator Spivak: It would make a lot of sense for the National Transportation
Safety Board to have these powers, as the board in the United States has had
If this covers it in some way, that is also very helpful. During the course of
that study, we found this issue to have a lot of public interest. If you could
flag that, that would be great.
Mr. Mongrain: I want to be very clear. If there are substances that are dealt
with under this bill, certainly our enforcement officers have authority to act.
Senator Spivak: How would an investigative action be instigated? Would they have
to notify the Department of the Environment?
Mr. Mongrain: There are provisions under which persons are required to make
notification about a spill or the release of a toxic substance. There are
requirements for notification.
The Chairman: What is hazardous waste?
Mr. Mongrain: It is not defined in the legislation. It will be defined in
regulations. The reason we have not defined it in the bill is that it is
currently the subject of both domestic and international negotiation as to what
precisely constitutes a hazardous waste. We would not want to hold up the
legislation for these negotiations to come to fruition. We have the flexibility
to adopt those definitions that we have agreed to domestically and
internationally. I am sorry, that is not a very forthcoming answer.
The Chairman: It seems to me, from a public point of view, that we have a piece
of legislation that deals with hazardous and non-hazardous wastes. The punitive
provisions are immense, if you are caught doing something inappropriate. The
minister has wide powers relating to importation, exportation, and the like, as
he should, when dealing with products of this nature. However, nowhere in the
legislation is this defined. There is a part at the back that says you can do it
by regulation. It is so fundamental, why leave it to regulations?
For example, nuclear waste is obviously hazardous. Does it come under this
legislation or under other legislation?
Mr. Cameron: I do not want to comment specifically on nuclear waste. I am fairly
certain that it is covered by the Basel Convention, but we will have to check.
The reason we have left the definition to regulations is that every year there
is a congress of the parties to the Basel Convention that meets and updates the
definition of what it is that that convention covers.
Senator Spivak: Could you just summarize it?
Mr. Cameron: The definition of hazardous waste, had it been enshrined in the
legislation, would be fixed until Parliament again amends that definition. By
giving the authority through regulation to define hazardous waste, we have
enabled ourselves the flexibility to keep up with the internationally accepted,
negotiated definition. That was our intent. Before this bill is proclaimed into
force, assuming it is passed by Parliament, those regulations will be in force,
so there will be regulatory continuity.
The Chairman: You talked about 1988. What is the situation today?
Mr. Cameron: In 1988, it was defined, and the fact that it was defined created
logistical difficulties. That was 11 years ago and there is pressure on Canada
to keep up with the evolving, international, expanded definition. The
definition is found in section 43(4) of the current CEPA. I can read the
definition into the record if you like. It says:
For the purposes of subsection (3) and sections 44 and 45 -- which are the
hazardous waste provisions -- "hazardous wastes" means:
(a) any dangerous goods, within the meaning of the Transportation of Dangerous
Goods Act, 1982, that are a waste, within the meaning of the regulations made
under that Act; or
(b) any substance specified on the List of Hazardous Wastes Requiring Export or
Import Notification in Part III of Schedule II.
So there was a fixed definition in the 1988 CEPA. By allowing the Governor in
Council to define the term hazardous waste through regulations, we will be able
to update our lists of substances that constitute hazardous wastes more quickly
and more effectively.
The Chairman: That does not seem to be fair. It seems to me a better way would
be to define it, put in the list of what we know now, as we do with toxic
chemicals, and have the power by regulation to add. Why leave such an immense
uncertainty in the legislation at this point in time and say that it will be
covered by regulation? In other matters, you attach schedules. We have schedules
all over the place in this legislation of what you know. You name the products.
Why not do that in this situation?
Mr. Cameron: That would be another legislative option. It is not the option the
government chose. I cannot think of a reason.
The Chairman: It is an option that gives certainty, whereas right now, when I
look at the legislation, the first question that comes to my mind is: What are
we talking about? Maybe you do not know the answer, Mr. Cameron, but I return
to my prior question about nuclear waste: Do we know what legislation covers
the transportation, importation, and exportation of nuclear waste?
Mr. Cameron: Given the specific question you have asked, Mr. Chairman, our
preference would be to look into it and to respond to the committee in writing.
The Chairman: Please do so.
Senator Spivak: You understand that MOX might be transported, which is material
from armaments from Russia. Plutonium can be transported, and that is extremely
dangerous. The chairman raised an interesting point and I wanted to give those
Mr. Mongrain: Mr. Chairman, on the question of defining hazardous waste by
regulation or in the statute through a schedule, I am not aware of this being
an issue with any of our clients in that business, or the stakeholder groups.
As far as I know, it has not been a matter of concern to anyone involved in the
import or export of hazardous wastes.
The Chairman: It is of concern to me as a citizen. There has been a great deal
of controversy over the movement of hazardous waste and the importation of it
from the U.S. I am sure you know that there has been a great deal of
controversy surrounding the issue, Mr. Mongrain.
Mr. Mongrain: Mr. Chairman, I appreciate your concern. As you know, our
regulatory process is also transparent. Our regulations are publicly available.
If there is a list of what constitutes hazardous waste, of course that will be
As I mentioned, with this legislation we will be publishing details of shipments
because, as we quite rightly know, the public does have a right to know.
The Chairman: It seems that the public has little input into regulations. They
have more opportunity in terms of these kinds of committees to discuss these
matters. Perhaps you would advise us about this hazardous waste category.
Tell me something about the storage of hazardous material. For example,
regarding as the safety of the storage of hazardous materials in Swan Hills,
Alberta, do you have any jurisdiction to deal with that type of problem, or is
it purely a provincial matter?
Mr. Mongrain: There is, for example, the regulatory authority in clause 93 that
deals with toxics. Conditions for storage can be prescribed. The PCB storage
regulations were, in fact, the subject of the Hydro-Québec challenge.
The Chairman: Mr. Mongrain, are you referring me to clause 93?
Mr. Mongrain: Yes. Clause 93(p) talks about the manner and conditions under
which the substance or a product containing it may be stored, displayed,
handled, transported, or offered for transport.
The Chairman: In that situation, if the Government of Canada determines that
hazardous wastes are not being stored safely in a province, your advice to us
is that the jurisdiction lies within this legislation? Are you saying that
there are processes within this legislation by which that can be corrected?
Mr. Mongrain: If it is a toxic substance.
The Chairman: Is hazardous materials included in the definition?
Mr. Mongrain: If it is a substance on the list of toxic substances, yes, this
authority would apply.
The Chairman: Can there be hazardous substances that are not toxic?
Mr. Mongrain: Theoretically, yes. A substance might not have been assessed at a
particular point in time, as is the case today. This is why we have
authorities. The point I was trying to make concerned the difference between
substances that contribute to international air pollution or water pollution. If
it was a toxic substance, we would use the authority under Part 5 because there
are, in fact, fewer constraints on using that authority. We do not have to
consult with the province to determine if it is unwilling or unable. There are
other substances that might be of concern that are not on the list of toxic
The Chairman: In that case, it could be that there are hazardous substances not
on the toxic list about which you have no control of their storage because you
do not have a similar section in Division 8. Is that right?
Mr. Mongrain: The authority in Division 8 relates to the import, the export, or
the transit -- the movement -- of such waste. Federal jurisdiction extends
essentially to the borders and the movement across borders within Canada of
The Chairman: I take it you feel that you have no control over improper storage
of hazardous substances that are non-toxic that are situate in a province. Is
that what I am hearing?
Mr. Cameron: That is correct, Mr. Chairman.
The Chairman: That does not give me much comfort.
Mr. Cameron: Because it would fall within the jurisdiction of the province, not
the federal government. Our jurisdiction over dangerous substances requires
that they be assessed to determine that they are toxic. That is what the
Supreme Court said in the Hydro-Québec case. That is the constitutional
basis underpinning most of this legislation, certainly Part 5 and Part 6. If we
have not done that assessment to determine that the definition of toxic is met,
then we are talking about property and civil rights in the province. That falls
to the provincial government to regulate.
The Chairman: That leads me to the conclusion that, to create some certainty and
to give you a stronger legal argument, you should be defining "hazardous"
and "non-hazardous" in this legislation. Would I be wrong in that?
Mr. Cameron: From a legal certainty perspective, sir, whether it is in the bill
or in the regulation does not affect the legal certainty of the definition
since both are legislative instruments. A regulation has the force of law just
as an act of Parliament has the force of law.
The Chairman: Have representations been made to you about the need for clarity
and the need to define these terms in this legislation?
Mr. Lerer: I do not believe so. My recollection is that there was some
discussion of it during the House of Commons proceedings. I would have to check
Hansard. However, I do not believe representations were made suggesting that
the bill as it is before you should be amended in the way that you suggest,
sir, or in any other way.
The Chairman: I will not belabour the point. If you could you provide us with
the information that you mentioned, Mr. Lerer, in writing, relative to nuclear
waste in that context, we would appreciate receiving that.
Senator Spivak: On the same topic, clause 93(4) states the Governor in Council
shall not make a regulation under subsection (1) in respect of a substance if,
in the opinion of the Governor in Council, it is regulated by another act.
Are nuclear waste or nuclear substances governed under another act that governs
AECL? Would that exclude them?
Mr. Lerer: I believe that is the same problem about which we promised to respond
Senator Spivak: I was given to understand that in the Hydro-Québec
challenge a fine of $1 was imposed. I do not know if that is accurate. Do you
have any information on that? A fine of $1 is hardly a deterrent.
Mr. Mongrain: For the record, Mr. Chairman, the bill, as does the existing act,
provides for fines of up to $1 million per day. It is not our position to
determine what the fines are.
Senator Spivak: I know that. Do you know whether that information is correct?
Senator Adams: I would like to return to the topic of toxic waste. I know that
at one time New York City was dumping an enormous amount of waste into the sea.
I do not know whether they still do that. You are talking about exporting toxic
waste. Are you talking about toxic chemical dangers or just plain garbage? We
have been discussing international waters. If states of the United States dump
waste into the sea, it can cross the border into Canada. What can we do about
Mr. Mongrain: These provisions allow the minister to refuse a permit for export
if the minister is of the opinion that it will not be handled in an
environmentally safe manner. If we had information that a shipment going to the
United States would not be handled appropriately, the minister could refuse the
Similarly, we can refuse a shipment coming into Canada even though the province
or the territory receiving the shipment has consented to it. There are
provisions that allow for regulations that set out criteria; based on those
criteria, if the minister does not believe that the waste will be handled
appropriately, the shipment can be stopped at the border.
Senator Adams: Currently, some cities cannot find a place to dump their waste.
Some companies would like to make money by bringing that waste in and burning
it incinerators. I am concerned about that.
Mr. Mongrain: That is an excellent point. We have separated recyclables from
waste to give it prominence for that very reason. One person's waste is another
The Chairman: We will turn now to Part 8, which is on page 139 of Bill C-32.
Part 8 deals with environmental matters relating to emergencies.
Mr. Mongrain: Part 8 is new to Bill C-32. There are no emergency provisions in
the existing CEPA. Our aim in this part is to fill the gap where neither
federal nor provincial regulations exist or where they are lacking. We want to
create a seamless web of coverage for dealing with environmental aspects of
One of the new tools that I believe will be quite useful is the authority to
require an emergency plan for substances that have been declared toxic by the
ministers. When the minister requires such a plan from either a committee or a
sector, that plan must cover prevention of emergencies, preparedness to deal
with an emergency, and a response method for a particular emergency. Should an
emergency transpire, they must cover what plans the company has in place to
recover from an emergency dealing with one of these toxic substances.
It is a similar model to the authority we have for requiring
pollution-prevention plans. Normally, a company is not required to submit these
plans. They must keep them on site, and our enforcement officers can inspect to
ensure that the plan is being implemented as committed to. The company must
file a declaration. The minister does, however, have the discretionary authority
to require a submission of any of these plans, if we see fit.
There is also authority in this part to establish a national system of
notification and reporting of environmental emergencies in cooperation with
other government departments and other governments.
In addition, there is authority to issue guidelines and codes of practice. The
regulatory authority also allows us to enact regulations that would allow for
the implementation of international agreements. This is a catch-all in the
sense that they may deal with aspects of a substance dealt with under other
legislation normally, but because those laws do not have the authority to
implement international agreements, we are able to do so with CEPA.
In a nutshell, that covers our authorities related to environmental aspects of
emergencies. The highlights are the emergency plans, the authority for a
national notification and reporting system, and the regulatory authority.
Senator Spivak: In clause 197, the offer to consult is the same as in the other
aspects. Will that be for an emergency? Is there something else that responds
to this? You might not have 60 days in an emergency.
Mr. Mongrain: If you read clause 197, it refers back to clause 196, which deals
with the minister's authority to issue guidelines and codes of practice.
Senator Spivak: It is not actually in response to an emergency.
Mr. Mongrain: No.
Senator Robichaud: You are talking about an emergency plan for substances that
might be released in the environment. For instance, if there were a fire in a
tire dump, could it be considered as an environmental emergency? Are emergency
plans presently required?
Mr. Mongrain: If it deals with a substance that has been declared toxic by the
ministers, they can require a plan. Tires in storage are a product.
Senator Robichaud: But what about when they burn?
Mr. Mongrain: We should look at clause 200.
We could, under subclause (d), make a regulation respecting the prevention,
preparedness, response, and recovery for tire storage. We would also have to
put tires on the list of substances that, if they enter the environment, may
have a harmful effect. If they burn, as you point out, they have a harmful
effect. So there is a regulatory authority available to try to prevent such
emergencies from occurring or to have plans, if they do occur to, for the owner
of the facility to deal with the problem.
Senator Robichaud: Presently, is it under provincial jurisdiction entirely?
Mr. Mongrain: This is an area that is, once again, very much interconnected and
intershared. In practice, we would work with our provincial colleagues in
determining the best way of dealing with such situations, such as whether we
need a federal regulation or whether the provincial rules in place are
sufficient. However, clause 200 provides the authority to act if the federal
government decides that it is necessary to do so.
As I said when I prefaced my comments on this part, our idea here is to fill a
gap where there is a lack of federal or provincial regulation. In some areas,
there are longstanding emergency-response mechanisms in place federally, such
as search and rescue through the Coast Guard, and so forth. All provincial
governments have their own agencies. Our goal with CEPA is to fill those gaps,
if they exist. One of the ways is with the plans; another is with the
regulatory authority in clause 200.
Senator Hays: Looking at the clauses, they seem fairly tough. For example, if I
read clause 205 -- perhaps I am wrong and you can correct me -- it says, in
part, that the person who has control of a substance immediately before an
environmental emergency is liable for restoration costs and expenses of
enforcement. What about defences to that? Let us say I own a piece of land in
Calgary that was previously used by Hub Oil for some purpose. Assuming Hub Oil
is no longer a viable entity in terms of paying damages or being looked to for
compensation, I, as the owner of that land that has caused the emergency, seem
to have no defence unless I can prove that the person who caused the leak of
the substance that gave rise to the emergency had the intent to cause damage. It
may well be there was no intent to cause damage. It might have been just an
accident. It goes on to say in subclause (5) that it does not limit ordinary
recourse against third parties. However, it imposes a potentially high cost on
someone who has simply had the bad luck to own a piece of land and has thereby
become responsible for a substance. Perhaps you can comment on that.
Mr. Mongrain: I am trying to think of a hypothetical situation that would apply
Senator Hays: A good example would be a gasoline station. Often, the tanks
leaked. A company such as Shell Oil, for example, is responsible to clean up
the land when they abandon a station. Sometimes a retailer does not have as
deep a pocket and may have disappeared. That is what I was trying to give you
as an example. If I own that land, I have to clean it up and it may cost a huge
amount of money.
I have my remedies under the law generally, but I am stuck with the bill simply
because I own the land, unless I can prove there was intent. If I can prove
there was intent to cause damage, then I am clean. I do not have to pay for it;
someone else does.
Mr. Mongrain: In this particular example, would it not be a consideration when
you are deciding whether to buy the land or not?
Senator Hays: I did not know about it. That is the situation. Neither did the
operator. The damage is there. I am the owner and liable, as I read these
provisions, unless the person who did it was malicious. If that was the case,
then I am okay.
Mr. Lerer: I believe each province has land transfer provisions in terms of the
sale of a particular property. I know particularly well that when I have been
involved in buying a house I expect that my attorney will search out all the
liabilities associated with the property I am about to buy and inform me about
Senator Hays: I understand the covenants that may be called for. I do not know
why, if it is done maliciously. I seem to escape liability, whereas if it is
done innocently, I do not. These are provisions of the legislation. There may
be other things that catch me as the owner of the land where the emergency has
occurred. These things do happen. Leakage into water systems that result in
poison to the people next door, for example, can occur.
Mr. Cameron: The comment I would make is that with ownership comes a certain
responsibility. The responsibility is to ensure that those who manage one's
affairs on one's property conduct themselves in a way that does not give rise
to environmental emergencies.
Senator Hays: I have no problem with that except that you will let me off the
hook if the guy did it intentionally or negligently. It seems to harsh, that is
all. Hopefully, I do not have any such problem.
The Chairman: It seems to be an immense intrusion into provincial jurisdiction.
It seems to be an area into which you will never enter. Senator Hays' example
of the Hub Oil situation in Calgary involved a major explosion and an
emergency. It definitely deals with hazardous material and recycled fuels. What
is the federal government doing in that situation? It was dealt with by local
authorities. Why are you there at all?
Mr. Mongrain: There are two aspects to the question, Mr. Chairman. First, if it
is a toxic substance, defined by this act, then it is an area of federal
responsibility, as was confirmed by the Hydro-Québec decision. The
intent is that when those toxic substances are being used for particular
purposes or are, perhaps, stored for a reason it is to prevent emergencies from
occurring that involve these toxic substances. It is not an intrusion into
The second aspect relates to who responds to an emergency. Normally, the first
point of attack is the local municipality. The well-established procedures are
that if a municipality cannot handle an emergency then they look to the
province. On occasions, it may be of such a scale that the province looks to
aid from certain federal agencies. It is a cooperative effort between the
different levels of government. That is separate from what we are trying to do
in this bill.
In this bill, we are trying to prevent emergencies. One of the ways of
preventing them is to require plans. There are other ways of promoting
prevention. We have some excellent scientists and technical people within the
department. The guidelines and codes of practice that they develop, which can
be adopted by a particular industry or facility, are one way of promoting the
prevention of emergencies.
The Chairman: Consider the business that happens to be dealing with toxic
chemicals, like Hub Oil. They have the municipality and the provincial
government looking into their books, telling them to do this and that. How far
do you go with plans and order and the like? I totally support many of the
proposed sections in here. I understand why you are there when you talk about
water, air, et cetera. You tell me this is a new section, which begs the
question: Why are we even here? It is an intrusion. In a practical sense, I did
not see the federal government in Calgary around the Hub Oil plant. They do not
want to be there and they are not there. All of the facilities and assistance
was there to deal with that disaster. Why does the federal government want to
get into this area?
Mr. Mongrain: Mr. Chairman, in responding to an emergency such as that, if we
are asked, we will go. We have some capacity.
The Chairman: You do not need this legislation for that. You are asked and you
go where you are needed. You bring in the army or whatever. You do not need
this legislation for that. Do you agree with me?
Mr. Mongrain: I agree. It is a separate issue.
The Chairman: Let us go to the second one.
Mr. Mongrain: The point I made previously is that, if it is a toxic substance,
it is a matter of federal concern. There is potential for duplication here. The
municipality makes demands, as does the province.
If a company has already prepared a plan for a province, or done so on a
voluntary basis, that plan, as long as it covers the toxic substance in
question, is acceptable to Environment Canada. There is no need to prepare a
duplicate of the plan. We have tried to make the administrative burden as small
All the company will have to do, if they have an emergency plan in place, is
file a declaration notifying us that they have such a plan. If they are
required to prepare some sort of plan for the province, that is perfectly
acceptable to us, as long as there is a plan. We are trying to fill the gaps.
The Chairman: I am more cynical as a result of my years in business. Once any
level of government is given a right, a whole bureaucracy suddenly seems to
grow around it. All of a sudden, there are reportings and filings, et cetera. I
worry about that because I do not see the need for the federal government being
here. I think it works very nicely right now. All I am doing in looking at this
is saying, "Another level of bureaucracy, another level of duplication,
another level of more costs and frustrations." I have not heard anything
that persuades me to the contrary. Persuade me.
Mr. Mongrain: I will make another effort at it. You have expressed concerns
about the bureaucratic burden, the red tape associated with this. We have taken
great care and effort to ensure as little administrative burden as possible
while still attaining the certainty that the environment is protected.
If you read clause 199(4), you will see that, if a plan is already prepared and
it meets a requirement dealing with a toxic substance --
The Chairman: Stop there. Once you say "that meets all the requirements,"
that is, of another level. Your requirements may be different from the
requirements of the provincial government and municipalities. Now this person
has to meet your requirements.
Mr. Mongrain: Our requirements are very specific. They pertain to that substance
which has been determined to be toxic by a scientific assessment by Health
Canada and Environment Canada. With the weight of that decision behind it, I
think it is a substance about which a company should be concerned. It is a
reasonable requirement. They should be concerned about what might happen in an
emergency with the substances. If they have a comprehensive emergency plan in
place, because of provincial requirements, it meets the requirements of this
legislation and of the minister's notice.
If the plan is already in place, they are simply required to file a declaration
that the plan has been prepared and implemented, which is not a gross burden on
The Chairman: What precipitated the inclusion of this? Was there a gap or a
problem to which you can point that this legislation would have remedied? What
caused this to be in the legislation?
Mr. Lerer: Mr. Chairman, we, in cooperation with the provinces through the
Canadian Council of Ministers of the Environment, have been dealing with the
potential of environmental emergencies such as this. As well, we are a member
of the Major Industrial Accident Council of Canada. Agreements are being
negotiated, and there is constant discussion of this. Some of the obligations
that we undertook, in agreement with the provinces, required specific statutory
authority, and some of those are contained within this proposed legislation.
In terms of the provisions here, none of the provinces has indicated that it
finds these burdensome or intrusive upon its jurisdiction.
The Chairman: Can you give me an example of an emergency in which you had to
fill a gap that was not properly filled by the local jurisdictions?
Mr. Lerer: I do not have one at my fingertips.
The Chairman: Surely that is the essence. I could understand this if you could
point to some calamity that was not dealt with properly because you did not
have this authority or because someone failed in a duty. However, you have no
examples, so why is this legislation needed?
Mr. Mongrain: The rationale and the intent is to prevent such calamities. If
they do not occur because of these provisions, we are all ahead, but it is
difficult to measure.
The Chairman: Calamities occur; emergencies happen continually. We just had a
major one in Calgary and it was properly resolved. It is not a case of avoiding
calamities by this legislation. We know, sadly, that there will be calamities.
Mr. Mongrain: I agree.
The Chairman: Why do we need this provision in the legislation?
Mr. Mongrain: Ideally, it will prevent some calamities from occurring that would
have otherwise occurred.
The Chairman: Fair enough.
Senator Spivak: Does this part apply to emergencies on historically contaminated
Mr. Mongrain: If there is a site contaminated with toxic substances, we could
require the owner of it to prepare a plan.
Senator Spivak: Using the Sydney tar ponds as an example, where is the owner of
Mr. Mongrain: I was not thinking of the Sydney tar ponds, but there might be a
situation of a storage pond for toxic substances where there is a concern that
a dike might be breached and the substances could start oozing into basements.
We could use this authority to require an emergency plan to try to prevent such
an emergency from occurring.
Senator Spivak: If there is no owner, might that requirement be made of the
province? I am wondering about the extent of the authority.
Mr. Mongrain: There would have to be a responsible person. The minister can
require a person. If it is a federal source, the minister can require the
federal source to do so.
Senator Spivak: If it is a toxic substance, and it is a federal source, would
the federal government be required to do something?
Mr. Mongrain: We could be.
Senator Chalifoux: In the same vein, a good example is a gold mine in
Yellowknife where 380,000 tonnes of arsenic are waiting to go into Great Slave
Lake. That would affect a lot of people. It has been there for a long time. The
owner of the mine has, apparently, left the country.
How would this clause of this bill address that? That is a very good example of
a disaster waiting to happen. It will affect wildlife, human life and
everything else there. How will this bill address that concern?
Mr. Mongrain: If we had these provisions in CEPA 1988, we could have required
the owner to prepare a plan to prevent an emergency. The plan would have
included measures to be taken to prepare for an emergency, to respond to an
emergency if it occurred, and to recover. It would have covered the continuum
from preventing it from happening to dealing with it if it did happen in order
that the damage to the environment would be lessened.
If the owner skips the country and is not available, I think that the bankruptcy
trustee would fall under the definition of "person" in the act. The
trustee could be ordered to prepare such a plan.
Senator Chalifoux: Am I correct that if this clause of the bill were not passed,
the federal government would have very limited resources for reacting to that?
Mr. Mongrain: Because arsenic is on the list of toxic substances, there is the
regulatory authority of interim order power to deal with the substance. They
are more concerned with imposing penalties if there is a release to the
environment which breaks the regulation. It is not as elegant a solution as an
emergency plan might be.
Senator Chalifoux: This situation exists now. It is a disaster waiting to
happen. How would this part of the bill help? You say you are concerned with
prevention. This is situation requiring prevention.
Mr. Mongrain: These provisions would allow us to do things which we cannot do
under the present act.
The Chairman: Can you not act under the section for controlling toxic
substances? You do not need these emergency provisions; it is here in another
section. You have the power to deal with Senator Chalifoux's concern.
Mr. Cameron: There is a difference. One situation involves complying with a
regulation of general application. In the other situation, these provisions
would enable us to require the owner or perhaps the trustee in bankruptcy to
prepare the plan and to implement it. Those are different mechanisms.
Mr. Mongrain was trying to make the point that emergency planning requires
turning the corporate mind, the directing mind, to how a company can prevent an
emergency from happening.
Regulatory compliance could accomplish the same result, and I take your point,
Mr. Chairman. However, there is a greater degree of detail required to prepare
and implement an emergency plan. The whole idea of an emergency plan is not
just to prevent the release but also to put in place the administrative
machinery to prevent the release and to clean up the spill afterwards if those
plans fail. Those levels of detail are very specific to preventing the
emergency from happening. That is a different scenario than simply planning to
comply with a regulatory release number.
The Chairman: It sounds to me like a duplication. To deal appropriately now with
the situation just described, you do not need a plan; you need action. It is
too late for the plan. The substance is about to enter our rivers, lakes and
streams. You must take action. You have every power in the world under Part 5
to deal with that situation. The question is whether you have the will to act.
That is different from requiring emergency planning.
I am sensing there is duplication. You have all these balls in the air. Which
one will you grab? The poor little business person is out there trying to
figure out which ball will hit next. I do not know that you need powers further
to the ones you have under Part 5 for such an important situation. Those powers
are probably existing in the present act as well. Am I wrong? Can you not act
Mr. Cameron: We cannot require an emergency plan.
The Chairman: Forgetting this bill, could you not act right now, under today's
legislation, in the Yellowknife situation if the will were there? The
legislation is there, is it not?
Mr. Cameron: I am not sufficiently familiar with the Yellowknife situation to
comment. We could pass a regulation to prevent the release of toxic substances
above a certain limit. If arsenic is on the list of toxic substances, that
release limit regulation would apply.
Senator Spivak: This is extremely important. This situation is different from an
emergency. How long has this mine been in operation?
Senator Chalifoux: It has been there 50 years.
Senator Spivak: Are there not mining regulations which control the disposal of
mine tailings? Sewage is entering into our waters, too. Surely, if the federal
government sees these issues as priorities, it can act under many different
What is the situation? There was an article in The Globe and Mail which named
five major polluting cities. In Manitoba, the Red River downstream from
Winnipeg is apparently one of the most polluted rivers in the country. That is
not an emergency situation.
What are the other heads of power to deal with such a problem? What about peace,
order and good government? The federal government is always reluctant to use
that power, but these are major problems.
No pollution prevention plan will address the chronic problems surrounding the
Yellowknife gold mine. Are there mining regulations which should be put in
place? Are there other powers under which the government can prevent pollution
from waste? What about legislation covering navigable waters and fish? Are
there triggers available which the governments are not using?
Mr. Lerer: You mentioned the metal mining effluent regulations which are in
place. They are currently being updated and expanded and are scheduled for
publication in Canada Gazette I before the end of this year. Those fall under
the Fisheries Act.
You asked about triggers to act. The Fisheries Act is most certainly one. I am
sure there are others. Beyond Bill C-32, those for which we have some
responsibility include the Fisheries Act and the metal mining effluent
regulations. The act that covers that is also the authority for some of the pulp
and paper regulations which were promulgated some years ago.
The Chairman: All of that confirms that Part 8 really is not needed. It seems to
me that you have legislation in place to cover these emergency situations.
Mr. Lerer: I have heard you express your opinion on that matter, sir. I assume
that is an opinion that you will carry.
The Chairman: You do not wish to give me yours?
Mr. Lerer: No, sir.
The Chairman: Very good. As Senator Spivak says, that speaks volumes. Let us
turn to Part 9 then.
Mr. Lerer: Before we move to Part 9, we now have some responses which we earlier
offered to provide in writing. Would you prefer to hear them now?
The Chairman: Please.
Mr. Mongrain: Mr. Chairman, if we can respond orally, it will prevent the
generation of paper waste.
Transport of radioactive material is covered under the Atomic Energy Control Act
administered by the Atomic Energy Control Board. There are regulations covering
transportation packaging of radioactive material, and atomic energy controls.
The import and export of radioactive material requires a permit. The
regulations lay out all of the packaging and security requirements appropriate
to the shipment of this type of material.
The regulations for transportation of dangerous goods fall under the
Transportation of Dangerous Goods Act administered by Transport Canada. Those
regulations cover the storage and labelling of these shipments if they are
transported by road, air or sea. There are also international regulations for
international shipments. The Atomic Energy Control Board and Transport Canada
have a memorandum of understanding which clarifies the responsibilities of each
department in this regard.
In a nutshell, nuclear waste is not covered under CEPA but is covered under the
Atomic Energy Control Act and the Transportation of Dangerous Goods Act. I note
this committee is also seized with energy and natural resources.
The Chairman: That is what we thought. Thank you for confirming it.
Senator Taylor: I have a brief question with respect to the interface between
this act and the activities of the military. As you know, the military
transports radioactive materials back and forth. Are they exempted; do their
regulations take precedence; or what happens?
Mr. Mongrain: We would have to look at those specific regulations that are not
under CEPA but under the Atomic Energy Control Act. I am not sure how they
would deal with the Department of National Defence and the Canadian Forces,
whether there are special provisions, or whether they are treated like any
other transporter. I do not have the answer to that.
Mr. Lerer: Mr. Chairman, before I begin with Part 9, I have asked my colleague
Nadine Levin to join me for the final three sections.
The Chairman: Welcome back.
Mr. Lerer: I would now like to go through Part 9 and the two remaining parts of
the bill, explaining in general terms what they are intended to do, describing
the differences from the current act, and perhaps highlighting some of the
changes made during the House proceedings.
Part 9 deals with government operations and federal and aboriginal land. It is
designed to fill what is sometimes called the "regulatory gap," where
the Crown, the federal government, is not subject to provincial law. What we
have done here -- and it was in CEPA 1988 -- is ensure that federal departments
and federal works and undertakings, boards and agencies are subject to the rules
associated with the law.
In essence, this particular part has not changed significantly from the current
act. We have broadened the regulatory authority in clause 209. What is new is
that the Governor in Council may, on the recommendation of the minister, make
regulations respecting the establishment of environmental management systems,
pollution prevention and pollution prevention plans, and plans for
environmental emergencies. That is an expansion of the authority in the current
As to the content of the regulations which are in clause 209(2) on page 151, you
will find that the regulatory authorities associated with the federal house
very much mirror those same regulatory options that are available to the
minister under Part 5. In clause 93 we have ensured that they are reflected in
terms of the federal house and the provisions that are provided for in this
There is an addition to what is in the current act, and that is on the top of
page 153, in subclause (x). We have added the regulatory authority respecting
the decommissioning and decontamination of any storage, handling,
transportation, disposal and recycling sites for that substance. We have added
that authority because this is an authority that governs federal works and
undertakings and federal lands.
The remainder of Part 9 is, essentially, the same as the provisions in the
One important difference occurred during the House proceedings. The the bill as
tabled and as presented to the standing committee for its deliberation
contained a proposed provision that would have prevented placing more stringent
controls or requirements on Crown corporations than those that would apply to
the private sector. The committee concluded that Crown corporations, as
creatures of government, should meet the same stringent requirements one would
expect of a government that is keeping its house in order. Therefore, an
amendment was moved to remove that clause. That amendment was carried and it
was not changed during the House procedure.
The Chairman: What clause are you referring to, sir?
Mr. Lerer: Clause 207(1)(d). There was a paragraph in the bill that exempted
Crown corporations, and that was deleted.
That is the essence of this part of the bill, the new powers that are different
from those in the current act, and the significant changes that occurred during
the House process.
I would be pleased to take questions.
Senator Adams: What does subclause 207(2)(b) refer to? Is that something to do
with military bases or the DEW Line clean-up?
Ms Nadine Levin, Senior Policy Advisor, Office of the Canadian Environmental
Protection Act, Department of the Environment: Subclause 207(2)(b) is in
relation to the air and all layers of the atmosphere above federal land or
aboriginal land. This has to do with military operations or operations
involving the defence of Canada. The Department of National Defence wanted to
ensure it was able to carry out those responsibilities and that it was not
hampered by any provisions that might be in conflict with requirements for
national defence in the air. This only deals with air.
Mr. Lerer: That is specific at the beginning of subclause (2), line 15. It
speaks of powers exercised in relation to air and all layers of the atmosphere
above federal land. It is only air.
Senator Chalifoux: Would that be applied to, say, the Innu situation in Goose
Ms Levin: That was subject to an environmental assessment under the Canadian
Environmental Assessment Act.
Senator Chalifoux: Is that the type of situation that is contemplated?
Mr. Lerer: Yes.
Senator Adams: Are exercises using ammunition included?
Ms Levin: Do you mean the release of ammunition into the air during a military
exercise of some kind?
Senator Adams: Yes.
Ms Levin: Yes, but there may also be requirements under the National Defence Act
for the military to deal with ammunition released during exercises. If that is
so, then they would have to comply with those requirements in their own
legislation, the National Defence Act.
Senator Adams: I know there are often military exercises in aboriginal areas.
For example, Canada conducts low-flying exercises are conducted over Goose Bay.
Other countries also participate in similar exercises. I do not know how much
air pollution occurs as a result of that. With low-flying aircraft more fuel is
burned and toxic substances fall to the ground, and that is my concern.
Mr. Lerer: Senator, if my memory serves me, and you may have to correct me, I
believe that, before the commencement of that exercise an environmental
assessment, under the Canadian Environmental Assessment Act, was conducted.
The Chairman: Please continue.
Mr. Lerer: Part 10 deals with enforcement of the act. These provisions,
including the fines and matters of that nature, are the same as those in the
existing CEPA. However, there have been some significant expansions which I
should like to highlight.
We had two classes of officer charged with the enforcement of the act,
investigators and inspectors. They were named in the previous act. Under this
proposed legislation, all enforcement officers will have peace officer status.
We have also provided for what are, in my view, two significant new tools for
these enforcement officers to use. They were mentioned by the minister this
morning. We have created sections that would allow for environmental protection
compliance orders, which are essentially cease and desist orders, so that
enforcement officers would be able to stop a potential violation on the spot. Of
course, for those people who are confronted with an environmental protection
compliance order, there is provision for redress, for appeal. That is described
in this part of the bill.
We have also established what we call "environmental protection alternative
measures." In this instance, our goal is protection of the environment,
not the pursuit necessarily through the criminal courts. We have provided in
this bill the opportunity, following the laying of an information, for the
parties to come to an agreement as to what can be done to mitigate and to
monitor or to correct the situation. If the Attorney General and the party have
reached an agreement and it is acceptable to the courts, then that would be the
agreement that would be used in place of pursuit through the criminal justice
We have also provided new sentencing guidelines in clause 287, and those were
referred to previously in discussions in this committee. The chairman asked me
about the available provisions as they relate to action and remediation, and
taking into consideration the costs of remediation should there be a violation
of the act.
The section is quite lengthy. There may be a number of questions about it. I
have tried to highlight what is different about the enforcement section beyond
CEPA 1988. I have described some of the new tools. My recollection is that
there were no amendments at report stage in the House. Amendments were
introduced by the government during the standing committee process and those
were accepted by the committee. That included peace officer status for
That is my brief explanation of this part. If there are any questions, we would
be pleased to answer them.
Senator Spivak: I note that clause 217 states:
(1) The Minister may designate as enforcement officers or analysts for the
purposes of this Act, or any provisions of this Act,
(a) persons or classes of persons who, in the Minister's opinion, are qualified
to be so designated;
I asked this question at the beginning of our discussions: Does that mean that
the minister may designate provincial enforcement officers for those purposes?
What is the definition of an analyst? What qualifications would they require?
What will their status be under the proposed act or any other acts to which
environmental assessment powers have now been given?
I would also like some clarification of what Senator Kenny asked at the
beginning. He said that there were only 12 enforcement officers. Someone else
said there were 60. What is the total number of enforcement officers you can
designate in the provinces? Are there any there now?
Mr. Lerer: Yes, there are, but I cannot give you the precise number.
Senator Spivak: I should like to have answers to these questions for the record.
Were they contained in the paper which you provided to us?
Mr. Lerer: The total number of enforcement officers in all of the provinces and
territories was not contained in that answer, but we will try to respond to
that. I cannot promise you how quickly that will be. I will have to search out
Senator Spivak: If your intention is to designate these officers, you should
know if there is anyone available to designate.
Mr. Lerer: Senator, I take the question as seriously as you offered it.
Ms Levin: It is clear that the minister may designate provincial officers,
territorial officers and employees of aboriginal governments, as well as
enforcement officers or analysts, if the minister deems them to be qualified.
However, an employee of another government would require the approval of that
government before the minister could designate that person as either an
enforcement officer or an analyst.
Senator Spivak: Are these people being designated to enforce federal law?
Ms Levin: They are designated to enforce CEPA. The minister is not able to
designate enforcement officers under anything but CEPA.
Senator Spivak: What about all the other acts which contain provisions for
Ms Levin: If, for example, the Minister of Agriculture wished to have someone
who worked for Environment Canada designated as an inspector under the Seeds
Act, the Feeds Act or the Fertilizers Act, that would be done under that
legislation. It would not be done under CEPA.
Senator Spivak: Therefore, it is not restricted to this minister. It may be a
question of biological diversity in which the Department of the Environment has
some expertise but perhaps the Department of Agriculture does not. I am
thinking of biotechnology products and the Convention on Biological Diversity.
Am I correct that Canada's obligations under the Convention on Biological
Diversity do not fall under CEPA?
Ms Levin: If you are referring to what effect a seed released into the
environment could have on biological diversity, an Environment Canada employee
appointed by the Minister of Agriculture as an inspector under the Seeds Act
could only exercise the powers provided under the Seeds Act. If he also
happened to be a CEPA enforcement officer, he could not use powers as an
enforcement officer of CEPA to do something under the Seeds Act.
Senator Spivak: I understand that. My question was whether this removed any of
the responsibility from the Minister of the Environment. I am trying to
determine whether the obligations under the Convention on Biological Diversity
absolve the minister of that responsibility in the case of seeds, which come
under another act.Where is that responsibility? As a citizen wanting to ensure
that Canada is fulfilling its obligations under the Convention on Biological
Diversity, is it correct that I do not appeal to the Minister of the
Mr. Mongrain: If you are examining Canada's record on the Convention on
Biological Diversity, you will see that CEPA is one of the tools used to
protect the environment, including its biological diversity. We added it to the
definition of "toxic." It is just one component among many. I do not
think it would be practical or possible to have an all-encompassing piece of
legislation dealing with a subject as wide as biological diversity. The Canada
Wildlife Act is also relevant.
Senator Spivak: I understand that. My point is that someone must coordinate all
of this, otherwise it is will be too diffuse. That is one of the criticisms of
I am not asking whether this act encompasses everything. My question is on the
very practical matter of regulation enforcement. In looking at where that is
housed in terms of the Convention on Biological Diversity as it applies to
something which is regulated under those other acts, is it correct that, rather
than going to the Minister of the Environment to check that out I would turn to
the Minister of Agriculture? Is it correct that the responsibility for
enforcement of the regulations is diffused among various ministers and there is
no coordinating minister?
Mr. Lerer: Enforcement of the regulations under any act of Parliament is for the
responsible minister, yes.
Senator Spivak: Even though Canada has signed a declaration on the protection of
biological diversity in a manner that is not provided for in this act, there is
no coordinating minister. Who is the lead minister?
Mr. Mongrain: Most ministers have environmental responsibility and they are
accountable for that under their legislation.
Senator Spivak: Is it the Prime Minister?
Mr. Mongrain: Particular ministers have particular responsibilities and are
responsible for their legislation. The Minister of Fisheries is responsible for
fish. That has a component of protection of biological diversity. The Minister
of the Environment has a responsibility in dealing with toxic substances.
Within our system of cabinet, the Minister of the Environment does not order the
Minister of Fisheries.
Senator Spivak: On trade matters, as an example, there is usually a lead
minister because we have international obligations on trade.
You have answered my question.
Mr. Mongrain: The Minister of the Environment has responsibilities related to
the import and export of hazardous waste. It is a two-way street.
Senator Spivak: The minister will designate analysts. We have seen that the
regulations may not be the same under this act as under CEPA for certain
enforcement of the regulations. Under the Canada Food Inspection Agency, for
example, analysts are designated to do environmental assessments. Must those
analysts have the same qualifications as under CEPA, or is there no such
Ms Levin: Analysts under CEPA can be scientifically trained laboratory
personnel, but they could also be forensic accountants. There is nothing in the
bill that would prevent the minister from determining qualifications of
analysts for different purposes. Some of our regulations track quantities of
ozone-depleting substances imported, exported, consumed, et cetera. Some of
these things require skills that are not laboratory skills but the ability to
track expenditures, money flow, shipping and receiving. Therefore, an analyst
does not necessarily have to be a laboratory analyst.
Yes, there will be laboratory analysts designated under CEPA. There is every
intention of using analysts of different types for these very specialized
areas. Analysts have powers under this bill that they do not have under the
current CEPA. They can accompany an enforcement officer and enter. They can
open receptacles. They can take samples and conduct tests and measurements. They
can require that records be produced for examination.
Senator Spivak: Many of my concerns do not fall under this section. I will have
more questions when we discuss the Food and Drugs Act.
Senator Taylor: "Exigent circumstances" comes up in clause 220(5) and
clause 236(2). In an exigent circumstance an enforcement officer could act
without getting a warrant or could act orally. Clause 220(5) refers to danger
to human life or the environment or the loss or destruction of evidence. Clause
236(2) refers to human life or the environment.
I am bothered by the use of the word "environment." Is that giving a
crutch to overly enthusiastic officers who can argue that the environment could
have been affected because someone smoked a cigarette? "Damage to the
environment" seems to be a huge catch-all.
Ms Levin: It says "danger to the environment" which is quite a strong
term. The definition in clause 220(5) is in the current CEPA.
Senator Taylor: Two wrongs do not make a right.
Ms Levin: I am suggesting to you that, up to this point, our enforcement
personnel have never been found by a court to have abused any of these powers.
Obviously, guidelines are set down for enforcement officers. We have an
enforcement and compliance policy.
Senator Taylor: Currently, a family in northern Alberta is being hassled because
they are questioning the damage that is being caused to the environment. Many
do not agree with them. Indeed the other side argues that the family themselves
are damaging the environment.
This is a huge catch-all. Certainly you need to act if there is a danger to
human life or in order to prevent destruction of evidence.
Senator Spivak: Are you talking about the sour gas situation?
Senator Taylor: Yes.
Ms Levin: We are talking about violations of CEPA. Keep in mind that we are
discussing danger to the environment within the context of a violation under
this act or under Bill C-32.
Senator Taylor: What environmental threat would necessitate moving in without a
search warrant or getting an oral order rather than a written order?
Ms Levin: Suppose a person had a toxic substance in his or her possession and
was disposing of it in a way which was contrary to regulations. The person may
be in the process of spilling or dumping or abandoning this particular
substance in a way that would leave the environment severely damaged.
Senator Taylor: Is that what you would call an "urban guerilla" such
as they have in Japan?
Mr. Mongrain: That is one example. Another could be the dumping of barrels of
PCBs at sea.
Senator Taylor: It could be someone who just wanted to do harm to society?
Ms Levin: Keep in mind that the goal is prevention of damage to the environment
and the enforcement and compliance of policy. The existing act specifies that.
You do not want to leave scorched earth behind you. If you are an enforcement
officer, you will take the means necessary to prevent damage. You may have to
justify your actions later in court if and when any charges are processed.
There are checks and balances in the system. People will not go off half-cocked,
taking action that is inappropriate.
The Chairman: That takes care of that section. We do not mind the enforcement
side of the environmental legislation and the search and seizure provisions. We
have no civil libertarians here today who will express a contrary view.
Mr. Lerer: The final part of the bill, Part 11, begins at page 207. It contains
catch-all miscellaneous matters. The minister discussed economic instruments
with you this morning. Regulation-making authority is granted for cost
recovery. When a permission or a licence is granted, the costs of doing that
could be recovered from the proponent.
By the way, that regulation-making authority for cost recovery is limited to the
cost. As anyone who has read budgets lately knows, the government is a
A general regulation-making authority is granted to make regulations on a
province-specific basis. I will speak to that because that discussion arose in
the House of Commons and a change was made. I refer to clause 330 on page 214.
The bill which was brought to the standing committee was much broader in its
authority. The committee limited that authority, and that element was not
changed at report stage.
There is a requirement, as there is in CEPA 1988, for an annual report to be
filed with Parliament. As a result of the House proceedings, that report must
also now include a report on research. That is found in clause 342(2).
The bill as tabled in the House called for a review of the act every seven
years. That is because I anticipate retiring in about six years. The house
committee changed that back to the CEPA 1988 standard of a five-year review,
despite my protestations.
The Chairman: The minister is only good for two years, he told us this morning.
Mr. Lerer: That is what he keeps telling us.
This change was made at report stage and was due to a request from this body.
The bill called for a review of the act by the House of Commons every five
years. Members of this committee made representations and a report-stage
amendment provided for the review to be conducted by both Houses of Parliament.
Senator Kenny and Senator Joyal, I believe, were the representatives who spoke.
That is my encapsulation of the miscellaneous matters found in this section. I
would be pleased to answer any questions.
Senator Spivak: My questions relate to confidentiality. The CEPA, as I
understand it, allows parties to request confidentiality of information
provided to a department or board of review under Part 11 of the act only. Bill
C-32 allows parties to request confidentiality under the whole of the act.
Bill C-32 says information may be disclosed if it is in the public interest. The
act has similar wording -- that the public interest overrides the Access to
Information Act which has never been used by any Minister of Health or Minister
of the Environment.
The overly broad prohibition on releasing information in clause 314 would appear
to contradict the narrow restrictions in clause 52 that apply to information to
be published in the National Pollutant Release Inventory.
My interest stems from our experience with confidentiality in our Agriculture
Committee. I will put all my questions at once and then we can go through them.
Why was it necessary to extend the right to request confidentiality to all parts
of the act? Is there any oversight of departmental/ministerial decisions to
refuse to release information under this act as there is under the Access to
Information Act? Do those standards apply? When requests are made under the
Access to Information Act and are in keeping with the confidentiality provisions
of the act, which law will apply?
This bill permits an override. If it is in the public interest, the minister can
always override the claim of a party to say that it is commercial information
or privileged information.
You may not want to take all the questions right now. I can give you this paper
and you can answer them later, if you do not know the answers. The question is:
Which will apply, the Access to Information Act or the CEPA, or will CEPA in
total be exempt from the Access to Information Act? After all, it mentions an
override. In several places, the bill mentions the Access to Information Act.
The key problem here, which we have already lived through in the Agriculture
Committee and which is not resolved, is the refusal to disclose information to
parliamentary committees. Under what circumstances can there be a refusal? I
think the powers of committees in the Senate are different from the powers of
committees in the House, although I am not sure. I know there is a difference
between the powers of committees and the powers under the Access to Information
Act. I cannot give you that difference, but I think committees have less power
than is found under the Access to Information Act.
This is fairly important, because the party that we were dealing with regarding
rBST was extremely reluctant to have any information released. We went through
a great deal of trouble to get information that was already in the government's
hands, naturally enough because the proposal goes to government. It was
particularly vital information. It had absolutely direct bearing on the safety
of a substance, in this case a drug for cattle. These are very important
questions for us. I am sure they will come up time and time again. The
Agriculture Committee will be dealing with the issue of canola.
If you have information now, it would be good to get it on the record. If not, I
could table these questions. Which would you prefer?
Mr. Lerer: Given the specificity of the senator's questions, Mr. Chairman, we
would prefer to see the specific questions and we would commit to responding to
them in writing to the committee.
Senator Spivak: I will give them to you now, and I will go on to my next
question. It has to do with clause 347 and the Food and Drugs Act. To my
suspicious mind, this clause is somewhat mysterious. It says that subsection
30(1) of the Food and Drugs Act is amended by adding something after paragraph
(l). It does not say what that is about. Perhaps it says what it is in the
Ms Levin: I believe it is a regulation-making section.
Senator Spivak: It says:
(l.1) respecting the assessment of the effect on the environment or on human
life and health of the release...
-- and so on. Then I look at the regulations of July 3, the environmental
assessment regulations of the Department of Health, and I still cannot
understand it. The Food and Drugs Act is under Health, the Canada Food
Inspection Agency is under Agriculture, and this seems to be a convoluted way of
It says here that the legislative authority for environmental assessment of
medical devices will remain under CEPA until the consequential amendments are
made to the regulatory authority of the Food and Drugs Act. There is another
section in the regulations that says that some authority will still remain with
CEPA. However, the principle is simple. I am curious as to whether this
particular clause 347 is a way of introducing environmental assessment into
Canada's Food and Drugs Act. If so, it is definitely amendment by regulation,
which is something we will have to look into. Is that proper?
Mr. Mongrain: This consequential amendment to the Food and Drugs Act through
this bill provides authority under the Food and Drugs Act to conduct the type
of assessment necessary to determine if a substance is toxic and to require
notification, as we do under CEPA. Before this, Health Canada, which conducts
that type of work through a memorandum of understanding with us, did not have
the legislative authority. This provides the legislative authority for them to
conduct those types of assessments.
Senator Spivak: So the regulations that have been published here have been
published before -- I mean they are only a proposal, but they have been
published before there is any authority under the Canada Food and Drugs Act.
This is amending the Canada Food and Drugs Act, but the Canada Food Inspection
Agency is to be the agency doing this.
Mr. Mongrain: I understand it will be Health Canada.
Senator Spivak: It says Health Canada will be working in close cooperation with
the Canada Food Inspection Agency for all environmental assessments of products
from transgenic animals and plants. In such instances, it is proposed -- this
is unbelievable -- that CFIA will carry out the environmental assessment of the
animal or plant while, at the same time, Health Canada will assess the
products, thus eliminating duplication. I do not know; maybe I am crazy, but the
point is that here is the environmental assessment, which is the responsibility
of CEPA, being transferred to the Canada Food Inspection Agency, which is then
going to do the environmental assessment while Health Canada does the health
assessment. And this is eliminating duplication? That is what it says here. I
wanted to get it on the record.
Mr. Mongrain: I would make the point, Mr. Chairman, that CEPA is not intended to
regulate food or drugs. This consequential amendment, however, ensures that the
Food and Drugs Act provides the legislative authority to conduct the type of
assessment for which CEPA sets the standard, the assessment of toxicity, and
the required notification before a product is approved.
Senator Spivak: But CEPA has a whole section, Part 6, that deals with products
of biotechnology, which, it seems to me in looking at this, is designed to make
sure that all products of biotechnology are eliminated from Part 6. Most of the
products of biotechnology are now going to be seeds, plants, foods, drugs, and
"nutrisicles," or whatever they are called, and CEPA cannot deal with
them under Part 6 because it is exempted. Now, I ask you, if we put this before
any group of citizens you would want, just selected randomly from the telephone
book, would they think this was rational?
What is the answer to my question as to whether this is legislative amendment by
Mr. Mongrain: If you look at the government response, and if you go back to what
the House of Commons committee recommended in its report, you will see that it
is about our health. It said, "Make CEPA the safety net." The
government's response is clear.
There are numerous pieces of federal legislation that govern products of
biotechnology. What is the role for CEPA? What is the role for Environment
Canada? It is to provide a safety net so those things that are not covered
under other pieces of legislation, like the Food and Drugs Act, the Seeds Act,
the Feeds Act, et cetera, have a home for their assessment.
Senator Spivak: Will the regulations dealing with notification and assessment be
up to the standard set in the original act? In that act, it seems to me, the
Minister of the Environment and the Minister of Health had the responsibility
of ensuring that those regulations were as stringent as CEPA. That
responsibility will be transferred to the Governor in Council. What about the
other authority that was in CEPA 1988 which was to ensure that the notification
and assessments were equally as stringent? I am asking about the equivalency of
Mr. Mongrain: Mr. Chairman, I have the existing act in front of me; it is silent
on that matter. The Minister of Health and the Minister of the Environment did
not have responsibility for ensuring, as you called it, equivalency of
notification and assessment.
Senator Spivak: I have read several analyses which say that they did.
Mr. Mongrain: Perhaps the analyses are incorrect. The act is silent.
We have tried to provide greater certainty as to what act will apply. The
Governor in Council will make that determination. When Bill C-32 was
introduced, it was the minister responsible for the other act. It shifted to
the health and environment ministers. Now it is the Governor in Council.
That determination process is transparent in the sense that when an act is to be
scheduled as meeting CEPA requirements, the proposal must go out through the
Canada Gazette. It will be posted on the environmental registry. There is a
period for public comment of 60 days, and I am sure there will be public
comment on the issue.
Rather than being silent and no one knowing really which act applies, we tried
to provide some certainty.
Senator Spivak: Let us take an example to see if I am understanding you
correctly. There are certainly patents in all sorts of countries now for what
is known as the terminator gene. They will certainly want to produce that in
Canada. The company that is proposing that will apply to Health Canada; is that
Ms Levin: If it is a seed, it would be the Minister of Agriculture.
Senator Spivak: Is it correct that notification would be given and that it would
be published in the Canada Gazette?
Mr. Mongrain: That is not quite right. For lack of a better term, it is a
one-step process. When we are bringing CEPA into force, one of the things we
will have to do is look at which other acts of Parliament have the same
requirements for notification and assessment. The Seeds Act is one at which the
government will look. Environment Canada has input into the process. The
Governor in Council will have to look at the Seeds Act to determine if it meets
the requirements that are set out in clause 106, which covers products of
Senator Spivak: Do you mean each time a product comes forward?
Mr. Mongrain: No. Once the act is scheduled, then the particular product would
be funnelled to the Seeds Act. If the Seeds Act was not scheduled, it would
have to come through CEPA. The scheduling process is open and transparent. It
is not a closed decision-making process, in the sense that an act that is to be
scheduled goes out as a proposal with the 60-day comment period.
After the comments, the various departments will take a look at the comments and
provide advice to their ministers. The Governor in Council will make its
determination. If it decides to schedule the act because, in the opinion of the
Governor in Council, the other act meets these requirements, then it will do
so. Once the act is scheduled, the particular product then falls under that
piece of legislation for the approval of new substances or new products.
Senator Spivak: This is a discretionary power in the cabinet. It is not anywhere
in law. It does not necessarily mean that the same standards will be in place.
Is that accurate?
Mr. Mongrain: I argue that CEPA does set a standard. In the first instance, it
provides a standard that the applicant or the proponent has to notify the
relevant minister. It also sets a standard that there has to be an assessment
to determine if the substance is toxic or capable of becoming toxic. It is the
CEPA definition of "toxic" that is found clause 64. It is not a
definition of "toxic" that occurs elsewhere. It is the CEPA
definition of "toxic" that sets the standard. That includes harm or
potential harm to the environment, human life or a danger to the environment on
which life depends. It includes the environment and its biological diversity.
It is very explicit. There is a standard being set.
Senator Spivak: Critics have argued in the case of the products of biotechnology
that that standard, which comes out of chemical toxicity, is not really a very
good way to go, because it may be a very long-term process. Once the results
are out, they are irreversible. There is that criticism.
Mr. Mongrain: The definition of "toxic" does say "may cause harm."
It is precautionary.
Senator Spivak: In that respect, you think that the regulation, notification and
assessment will be as stringent under all these acts as if they were under
Mr. Mongrain: Other ministers will be responsible and accountable, as is the
Minister of the Environment for the assessments conducted by his department.
That is the only assurance I can give you, but it is a strong assurance.
Senator Spivak: If you read the regulations under the Food and Drugs Act,
essentially all of the information comes from the proponent. All of the
research is done by the proponent. Apart from the conflict of interest, which
is another matter in the Canadian Food Inspection Agency, there is also the
fact that we are relying on the research and studies and science of the
proponents. We learned during our study on rBST that often that can be very
misleading. I would be more comfortable if I knew that all these products were
being assessed by an independent scientific agency and that no politics would
Senator Taylor: Clause 330(3.1) states:
A regulation made under section 93, 140, 167 or 177 may be made applicable in
only a part or parts of Canada in order to protect the environment...
It bothers me that our environment act concentrates so much on point pollution
rather than area pollution. Areas can get to such a high pollution level that
any addition could be the straw that breaks the camel's back. Yet, I got the
impression from the minister this morning that he is not keen on using an area
method. Can you comment on that?
Ms Levin: With regard to making a regulation applicable to a part of Canada, a
part could be a province or a specific geographic area determined by latitude
and longitude. Canada is divided into nine eco zones which cross provincial and
territorial boundaries. There are different ways that a part of Canada could be
identified for the purposes of regulation in order to protect the environment
that is being affected, damaged, or has the potential of suffering a negative
Senator Taylor: I gather you are giving yourself the weapon in case a local
government is allowing something to happen. Could you have one set of
regulations for automobile emissions within a metropolitan area and another set
outside of that area?
Mr. Mongrain: The power is limited to specific sections of the bill. Using your
example, we could make a regulation for a particular locality. For example,
only a particularly clean fuel could be used in a certain area.
Senator Taylor: This morning the minister talked about gasoline lawnmowers which
are, of course, used in the city. The number of lawnmowers used in the wild
ranching country in the West will not make much difference. Perhaps you could
regulate that two-cycle mowers, which are much more polluting than four-cycle
mowers, cannot be sold in metropolitan areas.
Mr. Mongrain: That is the principle and the theory, but in this specific example
there is no authority for regional or site specific applications for engine
emission standards. There is authority for fuels and international air and
There is a very practical reason for having this authority for international air
and water. If a single source is creating pollution in another country, or it
is confined to a particular region, it would not be appropriate to have a
national regulation because the problem would be taken care of by provincial
The Chairman: I would thank the witnesses for the knowledge they have shared
with us. It is immense and impressive. Thank you very much.
Senators, we have been advised by Mr. Caccia, Ms Kraft Sloan, and Mr. Lincoln
that they will be unable to attend our meeting and make their presentations as
we had anticipated. A number of other groups and individual would like to
appear. May the steering committee have your permission to fill in the gaps we
had in our schedule for next Tuesday morning?