Proceedings of the Standing Senate Committee on Energy, the
Environment and Natural Resources
Issue 22 - Evidence, August 30, 1999 (morning meeting)
OTTAWA, Monday, August 30, 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 10:10 a.m. to give consideration to
Senator Ron Ghitter (Chairman) in the Chair.
The Chairman: Welcome to the continuation of our study of Bill C-32.
Senator Hays wishes to raise a preliminary point.
Senator Hays: I should like to raise a matter of privilege with the committee.
This morning I heard a report on CBC Radio. The reader, a Mr. McIsaac, said
that I had indicated that I would be supporting the bill without amendments,
notwithstanding what I heard before this committee.
Although I did give an interview to a reporter whose name I have forgotten, my
recollection is that I did not say that. My inclination, which I stated at the
time, and my inclination now as a supporter of the government, is to support
the bill, and probably without amendment. However, I did not say that I would
do so notwithstanding what I heard, which was the statement made in the news
That goes to my credibility as a person questioning witnesses before this
committee, and I felt that I should raise that as a matter of privilege at the
I will follow up with the news organization and ask for a transcript or tape of
the interview that I gave, or the basis of their reporting of my position,
which is misleading and incorrect.
The Chairman: Your point is accepted and duly noted on the record.
Our first witness this morning is from the Canadian Institute for Environmental
Law and Policy. Mr. Winfield has provided us with a very lengthy submission on
behalf of that organization.
Mr. Winfield, you have obviously spent a considerable amount of time studying
the issues before us. We look forward to hearing from you. Please proceed.
Mr. Mark Winfield, Director of Research, Canadian Institute for Environmental
Law and Policy: The Canadian Institute for Environmental Law and Policy is an
independent, not-for-profit environmental law and policy research organization.
It was founded in 1970 as the Canadian Environmental Law Research Foundation.
The institute has been involved in the CEPA review process since its beginnings
in 1993. In September 1994, we submitted a brief and five research papers to
the House of Commons Standing Committee on Environment and Sustainable
Development for the purposes of its review of CEPA. I was also co-author of
briefs for the Toxics and Biotechnology Caucuses of the Canadian Environmental
Network in response to the government's response to the standing committee's
June 1995 report on CEPA. I was also co-author, with Mr. Paul Muldoon of the
Canadian Environmental Law Association, of a submission to the House of Commons
standing committee regarding Bill C-32 which was submitted for the purposes of
the committee's clause-by-clause review of the bill in October 1998.
The primary focus of our work throughout the CEPA review process has been the
question of the regulation of biotechnology products under the act,
particularly things like genetically modified plants, animals, fish,
micro-organisms and foods. That, again, will be the primary focus of this
We have distributed our presentation with background material on biotechnology
that may be of interest to you.
I will make some brief comments on a number of other major issues related to
Bill C-32, particularly with respect to federal-provincial relations, the role
of cost benefit analysis and activities under the bill, the issue of
residualization in the role of CEPA and Environment Canada, as well as virtual
elimination of persistent toxic substances. It is important to consider those
elements of the bill in addition to its specific provisions because, when
considered together, they make it clear that the bill as drafted and passed by
the House of Commons will have the effect of diminishing rather than
strengthening the ability of the ministers of health and the environment to
protect human health and the environment.
With regard to the issue of federal-provincial relations and harmonization, a
number of changes were made to CEPA, first with Bill C-74, which died on the
Order Paper in 1997, and now with Bill C-32, which is the version you have
before you today. One of the most important changes was the addition of 13
clauses to the bill that require the minister to offer to consult with the
provinces before taking virtually any action under the act. By our count, 13
clauses deal with everything from information gathering, guidelines and codes
of practice, pollution prevention, priority substances, fuels, and
international air and water pollution, to emergencies, government operations,
aboriginal lands and economic instruments.
In the course of the report-stage amendments to the bill, the government amended
those clauses further in a way that, in our view, appears potentially to have
created a natural statutory duty to consult with the provinces before taking
virtually any action under the bill. That could be a significant barrier to
action by the federal government to protect human health and the environment.
Therefore, we are recommending that those requirements for consultation should
be made discretionary. We recommend specific changes to the clauses in question
in order to achieve that outcome.
We are also concerned by the appearance of language related to
cost-effectiveness, which appears in both the administrative duties section of
the bill and in the preamble. It requires that any precautionary action taken
by the government to protect human health or the environment be cost-effective.
The effect of those clauses would be to introduce, for the first time in
Canadian health, safety or environmental legislation, a requirement for a cost
benefit test before any action can be taken to protect human health, the
environment or public safety. That is a potential barrier to precautionary
action to protect human health and the environment. Therefore, we are
recommending that the word "cost" be deleted from each of those two
A third major theme that emerged in Bill C-32 is the question of
residualization, in effect a downgrading of the status of CEPA from Canada's
flagship environmental legislation to legislation that applies only when
nothing else does. That theme was not present in the government's response to
the standing committee's report, and it was not particularly strongly present in
Bill C-74. In effect, clauses of this nature -- and we identify a number of
examples of them in the brief -- state that CEPA will apply only where no other
statute does. In other words, instead of being the first option where human
health or the environment is concerned, it applies only in extremely narrow
circumstances. A number of other clauses require the agreement of cabinet
before any action can be taken by the ministers. That is also a significant
barrier to action because it provides agencies like Industry Canada and Natural
Resources Canada the potential to veto action to protect the environment or
Thus, we are recommending that the bill be amended so that the possibility of
action under another act of parliament does not preclude the possibility of
action under CEPA and that in the event of a conflict between regulations and
other measures taken under two different acts, the more stringent requirement
Finally, I wish to address the issue of virtual elimination, which has been of
concern to the environmental community throughout the CEPA review process. The
concern is that the definition in the bill before you will permit the continued
production and use of what have been identified as the most dangerous
substances in Canada, that is, those that are persistent, toxic and
bioaccumulative. That contradicts recommendations from the U.S.-Canada
International Joint Commission that have strongly emphasized the need to phase
out the use and generation of those types of substances because if those
substances are used or generated, they will inevitably find their way into the
I wish to dwell on the subject of biotechnology a little longer. Biotechnology
is defined in the existing act as the application of science and engineering in
the direct use of living organisms or parts or products of living organisms in
their natural or modified forms. That definition includes what is called
traditional biotechnology, which includes things like traditional plant
breeding, animal husbandry and the use of yeast in the making of beer and
bread, but also, more important, what is defined as modern biotechnology which,
typically, is interpreted to mean things like cloning and the use of genetic
engineering. In effect, those technologies, and genetic engineering in
particular, permit the movement of genetic material between species, something
that does not normally occur in nature. For example, it permits the movement of
genetic material between bacteria and plants, between animals and human beings
or between plants and fish.
Modern biotechnology is undergoing a rapid commercialization in Canada. We have
seen that a large segment of the current crops of canola and soya, for example,
now consists of plants that have been genetically modified to be resistant to
particular brands of herbicide. We are also seeing the rapid commercialization
of crops such as corn and potatoes that have been genetically modified to
generate their own pesticides.
Such developments are occurring in the context of a growing body of evidence
regarding the potential negative environmental and health impacts of these
products of modern biotechnology. There is a growing body of empirical evidence
in this area that largely confirms problems that were theorized by ecologists
in the late 1980s and early 1990s when these products first began to appear.
Examples that we have seen in the scientific literature in the last couple of
years have included the transfer of genetic material from genetically modified
plants to wild near relatives and the negative impacts of pesticidal plants on
pest populations and non-target species. There has also been work done that
demonstrates the potential for the introduction of new proteins through genetic
engineering into foods to produce allergic reactions. The classic experiment
conducted in this area involved putting genes for Brazil nut proteins into soya
beans, which was found to create an allergic reaction in people who had an
allergy to Brazil nuts.
There are also concerns regarding the socio-economic impacts of modern
biotechnology. Many people have raised questions about the value and purpose of
many of the applications of the technology and questioned whether they serve
the interests of farmers and consumers or those of multinational agri-chemical
companies. These questions have been raised in relation to herbicide-resistant
crops that have been genetically modified to be resistant to specific brands of
herbicides. Many people have pointed out that that appears intended at least as
much to secure market share for seed and herbicide suppliers as to serve any
interests of farmers or consumers.
In the past couple of years, serious concerns have been raised about the
effectiveness of the existing Canadian regulatory regime for biotechnology
products such as it exists. Senators, I am sure, are familiar with the
controversy over the approval of recombinant bovine growth hormone by Health
Regarding the pesticidal crops, the Canadian Food Inspection Agency is having to
circle back for things that were overlooked when those matters were originally
You will note that we mention in our brief that the agency has had to go back
and impose additional conditions on pesticidal plants. Those are plants
modified to generate their own pesticides in order to deal with the problem of
insect populations that develop resistance when you expose them to pesticides
through the plant, which is happening several years after the agency approved
the commercialization of those pesticide products. At the time those products
were approved for commercialization, these problems were well known and well
It is also important to note that a significant range of products remains
unregulated in Canada. Those products include things like genetically modified
fish and animals and some aspects of genetically modified food.
It is also important to note that there are major debates now occurring in
Western Europe about the value and the purpose of many of these products of
modern biotechnology, and those debates are starting to emerge in Canada as
well. Unfortunately, so far the Canadian federal government has sought to avoid
these debates and, indeed, at the same time, has denied consumers the right to
make choices about genetically modified food by refusing to require the
labelling of these foods.
All of these developments suggest that Canada should be looking to strengthen,
rather than weaken, its regulatory framework for products of biotechnology.
However, a weakening of the regulatory framework for biotechnology is precisely
what the government has sought throughout the CEPA review process.
The existing act, CEPA 1988, is the only place where Parliament has ever spoken
explicitly about how products of biotechnology should be regulated from a human
health and environmental perspective. Section 26 of the act requires that there
be an assessment of the potential toxicity of these products -- meaning their
potential immediate or long-term impacts on human health or the environment --
before they can be imported or manufactured in Canada. The existing act also
provides that the assessment of toxicity may occur under another act of
Parliament, by agencies other than Health Canada and Environment Canada, but,
in our view, the act states that the assessment must be as stringent as it
would be if conducted by Health Canada or Environment Canada under CEPA.
The House of Commons Standing Committee on Environment and Sustainable
Development recommended the strengthening of this basic framework for the
regulation of biotechnology in its CEPA review report, "It's About Our
Health!" in June 1995. The government response, tabled in December of
1995, rejected that recommendation and proposed to eliminate the requirement in
the existing act that all products of biotechnology be assessed for potential
toxicity before they can be introduced into Canada. They proposed also to
dispense with the requirement that the assessment of products regulated under
other acts of Parliament be at least as stringent as that which would occur
In answer to the government's response to the standing committee's report, the
Biotechnology Caucus of the Canadian Environmental Network made a submission to
the government in March of 1996 in which it rejected that proposal from the
government and made a recommendation that all products of biotechnology that
may be released to the environment be regulated under CEPA by Health Canada and
Environment Canada. The underlying concern was that many of the other agencies
that might play a role as regulators, like Agriculture Canada and Fisheries and
Oceans, were in a potential conflict of interest because they had made very
profound institutional commitments to the development and promotion of
precisely the biotechnology applications that they would also then regulate.
The House of Commons Standing Committee on Environment and Sustainable
Development conducted its own study on the regulation of biotechnology, which
it tabled in November of 1996, again recommending that the basic existing
framework in CEPA be strengthened.
In December of 1996, the government introduced Bill C-74. It reflected the
direction of the government response and proposed to permit ministers
responsible for the administration of other acts of Parliament to determine
whether their regulations met CEPA's requirement for an assessment of toxicity
prior to the manufacturing or import of a biotechnology product.
It is also important to note that Bill C-74 proposed similar changes to the
general new substances provisions of CEPA. That change had never been mentioned
in the government response and, indeed, directly contradicted the Commons
committee's recommendations on the issue.
As you know, Bill C-74 died on the Order Paper in June 1997, and Bill C-32 was
introduced in March 1998. Its provisions dealing with biotechnology were
essentially the same as those in Bill C-74.
In the course of its clause-by-clause review of the bill, the House of Commons
Standing Committee on Environment and Sustainable Development amended the bill
so that the ministers of health and environment would determine whether the
regulation of biotechnology products by other agencies under other acts of
Parliament was equivalent to the regulation that would occur under CEPA. In
effect, they would have been given the job of determining whether or not what
other departments were doing was adequate to protect human health and the
environment. It is also very important to note that a government amendment to
these clauses, which would have made the determination of the adequacy of the
regulation of biotechnology products by other departments a decision of the
cabinet, was defeated in committee on a recorded vote.
The standing committee also amended the preamble and administrative duties
clauses of the bill to explicitly recognize biotechnology as a potential threat
to biological diversity. That is consistent with Article 8(g) of the United
Nations Convention on Biological Diversity. At report stage in the House of
Commons, the government reintroduced and passed the amendment defeated in the
standing committee, to make the determination of the equivalency of regulation
under other acts of Parliament by other agencies a decision of the cabinet. The
government also introduced and passed amendments that removed the references to
biotechnology as a threat to biodiversity from the preamble and administrative
duties clauses of the bill.
In conclusion, CEPA is the only place where Parliament has spoken explicitly
with regard to how products of biotechnology should be regulated from an
environmental and human health perspective. Section 26 of CEPA states that all
products must be assessed for their potential toxicity, meaning their potential
immediate or long-term impact on the environment or human health, prior to
their import or manufacture in Canada. The government has consistently sought to
weaken this one basic rule throughout the CEPA review process. The current
provisions before you, as passed by the House of Commons, effectively leave the
requirements for the assessment of biotechnology products prior to import or
manufacturing entirely at the discretion of the cabinet. The objective test
established by the existing act is, in effect, removed.
These provisions are the result of intensive, behind-the-scenes activities by
agencies and departments of the government strongly committed to the promotion
of modern biotechnology, particularly Agriculture Canada and Industry Canada.
In order to ensure the protection of the health and environment of Canadians, we
are recommending two amendments to Bill C-32 in this area. The first would be
to restore the provisions of the existing act, requiring that all biotechnology
products undergo an evaluation of their potential impacts on human health and
the environment before they are introduced into Canada. Specifically, clause
106(7) of Bill C-32 as passed by the House of Commons on June 1, 1999, should be
deleted. Clause 81(7), regarding substances and activities new to Canada,
should be deleted. That is the parallel amendment to the general new substances
provisions of CEPA.
In the alternative, we are recommending that clause 106(7), as amended by the
House of Commons Standing Committee on Environment and Sustainable Development
and reported to the House of Commons by the committee on April 15, 1999, be
restored to Bill C-32.
Secondly, we are recommending that, consistent with Canada's obligations under
the United Nations Convention on Biological Diversity, Bill C-32 should be
amended to recognize products of modern biotechnology as potential threats to
the conservation and sustainable use of biological diversity. Specifically,
paragraph 14 of the preamble and clause 2(j.1) should be deleted from Bill C-32
as passed by the House of Commons on June 1, 1999, and the words "products
of biotechnology" should be added to paragraph 13 of the preamble and to
clause 2(j) of Bill C-32.
That concludes my presentation, and I would be pleased to answer any questions
you may have.
Senator Hays: My questions are premised on the update of what Bill C-32
represents in the evolution of Canadian law, moving from the Environmental
Contaminants Act, 1975, through the 1988 CEPA to this bill. This bill
represents an incredible amount of lobbying, parliamentary work,
interdepartmental and government work and tens of millions of dollars' worth of
time and effort to get to the point where this legislation can do all of the
things that people who are concerned about the environment would like to see
Picking on biotechnology, the power under CEPA, at least according to Professor
Leiss, is premised on the criminal law power. He referred to the 1997 Hydro-Québec
case, and he quoted parts of that decision in his presentation. It strikes me
that this is a tool to deal effectively with toxic substances, or inherently
toxic substances -- I am not sure what the difference is -- but not a bill to
regulate such things as biotechnological developments. In other words, the bill
provides for putting a biotechnology product on the list, for identifying it as
toxic. For example, we should not use genetically modified peas because they
are inherently toxic and are therefore prohibited. They are put on the list and
we will seek their virtual elimination. That is a very awkward way to deal with
My point is -- and I would certainly admit to a bias here -- that we may see
some benefits in terms of biotechnological developments. They should be
regulated, but we should not have a digital on-off switch saying when we
identify a substance either it must be eliminated or else it is fine, and then
allow whatever department or whatever private sector is involved in development
to carry on with it. Perhaps you could comment on that.
Mr. Winfield: In the bill there are two streams dealing with toxic substances.
The one that deals mostly with virtual elimination is really drafted to deal
with existing substances. The bill's toxic section tries to establish a
structure for going back and looking at chemicals that are currently in
Canadian commerce. It tries to identify those that have the properties of
persistence, bioaccumulation and inherent toxicity -- that latter term refers
to certain toxic properties -- and then target them for virtual elimination.
That is mostly conceptualized in terms of existing chemicals.
The biotechnology part of CEPA, both in the original act and in Bill C-32, is an
outgrowth of the other stream in the bill for toxic substances, which deals
with new substances. The original act established a requirement for anything
that is new. All the biotechnology products, by definition, fall into the
category of being new. They are not on what is called the Domestic Substances
List, which is essentially a list of things that already exist in Canada. They
are in the new substances stream, which is a somewhat different stream. The
original CEPA set out a structure for screening those new substances for
whether they are toxic, as defined by the act, or whether they have the
potential to be toxic.
What the bill does for new substances is different. If the minister makes a
finding of toxicity or a suspicion of toxicity, the bill then gives the
minister the power to impose controls or even prohibitions on those substances
before they even enter Canada. It is essentially a preventive measure and a
very important piece of the act. That is the stream for biotechnology products
and new chemicals.
Our concern with Bill C-32 in this regard is that it actually steps backward
from what is in the existing act, in that the existing act set out very clear
rules about what had to happen with anything new in Canada: There had to be an
assessment of essential toxicity before a product could be manufactured or
imported. In effect, Bill C-32, through clauses 106(7) and 81(7), provides a
mechanism for exemptions from that basic requirement completely at the
discretion of the cabinet.
Senator Hays: But the exemption puts it under a different department or
ministry, such as the Department of Health or the Department of Agriculture.
Mr. Winfield: Potentially. There is a double-layered concern. The first is
whether it is appropriate for those other agencies to be acting as regulators,
given their role as promoters of the technology. The second concern is that the
existing act, as we have read it, provides a benchmark in terms of the standard
of care that must be taken by those other agencies when assessing new products.
Senator Hays: You do not see this as a red light, green light situation.
Mr. Winfield: No, it is not.
Senator Hays: Do you see the ministers of environment and health regulating
Mr. Winfield: Yes. The route through which biotechnology products would be
regulated under CEPA would be by way of a finding of toxicity or potential
toxicity through the new substances assessment process. Once something is found
to be toxic or suspected of being toxic, then the ministers have the potential
power to impose conditions or prohibit the substance. It is discretionary on
their part whether they choose to exercise that authority. The finding of
toxicity simply provides the foundation for the authority to act. It is still
their discretion as to whether they exercise that authority.
Senator Hays: Correct me if I am wrong. Let us assume a product of biotechnology
enters into use. If it is toxic, then I see the ministers of environment and
health dealing with it as a toxic substance.
In terms of the regulatory approach to how we ensure a product is developed
without creating a toxic substance and how we create a beneficial product --
that is, increasing productivity and increasing the health aspect of the
product -- is that not something that the Minister of the Environment and the
Minister of Health are suited to deal with? That properly falls under
agriculture because biotechnology, I think, is most associated with that. What
is wrong with that?
Mr. Winfield: A number of layers of concern have been laid out in previous
briefs. There are many reasons why we and representatives of civil society,
consumer organizations and others have expressed concern about this.
One concern regards the potential for conflict of interest of agencies like
Agriculture Canada, for example, which has a profound institutional commitment
to the promotion of this technology. Some real questions have been raised about
whether the department already has been too hasty in its approval of the
commercialization of some of these products.
The department is now having to circle back and impose additional regulatory
requirements and do basic research that, in my opinion, should have been done
before commercialization was approved. The case of pesticidal plants is an
illustration of that.
Second, there is an issue of basic institutional mandates. The basic mission of
Environment Canada and Health Canada is the protection of human health and the
environment. Agriculture Canada and other agencies have more mixed mandates
that seem very strongly oriented toward the service of industry client groups
as opposed to the broader public interest and the protection of public good.
The third issue, which others have raised, is whether the legislation under
which agencies like Agriculture Canada and the Department of Fisheries and
Oceans, for example, would purport to regulate biotechnology products actually
provides the appropriate authority to do so. Agriculture Canada, for example,
conducts its evaluations of genetically modified plants under the Seeds Act.
The Seeds Act makes no reference to the environment, human health or the
protection of biological diversity. Indeed, we have gone on record saying that,
at a minimum, what they are doing is legislative amendment through regulation,
something that both the House of Commons and the Senate have frowned upon very
Those are some of the reasons we have expressed this view. Our view has been
that, at a minimum, the basic rule needs to be maintained, that there be some
sort of requirement for assessment and that Parliament set a clear standard of
care to be taken in the assessment.
Senator Hays: Given the constitutional basis of this legislation, as stated in
the 1997 decision involving Hydro-Québec, which is often quoted, and
given that its basis is in the criminal law power, is this the way to regulate?
Do you think that this bill has the constitutional basis for regulating in the
way that you think those ministers should regulate such things as biotechnology,
given also that agriculture is a concurrent power under the Constitution?
Mr. Winfield: The concurrency issue is not a problem. As you know, the rule is
that in areas of concurrent jurisdiction there is also a rule of federal
The other issue that we raised in the original research papers we did for the
CEPA review in September 1994 was that the federal government actually had
jurisdiction to regulate products of biotechnology and new substances in
general more as a function of the new subjects test under the peace, order and
good government power in section 91 of the Constitution Act. In our view, the
regulation of biotechnology and new substances generally met the tests of
distinctiveness and boundedness set out in the Crown Zellerbach decision and
also clearly met the test of provincial incapacity -- the notion that certain
things simply would not work if you tried to do them on a province-by-province
basis -- which the Supreme Court set out in Crown Zellerbach.
In our view, the assessment of substances that are new to Canada fit into that
category very well because if every province had its own individual assessment
process and one province failed to do its job, then the purpose you are trying
to achieve, which is to assess things before they enter Canada, would be
Therefore, in this particular aspect of CEPA we felt that there are other
constitutional bases for federal jurisdiction.
Senator Hays: We get into a rather complex area in terms of the various heads of
power or residual powers that might be used for Canada, as opposed to the
provinces, to enter into regulation of a particular sector -- biotechnology,
On legal grounds, I guess you might convince the Supreme Court to allow the
federal government to do a full regulation of biotechnological developments
under CEPA. I suspect that it would be vigorously opposed by the provinces. I
know the work that Innovation Park in Saskatoon is doing on biotechnology. I
suspect the province would be very jealous of some of the things that are
happening and that it is trying to promote. It is not only Agriculture Canada
but the whole industry that is trying to become more efficient and productive
in response to falling commodity prices. I suspect that having the Minister of
the Environment and the Minister of Health regulating that would cause some
practical problems in addition to the legal problems. You have shown a way
around it, in your view, but I am not sure that there would not be some
vigorous arguments against that.
Mr. Winfield: It is interesting to note that only one province, Alberta, has
established any specific legislative authority to regulate biotechnology
products at all from an environmental and human health perspective. In fact,
when I was involved in the consultations with Environment Canada over the
development of the biotechnology regulations under the existing act, the
response from the provinces at that stage certainly was not that this was an
invasion of their jurisdiction. Their reaction was actually quite the opposite:
"Is that all you are going to do?"
They were expecting the federal side to be much more active in evaluating these
things. The federal government had conceived that it would evaluate the
products at the point of entry and assumed that the provinces would regulate
particular uses, as is done with pesticides. The message that came back during
the consultations at that stage was that the provinces would prefer that the
federal side do more. In fact, at the provincial level at the moment there are
mostly gaps and head-scratching as to what to do with this. I have seen no
evidence of a jurisdictional challenge so far.
Senator Taylor: I was interested in Senator Hays's continued exploration of
federal-provincial conflicts. Senator Nolin asked some very good questions in
that area last week. As a result of the Quebec case, it seems that the federal
government can prohibit but cannot regulate without the provinces. Your brief
seems to say that the federal government has the right to use the iron fist if
You mentioned residualization. Presently, if a department does not have
equivalent or better environmental rules, CEPA would apply, but it gives the
department the right to carry the ball before control is taken away. Given our
system of government, is it not better to require the departments to bring
themselves up to environmental levels equivalent to or better than CEPA rather
than the other way around? I gathered from your statement that you think CEPA
should have the right to regulate within the different departments.
Mr. Winfield: The biotechnology and new substances provisions are good examples
of where CEPA would not even establish a standard that other departments must
meet before it stands down. The way the bill is currently drafted, CEPA applies
only where there is no possibility of action being taken by another department
under another act of Parliament. In our view, that downgrades CEPA too far.
We have recommended leaving open the possibility of action being taken under
CEPA or under another act of Parliament, and then simply making a rule that
says that if the action under the two acts conflicts in some way, then the more
stringent requirement in terms of the protection of human health and the
environment would be the one that would trump.
Senator Taylor: I have had more years in opposition than I have had in
government. However, from my understanding of the way government runs, it would
seem to me that that would not work. Government always loathes making one
department the tough one with everyone else having to measure up to it. I think
the same type of rule that applies between the federal and provincial
governments applies to a certain extent between departments.
From where in the bill do you get the impression that CEPA is the weak sister
that does not have the right to move into the department if there are not
equivalent or tougher regulations?
Mr. Winfield: We cite a number of examples in our brief. The strongest examples
are the ones I have mentioned that revolve around new substances and
biotechnology products. We cite other examples under the heading "Residualization."
Clause 76, which covers the status of substances that are prohibited or
substantially restricted in other jurisdictions, states that nothing can be done
under CEPA if the substance is regulated under another act of Parliament. There
are similar provisions in clause 93(4) regarding the regulation of substances
that are determined to be toxic for the purposes of this act; in clause 115(2)
regarding the regulation of the transboundary movement of biotechnology
products; in clause 118(2) regarding nutrients; in clause 200(2) regarding
environmental emergencies; and in clause 210 regarding federal lands and
operations. All those clauses say that nothing can be done under CEPA if there
is a potential for something to be done under another act of Parliament. Those
clauses cover what seem to us to be quite significant areas.
Some of the worst of the language around this issue was taken out by the
standing committee in the House of Commons. However, a number of those clauses
remain in the bill and are of concern because they add yet another barrier. We
are trying to highlight the degree to which this bill raises a series of
barriers to the possibility of the ministers of health and environment taking
action to protect human health and the environment. This is yet another set of
hurdles that must be overcome in order for anything to be done.
Senator Taylor: I still think you are spotting a bogeyman under the bed here.
CEPA is clear. For example, clause 330(3.1), which refers to a regulation made
under sections 93, 140, 167 or 177, states, in part, that it:
... may be made applicable in only a part or parts of Canada in order to
protect the environment or its biological diversity or human health.
Not only does CEPA provide the right for the minister to go in to ensure that
departments are up to snuff, it also gives the power to the minister to go into
areas of Canada to make rules. Outside of giving them a power similar to a
jackboot mentality, I do not see that you people should be as concerned as you
are. However, you are, and there is not much that I can do about it.
Mr. Winfield: Clause 330(3.1) raised another kind of question in the House of
Commons committee. A number of members questioned whether it was appropriate to
have standards that are applicable only in parts of Canada, given the national
nature of the legislation. That was something the government felt it wanted to
pursue. In that case, there was a concern that it was granting too much
discretion in terms of the application of regulations, which meant you could
have some things apply in one place and not in another. The whole idea of an
ideal CEPA is to provide some sort of national consistent level of protection
Senator Taylor: I beg to differ. A regulation limiting gasoline lawn mowers in
downtown Toronto because of pollution is very different from trying to regulate
them in Norman Wells in the Northwest Territories where there may be only two
in town. One of the faults of our environmental regulations is that they tend
to use point pollution rather than area pollution. That is one area in which
CEPA really moves ahead.
We have the same thing in Alberta with natural gas plants. With a couple of
plants every half dozen townships, there is no trouble. However, if there are a
couple of plants every mile, then there is a big problem.
That is my interpretation of the bill. I think CEPA is well structured in that
regard. The fact that it gives the right to go in and do areas as well as
departments is good enough for me.
Senator Cochrane: You said that in the event of a conflict between a regulation
made under CEPA and a regulation made under any other act of Parliament, the
more stringent of the two prevails. Why should a regulation under the Fisheries
Act, for example, prevail if the Minister of the Environment and the Minister
of Health see no health or environmental reasons for a stricter regulation?
Mr. Winfield: The intention of the recommendation is to ensure that the stronger
standard always remains in place. It is precautionary. It is intended to ensure
that, in the event of a conflict, the conflict is always resolved in favour of
protecting human health and the environment. If there were a stronger standard
in place under the Fisheries Act, for example, then that would not be undermined
by some change that happens to be made under CEPA. That is essentially the
outcome we are trying to achieve.
Senator Cochrane: Would you maintain that position even if the Department of
Health and the Department of the Environment said that everything was fine?
Mr. Winfield: In this case, the implication would be that the Department of
Fisheries and Oceans would be disagreeing with that view and saying that a
higher standard of protection was required, presumably to protect fish and fish
habitat. From our perspective, certainly, we would want that view to be the one
that prevails because it is the one that is more protective. That is consistent
with the overall goals that we envision for the legislation.
Senator Cochrane: Mr. Winfield, in regard to the term "virtual elimination",
you would like to see a cessation of all toxic substances; is that correct?
Mr. Winfield: No. What we are saying is that those substances that are targeted
for virtual elimination, which would be a relatively small sub-class --
Senator Cochrane: Are you talking about those three?
Mr. Winfield: Currently, about 13 of the 22,000 substances on the Domestic
Substances List are seen as potential targets for virtual elimination. It would
work on the basis that to be targeted for virtual elimination, a substance
would have to have certain clearly defined properties for persistence -- that
is, it lasts in the environment and it bioaccumulates, which means that it
gathers in the fat tissues of either animals or humans.
It would have to have toxic properties. For example, it would have to be a
carcinogen. If substances meet those criteria, then they should be put on a
track to virtual elimination, which would mean, as we are recommending, the
cessation of the deliberate manufacturing or use of those substances.
That is consistent with the U.S.-Canada International Joint Commission's
recommendations in its annual reports on water quality for the last decade
under the U.S.-Canada Great Lakes Water Quality Agreement, that, for this very
specific class of substances that are recognized as the most dangerous, that is
the route we need to follow.
The original 1993 Red Book platform from the Liberal Party said the same thing:
there needs to be a phase-out of the use of the most persistent toxic
The concern is that, as long as you allow these substances to be made and to be
used, then their entry into the environment is almost inevitable because of
accidental releases and releases in the course of production, and there will be
occupational exposure to workers in the plant.
The route that is seen as best is to eliminate them, but we are only talking
about a subclass of substances. Not everything is toxic.
Senator Cochrane: What is your group's relationship with CEPA in regard to those
toxic substances and the evaluation of those toxic substances?
Mr. Winfield: In relation to CEPA?
Senator Cochrane: When these substances are being evaluated, are you there at
the table? Do you have a large input?
Mr. Winfield: No. We actually have no input. One non-governmental organization
was involved in the process of identifying the substances for something called
the Priority Substances List, which is the list of substances that are already
in commerce and are to be examined again to determine if they are toxic, but
the actual evaluation process is something that occurs inside the federal
government and over which we have no direct influence.
That may or may not be a good thing.
The same thing occurs when new substances are being evaluated. In fact, we do
not even know that substances are being evaluated. The only time you know that
something new has gone through the system is if you see it appear on the
Domestic Substances List, which effectively means it has been approved, or if
you see an order being published imposing some condition or prohibition.
However, the actual assessment process is completely closed, particularly for
new substances. We do not even receive notice that an assessment is happening.
We have some role in identifying the substances for the Priority Substances
List, but we have no direct role in the actual evaluations.
Senator Chalifoux: This bill is intended to promote public participation and to
provide access to information, and there are numerous provisions for that in
this bill. For example, the bill requires that the minister establish an
environmental registry of information such as proposed regulations, policy, et
cetera. Would those provisions not help you in participating in the review of
this bill? I see this bill as a living document that must be reviewed
continually, and the bill provides for that. Would that not help you?
Mr. Winfield: There is certainly no question that the notion of an environmental
registry is a very good idea. It is something that we have been having a lot of
experience with in Ontario, because there is such a registry established
through the Environmental Bill of Rights. It is working very well. It provides
a powerful window on what the provincial government is doing in respect of the
The basic idea is good, and Environment Canada could establish one even without
Bill C-32, if it wanted to do so. The real questions there are: What goes on to
the registry, and what form will it take?
Some very interesting things have been going on with the Ontario registry, now
that it has been modified into essentially a searchable database. You can look
up various things and see what is happening. This starts down that road, but
there are a number of instruments under the bill that would not automatically
go on to the registry. That is different from the Ontario situation where any
kind of legal instrument -- an approval, a control order, anything the ministry
does -- goes on to the electronic registry with a minimum 30-day public comment
period. It is a very powerful tool and a very good idea.
Senator Chalifoux: You are saying that it could happen without this bill, but
would having it included in this bill not give it more clout?
Mr. Winfield: It would not hurt, but one must look at this bill as an entirety,
as opposed to having, here and there, specific provisions that are potentially
quite useful. The problem I and other members of the environmental community
have with this bill is that, as we look at the overall package, we see that
those few particular places where there is forward movement are just overwhelmed
by the backward movement in other places. That is what led many of us to this
very difficult view that the bill should not be enacted in its present form.
Senator Chalifoux: I have another question. Pollution goes both north and south.
Our neighbour to the south has a number of acts that have been enacted between
their separate states and their national government. Do you see this bill
comparing to that situation? We have to have some good comparisons and good
dialogue with our partners.
Mr. Winfield: This bill compares very weakly with the equivalent legislation in
the United States. The only place where this bill comes close is on the new
substances provisions of the existing act, which are, in some ways, better than
the equivalent provisions of the Toxic Substances Control Act in the United
With that exception, the fundamental difference between the U.S. federal
legislation and CEPA is that U.S. federal legislation, such as the Clean Air
Act and the Clean Water Act, sets out, clearly and specifically, certain goals,
targets and activities that have to be undertaken by the U.S. Environmental
Protection Agency by certain deadlines. They provide much stronger tools to
citizens to enforce them. As a result, what you get at the federal level in the
U.S. is a relatively complete framework of baseline regulations for air
pollution, water pollution, and hazardous wastes. The states are allowed to go
beyond those standards if they want to, and a number of states have done some
very creative things in that way.
In Canada, by contrast, CEPA legislation establishes enabling powers for the
federal cabinet to make standards under certain circumstances, but does not
actually require that very much really be done. It is enabling legislation as
opposed to the U.S. legislation, which is quite prescriptive in saying there
will be, for example, standards set for incinerators by such and such a date.
That has rolled forward and is playing out now with the U.S. federal government
as it currently works on new standards for smog; those standards are being
driven by the provisions of the Clean Air Act that say that the EPA must do
what it has to do by a certain date.
This bill has a very different structure and in our view it leads to a much
weaker baseline regulatory framework at the federal level.
Senator Chalifoux: I find that interesting, because I have been hearing about
the terrible environmental situation in the Carolinas with regard to their hog
producers. The water pollution is terrible there. The environmental laws do not
seem to be able to address the problem. I find it interesting that in your
comparison Canada fares poorly, because from my experience in areas such as
Alberta I can tell you that our legislation goes far beyond theirs and that such
pollution is not allowed.
It is also interesting that here in Canada, in this Senate, we established the
issue with respect to rBST, whereas the United States had already approved it
and were using it.
I think you have to bear in mind that we are a young country. After all, Canada
is over 100 years younger than the United States; so in my opinion this bill is
a good beginning, especially when we have the five-year review.
Mr. Winfield: With all due respect, senator, looking at the overall comparison
of the U.S. federal and Canadian federal regimes, we are in a much weaker
position, particularly with respect to toxic substances. CEPA, as drafted here,
might provide some authority to do something around hog farming, for example,
because of the nutrients provisions, but that is an unusual case. In other
areas, particularly air pollution, that becomes very clear.
In the U.S., a process of standards for toxic substances is being developed and
implemented on an ongoing basis. There is also a federal process for dealing
with smog issues. In fact, legally enforceable federal standards are being
established, whereas in Canada, for example, for air pollution from toxic
substances, all we have are four regulations dealing with four substances, all
of which date from the 1970s.
With respect to industrial water pollution, with the exception of the pulp and
paper sector, we have standards for six other sectors under the Fisheries Act,
but again those standards date from the 1970s. Under the Clean Water Act in the
U.S., they have been going through a complete overhaul of their industrial
water pollution standards at the federal level since well before 1990.
Admittedly, here and there we turn out to be a little bit ahead. However, when I
look at the overall picture, our framework is less complete.
It is also interesting to note some of the work of the North American Commission
on Environmental Cooperation, which has been comparing the performance of
Canada and the U.S. in terms of environmental outcomes. One of the interesting
findings in their report published last month is that Canadian facilities
generate 1.5 times the amount of pollution compared to their U.S. counterparts.
Some of the analysis of the commission itself seems to be pointing in the
direction that that is a function of the much weaker regulatory framework in
Canada relative to that in the U.S.
Senator Chalifoux: Is Bill C-32 better than the old CEPA?
Mr. Winfield: As it stands now, unamended?
Senator Chalifoux: Yes.
Mr. Winfield: My answer, I am afraid, is no. I thought about this a lot on the
train trip up here, actually. I wondered if we were overreacting to the bill
and being overly sensitive. As I went through the bill again, I came back to
the conclusion that to pass this bill as it stands would take us backwards from
where we are now with the existing act that was passed in 1988.
One has to step back and recognize that as the bill evolved, especially between
Bill C-74 and Bill C-32, it changed from being an environmental protection bill
to a bill whose purpose, frankly, was to constrain the abilities of the
Minister of the Environment and the Minister of Health to take action to
protect human health and the environment.
How you see that playing out is that this bill has had layers of hurdles put
into it in front of the ministers whenever they wanted to try to act.
Some of the things I mentioned this morning are the strongest examples of that,
such as the so-called harmonization clauses requiring consultation with the
provinces, the cost-benefit test, the residualization clauses, and the degree
to which all decisions now have to go to cabinet. Each of those is a barrier in
front of the ministers trying to take action to protect human health and the
environment. That is what really concerns me about this bill.
Yes, there are some important clauses and things that move us forward, but when
we look at the overall picture, it is almost designed to make it impossible for
the ministers to actually act. That is what causes me to stop where I am.
The Chairman: Mr. Winfield, I would like to raise a question related to the area
Senator Hays raised with you. You seem to be saying that under the existing
law, if you are dealing with a product of biotechnology, it must first be
assessed before it can be used.
Mr. Winfield: That is right.
The Chairman: Under the amendments, the cabinet can fast-track it, bypass the
assessment and okay the product.
Mr. Winfield: That is essentially what I am saying.
The Chairman: That is your objection.
Mr. Winfield: That is the concern we are raising.
The Chairman: Would it not be reasonable that, before a new product of this
nature comes into Canada, it be assessed before it is used? What is your view?
Maybe this is an unfair question, but why would one want the power to bypass an
assessment of a new biotechnological product coming into Canada's food chain?
Mr. Winfield: That is a good question, senator. That is what led us consistently
through this process to ask why we do not stand with the existing provision of
the act, which is very clear and seems to set a clearly laid-out rule. The
answer appears to be, as far as we can tell, in the enthusiasm of certain
agencies to promote products of biotechnology. They appear to have an
institutional belief in their safety.
Agriculture Canada does not assess everything. It deals with plants on the basis
of a rule called substantive equivalents, which means that, if they have
approved something similar, they will not review something that looks like it.
That is quite different from what happens with micro-organisms under the CEPA
Since we are already on that path, it is one that I personally do not think is
precautionary. Parliament was wise in setting this one basic rule that
everything should be looked at before it is allowed into Canadian commerce. It
is a precautionary approach, but it is consistent. It has unseen benefits in
encouraging companies not even to bother developing products that might run
afoul of the rule. It also provides for a degree of consistency in the
treatment of all products across the board, which is something you would think
industry would want. That seems to be where we have ended up.
There has been deep interdepartmental conflict over the regulation of
biotechnology and how it should be regulated. Part of that flows from a desire
on the part of some departments to get out from under the equivalency rule
which the existing act establishes. That seems to be the underlying
explanation. It does not really make a lot of sense to me why they are
proceeding that way.
The Chairman: Nor to me.
Mr. Winfield: But that is where they are.
The Chairman: I did not take a lot of comfort from your earlier references to
the questioning by Senator Hays relative to the workings of the Department of
Health. We saw the power of Monsanto in the rBST issue. If it had not been for
the Standing Senate Committee on Agriculture and Forestry bringing to the
forefront the lack of ability of the Department of Health to expose that issue,
we would probably have that substance in our milk today. Nevertheless, you seem
to think we would be better off with the Department of Health and the
Department of Agriculture.
Mr. Winfield: Yes, and there is a reason for that. I am acutely aware of the
problems inside the Health Protection Branch. The one principle around which we
have been trying to organize our position on how these products should be
regulated is that we should achieve as strong a separation as possible of
regulatory and promotional functions among agencies and should keep the
promoters and the regulators separated. Agriculture Canada is unquestionably a
promoter of agricultural biotechnology and various aspects of that technology.
In my dealings with the department, quite frankly, I see that as something that
is deeply institutionally embedded within the department. Rightly or wrongly,
there is a profound belief in this technology.
That leads me back to a concern that exists in a weaker way with Environment
Canada. There are some promotional programs there but nothing like there are in
Agriculture Canada. The rBGH situation and Health Canada lead me back to the
conclusion that, in this legislation, Parliament needs to speak strongly about
this issue and give clear direction to the government on it through its
legislation by establishing clear and stringent rules and by minimizing the
degree of discretion that is available. It is not an ideal result, but it is
the best I can propose at this stage.
The Chairman: This weekend's New York Times contained a lengthy article on
genetically modified foods. It talked about the European objections to it and
the unacceptability of corn, soybean and other products that are grown on that
basis. It also talked about countries, such as Japan, that now require
labelling in this regard. It also spoke to the fact that in the United States
now a number of companies will not accept genetically modified foods. Gerber is
one such company.
Apparently there is a growing feeling among U.S. corn farmers that they will not
be able to sell their product. As I recall, 60 per cent of the corn in the
United States is genetically modified. As I understand that, it means that
built within the grain is a pesticide, in a sense, and there is great concern
In Canada, we do not seem to have any controls, other than what you have
described under present legislation. There will be even less control under the
The article I referred to suggests that there has not been sufficient assessment
as to whether there is any harm from these products. Although there does not
seem to be strong scientific evidence that it is harmful, the marketplace is
starting to respond. It now looks like farmers in the United States will move
away from it and that in many cases next year their crops will not contain
genetically modified foods.
What are we doing wrong in Canada? Should we be doing anything until the science
is there? With the new precautionary principle of cost-effectiveness, will we
ever be able to do anything in Canada if we accept that definition?
Mr. Winfield: It seems clear that, given the opportunity, the market appears to
be finding these products unacceptable for both ethical and social concerns. On
the scientific side, part of the problem is that the amount of science that has
been done on the actual ecological or health implications of these products is
very small, and it is extremely small in Canada.
That has been a function, partially, of the way we have been funding
agricultural research, which has been to require university researchers to
enter into partnerships with private-sector interests. Unfortunately, those
interests are not interested in investigating questions of ecological impact.
A body of evidence is emerging, mostly from outside Canada, that seems to
confirm a lot of the problems that ecologists theorized about a decade ago,
when people first started thinking about these products and what could go wrong
In terms of a strategy, frankly, Canada's approach thus far has been to attempt
to bludgeon its way into these markets with these products and to use trade
rules to try to do that. That has certainly been reflected in Canada's
behaviour with respect to the negotiations on the bio-safety protocol under the
Convention on Biological Diversity.
The fact that private-sector actors are turning against these products quite
independently of government in response to demands from consumers demonstrates
the futility of that strategy. Frankly, that means we must rethink the
situation. If we do not, as a minimum, find ways to segregate the engineered
crops from the unengineered crops, we will lose those export markets. In fact,
we are already losing export markets, not only for the engineered crop that was
never there, but for the non-engineered component of our crop, too, because we
cannot provide segregated supply.
It is a very difficult situation, especially for farmers who, in effect, are
victims in this situation. They ere told by the government and by the companies
that produce these products that everything was fine, yet they can see with
their own eyes what is happening to the export markets and they are starting to
wonder what to do.
This is a serious situation. It requires a fundamental reconsideration of our
whole approach. It is a reflection of a deeper problem. Going back to the
original formulation of the national biotechnology strategy in 1983, there were
explicit decisions, first, to avoid a widespread public debate about the value,
purpose and acceptability of these products, and, second, to try to accelerate
the move towards commercialization as quickly as possible.
The problem that we have caused as a result is that we have gone down this
technological path and discovered that the marketplace does not want the
product. It is a profound mistake that we have made. I do not know how else to
We will have to make changes, because it is clear that in Europe, for example,
governments would fall before the public would allow the products in. No amount
of bludgeoning through the WTO or anything else will change that. The market is
sending a pretty clear signal. If we want to hang on to our export markets, we
will have to respond to the signal.
The Chairman: These genetically modified products are in the food stream in
Canada now. How did they get there? Under the present CEPA, is there not a
requirement to assess them?
Mr. Winfield: That is a complex question. It has not been litigated, but it may
Agriculture Canada has been approving these products under the Seeds Act, and it
claims that what it is doing under that act for crops meets the requirements of
section 26(3)(a) of CEPA, which is an assessment of toxicity prior to import or
manufacture. There have been some doubts about the legal authority under the
Seeds Act to do that and also about the level of stringency being applied. They
are doing the assessments.
On the plant side with regard to seeds, it is relatively clear what has been
happening. On the food side, it is a little more complex because Health Canada
has yet to promulgate the regulations to do what is essentially a two-stage
assessment. One group looks at it as a crop in a field while the other looks at
it as a food.
A number of products were purported to have had food approval given to them,
even though regulations to do that did not appear to exist. In fact, Health
Canada said that, in effect, it was relying on companies to notify voluntarily
and was relying on its general powers under the Food and Drugs Act to prohibit
things if they thought they were harmful.
Health Canada has now gazetted some regulations to do the environmental review
of these products as food. However, they are relying on authority that has yet
to be granted to them to do that. There is a consequential amendment contained
in Bill C-32 to amend the Food and Drugs Act to give Health Canada the ability
to review new foods from an environmental perspective.
One could make the case that some of these products should be assessed under
CEPA now. In fact, things like fish and animals should be defaulting to the
schedule in the regulation for other organisms that was made under CEPA in
September 1997, and they are not.
It is a very complex situation: there is essentially a collection of ad hoc
administrative arrangements in place whose value as a strategy and whose legal
basis are open to some pretty interesting questions.
Senator Taylor: I appreciate your raising the matter of genetic modification and
hormones. Some of us on this committee have been in Europe three times in the
last year studying genetic modification. The House of Lords has put out a great
report on genetic modification. We met with the Germans and the Council of
Europe. I also represented the Canadian government and the Minister of Health at
Codex Alimentarius in Rome, where we talked about genetic modification and
However, I think you are mixing some truth with some fiction in your answers.
Certainly you are correct in saying that the Department of Agriculture may be
20 years behind time in trying to force Europe to accept genetically modified
or hormone-raised beef. Maybe we are not up to speed in realizing what is going
I met with the Minister of Agriculture just a few weeks ago on that subject, and
although the World Trade Organization did rule in our favour, saying that these
were non-tariff barriers, perhaps they are behind, too. There is a segment of
the world that is not moving as fast as one would like in reviewing genetic
modification, hormone injections and so on.
I was also a member of the Senate committee that studied rBST. I am not trying
to say I am an expert on the subject, but I have heard from all sides on this,
and if you will stay around and listen to the Canadian Federation of
Agriculture, they will give their arguments against the points you have made.
I do take some exception to your point that companies can get by the present
CEPA to put in genetic modification or hormone replacement without some sort of
For instance, clause 106(6) states that some subsections do not apply to:
(a) a living organism that is manufactured or imported for a use that is
regulated under any other Act of Parliament that provides for notice to be
given before the manufacture, import or sale of the living organism and for an
assessment of whether it is toxic or capable of becoming toxic;
It is clear that, unless another act of Parliament applies, the minister has the
right to go in, before the import or sale of a living organism, and ask for an
assessment of whether it is toxic or capable of becoming toxic. I am not a
lawyer, but that is pretty simple English.
The Chairman: Subclause (7) is what Mr. Winfield is talking about.
Senator Taylor: I hope he is reading the whole bill and not reading it
The Chairman: I think he is reading the whole bill.
Senator Taylor: To me, that earlier part before subclause (7) is fairly clear.
Unless it is governed by another act, there has to be assessment of whether it
is toxic or capable of becoming toxic. That is my first point.
My second point is that not all genetic modification is wrong. I think we are
going from one extreme to the other. All genetic modification was good 25 years
ago because it increased the amount of rice we were able to raise in Southeast
Asia. Now we are getting to the other extreme where any kind of genetic
modification is wrong. You only have to look at the kind of corn and wheat they
raised in the Navajo caves 2,000 years ago to understand that we do not want to
go back that far.
I am interested in how you interpret this bill as providing for no assessment
of substances that are toxic or capable of becoming toxic, because, to me, it
is quite clear.
Mr. Winfield: Clause 106(6) does reproduce the language of section 26(3)(a) of
the existing act, but the crucial clause is, subclause 106(7), which provides
the exemption mechanism from that requirement. It states clearly that
conclusive proof that the requirements have been met is purely at the
discretion of the cabinet, and I believe it is also where they talk about "exclusive
responsibility for determining", so the language is written in maximum
Senator Taylor: The Governor in Council has an overriding power. Would you not
like to see regulation that way? Would you not like to see the situation where
a minister's ruling could be appealed to the Governor in Council? You are
implying that the Governor in Council will let all genetic modifications
through. Just suppose the situation was the other way round and the minister
was ruling against something you thought was all right. Would an appeal to the
Governor in Council not seem quite reasonable?
Mr. Winfield: Under the proposed act, appeals are available to a review board,
which is a quasi-judicial body. Our concern is that the language in subclause
106(7) is designed to be utterly and completely discretionary and completely
insulated from any possibility of judicial review. It has clearly been drafted
for that purpose. It grants the cabinet unlimited authority. It is so unlimited
there is no way it could be challenged. This is an authority that does not
exist in the current act, so it does provide a way round the basic requirement
set out in subclause 106(6).
With respect to the broader question, we are not taking a position one way or
the other as to whether genetic modification is right or wrong. We are saying
that things should be assessed from the perspective of their potential impact
on human health and the environment and on biological diversity before they are
permitted to enter the Canadian environment and to enter Canadian commerce.
It is true, however, that there are many Canadians who hold the view that
genetic engineering and moving genetic material between species does, in some
sense, constitute some sort of violation of some law of God or nature with
respect to crossing the species barrier. Considerations of that nature are
completely excluded from the regulatory decision-making process as it now
stands. Ethical concerns are not part of the equation. However, again, one of
the reasons people in the marketplace may decide that they do not want these
products is that they feel personally that they are ethically objectionable and
they would like to be able to make a choice about them in the marketplace.
Senator Taylor: That is something you and I can agree on. I spent four days in
Rome listening to the best scientists in the world debating both sides of this
question, and their solution was that labelling would give the consumer the
decision-making power. Labelling seems to me to be the solution rather than
letting the scientists fight it out.
The only problem I have with labelling is that, in a modern market economy,
where some of the biggest companies in the world are able to convince our
youths that they should use nicotine and alcohol in order to advance their
lives, sexually and otherwise, the advertisers might not have that much trouble
convincing the public to eat genetically modified food.
Senator Hays: As I understood your answer to Senator Chalifoux, your principal
reason for saying that this bill is worse than the existing CEPA is basically
Mr. Winfield: No, that is not so.
Senator Hays: So there is more?
Mr. Winfield: Yes.
Senator Hays: As I recall, that was all you recited. It is interesting that you
are more suspicious of the utter discretion in the Governor in Council than of
the utter discretion in the ministers as defined in the bill. Nonetheless,
there is a discretion there. If I am wrong, correct me on that.
The other area of concern is cost-effectiveness. You did not mention that as
something that breaks this bill in your opinion.
I have been reading the CEPA Soap Opera and the MMT situation in terms of
regulation, as opposed to this red light/green light, which I still think is
the basis of CEPA. CEPA does not have a power to intervene and regulate
biotechnology and regulate as many things as should be regulated. I am
sympathetic with you there. I am not disagreeing with you on the major thrust of
what you are saying. I do not necessarily agree with you that CEPA is the best
way to do it, however.
On cost-effectiveness, surely that is not such a bad way to try to deal with the
virtual elimination of a toxic substance, or other things that the ministers
are required to do, with or without the consent of the Governor in Council?
This seems to be a solid, sensible, common-sense approach, as opposed to the
command-and-control approach that would probably otherwise be followed.
Mr. Winfield: My concerns about the bill go well beyond clause 106. That is just
one particularly prominent example of the problem. Because of our focus on
biotechnology, I focused on that, but I mentioned some others, too.
Cost-effectiveness is an example of the deeper problem of the series of barriers
constructed by the bill, opposing the taking of action to protect human health
or the environment. Three barriers come to mind as being structural to the
bill, permeating the whole thing. They are the harmonization clauses, the
residualization provisions and the cost-benefit provision.
With cost-benefit, there is a concern over the precedent. We have never put
that kind of language into federal environmental, health or safety legislation
before. That produces a kind of mechanical trade-off where the economic
benefits of something are supposed to exceed the economic costs in order for
something to happen.
There are layers of problems with that approach, methodologically and
philosophically. We think it is inappropriate to incorporate such a provision
into legislation. It exists to a certain degree already as a matter of policy
through the Treasury Board's regulatory policy, but that, as it stands, is only
a policy. Parliament would want to think very hard about whether it wants to
elevate that cost-effectiveness and cost-benefit analysis policy to the level
of legislation because of the implications of such an action.
We have not yet had a full debate about the implications involved. As I say,
there are very serious philosophical and methodological problems with that
approach in terms of tallying up costs and benefits. Cost-benefit methodologies
are notoriously weak in terms of their ability to deal with environmental costs
and benefits and social costs and benefits.
That is why I would approach this rule very carefully. We did some work on
regulatory reform a couple of years ago. In the U.S. during the Reagan era,
they had a very rigid cost-benefit test rule for regulations. That emerged as a
very serious problem. One of the first things the Clinton administration did
was to pass a new executive order that downgraded the rigid tests used by the
Reagan administration, because they had become impossible barriers to doing
Senator Hays: Downgrading such a requirement and doing away with it are two
different matters, but I take your point. I am not here to argue with you so I
will not, but I will close with this comment. The risk management for which the
ministers are responsible is well served by requiring cost-effective solutions
to eliminate a toxic substance. In terms of analyzing the cost-benefit basis,
that will determine the extent to which economic instruments are used or not
used in dealing with the virtual elimination of a substance that is found to be
Mr. Winfield: We are particularly concerned that the language in that clause is
strongly mandatory in the administrative duty section. It is not a matter of
simple consideration. It seems to us to create quite a rigid test. That is part
of the problem.
There are other bases on which ministers in the government may decide to take
action, rather than make purely economic decisions as to whether the benefits
exceed the cost.
Senator Hays: I do not think they are prevented from doing that.
Mr. Winfield: The language is non-discretionary. It is a "shall"
Senator Hays: If something is toxic and we want it out of the environment
tomorrow based on compelling evidence, then that command-and-control approach
is not ruled out.
Mr. Winfield: The problem is that even at that point, under this bill you are
still faced with three obvious and significant barriers, and probably several
more that I could find if I looked. You must go through a consultation process
with the provinces that, as now drafted, appears to be mandatory and appears to
constrain the minister quite significantly. You must go through the cost-benefit
analysis. You must go through a battle over the residualization issue. Then you
must get to cabinet where you would face Industry Canada and Natural Resources
Canada and all of those folks who probably would be on the warpath.
You could not simply turn around and regulate on the basis of a finding of
toxicity. You are still faced with a whole string of barriers.
Senator Hays: Clause 106(7), as it came out of the House, gives to the Minister
of Health the same discretion as the Governor in Council has under clause
106(7) after the report stage. The ministers are members of the government.
They are subject to the Prime Minister. They resign if they do not like the way
in which their powers are given to them or if they are unable to carry out their
responsibilities, but all those things mentioned are still potential problems
whether you take the wording of clause 106(7) after House of Commons committee
stage or after report stage.
Mr. Winfield: My comment is cast much more broadly in terms of the entire act,
because almost anywhere that the ministers would take action under any of the
clauses, they run into these barriers to action.
Many people favour putting these decisions into the hands of the ministers of
health and of the environment over cabinet because the ministers have a clear
and explicit mandate that says that health and the environment come first. At
the cabinet level, another veto point is provided to other interests. Frankly,
those other interests typically are Industry Canada, Natural Resources Canada
and Agriculture Canada. They have been the big players here.
Some of those problems were highlighted by the Commissioner for Environment and
Sustainable Development in his report this year. He talked about some of the
problems that were occurring interdepartmentally on environmental issues and on
some of the very non-constructive roles being played by Natural Resources
Canada and Industry Canada. He made the point that their actions went well
beyond that which constituted constructive interventions.
That is part of our rationale for preferring ministerial decisions over cabinet
Senator Hays: You cannot legislate away that problem.
Senator De Bané: Dr. Winfield, your group, the Canadian Institute for
Environmental Law and Policy, focuses on one issue that finally hurts its own
credibility. Your first criticism of this bill deals with the obligation on the
federal government to consult with the provinces. You say on page 3 of your
Bill C-32, as passed by the House of Commons, requires offers of consultation
with the provinces and territories be made before virtually any substantive
action can be taken by the Minister under the Act.
You find that too constraining, but we live in a federal system. I was saying to
myself that, if Dr. Winfield was the premier of a province tomorrow and was not
the director of research of that lobby group, would he still be complaining
that the federal government has to consult with the provinces?
What do you find so unreasonable? I submit that your position that the minister
should be able to do that without consulting hurts your own credibility. All
single-issue organizations such as yours finally lose perspective of the big
We live in a federal system. We have a federal minister of the environment and
the provinces have ministers of environment. Sitting at the table today is a
former premier of the Province of Nova Scotia, my good friend Senator Buchanan.
I am sure he would object to your criticism in saying that the federal
government should not be obliged to consult with the provinces.
I agree with you that we are trustees for the next generation. It is our duty to
be good guardians of this planet, but you are saying that we should forget
about the provinces and should not be constrained to consult with the
provinces. Again, if you were a provincial premier, you would never agree to
Senator Buchanan: You are absolutely correct.
Mr. Winfield: I will not presume to suggest that I will ever find myself in that
position, but I am not sure that I share that view at all. Our concern is
particularly the way in which the bill was further amended in the House, which
has managed to construe the bill potentially into a duty to consult. There
appears to be no way out. That is a serious concern, because it means there is
potentially a barrier to action. That is a particularly acute concern in the
context within which we are living right now.
I have spent the last four years of my professional career documenting what has
been going on in my own Province of Ontario. We have what is essentially a race
to the bottom occurring among a number of provinces in terms of environmental
standards. We have been documenting that brutal detail in Ontario. Frankly, we
have also documented the activities of the Government of Ontario in blocking
national initiatives on national environmental issues in the last four years,
including acid rain, climate change, smog, sulphur and gasoline. If the
Province of Ontario held a veto, we would be getting nowhere.
If you look at the historical record -- and this has been documented clearly by
members of the academic community -- the threat of independent federal action
has been a major factor in getting the provinces to move forward. That has been
documented on acid rain, and it has been very clearly documented also on the
pulp and paper regulations that were done in the early 1990s.
There is only one way to stop the race to the bottom that is now happening, and
that is through a strong federal baseline set of standards. The bill makes it
almost impossible to establish that. That is where I am coming from and that is
my domestic experience. That reflects everything I have learned, both in my
professional career as a political scientist and as an environmentalist, about
how these things work.
Senator De Bané: If I, as a citizen, am not happy with what my provincial
government is doing, the solution is not to say that the federal government
should pass a bill saying that it is not necessary to consult with the
provinces. My duty is to defeat that provincial government.
I am from the Province of Quebec, which is governed by a separatist government.
I think that I should put my efforts towards replacing that government with a
Dr. Winfield, if you were a minister of the environment on the provincial side,
I am sure you would be speaking another language. I do not disagree with you
that sometimes a province does not do things properly, but I do not think the
solution is to then use the federal disallowance power to defeat a bill. No. We
should defeat that government and put another one in place, but we should not
say that the federal government should deny the existence of the provinces and
Mr. Winfield: This is a complex set of questions, and it depends on how far down
this road one wants to go.
In Ontario, we have a government against which most of the electorate voted. The
fact is that the policies that government is pursuing are having a negative
effect on the health of Ontarians and on the health of residents of other
provinces as well. It is now using its role in inter-governmental processes to
block national environmental initiatives, which are very important from the
perspective of protecting the health and environment of Canadians. If the
Government of Ontario had its way, the federal government would not have
adopted the sulphur content of gasoline regulations in July, which are very
strong and very important.
Senator De Bané: The bill does not give veto powers to the provinces. It
creates an obligation to consult with them.
Mr. Winfield: Our concern, sir, is that the language that has now been inserted
may well do precisely that. We do not have a problem with a clause stating that
the minister may or should consult before doing something. That is fair enough.
In fact, the existing act makes provisions that way. Our concern is with
language that translates into a veto, potentially even a legal veto, and how
that language might be used in the hands of provincial governments who sadly,
but frankly, have made it very clear that they do not have a strong commitment
to the protection of the environment.
Senator Buchanan: That is not correct.
The Chairman: Mr. Winfield, I wish to thank you very much for your time, your
knowledge, and the tremendous work you and your institute have put into this
subject. I congratulate you and thank you on behalf of my colleagues for coming
here today. I wish you well in your future endeavours.
Colleagues, we now have with us a number of representatives from the Canadian
Federation of Agriculture and the Canadian Fertilizer Institute.
Mr. Roger Larson, President, Canadian Fertilizer Institute: Mr. Chairman, we are
pleased to be here today before the Standing Senate Committee on Energy, the
Environment and Natural Resources to discuss our perspective on Bill C-32. I am
joined today by Chris Micek, Environment Manager of a fertilizer plant based in
Redwater that is owned by Agrium Inc. Agrium, North America's largest nitrogen
fertilizer producer, has its head office in Calgary, Alberta. With us as well is
Mr. Donald Côté, who is an agronomist with CFI and head of the
Quebec Fertilizer Manufacturers Association. Paul Lansbergen is CFI's
Communications and Member Services Officer. He is also here to provide
Our written brief has been submitted to the clerk and is available to you in
both official languages. We will not cover it verbatim but only highlight key
messages, such as the size of Canada's fertilizer industry, the essential role
fertilizer plays in sustainable agriculture and our specific concerns with Bill
C-32. I encourage you to review our brief for greater details on the issues we
will raise here today.
CFI represents the basic manufacturers of nitrogen, potash, phosphate and
sulphur fertilizers, as well as most of the major retail distributors in
Canada. Our members produce about 24 million metric tonnes of fertilizers
annually, 75 per cent to 80 per cent of which are exported to markets around the
Altogether, Canada provides about 12 per cent of the world's total fertilizer
material supply. Our exports contribute $3 billion to Canada's balance of
payments. Our members must continuously address the issue of global
Fertilizers are part of Canada's international trade objectives. Our industry
has been nominated for trade liberalization under APEC, a subject which, I
understand, has been advanced to the World Trade Organization for discussions
in Seattle this November.
This legislation has a great deal to do with how we as a society perceive our
role as stewards of the land. Farming, agriculture in Canada, can be depicted
as a mining operation. Each year's harvest represents the removal from the soil
of some measurable amount of nutrients. In spite of the 5 million tonnes of
fertilizer consumed annually on Canadian farms, we are putting in less than we
are taking out. Too little is as potentially damaging as too much. Protecting
our soil's health, ensuring an adequate world food supply and protecting the
environment is all about balance and integrating this balance into our nutrient
The world's population is growing. In addition to the obvious increase in the
demand for food, greater affluence among the world's population also results in
a higher demand for an improved quality of food around the world. However,
available crop land with good soil structure and climatic conditions is limited
and is being lost to urban growth. Therefore, the remaining agricultural land
must be used intensively. However, that intensity need not threaten the soil's
health or the nearby environment. With the proper and balanced use of
fertilizers and good farm management practices, global food security is
While this level of food supply may not be sufficient, it is certainly
necessary. To put this in greater context we should consider the following
fact: One, the world's population grows by 100 million people per year, and 95
per cent live in less developed countries. These rapidly expanding populations
result in agriculture moving into fragile, environmentally sensitive areas. This
must be stopped. Sustainable agriculture cannot exist there.
Wealthy nations protect and enhance their environments. The converse is
demonstrated by examples, such as the former Soviet Union and Eastern European
countries. In 1931, former U.S. President Franklin Roosevelt said, "The
nation that destroys its soil destroys itself." We all pay a price for the
unbalanced extraction of soil nutrients. Destroying good fertile soils is an
extreme but very real consequence of soil mining. It is possible to recapture
soil fertility through the judicious inputs of nutrients, coupled with other
sound soil and crop management practices.
Today, some 2 billion people suffer terrible nutrition. Of the 12 million
children under the age of five who die each year in developing countries,
mainly from preventable causes, 55 per cent are either directly or indirectly
attributable to malnutrition.
Our plea to you is to insert the food policy issue into discussions concerning
risks from fertilizers. Canada and the world need to bring food policy into the
nutrient management legislative risk debate. It provides the balance needed. In
fact, it becomes the fulcrum on which we weigh risk from nutrients in food
Considering Bill C-32, it is reasonable to ask ourselves whether the
consequences of this legislation will be good for Canadian soils, for world
soils and and whether it will be good from the perspective of sustainable
I will now turn the floor over to Mr. Micek to outline our specific concerns
with this bill.
Mr. Chris Micek, Environment Manager, Canadian Fertilizer Institute: Honourable
senators, let me begin my comments today by emphasizing that the Canadian
Fertilizer Institute supports the need for strong environmental legislation and
continuous improvement in environmental performance. However, there is a
threshold beyond which more environmental protection jeopardizes economic
development, and sustainable development is not achieved.
Therefore, the concept of sustainable development must incorporate a balance
between environmental protection and economic development. The CFI feels that
if CEPA is to be strong and enforceable, and capable of promoting sustainable
development in Canada, it must have the following qualities.
First, it must be clear and predictable so that the government can enforce
legislation and business can make appropriate environmental management
Second, it must ensure that provincial and federal legislation is harmonized and
Third, it must not include information-gathering provisions that are inflexible
and that will create an unnecessary administrative burden.
Fourth, it must not contain environmental protection action provisions.
Fifth, it must maintain the provisions relating to overlap and duplication.
Before I comment on these items, I want to point out that we have, in our
written submission, specific recommendations as to how the bill should be
changed or not changed.
Clarity and predictability should be an underlying principle of all legislation.
Clarity not only improves the government implementation of legislation, it also
permits business to effectively plan its compliance to legislative
One area where CEPA was deficient was in the application of virtual elimination.
Constructing it in such a way that the bar rises with the advancement of
measurement technology misses one important factor: Virtual detection is not
virtual elimination. Detection does not automatically translate into
elimination. During report stage, amendments were adopted and the situation is
now workable, but the CFI is still concerned that the ultimate objective of
release limits below the level of quantification is unrealistic.
On the issue of harmonization, we feel that there should be a clear commitment
to avoid overlap and duplication between provincial and federal environmental
regulations. The commitment to this principle could be more adequately
reflected in clause 10 and subclauses 3(a) and 3(b) of the bill if provisions
were made to allow for treating provincial requirements as equivalent to federal
requirements of the act, based on consideration of performance and intent, not
just identical provisions.
The information-gathering provisions of the bill are very broad in scope, and in
our opinion they must be carefully applied. As outlined in clause 47, the
cost-effectiveness of the use of the powers must be evaluated through
guidelines issued by the minister. We recommend that the information providers,
such as CFI members, have input into the development of such guidelines so that
the true cost to industry can be realized and cost-effectiveness can be
evaluated, and so that provisions can be implemented in a harmonized manner.
Another concern is related to environmental protection actions in clauses 22
through 38. We do not feel that it is beneficial to follow the U.S. model and
adopt a litigious approach to environmental protection. Government should be
responsible for enforcing environmental protection legislation and should not
abandon this responsibility. Litigation is not an effective way to resolve
The most important item for the fertilizer industry relates to overlap and
duplication. During the House committee stage, a key provision was removed from
the bill, formerly clause 2.2, which would have provided effective
interdepartmental coordination and for other ministries to deal with matters
under their own jurisdiction so as to avoid overlap and duplication. The
fertilizer industry is pleased that the government has recognized the
importance of this provision and has adopted a specific provision within the
It is essential that clause 118 be maintained. Without such a provision,
regulatory uncertainty would exist by virtue of the fact that there is no
provision for the minister responsible for the administration of another act of
Parliament, such as the Minister of Agriculture and Agri-Food, to determine
whether or not their act is appropriate and sufficient to address the matter.
The CFI believes that it is very important that the Minister of Agriculture and
Agri-Food be involved in determining whether legislation under his or her
purview is appropriate and sufficient to deal with a matter related to
To conclude, our industry represents a vitally necessary input into the
sustainable crop-production system in Canada and abroad. While protection of
the Canadian environment is vital to the sustainability of the Canadian
agriculture system, this sustainability is completely reliant on replacing
nutrients, which are exported in the form of food. The benefits of all forms of
nutrients essential to human and plant life must be recognized. Nutrients must
be managed carefully to avoid the potential for pollution, but they cannot be
seen primarily as pollutants that should be eliminated from the natural
The CFI is actively promoting the efficient use of its products, through
research into timing and placement of fertilizers, educating the industry
through the Certified Crop Advisor Program, and publishing agronomic and
environmental protection information. The industry is achieving this goal. The
fertilizer industry views its environmental stewardship as a source of pride.
Sound environmental practice is a key component of our industry's
The CFI hopes you will consider its recommendations for modifications to Bill
C-32 and we hope you have gained a better understanding of our industry and its
role in sustaining the Canadian food-production system and working towards
global food security. Fertilizer is the key to feeding the world.
Ms Sally Rutherford, Executive Director, Canadian Federation of Agriculture: On
behalf of the CFA, I should like to thank you for the opportunity of appearing
today. Considering the time, I will not go through our brief. I would request,
Mr. Chairman, if there are questions that remain, that we be given an
opportunity to return to answer them because our time here, to say the least,
will not be equivalent or equal.
For those of you who are not familiar with the Canadian Federation of
Agriculture, I can tell you we are a national general farm organization. Our 18
members include all of the provincial general farm organizations as well as
most of the major commodity groups. Our membership constitutes approximately
two-thirds of the practising farmers in the country. The issues on which we are
active range from economic to social to research needs.
It goes without saying that farmers are concerned about the environment. It
indeed makes their living. Being unconcerned about it jeopardizes their ability
to farm as well as their ability to safeguard their own families' health and
welfare. That is something that is very often forgotten.
The CFA continues to support the need for a broad-based environmental act, such
as CEPA. The CFA urges government to ensure legal and regulatory certainty for
inputs on which farmers rely. Biotechnology promises to solve some of farmers'
most pressing environmental problems, both in Canada and abroad.
This legislation attempts to deal with overlap and duplication. Farmers are
committed to the development and implementation of sustainable agricultural
practices and farm-level pollution prevention, and to the encouragement of
increased support of research -- government, academic and private -- and to
technology transfer in the area of environmental sustainability as it relates to
agriculture. It also provides for consistency between pieces of legislation in
the federal system.
Farmers indeed are moving towards self-regulation on environmental issues.
Farmers are committed to sustainable development as an integral part of the
Public perception of farmers' performance on the environment is often negative,
and the proliferation of incorrect statements is common. Farmers do want to be
consulted on environmental issues.
I would like to make a couple of statements. Considering that this record will
be printed, Mr. Winfield made some incorrect statements and I would like to
ensure that they are corrected on the record.
Dr. Winfield made a statement, in answer to a question from the Chair, in
relation to segregated product in Canada and the U.S. Product is being
segregated in Canada, at least to the same extent that it is being segregated
in the U.S. There are no laws in the U.S. that require segregation, just as
there are no laws in Canada that require segregation.
If one goes through the entire clause 106, it is practicably unbelievable,
unless one believes in a massive conspiracy theory by both this government and
the previous one, that ministers of the Crown would together collude to release
a substance that was known to be harmful. No part of that clause eliminates the
necessity for assessment.
Biotechnology is only one process and one technology. I am very concerned about
the apparent focus on biotechnology. Such a singular focus is, to a large
extent, irresponsible. One can do just as much damage and just as much good
with traditional technologies. Focusing all attention and all funding on one
specific technology means that less scrutiny is given to other technologies.
Biotechnology products must adhere to regulations as well as the products of
any other technology. They are not different.
I have been heavily involved in the debate on the endangered species legislation
for the past six years. I hear similar arguments here this morning. Many of
changes that CIELAP and similar groups are trying to accomplish are not wrong.
Perhaps their understanding of the science leads to disagreements, but my basic
disagreement is with their approach. They continuously cite American
legislation and American procedure. That simply confuses the issue. Our
government does not function in the same way as the American government. Our
constitutions are massively different. You cannot have an American system
function in a Canadian system just by plunking clauses into pieces of
legislation. That does not work.
Ignoring political realities is also irresponsible. We can have lovely words in
a piece of legislation. If no one, including the provinces, will abide by the
legislation because it does not fit either within our overall constitutional
understanding or within their abilities to act, then we have accomplished
nothing. Having words that will appeal to some people will not save any part of
That really is a serious concern. Some parts of the legislation have changed. We
do not have a concern about it. To pick up on a point that the Canadian
Fertilizer Institute made, there is no doubt that increased environmental
regulation is an increased cost for farmers.
Our brief does not say that we do not like this legislation. Our brief says that
we understand that we need strong environmental legislation. That brings
forward another point about the control within one piece of legislation. We
should be ensuring that every piece of legislation deals adequately with
environmental safeguards. Again, a singular focus allows other pieces of
legislation to be less stringent. Serious flaws exist in that argument.
To say that we like everything in the bill is incorrect. Many CFA constituents
do not like the requirements. It will cost them money to adhere to these
regulations, which do not stand alone but which come in the same basket as new
regulations on food safety and on animal transport; you name it. Farmers
practically need to be lawyers and chemists in order to get through the
regulations these days, let alone to practise farming.
Put succinctly, we support the bill because we know it must be there. The bill
could be different and we would still support the bill unless it actually
interfered with the abilities of the different departments to function. It is
ineffectual to try to create a new system of government by nitpicking at
specific clauses of a piece of legislation.
We can debate about how Canada is governed, but let us not try to change the
system by fiddling with these clauses.
Senator Chalifoux, you commented earlier on hog operations in the U.S. In
Canada, we do not have that kind of operation. The family farm model continues
to exist here. About 97 per cent of farms in Canada are family-owned and
operated. We are moving to larger models but we are nowhere near adopting U.S.
models at present.
We have learned from seeing the U.S. experience. From economic, social and
environmental points of view, putting that many animals in one space is
essentially a recipe for disaster, be they chickens or hogs.
There are some problems in Alberta. I do not think anyone will deny that.
Efforts are being made to contain and reverse the damage and to look seriously
at appropriate modelling and land-use patterns for farmers over the next number
Senator Hays: I have a question for the Canadian Federation of Agriculture
regarding biotechnology and how innovative technology is handled in that area.
Clearly, there is a difference between traditional plant and animal breeding
and biotechnology. The difference is the speed with which change occurs and the
potentially greater harm that can take place in transgenics. Dr. Winfield used
the example of Brazil nut allergies caused by altered soybean products.
Why do you think the current approval structure and the structure as envisaged
by Bill C-32 are safe? Do we have adequate procedures in place to ensure that
we do not create problems?
Ms Rutherford: That soybean product has never been marketed. It never got past
the research phase and it never will be marketed, certainly not without being
We have very strong regulations around things like allergens. The point is that
biotechnology is a process. The product of biotechnology, the food, must comply
with all of the other regulations that every other food must comply with. Those
around allergens, around toxicity, around health and safety issues and around
environmental issues from a cropping point of view, before they get to the food
stage, are all the same. The biotech stuff happens in the lab. It is a process.
As a country, we continue to have one of the most stringent and most respected
systems for assessment in the world. Again, that does not mean it cannot be
better, but we do have it. If we are to subject the products of biotechnology
to that same system, we are essentially meeting the needs that we must meet.
I understand the issue of the precautionary principle and the concern about
long-term impacts, but, at the same time, to use an off-the-wall example, the
nectarine is a hybrid between peaches and plums. If we were serious about
looking for long-term studies, we should remove nectarines from the market. It
is a relatively recent innovation.
Another example is the Delicious apple. It is a hybrid between an apple and a
pear. Will we take those off the market until we have longitudinal studies on
their impact? It becomes very quickly a difficult and emotional issue. That is
where it becomes contentious. It is difficult to prove one right or wrong.
Senator Hays: Questions arise out of the objectivity of the current departments
of government responsible for this. Would you comment on that? Is it possible
for the Department of Agriculture and Agri-Food to be objective? Some people
think not. I do not share that view, but let me look to you for a comment in
Ms Rutherford: One's view depends on how you actually see government operating.
Agriculture Canada works under a piece of legislation and is responsible for
numerous pieces of legislation that have to go through the House of Commons and
the Senate. The regulations have to go through the usual process of scrutiny,
both by the public and by government members. The minister does not get up one
morning and say, "I do not like that, so we will not do it anymore."
If the legislation and the regulations that exist now are not adequate, then
they should be changed. They are set out and they have to be followed. The
people who work for Agriculture Canada, just as the people who work for
Environment Canada, do not have the discretion to decide which regulation they
will abide by and which regulation they will ignore. If the regulations are
there, that is what they have to do.
We do not have the same food scares in this country as there are in the United
States. The reason is because we have a sophisticated and well-managed system
that abides closely to all of the rules, regulations and guidelines that are
set out for it. I think we can put considerable faith in that.
Senator Hays: I have one question for the CFI. We heard from the Canadian
Chemical Producers' Association about their Responsible CareR program and ARET.
Fertilizers are a chemical. Do your manufacturers participate in the
association and the Responsible CareR program and, if not, why not?
Mr. Larson: The manufacturers of fertilizers have a close working relationship
with the members of Canadian Chemical Producers' Association (CCPA), and we
share a number of similar issues and concerns.
Yes, we do use chemical technology in the processing or synthesis of our
product. I am not sure I would go quite so far as to say that we are chemical
based in the same way that the CCPA members are producers of chemicals. Yes, we
do take nitrogen from the air and chemically synthesize it into a
plant-available form of nitrogen. We use chemical plants to do that and we use a
natural gas feedstock as a source for hydrogen and energy.
We also use chemicals to process mined potash, but these deposits of potash are
ancient seabed that were laid down hundreds of millions of years ago. The
deposits of phosphate rock are essentially old dinosaur bones, and most of
central Florida is composed of these deposits.
Yes, we do chemically acidulate those products. We remove impurities. We upgrade
the products and convert them to a plant-available form.
Do we use Responsible CareR? We use various responsibility mechanisms, but our
industries are different. We have things like the Certified Crop Advisor
Program, which seeks to deliver and transfer technology from the science lab to
the farmer and the fertilizer retailer on best-management practices and the
appropriate use of fertilizers in order to protect the environment and achieve
We have manufacturing programs on manufacturing procedures. To the best of my
knowledge, ARET would not apply because our products, by their definition, must
be beneficial to plants, not toxic to them.
Mr. Micek: I can speak for our company, Agrium. We have an extensive set of
best-management practices. They run very much in parallel with the Responsible
CareR folks and deal with all the same issues. At the same time, we work very
closely with petrochemical companies on the side of Responsible CareR to
understand where they are going and ensure we are in step. I do not think the
fact that we are members or not members is really the important issue. It is
whether we take our stewardship of the environment and safety at our sites
responsibly, and we do. Our members have those programs in place to ensure that
Senator Chalifoux: Ms Rutherford, I find it interesting that you commented on
hogs. Does this bill prevent that type of thing from happening in Canada? They
wanted to put a hog plant in Lethbridge, and it left Lethbridge. They refused
it and it is now in Manitoba. How would this bill work with that type of
Ms Rutherford: This bill, in and of itself, does not address that type of
situation, nor would any of the amendments that Mr. Winfield suggested address
that situation. Building that kind of hog operation was rejected for a number
of reasons, one of which was environmental. It depends almost entirely on where
it is going to be located.
This legislation provides for an assessment and that will not change, whether it
is this bill or whether it is an amended bill. The need for an assessment is
there. Frankly, it is there from a provincial point of view, which is why it is
going from Alberta to Manitoba.
The federal government is not involved at that point. Where this bill could, by
default, come into play would be if, for example, it was decided generally that
building that hog operation in whatever way they were going to build it, with
no manure storage or whatever, was completely beyond the pale. Then, there
might be the opportunity for the federal government to move in. For that to
happen, we would come very close to a constitutional crisis.
This is the same argument that has been used with the endangered species
legislation and other pieces of legislation like that. It is a specific way of
looking at the Canadian Constitution in terms of how it operates and the roles
and responsibilities of the provinces.
The truth is that the power that the provinces have, either constitutionally or
just as a matter of course, makes this legislation apply to federal lands and
to those federal jurisdictions where it is clear that the federal jurisdiction
has primacy. In terms of the case that you have cited, senator, the federal
government would only come in after the fact.
I would not like to leave the impression that the Manitoba government at the
moment is being irresponsible for letting that hog operation in. I say that
because I have no idea what the stipulations are under which they have
permitted it and what steps the company has taken to ensure that they will meet
whatever Manitoba's stipulations in regulations and legislation are.
Senator Chalifoux: Does this bill make the issue of jurisdiction between the
federal government and the provinces more confusing, or will it assist in
defining that jurisdiction between the two levels of government?
Mr. Larson: The support we have indicated for this legislation is definitely
based on the premise of the Canada-wide Harmonization Accord on the
Environment, which the federal government and provinces signed before, or at
the same time as Bill C-32 was tabled in the House. With that harmonization
accord, there is the potential for different jurisdictions to determine when a
province will regulate an effort and when they will transfer responsibility to
the federal government or seek a federal coordinating role in an area of
specific jurisdiction. The provinces and the federal government have a good
record of working together.
Our concern with the legislation without the harmonization accord would be that
rather than ending up in a situation where the federal government and the
provinces and their bureaucracies would be required to work together to find a
common solution before they started to regulate, we would in effect end up with
battling bureaucracies, something which would be very costly. Certainly, it
would be costly for our industry to have to report to two different levels of
regulation. It would be of great concern to us. It would definitely affect our
Incidentally, in the U.S. I understand that they are now looking to devolve
environmental protection to individual states on the basis that more local
control is better and more sensitive to local concerns.
Ms Rutherford: The legislation that is before us involves certain amendments to
existing legislation. It clarifies certain points within the legislation and, I
think, updates it. The legislation sets out some guidelines and provides the
wherewithal for the federal government to take responsibility, should it need
to do so. Indeed, the use of the federal-provincial accords on the environment
and on a number of issues within the environment are the defining documents at
this time to determine who has responsibility for what. They are the documents
that make this kind of legislation work. Without them, we cannot write into a
piece of legislation like this the kind of rules that will make the system
Today, we are looking at the legislation. We are not looking at all the
regulations, schedules and everything else that will come about as a result of
this. Most often, they will be more specific in relation to how things will be
put in place.
Senator Chalifoux: I have worked for many years in northern Alberta. I live west
of Morinville, which is my constituency.
Mr. Micek: That is very close to where I work.
Senator Taylor: This legislation provides citizens with the right to sue. Has
the Canadian Federation of Agriculture given any thought to that provision? All
the environmental groups get a warm fuzzy feeling when they think of Bhopal and
Union Carbide or Esso, who have oodles of money.
Can you comment on the citizen's right to sue coming up against the right to
Ms Rutherford: Senator, the provision in the legislation is for a citizen to
challenge the decision of the minister in relation to a decision that has been
made. It is not to sue. One can certainly launch an action in a court against
anyone they choose, as long as they are willing to pay enough money to have it
happen. Some pieces of provincial legislation have similar provisions.
The provision is to challenge a ministerial decision; it is not to directly
challenge an individual or an individual company. It is a much more complex
system than that. That is not to say that it cannot be disruptive. It is of
serious concern to us. It is not necessarily counter to the right to farm. It
becomes a property issue. Certainly, it conflicts with the ability to manage
one's operations the way one needs to manage them.
There are other ways of trying to address some of those issues. We are not
trying to say that everyone should be allowed to do precisely whatever they
like and get away with it. That is clearly not appropriate, and there are
innumerable regulations that exist now in the provinces -- because it is a
provincial matter for the most part -- that forbid action that more than likely
would trigger this kind of thing.
From a farmer's point of view, the likelihood that it will be used against an
individual farmer is not very high at this point, but the possibility is there.
It is a concern because it could potentially be ruinous to an individual.
One of the growing difficulties with having family-farm-based agriculture is
that you may be incorporated, but it is your family that is incorporated as
part of the farm, or however you want to do that. You are not Esso or Shell;
you are not even one of CFI's members, so your legal defence fund will be what
is in your RRSP or maybe your kid's college fund, if it comes to that. It will
not be anything else. How an individual family corporation like that deals with
some of these problems is an issue that we will have to deal with more and more
in the coming years.
The Chairman: Mr. Larson, I understand, from what Mr. Micek said, that
fertilizers are not regarded as toxics. Is that correct?
Mr. Larson: That would be a fair, broad statement to make, yes. Fertilizers are,
by definition, plant food. That is not to say that, in some situations, the
effects cannot become toxic at certain concentrations. Something as beneficial
as ammonia, which is essential to the formation of proteins and to life itself,
which makes up smelling salts, and which is used in household cleaning products,
is also classified as a toxic product for transportation because the physical
form that it exists in is anhydrous, which means it is water-seeking, and it is
a pressurized gas and therefore can be harmful at a high level of exposure. It
is not normally what a biologist would describe as toxic.
The Chairman: Would your association object to the ultimate elimination of
substances that have an immediate or long-term harmful effect on our
environment or that constitute a danger to Canada and human life or health?
Mr. Larson: No.
The Chairman: Would that be the same for the Canadian Federation of Agriculture?
Would you have any objection to the ultimate elimination of substances that
have such a detrimental impact on our society?
Ms Rutherford: It would be foolish for someone to object to that. One of the
things we have to be very careful about, though, is how one goes about trying
to define what those words mean.
The Chairman: Phasing it out or dealing with it in some appropriate manner might
be better terminology.
Ms Rutherford: To use perhaps an off-the-wall example, mercury naturally occurs
in the grass. Cows eat grass, and there are trace amounts of mercury in cow
manure. Are we going ban cow manure because there is mercury in it? One has to
be very careful about how one goes about doing some of these things. To simply
have the words on paper does not mean that they are either possible to do or
even desirable, frankly.
The Chairman: But you would agree that it is appropriate to eliminate these
substances if they have these negative impacts on people and our environment?
Ms Rutherford: In a broad sense, yes.
The Chairman: I am not trying to eliminate grass here.
Ms Rutherford: But that is one of the difficulties. I am not arguing against the
elimination of harmful substances, but how do you determine how it is done? To
simply say that it should be eliminated is not good enough. If we use the
ammonia example, it is not good enough to say that because ammonia can be
toxic, it should be eliminated. We cannot eliminate ammonia, just as we cannot
eliminate mercury. We can eliminate it from certain uses, perhaps, and to
certain levels, but absolute elimination is not a rational approach. Again, no
one will object to the elimination of toxic substances.
Mr. Micek: I would second that opinion. In a philosophical sense, everyone
agrees with that. No one wants to see bad things wilfully emitted into the
environment that have a deleterious effect. At the same time, you must
understand that the environment contains a naturally occurring abundance of
these materials, which we live with all the time. We have to measure to what
extent elimination is reasonable and to what extent elimination is
unreasonable. Just take the example cited of mercury in the grass. Elimination
of emissions above the background level makes sense. Eliminating all grass that
has mercury in it does not make sense. That is where I am going to put
boundaries around the process. The philosophy is eminently acceptable; we all
believe in that. However, it is the degree that is important.
The Chairman: I understand what you are saying, but it is not philosophical if
it can be shown that a particular toxic constitutes or may constitute a danger
in Canada to human life or health, or may have an immediate or long-term
harmful effect on the environment or its biological diversity. That is not
philosophical. Those are pretty straight statements.
Mr. Micek: We are agreeing, but what does elimination mean? We get into that
conundrum between virtual elimination and virtual detection. You can take it
past the point where it produces any benefit, and that point is basically what
is found in nature already on its own.
Senator Hays: On the same topic, in his presentation, Professor Leiss made the
point that there are some toxic substances that you may want to have because of
the good that they do within a closed system, whether it is a chemical process
or whatever, but the release of the substance becomes the issue. Let us say
that there is a substance that in a closed system will have a catalytic or some
beneficial effect in producing something that we need. Provided that we are
satisfied that it is not going to escape, and necessary precautions have been
taken, then some would argue that the way to deal with that is to regulate it,
not have, as CEPA calls for, this red-light green-light approach whereby, if
something is toxic, it is to be virtually eliminated, even though it has a
positive impact in terms of being used in a closed system process.
Does that affect your answer in any way? I hear you both saying that these
things should be eliminated, period, because they are inherently toxic and have
no beneficial effect. This is a really interesting part of the dynamic that we
hear between witnesses.
There are many who believe that if a substance falls within that definition,
then it must be virtually eliminated. There are others who step a little bit
back from that, and there are some who step quite a way back from that, and say
that, before a substance is eliminated, we should determine if it is useful in
this process or that process.
I am sorry that I do not have a good example of an inherently toxic substance
that might fit that category. I just want to ensure that I hear you correctly
that even if a substance has a beneficial effect, you want it gone?
Senator Taylor: Arsenic might be an example.
Mr. Micek: My response is in the context of emissions to the environment. Where
there is no emission to the environment, there is no damage to it. As long as
you can ensure that the substance is not released into the environment to cause
the effects that cause concern, it is a matter of ensuring that the process is
in place to deliver that security. That becomes a cost-benefit analysis.
The problem with many of these discussions is the degree to which one would take
the examples. There are many examples in the medical world where medicine that
cures at one dosage is a strong poison at another dosage. Again, you leave it
to the expert practitioners to determine the proper dosage.
Specific examples can provide some hard numbers. We must be very careful, and it
comes down to a matter of degree. I am not very familiar with phosgene or
other, worse materials. If limits are placed on the emission of such substances
to the environment, then it is up to the individuals or organizations that use
the material to ensure that it does not leave their facilities in quantities
that exceed the imposed limits. The substance is thereby limited to its
beneficial use because it makes sense and because the cost of protecting the
environment will affect that usage.
My comments are concern the substance that is leaving the container. I would not
necessarily prohibit it from going into the container, depending on the
Ms Rutherford: We would concur with that and, by the same token, with the
definition of biotechnology and its uses.
Senator Cochrane: Phosgene in chlorine was mentioned by the previous witnesses.
We need small doses of phosgene because we need chlorine in our water to purify
it. Previous witnesses also mentioned that we need manganese. Multivitamins
You say that you are moving towards self-regulation. You would prefer that the
agricultural industry and the farmers regulate themselves. Do you not think we
need some regulatory controls to deal with the cases where self-regulation is
not working? I believe most farmers are environmentally responsible but, like
any other industry, some are exceptions to the rule.
Ms Rutherford: In self-regulation, we are not talking about eliminating existing
regulations or even avoiding more stringent ones. We are talking about actual
codes of practice and management practices, which implement those regulations
to a degree of enforcement that the government itself cannot achieve.
Farmers are self-regulating and self-enforcing for existing regulations. Most
set higher standards than the existing regulations. Actual implementation of
the regulations is occurring not only on the environment side but on the food
safety side, as well. Again, we can have all the right words in the legislation
but without monitoring and enforcement, we only have nice words on a piece of
Senator Cochrane: One witness mentioned that farmers should be consulted on
environmental issues. Is there no consultation happening at present with the
Minister of the Environment?
Mr. Larson: Yes, farmers have consultations with the Minister of the Environment
on an ongoing basis on a number of issues. They do not call once a week to get
our opinions, but we do meet frequently with Environment Canada officials.
Senator Cochrane: Do you feel that the interests of farmers are being addressed
in regard to decision making?
Mr. Larson: I cannot speak for the interests of farmers. I can speak about the
interests of the fertilizer producers. To a significant extent, I would say
yes, with some notable exceptions. Perhaps this speaks to the last two
questions and statements.
When we are discussing the need for regulations, whether enforced or voluntary,
and whether in a closed system or an open one, we often forget the impact on
the business. What is the paper burden? What is the cost of complying with the
reporting requirements? Is there any improvement in environmental protection by
making that requirement versus finding another, more flexible way of achieving
We had an unfortunate experience with Environment Canada when they requested
data on ammonia. We told them that the question was worded in a way that would
defeat their purpose. We offered to supply them with the data. We were refused.
We told them that the numbers they would receive would be useless. They
insisted on proceeding anyway. The form went out to fertilizer producers,
retailers and farmers. They got back meaningless information. Then they called
us and asked for help. This happened because they did not understand the issue.
They did not understand the information they were requesting. They did not
understand the science behind it.
We talk about the appropriate regulatory agency being the regulator. That is
because they have a basic understanding of the issues. Without that basic
understanding, great problems can be created.
I explained this issue to one assistant deputy minister in Environment Canada.
He shook his head in disgust. Everyone can make mistakes and everyone can do
things right. We seek to work with Environment Canada to do things right. Many
of their scientists work at the highest level of scientific ethics. They pursue
solutions to environmental problems and look for ways of jointly building
On the other hand, there are times when there are difficulties. With this
legislation, we are looking for workability -- creating a piece of legislation
that we can work with so that regulations to protect the environment can be
implemented in an affordable way. We want them to protect the environment and
not destroy the competitiveness of the Canadian economy. Let us find ways of
avoiding unnecessary regulation that will simply cost money and not improve
anything at all.
Senator Cochrane: Do you feel that Bill C-32 is workable for the fertilizer
Mr. Larson: Yes, with the government amendments at report stage, I think we have
resolved most of the major issues and concerns that we had around workability.
The bill is at the point where we can work with it.
We would like to see other changes. We ran through those at the introduction of
our brief, so I will not do so again. However, we would certainly like to see
some other things happen in Bill C-32. The broad answer is that most of the
bill is workable to the point where we are asking for a half a dozen changes,
Ms Rutherford: I think we are in the same position in regard to the legislation
as Mr. Larson just outlined for the CFI.
I appreciate the attitude with which this committee is dealing with its
witnesses. To speak to your question, as often as not, Environment Canada sees
us as the enemy, right off the bat. It is difficult for both sides to get past
that. When one side assumes that the other is wrong, you do not end up with a
very good dialogue. You are not able to impart certain information or have the
other side believe that it is important information.
The House of Commons Committee on the Environment was incredibly rancorous. It
was very insulting, frankly. As a Canadian, I am certainly entitled to my
opinion. My organization is entitled to its opinion, whether anyone else agrees
with it or not. To be given the opportunity to come here and to be asked
questions politely is a real credit to yourselves and to the process.
We must deal in a better way with Environment Canada. We have had an opportunity
on the Health Canada side with the Pest Management Regulatory Agency (PMRA),
with which we have also had a difficult relationship over a number of years,
but with whom now, much to everyone's surprise, we are developing a good
working relationship. We do not agree on many things, but we have at least
reached the point where we can work together to find appropriate solutions that
will actually work. That is the position we would like to be in with
Certainly, a different process was used for the endangered species legislation
than was used for CEPA. They have made efforts to move in that direction, but
it is a hard move for everyone.
Senator Cochrane: Are other sectors of industry in the same situation with
regard to the Department of the Environment as you are in?
Ms Rutherford: I think it is pretty widely held. If you make any money at all
off anything besides consulting on environmental issues, there is a black mark
against you before the walk in the door. You can often erase that quickly.
By the same token, we are often suspicious when we are called up and asked. It
would be nice to be able to eliminate some of those difficulties. I think all
sides are attempting to work at that. It does not exist only on the private
sector side but within the government itself. It is a matter of territory and
turf and trust, but if we could all enter the process with the feeling that we
all want the best for the environment, understanding that we are all coming at
it from different points of view and different attitudes, then the process will
With the PMRA situation, we have given a lot more than anyone ever thought we
would. Simply having someone sit down and explain some of the things we did not
understand and being able to explain to them what they did not understand has
made a huge difference. If we could have that kind of relationship with
Environment Canada more often, we would all be better off.
The Chairman: Thank you all for being here today and sharing your thoughts with