Proceedings of the Standing Senate Committee on Energy, the
Environment and Natural Resources
Issue 22 - Evidence, August 30, 1999 (afternoon 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 2:30 p.m. to give consideration to the
Senator Ron Ghitter (Chairman) in the Chair.
The Chairman: Colleagues, we will resume our hearings on Bill C-32.
We have with us this afternoon representatives of the Canadian Chamber of
Commerce and of Centre patronal de l'environnement du Québec.
Ms Nancy Hughes Anthony, President and CEO, Canadian Chamber of Commerce: On
behalf of the members of the Canadian Chamber of Commerce, I want to thank you
for the opportunity to appear before you today to provide our views on Bill
I am joined today by Mr. Bob Redhead, who is the chair of the chamber's
The Chamber of Commerce is the largest and most representatiave business
association in the country. Our members represent the full range of businesses
in Canada, which enables us to act as the mouthpiece of all business sectors.
As a result of our network of some 500 local chambers of commerce and boards of
trade, we have partners in all federal constituencies. Our network comprises a
total of more than 170,000 members and includes active businesses of all sized
in all sectors across the country.
I am sure that many senators have knowledge of chambers of commerce and boards
of trade in their particular communities.
The Canadian Chamber of Commerce supports the principles and application of
Through its environment committee, we are actively involved, along with other
business groups, in advocating for legislation that facilitates our members'
development and implementation of guidelines and action plans that will help us
to attain truly sustainable development. Accordingly, we were extremely pleased
that sustainable development was made an overarching policy goal of a renewed
Canadian Environmental Protection Act.
Making this a cornerstone of the legislation enables the making of decisions
that will respect both the environmental concerns of Canadians and the economic
realities of various courses of action.
When we appeared before the House of Commons Standing Committee on Environment
and Sustainable Development in June 1998, we testified that Bill C-32 was, in
our opinion, much improved over the previous bill, C-74. The previous bill
represented a command-and-control approach to environmental protection that
would have hurt Canadian competitiveness without clearly enhancing
Although Bill C-32 continues to favour a command-and-control approach, we were
pleased to see that many of our concerns with the previous bill were addressed.
For example, Bill C-32 recognizes the federal-provincial harmonization
agreement, which provides the opportunity for a consistent framework for
environmental protection in Canada.
We were, however, very concerned with the large number of amendments that the
committee of the other place made to Bill C-32. Some of those amendments indeed
removed sustainable development as the cornerstone of the bill and had the
effect of making it unworkable. In particular, references to actions being
cost-effective and rules for considering economic and social effects of
regulations were removed. It was, therefore, appropriate for the House of
Commons to make a number of amendments, proposed by the government at report
stage, which have since restored some of the sustainable development focus of
I need not tell you that Bill C-32 is a very long and complex bill. The Canadian
Chamber of Commerce suggests that any further changes to the bill before you
would require detailed discussion and lengthy assessment of the implications of
the changes to other parts of the bill. Although the Canadian Chamber of
Commerce, after almost eight years of engagement in the CEPA review process,
continues to have some concerns with some clauses of the bill, we believe that
it is time to pass the bill and get on with the business of implementing it.
That said, Mr. Chairman, we would like to highlight several of the concerns that
we hope can be dealt with at a future phase of improving environmental
legislation. We should like to highlight those today for members of the
I will ask Mr. Redhead to raise those specific issues. At the end of our
presentation, we will both be pleased to answer your questions.
Mr. Bob Redhead, Chairman, Chamber of Commerce Environment Committee, Canadian
Chamber of Commerce: Mr. Chairman, honourable senators, I should like to say at
the outset that the chamber supports effective framework environmental law and
the enforcement of those laws. We have been engaged throughout the evolution of
the current Bill C-32. Recognizing that it is a complex and convoluted bill, we
have a number of concerns that we wish to share with the committee. These
concerns are laid out in our detailed brief, which you should have received.
First, with regard to the application of virtual elimination, we are concerned
that the definition of "virtual elimination" is based on achieving
releases below the level of quantification. This goes against the government's
own toxic substances management policy of not chasing the last molecule. A
level based on going below the smallest amount that can be measured and an
unachievable moving target, which will get lower as measurement capabilities
improve, is a disincentive to investment, a challenge for our larger members,
and perhaps impossible for our smaller members.
We understand, however, that the release level to be achieved under virtual
elimination will be determined using a risk-based approach. We need a limit
that is achievable and this provision will allow for that. We also support the
provision that the level should be set by the Governor in Council and should
consider risks as well as social, economic, and technical matters.
With regard to voluntary initiatives, the Canadian Chamber of Commerce has long
been a supporter of voluntary initiatives as the preferred way of achieving
environmental protection. We have supported programs such as ARET, the VCR, and
CIPEC. Therefore, we were pleased to see that the bill recognizes pollution
prevention and environmental emergency plans that have been created
voluntarily, providing that they meet the requirements of CEPA.
We were disappointed, however, that no acknowledgement of voluntary initiatives
was included in the preamble. This is an important issue, especially in light
of the role voluntary measures will play in meeting Canada's climate change
With regard to sustainable development, we submit that there is now no major
industry in the world -- automotive, chemical, petroleum, pulp and paper,
steel, et cetera -- that does not understand the importance of sustainability
and that is not taking firm action to implement it. We want to be instrumental
in furthering this approach with small to medium-sized enterprises, which make
up a large number of the members of the chamber. Although sustainable
development was made a cornerstone of the bill in the preamble, we would have
preferred that the principles of sustainable development had been more clearly
carried through the rest of the document.
Concerning pollution prevention, its definition in Bill C-32 excludes recycling,
reuse, and recovery options. Recycling is an example of a cost-effective
measure that results in less pollution and is implementable by SMEs. The
recognition and encouragement of recycling options will result in the
development of new recycling technologies. Some of the most important pollution
prevention advances have and will continue to occur in the quest for maximizing
the utility of a resource. Recycling and reuse are consistent with this
Bill C-32 focuses on pollution prevention, an essential and integral component
of sustainable development. We have suggested to our members that pollution
prevention can best be achieved using the precepts of eco-efficiency.
Eco-efficiency does not focus merely on reducing material use and waste, but
rather emphasizes resource productivity; that is, maximizing the value-added
per unit of resource input while minimizing resource consumption. Bill C-32
will facilitate this advanced approach.
With regard to fees provisions, Bill C-32 authorizes the ministers to charge
fees for services required under CEPA. If these fees are in fact intended to
implement cost-recovery measures, they should be subjected to the rigorous
Treasury Board review of cost-recovery initiatives. The Canadian Chamber of
Commerce is on record as supporting the principle of cost recovery for federal
government programs and services. The introduction of user fees that reflect
delivery costs can reduce excess demands for services and can contribute to
improved economic efficiency of government operations, especially in times of
However, we have also indicated our concern that excessive or poorly designed
user charges can be extremely harmful to individual businesses and to the
economy as a whole. The most serious concern of business is that departments
may be increasing user charges in order to offset budget reductions without
first taking the necessary steps to streamline operations and to reduce costs as
much as possible. This concern arises especially in those cases where
departments are in monopoly positions, able to dictate both the level of user
fees charged and the level of services that firms must purchase if they are to
continue doing business in Canada.
In cases where the recipient of the services is the primary beneficiary of the
service, cost recovery may be appropriate to ensure that the taxpayer does not
have to cover the cost of activities for which there is little societal
benefit. For other activities, however, there are many cases where society as a
whole is the primary beneficiary, especially with respect to environmental
regulations and the enforcement of them. In such cases, we submit, it is
inappropriate to charge the cost of the activity to the regulated party.
With regard to waste management, the bill establishes a major new waste
management role for Environment Canada, duplicating provincial activities,
funded through fees. It creates regulation-making power for import, export,
transit, and movement within Canada of wastes and material. We recognize that
one of the objectives is for the federal government to live up to its
commitments under the Basel Convention. We submit that it is still necessary to
work in harmony with the provinces in areas that fall within their
Ms Hughes Anthony will now conclude our comments.
Ms Hughes Anthony: Cooperation between industry and government is essential for
successful protection of the environment. While the new CEPA retains all the
traditional regulation-making and enforcement power of the old act, the focus
on pollution prevention will provide an important new tool to improve
environmental results and move us toward our sustainable development goal.
Rather than telling industry how to achieve a specific result, pollution
prevention can allow industry to develop and demonstrate to governments and
society in general how innovative we can be when provided the opportunity.
Canada deserves best-of-class environmental legislation. Bill C-32 does not
quite make the grade. Although flawed in a number of ways, this bill is an
improvement over the existing act. We would encourage the Senate to pass the
bill in its current form without making changes.
If it is passed into law, there will be a statutory review in five years and it
can be improved further in advance of that time. The issues that we have raised
before you today can be taken into account then as well as being addressed in
the regulatory development process that follows the passage of new legislation.
Thank you for this opportunity. We welcome your questions.
Senator Spivak: I am very pleased to see that the concept of eco-efficiency is
supported here. I would not have expected otherwise. It is an excellent
concept. Even Michael Porter, the guru from Harvard, suggests that business
needs to become eco-efficient or it will not be competitive.
Could you give us your definition of the term "cost-effective" as it
occurs in the preamble and in clause 2(1)(a)?
Mr. Redhead: The definition for this bill has been discussed many times by
others. The ability of the regulated community to respond to regulation must be
recognized. That sense of cost-effectiveness is the one that most concerns me.
We need the ability to make the changes if changes are required. It is in that
context that I would see the use of the term.
Senator Spivak: The term "cost-effectiveness" is not defined in the
bill. You see it as referencing the cost to industry? You say the cost of
regulation should be measured against the result of the change; is that
Mr. Redhead: Cost is measured in many ways. The broader concept of societal cost
must to be taken into account as well as the cost to industry. The cost to
industry to implement change is one of those societal costs.
Senator Spivak: In terms of virtual elimination, we are discussing the most
serious persistent organic pollutants, which share the three designated
characteristics with which I am sure you are all familiar.
Are you opposed to phasing out these substances, as opposed to controlling their
use? We are not talking about 23,000 substances. We are talking 12 now, perhaps
20 eventually, very detrimental substances.
Are you opposed to phasing out the use of these most serious substances?
Ms Hughes Anthony: I do not now if that issue was specifically discussed by our
environment committee. To be fair, we can only respond to those things on which
our members have given us their views. I am not sure we can answer that
Mr. Redhead: We have discussed it to a degree. In our comments, we have
reflected some views on the matter.
Virtual elimination should be effected by minimizing the emissions of such
substances. In some cases, the ability to do that is very difficult. In some
cases, alternate materials are available. In some cases, you have no choice
about the presence of a substance. The ability to determine whether to use
something is not necessarily dictated by the user.
Senator Spivak: We are talking here about the most persistent organic
pollutants, not about magnesium or things that, in small quantities, might be
good for us. The debate around this bill concerned whether such POPs should be
phased-out or whether we should look at controlling their use. On what side of
that question would you fall?
Mr. Redhead: To repeat, certain substances are controllable within an industrial
process and some are not necessarily so. Where substances can be substituted,
that option can be followed. In other cases, there is no choice, as I
understand the process.
Senator Spivak: I am sure you agree wholeheartedly with the concepts of
sustainable development. That is almost a motherhood concept now. Who should
set the standards for defining sustainable development?
You seem to oppose a command-and-control approach. I understand that. In many
areas, such an approach has been abandoned for environmental policymaking. One
man's sustainable development is another man's sustained yield.
Ms Hughes Anthony: We say in our brief that government's role is to set the
framework. We should get on with establishing that framework so we can at least
use it as a basis for going forward.
We do not want to crush any voluntary initiatives. Indeed, incentives should be
given to encourage and increase such initiatives. When the business community
acts independently, without feeling the heavy hand of regulation over every
single move, then they should be rewarded. Businesses do know that sustainable
development is good business.
This is a balancing act. Government has a role, as does society, as does
industry. We encourage you to proceed with this framework legislation, get it
on the books, and then we can work together to see if it can be improved.
Senator Spivak: You do see the federal government as having a role in setting
the standards for sustainable development?
Ms Hughes Anthony: There is certainly a role for government, yes.
Senator Cochrane: Mr. Redhead, you say you are concerned about the
waste-management provisions in the bill. You note the need to work in harmony
with the provinces.
Is it not absolutely necessary that the federal government regulate the
transportation of these hazardous wastes across provincial and international
I am not sure if I am comfortable with your suggestion that there should be open
borders for waste disposal throughout North America. We would be risking our
environment to the point where it might become a waste dump for the United
Mr. Redhead: The transportation of hazardous materials is covered by the
Transportation of Dangerous Goods Act. The provisions of that act that are
specifically related to waste have been imported into Bill C-32, and we
certainly support that.
The comments in our brief are specifically oriented toward a layering of
responsibility between the federal and provincial governments. It is not clear
from this bill or other provisions whether the federal government would oversee
inter-provincial shipments and international shipments or whether we would have
both agencies. That is the point of the comment.
The way in which we have used the "open borders" in our brief may be
misleading. What we meant is that the movement of materials back and forth
across the Canada-U.S. border is important for the manufacturing sector and
others within business in Canada and the United States. We envision a
circumstance more like that which exists in the European Community, where
materials move between countries, as they do now between our provinces, without
the extra layer of the international provisions that are being considered. That
was the intent of that particular piece, not to have an unencumbered activity
but one that is facilitated by information flow, et cetera, which is more like
the interprovincial circumstance.
Senator Cochrane: Do you not think the federal government should have that
authority to control the regulation?
Mr. Redhead: Yes, if the federal government has the ability to do that and the
provinces are in a position to defer to the federal government for that
activity. The challenge is when you have duplication of manifests, et cetera.
That is what we were referring to there, certainly not to abolish the idea of
manifests and control. It is just that it would be in the hands of one agency.
Senator Chalifoux: My question has to do with pollution prevention. I appreciate
what you have stated in your brief. It is enlightening. Do your members
currently prepare for emergencies that might involve toxic substances? Through
the chamber, do you even discuss that sort of thing, because pollution
prevention for toxic substances is very important.
Mr. Redhead: We certainly do discuss it, and it is exceptionally important, as
you have stated. I would submit that in our group deliberations we would not
discuss emergency preparedness as much as would more sector-oriented groups,
such as the CCPA and others. They will work with their members to develop those
capabilities. Given the broad nature of this issue, we would be more oriented
toward encouraging our members to move forward with their planning. We certainly
recognize the importance of it and would advocate within the work we do with
the members that that is something that has to be done. It is provided for
under the Transportation of Dangerous Goods Act now; however, that is how we
would address it.
The Chairman: My question, Mr. Redhead, relates more to what you did not say
than to what you did say in your remarks. The second paragraph under "Conclusion"
in your brief begins with the following sentence:
Canada deserves "best of class" environmental legislation, and Bill
C-32 does not quite make the grade.
The next sentence you did not read, which states:
Unworkable legislation simply fosters an uncertainty that discourages
investment, harms productivity and negatively affects unemployment.
It was interesting that you did not read that sentence. Were you suggesting that
perhaps this legislation falls into that category?
Ms Hughes Anthony: Senator, there has been a lot of discussion about the
complexity of this bill. There is no doubt that amongst our membership that is
of tremendous concern. It is burdensome for everyone to keep track of the
number of amendments, counter-amendments, and so forth. We are at a point where
everyone needs certainty. In addition to certainty, guidelines to action are
needed. It is our hope -- and I throw this out for discussion amongst committee
members -- that there will be some process on the part of government leading up
to a revision of this environmental legislation that will enable an orderly and
understandable improvement process.
I do not think we are in a position to say whether this bill is workable or not.
A tremendous amount of effort has been put into it. We need some legislation on
the books and we see this as an improvement to the previous legislation. We
encourage the government to get on with it; give us a basis upon which we can
all work together going forward.
The Chairman: I thank you both for your interest and for being so articulate in
the presentation of your brief.
I would ask our next group to proceed.
Mr. Daniel Gagnier, Vice-President, Corporate Affairs, Environment, Occupational
Health and Safety, Alcan Aluminium Ltd.: Alcan has a presence in some 20
countries. It has been actively involved under the existing legislation and
under voluntary measures in reducing its emissions. We have been rather
successful in reducing PAHs -- polycyclic aromatic hydrocarbons -- to water,
completely eliminating them, and have reduced PAH emissions to air from our
smelting facilities by over 70 per cent since 1983. With the closure of an old
smelter in Isle Maligne, we will have achieved an 80 per cent reduction. I make
that point only to show you that voluntary actions can lead to significant
The process to bring a revision of this statute into law has been both lengthy
and trying. It has raised complex issues that have been subject to extensive
debate. While industry remains concerned with the bill, from Alcan's point of
view, in its present form we can work with it and we can improve on it as we go
into the next five-year period.
What we fear the most is another round of interminable debate in which people
with very different agendas try to find some consensus or some common ground.
One of the most pressing issues for us in this particular round has been the
definition of the precautionary principle. To answer the senator's concern
about cost-effectiveness, clearly it was taken out of parts of the bill, and I
am talking about that definition of the precautionary principle and
cost-effectiveness that is internationally recognized. We were faced with an
inconsistency, where we did not know whether one or several definitions were
The second issue that of concern for us was that of virtual elimination, not
because we do not believe that toxic substances, once they have been clearly
labelled as toxic and subject to virtual elimination, should not be eliminated,
but because we found a lot of uncertainty in how different people were
interpreting clauses of the bill.
We are in the business of replacing older smelters with state-of-the-art
technology. In our discussions, not within the industry associations but with
Canadian officials, public servants, we were told that some of the PAHs would
be subject to virtual elimination. We had a problem with that because, in one
particular instance, we were told that BAPEs would be subject to virtual
elimination. I have to tell you -- and this is not merely an Alcan point of
view; it is the view of the aluminium industry worldwide -- there is no known
aluminium smelting technology that will not emit detectable levels of BAPEs. It
is not an issue of whether you find them being emitted by forest fires or
wood-burning stoves or barbecues. The issue is this: Until we can identify the
technology that does this, then you are faced with a choice of either
implementing the legislation you have, as it will be determined in this case by
the courts, or living with the consequences of that.
I can only speak for Alcan. Alcan will not, under any circumstances, continue to
operate its facilities if they are not in compliance. That is our policy. It
does not mean that we are perfect, it does not mean that we do not make
mistakes, but we do go back and fix them.
We had a problem with virtual elimination. We believe that the current version
of the bill provides clarification on this and provides for some ministerial
discretion based upon the determination of permissible levels on the basis of
appropriate risk-assessment and risk-benefit principles.
This bill will impose new demands on industry, such as increasingly stringent
reporting requirements. We support those improvements. I want to be absolutely
clear on that. Alcan believes that transparency is key to public acceptance of
policies. In fact, we believe that continual environmental improvements are
best promoted through an informed public's right to know rather than through
heavy-handed regulatory measures. I do not mean here that regulation is not
required or even desired, but it has to be the right kind of regulation.
We recognize increasingly that our licence to operate rests in public support.
That is why I am here today, and that is why I say that, while this bill -- and
I have heard this from many people -- may not be perfection itself, it is a
step in the right direction and we can work with it.
The Chairman: Before we go to any further presentations, we will ask Mr. Gagnier
some questions so he can catch his plane.
Senator Spivak: You are aware that even the Commons committee was not of the
opinion that BAPEs had to eliminated immediately. What they wanted to say was
that that was the goal and therefore steps should be taken. The reason this is
important, of course, is that, as you know, there is an upcoming convention on
POPs. In your case, it might take 20 years for those to be eliminated, and I
think government recognizes where things can and cannot be done.
However, if we take the position that we only can control use, that we cannot
phase-out, that will put a different context on the issue, not only in Canada
but worldwide. I am curious as to why industry lobbied to eliminate taking
steps toward an ultimate goal, since that has such a major affect. Look at all
the steps we would have to go through to get to that virtual elimination list.
That is one question.
I will ask you my second question at the same time. It is with regard to the
issue of cost-effectiveness. You are saying you subscribe to the meaning of
cost-effective as it is known internationally. There are about 67 conventions,
many of which do not mention cost-effective. This proposed legislation will
have to be administered. The bill has two versions, one in French and one in
English, which have totally different meanings according to some people from
whom we have heard. What is your understanding of how cost-effective will be
administered here in Canada? What would be your desire? I ask because we do not
have a definition in the bill.
Mr. Gagnier: There are two things that I have come to learn over the last couple
of years. Whether I am dealing in Europe or Canada or the United States,
depending upon whom you are speaking to, one of the three legs of sustainable
development gets taken out. If you are talking to some people on the industry
side, they sometimes like to take out the issue of sustainability or the
environmental component or they like to redefine it. If you are talking to
people on the extreme environmental side, they like to remove the term "cost-effective"
because they do not want to wait until we have developed a technology to
replace ageing plants and for managing our resources for capital stock
turnover. We have two extremes.
I will give you my understanding of "cost-effective." I accept the
internationally accepted definition of the precautionary principle, which
states that, where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for postponing
cost-effective measures to prevent environmental degradation. To me, that is
simple enough. I can grasp it.
One of the things that the regulators will have to do as they cope with this
bill is to try to find a definition for many of these things. If we never
modernize the bill, if we do not take the steps, then we will wait another
three or four or five years to get to some certainty even in Canada on what we
as Canadians are prepared to accept as cost-effectiveness, or virtual
elimination, or any other terminology used in this environmental bill.
Senator Spivak: Mr. Gagnier, with all due respect, you have not defined what
cost-effective means. You have merely inserted it just as it is in the bill,
but there is no definition.
Never mind the bill, do you really have an objection? Let me give you the
example of the CFCs in the Montreal protocol. Industry said they could never
phase-out what was required in that protocol; but, since the threat was so
severe, they did indeed phase-out CFCs and they probably found a whole new
market in doing it, such as China, so they will make a lot of money.
My question to you is this: What is wrong, as an ultimate goal, with taking
steps to ensure that things that are seriously wrong -- again, we are not
talking 23,000; we are talking 12 to 20 -- be phased-out? Those words were
taken out of the bill. Industry wanted them taken out of the bill.
Mr. Gagnier: Senator, I will speak from my own experience. I know that it is all
in the eye of the beholder. If you restrict the principle of virtual
elimination to the 20-odd substances that are there, people say, "Fine, we
understand that." If you say that any substance that meets a particular
criteria can be labelled toxic and will then be subject to virtual elimination,
then there will be an effort to get all kinds of substances labelled. We have
lived with this in many of our communities. If the legislation is not clear,
you will be running defensively instead of pursuing what we think is good
policy, which is continual improvement. I speak for Alcan now, not for the
industry. Alcan will push the limits of the envelope as far as its technology
and financial resources allow.
When people say that we should have a non-combustible anode and that we would be
able to develop it if we put enough money into it, I tell them that we will
have one, that we have already spent hundreds of millions of dollars on R&D,
but that we may not reach that stage for another 10 years.
If we do not apply rigour to our research and technology in this area, we run
the risk of using technologies that will have nefarious consequences. They may
work on anode consumption, as an example, but they may use up so much energy
that they will cause a problem elsewhere. It is a balancing act.
We must educate our people to go as fast as possible, resources and goodwill
allowing, to resolve some of these issues. We are doing that now. We are
spending close to $175 million a year on environmental issues, and we are not
alone. Among most large and sophisticated corporations, no one wants to be a
polluter. No one any longer believes that pollution, either here or elsewhere,
constitutes good business.
We can wait another year or two for this kind of legislation. We will not
suffer. We will go back to the old act, which I hear is one of the options, and
we will continue to work. However, at least some improvements would allow us to
get on with our work more quickly and amiably.
The Chairman: Are you saying that an industry that is polluting our atmosphere
should take whatever steps it can economically to reduce that pollution, but
that the government should allow it to carry on for cost-effectiveness until
the science or the money is in place to accomplish the reduction of that
Mr. Gagnier: No. We have already established criteria. We already conduct a lot
of research in our plants and communities to determine what our emissions are,
how we can reduce them, and what, if any, effects they are having on the
communities. If an emission has a health impact on a community, you must act.
The health of our workers and of the people living in the communities in which
we have operations is our first priority.
The criteria are well established for deeming substances toxic because they are
bioaccumulative, persistent, et cetera. We are not saying that as such there is
a right to pollute. We are saying that in the aluminium industry, including
Alcan, there are emissions. Since 1980, we have consistently reduced those
emissions. God willing, one day we will reach the point where technology will
allow us to get rid of them altogether. However, at the moment we cannot change
the laws of physics.
On the other hand, we are doing a lot of research into identifying how our
product can be environmentally helpful. Recycling has already been mentioned.
Also, because of the properties of the metal, aluminium will reduce 20 times
its CO2 emissions through certain applications in transportation.
It is always a matter of choice. I can point to hundreds of examples where that
balance must be achieved. That is the spirit in which I make my comments.
Senator Hays: Mr. Gagnier, I want to ensure that I understand you. Am I correct
that you do not object to the phase-out, that what you desire is some
flexibility in terms of the phase-out or the period of time within which a
toxic substance is eliminated? Do I understand correctly that a function of
that, in terms of determining the time frame within which the chemical will no
longer be available to you because it is required to be virtually eliminated,
is whether it is being released or whether it is a processed chemical that is
not released and there is some reason to believe that it will not be?
Mr. Gagnier: If BAPEs were found to be a persistent CEPA toxic and scheduled for
virtual elimination because it met the criteria in this legislation, Alcan
would have to do one of two things. It would have to come up with a plan to get
rid of those emissions or close its aluminium smelters.
As I said at the beginning, as a matter of policy Alcan will not operate outside
compliance, here or anywhere else. We look not only at the intent of
legislation but at what can be done with it once it becomes law. Alcan has no
wish to be taken to court to defend its actions. We will, but that adds cost.
We have been taken to court on many agendas, so know, from personal experience,
that once a law is enacted it has its own dynamics, and the judiciary will
establish how that law is to be implemented.
Our wish with this bill was that it be consistent in the definition of "precautionary
principle" and that virtual elimination, not only for the 20 substances
deemed CEPA toxic but for all the other substances that could come under review
in this bill, would allow us to continue our environmental improvements and
would not impose upon us a burden that we cannot sustain.
Senator Hays: You operate in 20 countries. From Alcan's point of view, where
does Canada fit regarding effective control of the release and existence of
toxic substances in the environment?
Mr. Gagnier: Everyone is looking for the same thing. My colleagues in Jamaica
are as adamant about environmental protection as are my colleagues in Germany.
Canada has a sophisticated population, one that is increasingly concerned about
environmental values at all levels.I believe that our environmental legislation
is as good as I have seen anywhere and that we are as active on that front as
any other country. Developing countries may not have the resources we have to
implement environmental legislation as broadly as we do.
The Chairman: Mr. Gagnier, if Alcan cannot meet the criteria in clause 64
dealing with the health of our citizens and our environment, you must either
find a way to meet that criteria or close down. I do not think Alcan would want
to cause the criteria referred to in clause 64.
You have one of two alternatives, in any event, do you not?
Mr. Gagnier: We will meet the health requirements of every one of our
communities in every jurisdiction in which we operate.
The Chairman: If you are meeting the requirements of clause 64, you do not have
to worry about virtual elimination.
Mr. Gagnier: We are not.
The Chairman: You are not what?
Mr. Gagnier: We are not worried about virtual elimination. Our concern related
to the way in which it was referred to in the bill before the government
Mr. Michael Cloghesy, President, Centre patronal de l'environnement du Québec:
Senators, we may as well continue in the same mode. I invited Mr. Gagnier and
Mr. Lachance here because they work for companies that are facing potential
problems under this bill. Mr. Lachance will address you now.
Mr. Claude-André Lachance, Director, Governmental Affairs, Dow Chemical
Canada: Honourable senators, I had the privilege to appear here last week and I
do not want to over-indulge your patience. I was enthused to join Mr. Cloghesy
today to talk about sustainable development as a concept, a philosophy, an
approach, a journey. For Dow, we have been very committed to this journey.
I do not say that lightly. Without going into a litany, we have participated in
a number of processes from the very early beginnings when we were trying as a
country to respond to the Brundtland Commission and to develop a Canadian
approach to implement the concepts spelled out there. For instance, we sat on
the national task force on the environment and economy, which was created in
1987 and which spawned the various provincial and national round tables.
Dow representatives were invited to sit at the Ontario round table and the
Alberta round table. Dow's CEO was vice-chair of the national round table. In
the United States, Dow's CEO was invited by President Clinton to be co-chair of
the President's Council on Sustainable Development. We have been very much
involved with the World Business Council on Sustainable Development. Our
chairman has written a book on eco-efficiency.
Dow has worked hard to try to get our arms around this integrative concept of
sustainable development. This year, for the first year, Dow will publish a
triple-bottom-line report. It will talk about the social aspects, the
environmental health and safety, or EHS, aspects, and the economic aspects of
A few years ago, we were invited by the German government to take over a site in
the former East Germany called BSL. That site was very heavily polluted and it
posed a unique challenge to Dow's EHS policies. On the site were 50,000
employees, a railroad, schools, residences -- basically a whole town. There
were serious social challenges associated with the site.
We also inherited plants that ran the gamut from World War I plants all the way
to the most modern, and we had to decide how to achieve our economic objectives
on that site.
We worked with the community and we have managed to turn it around. It was
re-opened last year in the presence of the chancellor. The community was behind
us because a sustainable economic, social, and environmental platform had been
developed from which they could move forward.
Sustainable development is something very close to my heart and very germane to
Dow. It is with hope that, in the third-generation review of CEPA, we can
address those issues in a more in-depth manner.
I have read the record of your deliberations over the past few days. Virtual
elimination of persistent, bioaccumulative toxins has become a key issue that
the committee wants to explore.
Last week, you heard from the Canadian Chemical Producers' Association about the
mechanics of the bill and how it will operationalize the concept of virtual
elimination. You heard about measurement technology and the definition of
virtual elimination from outside a risk-based context.
You also heard from Mr. Gagnier today on the constraints that exist on achieving
virtual zero, considering that measurement technology allows us now to chase
almost every molecule of a substance.
The bill, as it currently reads, dovetails the objectives with the constraints
that exist. It basically begins by stating the goal of virtual elimination as
defined outside the risk-based context. That, in and of itself, is a huge
stretch from the point of view of an industry that is committed to a risk-based
approach in managing toxics.
Canadian industry is willing to go forward with the mental image of this
ultimate goal. Honourable senators, please do not underestimate the stretch
that is required to take that view, compared to the viewpoint of global
companies that operate in countries where no such stringent goal has been
adopted. When we are asked how we are doing as a country from the viewpoint of
setting tough goals for ourselves Dow feels we are at the forefront.
Nevertheless, we must realize that we are on a long and difficult journey, a
journey that must be anchored in the triple-bottom-line considerations --
environmental health and safety, by all means, but also social and economic
considerations. There is no point in setting ourselves a goal that will disrupt
the two other anchors of that three-legged stool.
The bill now sets out a release number, which will be set by the minister,
taking into account the various technological, social, economic, and
environmental aspects. As I indicated last week, nothing prevents the minister
from setting that number as the toughest number to be achieved in the world.
Dow operates in countries that have very tough standards; Germany, which has the
world's toughest standards for dioxin emissions, is one such example.
We can do that, too. What we cannot do is operate in the context of double
jeopardy. The bill as it came out of the committee's report constituted double
jeopardy. Dow, like Alcan, will not operate its plants outside of compliance.
We will meet requirements. The committee report said we would need to achieve
two things: first, the release number; second, plans to achieve virtual
From a due diligence point of view, not only were we liable for meeting whatever
standard or release number the minister decided upon, but also we had to do
what could be done, irrespective of any other considerations, if it was found
in our plans that it could be done, hence disrupting the triple-bottom-line
consideration and opening the way for double jeopardy with respect to possible
challenges in the courts. That is not a situation that Canadian industry could
operate under. I am not saying that that was the intent of the parliamentary
committee. What is bizarre about this discussion is that we probably agree on
99.99 per cent of what we are talking about here. We agree with you, Senator
Spivak, that we should eliminate those substances.
The problem is for by-products and contaminants of industrial processes. When
you mentioned, senator, 12 or 20 substances, this is not really the whole
picture. Dioxins, benzenes, and other contaminants are not products but
by-products of combustion in steel production, smelting, chemical production,
aluminium production, and any other process that involves heat. We are faced
with a situation where we targeting not only a very limited number of substances
but a huge number of industrial processes.
It is difficult, or for that matter impossible, for corporations like Alcan or
Dow Chemical to see how it is they can get their arms around such a problem.
Can you imagine, senators, what it must be like for a small operation that does
not have global technical or scientific resources to get their arms around the
We are saying that the bill as it currently stands provides clarity. On the one
hand we have a goal. We cannot forget the goal. It is right there in the
legislation. We also give the minister full discretion to implement whatever
release number is going to be appropriate to deal with triple-bottom-line
considerations. I repeat again, triple bottom line means that one cannot give
undue consideration to economic or social considerations over and above the
environment, health, and safety. That means that the three considerations must
be integrated. This is what sustainable development is all about -- the
integration of the environment, the economy, and social considerations. I
believe that this bill meets the mark from that point of view.
Mr. Cloghesy: I believe it is important for you to hear directly from companies
involved in the situation. I personally have been involved with CEPA for at
least 10 if not 15 years. The earlier act was the Environmental Contaminants
Act, and I was involved on a multi-stakeholder committee that developed the
CEPA back in the mid-1980s. The world has changed many times since the bill was
proclaimed in 1988. NAFTA came into effect, and we are living a different
One of the most important changes, from my perspective, is that corporations
have espoused sustainable development. It is incorporated within their business
plans. Of course, legislative regulations are spurring the private sector
toward these objectives; however, we must consider the market forces that are
Boards of directors are liable if they sit on a board that is involved in
defying the laws and regulations of various countries. What shareholder wants
to invest in a polluting company? Who wants to buy products from a polluting
company? These are all extremely important forces.
As well, it is extremely costly to manage waste and pollution. Multinational
companies are more interested in coming up with processes that will eliminate
all together pollution from the source. That takes time, however.
When we talk about cost-effectiveness, we have to think along those lines. No
one is in the business of polluting, believe me. The private sector has bought
into the environment. This is a major factor.
Where this bill has had so many problems getting to first base is the fact that
within the government -- and I have seen it and we have all experienced it --
there are different visions of what is sustainable development. I am hoping
that with time we all concur because I think we are all on the same wavelength.
I have five children and some of them are asthmatics. I have worked with the
community. I was a school commissioner. Believe me, I am not interested from my
own personal point of view in speaking on behalf of polluting companies that
have no interest in cleaning up their act.
This bill is far from perfect, but it is the best thing we have been able to
come up with in five years. Let us use this as a base upon which to establish
much more effective legislation to carry us into the next millennium. Let us go
with this bill because it is an improvement over the current act. You heard it
from the minister; you heard it from the Ministry of the Environment officials.
I leave you with those words.
Senator Hays: I have a follow-up question related to your statement about
conflict within government departments for a leadership role. In your opinion,
what is the resolution? Who should lead? As you know, the act provides for
various departments accepting responsibility, the Department of Agriculture and
Agri-Food, for instance. The Department of Natural Resources and others have a
role in the climate change file, for instance. One of the problems you have
correctly identified is that there is conflict, not only in terms of what we
hear from the communities who are inputting into this, of which you are one,
but from the department. Who should lead, in your view? What would be the best
Mr. Cloghesy: When I spoke about sustainable development within the government
and perhaps the fact that there might not be a sharing of the same vision of
sustainable development, I did not necessarily say that one department might
lead. I believe that it is up to the whole of the government to come up with a
shared vision. In other words, the Ministry of the Environment must espouse
sustainable development, just as the Ministries of Natural Resources, Industry,
and Finance. Therefore, whenever any new legislation is passed, whether it be
economic legislation or something that promotes certain industries or the
economy, it must include an environmental aspect. New environmental legislation
must take into account economic and social considerations.
This particular bill falls under environment and health. It is up to the
government as a whole to ensure that the objectives coincide with other
government objectives in existence, be they economic, social, and otherwise.
Senator Hays: One of the government's initiatives on the climate change issue
has been to create a cabinet secretariat to try to bring together, I assume,
differing approaches. It may produce a good result. Some claim that, to this
point in time, that remains to be seen. Do you think that is a good approach?
Mr. Cloghesy: The more facets of government that get together, the better. The
more dialogue that is shared and the more common approach there is toward the
goal of sustainable development, the better off we will be as a country.
Senator Spivak: Thank you for your presentation. I am sure that there is no one
on this committee, and probably no one in the country, who does not think that
industry is sincere about not wishing to pollute. That is taken for granted.
The difference of opinion lies in how we achieve that goal, and that is a
legitimate difference of opinion.
Mr. Lachance, the Inuit Tapirisat appeared before us. Their entire presentation
was related to the issue of virtual elimination. They fear that this version of
the bill will jeopardize the convention on POPs and that it will only control
substances and not eliminate them.
You are an artful dodger. You put forward the notion that, if this version of
the bill holds, industry will be forced to close down because government will
put the heavy hand on them. I do not see that in the bill. In fact, there are
so many speed bumps on the road to action. There is the offer to consult, there
is risk assessment versus inherent toxicity. There are many steps before any
substance gets to the point where it should be eliminated. The committee
version merely wanted to set that as a goal. They said "when taking steps
to." That does not mean instantly. In certain circumstances, the ozone
layer being one, we must take immediate action.
No one likes court challenges, but there will be court challenges on the
environment from now until kingdom come, I am sure. The people in the North,
where all the pollutants are going, wish to have a world treaty stating that
this is not to be. That is very different from the scenario that you are
sketching out with regard to toxic by-products and so forth. That is not a
scenario that we will look at under any version of this bill.
Frankly, I am in favour of taking time and looking at these issues very
carefully. You speak of clarity. There is lack of clarity here because that is
not really the goal for the substances we are talking about. Again, we must
emphasize that we are talking about very few substances. If those substances are
by-products, it will be many years before science comes up with a different
solution. I do not see that industry will be forced into anything. The simple
threat of court action is not enough to negate the desperate plea that we have
from people, in the North in particular, not to jeopardize this treaty, which
will be jeopardized if we do not change this virtual elimination.
Could you comment on that, please?
Mr. Lachance: You have raised a number of important points, senator. I agree
with you that the two sides of the argument probably agree on much more than
they disagree on in this debate.
Senator Spivak: There is a third side, that being the Canadian public.
Mr. Lachance: Yes, and that is ultimately the important side. It would be
interesting to see how they engage in this debate from a sustainable
development point of view. I myself am eager to engage in that debate.
With regard to the Inuit Tapirisat argument, there are two treaties that try to
address that situation. One is the Long-Range Transport of Air Pollutants
Convention under the European Economic Commission whereby a protocol has been
developed that targets organic pollutants in a way that is quite consistent
with the toxic substance management policy. This is not a surprise, considering
that Canada has been quite active in promoting vigorous address of it because
of our situation in the North.
The situation in the North is extraordinarily unfortunate. It is because of air
patterns and diet patterns, and it is totally unacceptable. It is also,
arguably, due more to products than by-products. I do not want to minimize the
by-products aspect of it, but, although I am not an expert in this area, I
understand that PCBs and DDT are more of an issue at this stage, from the point
of view of their presence in nursing mothers' milk, than are benzene or
dioxins. However, I do not want to minimize that aspect.
The Long-Range Transport of Air Pollutant Convention does make a useful
distinction between products and by-products. The second convention is under
the auspices of the United Nations environmental program, and this is a global
convention. The first one basically addresses North America, and Europe, the
U.S., and Canada are members of that group.
In the case of the former, the end point has been distinguished between products
and by-products. Products are candidates for virtual elimination. We must
realize why that is the case, versus pure elimination. The DDT situation is not
yet resolved from the point of view of malaria control. Everyone hopes that
another product will be found to control malaria, but until it is some countries
may feel that they need that tool to prevent thousands of deaths.
However, they do make a distinction for by-products. For by-products they have
adapted the "best available technology economically achievable"
That standard is one that is consistent and congruent with what we are trying to
do. Basically, it is described as the release number authority for the minister
to set. It allows the minister to impose best available technology on what is
My understanding is -- and I think there are people here, including Senator
Adams, who will be more knowledgeable than I am about this -- that that
convention has been well received from the circumpolar point of view. It is an
evolving thing. We can push that convention into further protocols and
modifications later on.
We do not know yet how the UNEPP convention will evolve. I suggest that that
useful distinction that was made in that convention is one that would benefit
some good discussion. My understanding is that that is the direction the United
Nations Environmental Protection Program is taking. Basically, it is to try to
phase-out the use of PTB products. There are few of those, including a certain
number of pesticides and, certainly, PCBs. PCBs are not banned yet because it
takes time to remove that stuff from all of the ballast that there is.
Basically, PCBs cannot be made any longer.
What we are trying to do is to reduce the emission of by-products in a way that
will completely eliminate the risk or harm the environment. That will include
people in the Arctic.
It is a powerful argument, you are correct. It is a powerful driver for all of
us in society to respond to that situation in the Arctic. It is not one,
unfortunately, that lends itself to an easy solution. It will take generations
to correct the situation. The very nature of those substances is that they
bioaccumulate in the fat of animals and make their way up the food cycle.
Senator Spivak: Thank you for your answer. However, you have not explained to me
why -- and I do not disagree with most of what you have said -- in this bill
you insisted on removing the words "phase out the generation and use"
and "taking steps to achieve." It seems to me that those words
correspond very much to what you have just testified here; yet, this was a key
issue which you, as a member of the Friday Group, wanted removed. That is the
point that is bothering us.
The point is that these words do not refer in any way to an immediate, swift
elimination of closing down every industry in Canada so that we can achieve
this. They talk about long-range goals.
The Chairman: I wish to hear from Mr. Cloghesy and Ms Hughes Anthony on one
area. From what I have heard you say, among others, you believe that we have
entered into legislation by exhaustion. I understand. We talk about five-year
review; however, 11 years have transpired since 1988, and we are still here
contesting the proposed amendments to the legislation.
From the positions you have taken, I can pinpoint five amendments that would be
very beneficial. Your briefs speak to your concern about the inadequacies in
the legislation. However, you will take the bill as it; let us get on with it,
this is exhausting, is your position. I hear that from the minister and from
Nevertheless, we can propose amendments that I do not think would be
controversial; they could be passed. They would make the legislation better.
There is a rush to judgment that is being imposed upon us. Why can we not take a
few more months? Why can this committee not come forward with some of these
amendments? What would be your position should we bring forward amendments and
send the bill back to the House of Commons where they could fast-track the
amendments? Or do you prefer to close the door on the bill when you walk out,
and say, "We will visit it another 11 years"?
I would like Mr. Cloghesy and Ms Hughes Anthony to respond to that question.
Mr. Cloghesy: Mr. Chairman, you have hit the nail on the head. Everyone is
exhausted. Perhaps that is a good reason to pass the bill now. The last five
years have seen a lot of words put down on paper concerning this bill.
This is a dynamic process. There will never be the perfect bill; we all know
that. There is a certain balance, from a sustainable point of view. We think
that balance is in there. We think there are sufficient improvements over the
current act that would make it justifiable to adopt it at this point.
Your exercise here is valuable. Your input is extremely valued because this is
the cornerstone of environmental legislation in Canada. Let us use what you
have come up with to start the process again because it takes so long to review
The Chairman: We will not be here in 11 years.
Mr. Cloghesy: At least the record stands. Your work will be here. If the matter
is opened to debate again, I am afraid another two to five years of debate will
ensue before this thing comes back in a form on which there has been some
consensus. It has taken all this time to get some consensus in at least the
House of Commons on this.
I am afraid that if you open it up to further amendments, that is it. The cat
will be out of the bag and we will lose it.
The Chairman: You are saying, accept it, warts and all, and get on with life.
Mr. Cloghesy: That is our position.
Ms Hughes Anthony: I do not wish to repeat what Mr. Cloghesy has said. However,
as we stated in our brief, we have the same view. Some progress has been made
on this piece of legislation. The fact that we are all equally fatigued is
probably a positive point here. There should be an opportunity, I think, for
setting this legislation down, following which we should take a fresh approach
to the next process. It is my hope that it will not take 11 years to arrive at
a consensus in the next process. I hope we have learned something about the
defects in the process that we have all lived with over the past few years and
that we can improve on that going forward.
I do not think that we should throw out the achievements that have been made on
this particular bill at this particular time. I would encourage the Senate to
allow the bill to go forward, providing it as a basis upon which we can make a
fresh start for improvement.
The Chairman: Thank you all for your input and for being so patient.
Our next panel is from the Canadian Health Coalition and the Canadian
Association of Physicians for the Environment.
Dr. Peter Carter, Research Coordinator, Canadian Association of Physicians for
the Environment: Honourable senators, thank you for inviting me to participate
in this complex but very critical step in Canadian history for environmental
protection and sustainable development.
I suggest our judgment of Bill C-32 may be facilitated and clarified through the
use of some existing government documents and agreements. It is CAPE's position
that this bill is not adequate and that it should not be approved. The bill is
weak. It is full of ambiguity, confusion, and uncertainty. We would certainly
agree to a call for a fresh start.
Attached to our written brief is Appendix 1, which is the 1997 Declaration of
the Environment Leaders of the Eight on Children's Environmental Health.
Appendix 3 is an excerpt from the 1996 United States EPA "National Agenda
to Protect Children's Health from Environmental Threats." Appendix 2 is an
excerpt of the 1999 Canadian "Report of the Commissioner of the Environment
and Sustainable Development" dealing with the toxics audit. Appendix 4
consists of some excerpts from the government's legal department's legislative
history, with which I am sure you are familiar but which I will use to touch on
this thorny question of virtual elimination. Appendix 5 is a 1998 document
entitled "OECD Environment Ministers Shared Goals for Action," copies
of which I have brought today separately. That report is very useful in
defining sustainable development today and into the next millennium.
From the outset, the focus of our organization has been on children's
environmental health. It is internationally recognized that this is now the
focus for environmental protection.
I will quote from the 1997 Declaration of the Eight, a declaration to which I
understand Canada's ministers of environment and health are committed. This
declaration talks about some very specific policies on which we would like to
see Canada take some action. We would expect to see that action described in
this bill. This, after all, is the place for it. The commitments are:
...to establish national policies that take into account the specific exposure
pathways and dose-response characteristics of children when conducting
environmental risk assessments and setting protective standards. We agree there
is a need to upgrade testing guidelines to improve our ability to detect risks
to children and to assess and evaluate the effects of both single and multiple
exposures for children.
Children and susceptible sub-populations are not mentioned in Bill C-32. It is
rather hard to see how they would get into the bill as it is worded at the
The other appendix on children's health is from the United States. It would seem
to be utterly reasonable that new Canadian legislation would be harmonized with
legislation in the U.S. This EPA policy was a result of an executive order on
children's environmental health.
Those two appendices contain the type of language that we would expect to see in
the Canadian Environmental Protection Act.
From the U.S. Environmental Protection Agency policy document, "Environmental
Health Threats to Children," we quote:
1. As a national policy, ensure that all standards...are protective of the
potentially heightened risks faced by children and that the most significant
current standards are re-evaluated as we learn more;
2. Identify and expand scientific research opportunities on child-specific
susceptibility and exposure to environmental pollutants...
Already the United States has eight Centres of Excellence established in order
to achieve this.
3. Develop new comprehensive policies to address cumulative and simultaneous
exposures faced by children...moving beyond the chemical-by-chemical approach
of the past;
This would be a much anticipated change in focus from substances to population
health. It would look at people, instead of just talking about substances.
4. Expand community right-to-know;
The United States, for several years, has had a right-to-know legislation. We
would like to see that in the Canadian legislation.
5. Provide parents with basic information...
6. Expand educational efforts;
7. Commit to provide the necessary funding to address children's environmental
health issues as a top priority;
It is no secret that over the last several years the funding for Environment
Canada and also the other arm of environmental health protection, the Health
Protection Branch, has been cut back progressively.
They outline the kind of language we would like to see somewhere and sometime --
the time is now -- for environmental health protection for Canada.
The other appendix contains excerpts from the Commissioner of Environment and
Sustainable Development on the toxics audit. This, we believe, is very relevant
to CEPA because it points out how things have been working to date and what
needs fixing. The commissioner's main observations:
At the same time that global sustainable development conditions are worsening,
my third report to the House of Commons provides additional evidence of the gap
between the federal government's intentions and its domestic actions. We are
paying the price in terms of our health and our legacy to our children and
Under the heading "Managing toxic substances and risks to health," the
audit points to a number of major problems and deficiencies in the federal
infrastructure; they are referred to as "cracks in the federal
infrastructure." Also very important to Bill C-32 are comments on the
federal-provincial agreements to protect the environment in which these
agreements are already found to be a cause of problem and not working as well
as certainly one would hope.
The next appendix I would like to point to could really provide some answers to
the discussions on sustainable development, what this really means now
internationally and how this should be reflected in Bill C-32 to make it
sustainable development legislation.
The "OECD Environment Ministers Shared Goals for Action," which the
secretary general of the OECD advises me are binding ministerially but also
governmentally, do this quite comprehensively. They speak of strong national
policies, effective regulatory structures on the protection of the environment
and human health, and an integrated policy approach. Bill C-32 is not an
integrated policy approach.
These goals of action also speak about sustainable consumption, production
patterns, as well as regulatory, economic, and social instruments. They deal
with eco-efficiency and prices that reflect the true environmental and social
costs of production. That may help in understanding where we should be moving
to in cost-effectiveness.
On the issue of cost-effectiveness, my organization recommended that indeed this
could and should be defined within the bill. In fact, we would prefer to see it
defined in keeping with another OECD document, which was the predecessor to
this one, the high level report to the secretary general from the Committee of
the Environment, which talked a lot about changing the definitions of
cost-effectiveness to drive sustainable development. We would like to have seen
that. However, without that, we recommended that they should be dropped. Much
better, I would suggest that they are in actual fact defined.
This brings me to the last document to which I wish to refer, which is the
legislative history of Bill C-32. I only read it and studied it after I had
sent my submission in. It is a very important document. It points to the
problems, the confusions, the ambiguities, and the uncertainties in the bill.
The words "shall offer to consult" are described as potentially tying
their hands for an indefinite period of time. The residual clauses were
referred to, in which action could only be taken if there was no provision for
covering notice and assessments under other statutes, which is exactly counter
to the first law of sustainable development, that decisions should be
integrated and departments should be working together. Discussions and policies
should be worked out in a shared framework.
A similar inconsistent result was also reached in relation to selected
regulatory powers. Cost-effective measures were referred to as well.
Now I come to the important part. Virtual elimination was a strategy document of
the international joint commission. In it, it stated that there are chemical,
man-made toxins in the environment that just should not be there and that
eventually they should be banned or "sunsetted." Because that cannot
be done immediately, the idea of virtual elimination was the way to go about
We have dropped the original goal in Bill C-32 of banning or "sunsetting,"
and we said that we will take a long, long time to get to virtual elimination,
which is not acceptable to me at all. Here is how it is described in the
government law description.
Originally, in the 1995 publication of the federal government toxic substances
management policy, the government had committed itself to implement virtual
elimination. The definition was no releases above measurable levels.
A number of environmental groups had strongly urged that measures be implemented
to reduce the use as opposed to releases of toxic substances. Furthermore, the
bill makes it clear that virtual elimination is an ultimate goal only, one that
may take considerable time to achieve. Depending on how much weight was
accorded to these other factors, elimination might not be achieved swiftly, but
could take years, even decades, or might never be fully implemented.
I would submit to the standing committee that that is an entirely unacceptable
position with respect to these substances. Frankly, the idea of a piece of
legislation acting like that is not acceptable when we know where these toxic
substances are now appearing. They are everywhere. They are in our oceans. They
are in all of us. They are in breast milk. They are in high levels in the
northern Arctic. They are in beluga whales. They are even in orca whales off
the Pacific where I live. There are indeed substances that just should not be
out in our environment, and we have to face that.
We have some experience with that in British Columbia. Many years ago, an
environmental coalition in which I was involved was in a bit of a fight over
the federal government's legislation on pulp mill dioxins and furans. This was
in the last government. It is many, many years ago now. There was grave concern
over the effects on health, and these substances were then measurable in parts
per trillion. There was a big battle between the province and the federal
government, and the federal government introduced the legislation. It passed
and a lot of money was spent to reduce these substances from the rivers and
oceans in British Columbia. Everyone was extremely happy with the result. If it
had not been done, Canada would have undoubtedly lost a great competitive
advantage in the pulp and paper industry. It is not all gloom and doom when
sustainable development is acted on efficiently and energetically.
Senator Cochrane: I have a question about children. You are presenting us with
this view about environmental health, and it is related to the health of
children. Would this not be better addressed to the Minister of Health?
Dr. Carter: That is an excellent question, senator. This bill is a co-bill under
the Ministry of Health and the Ministry of the Environment.
Our organization recommended that all of the new CEPA principles be integrated
within the Department of Health. We also put forward a recommendation, as did
other groups at that time, concerning children's environmental health. Just as
that concluded, lo and behold, a new process began -- the Health Protection
Branch legislated renewal.
My argument is that the new CEPA needed to include direction to the Department
of Health on children's environmental health. After all, this is the central
focus on environmental health now. It clearly must be. Whether you consider the
immediate health threats to our children of all our environmental problems,
including global climate change, or the drawn-out effect of being exposed to
carcinogenic and neurotoxic chemicals, we must start with children.
We have this Health Protection Branch legislated renewal now. The last public
document made no mention of children. Therefore, it is very clear to me that
Bill C-32 is the right place to have a direction to Health Canada as well as
Environment Canada on children's environmental health.
Senator Cochrane: So we should have that inserted in the bill.
Dr. Carter: Absolutely.
Senator Cochrane: That goes back to lack of funding.
Dr. Carter: Yes. If we start looking at the threats from toxins to the health of
our children and grandchildren, all kinds of good and wonderful things will
start to occur. I believe that provinces, industry, and the federal government
will start putting money where it is cost-effective, which is in research for
children's environmental health. We will start to reach agreement on what is
cost-effective and what is not. We will start to come to an understanding on
what virtual elimination needs to be, because the needs are all for our
children. This is what sustainable development is, after all.
The Chairman: Dr. Carter, CAPE is sponsored by the University of Alberta. Does
CAPE have other members?
Dr. Carter: Yes. I do the environmental management and policy work for CAPE. I
am not the expert on public health and toxicology.
The Chairman: I take it that this brief is vetted and approved by your
Dr. Carter: Yes, absolutely.
The Chairman: How many physicians are members of CAPE?
Dr. Carter: We have less than a couple of hundred members. We have existed for
about four years and are an affiliate of the Canadian Medical Association.
The Chairman: Does that mean that your position is adopted by the Canadian
Dr. Carter: No, it means that we advise them on what their positions could be.
They have a position on sustainable development.
Senator Taylor: Thank you for your most interesting presentation approaching
this issue from the children's point of view. Alcohol and tobacco wreak havoc
with children's lives, either directly or indirectly; alcohol and tobacco in
the embryonic stage and tobacco smoke in the atmosphere in which they are
You are talking about virtual elimination of some chemicals. How much more
damage do alcohol and tobacco cause to children?
Dr. Carter: No one has quantified that. There is amazingly little research being
done on child environmental health, which is what other national jurisdictions
are setting out to achieve. In Canada, we are cutting back, as you have heard.
We need to implement something to turn it around for children.
One of the principles of the United States EPA is additive and cumulative
effects. We human beings do some stupid things. We smoke, and we drink too much
alcohol. I do not see any villains in this piece. No one intended for amniotic
fluids to be contaminated with toxic chemicals.
The frightening thing for our children and grandchildren is that foetal alcohol
syndrome, persistent toxic chemicals, and tobacco smoking have similar
neurobehavioural effects. There may be an additive effect there. There has been
some research done in the field of atmospheric air pollution and cigarette
smoking. We are finding that although smokers have health problems with their
respiratory systems the addition of atmospheric air pollution increases those
There are some behaviours that we certainly should be changing for our health,
but the big thing is choice. We have a choice whether to smoke or not, whether
to drink alcohol or not, and when to drink alcohol. However, these
environmental contaminants, persistent and bioaccumulative, which are literally
everywhere, are removing people's choice. They cannot help but be exposed to
It comes back to our children. We really cannot accept legislation that takes
away the choice of children. However you look at it, that is simply not right;
neither do I believe that it is cost-effective.
Senator Spivak: I understand that the rates of asthma in children in California
have skyrocketed. Hardly anyone of my acquaintance does not have a child or
grandchild with asthma. They all have puffers, which are not good for you
either. That never existed in my generation.
We need to look at the effects of toxic substances based on the different body
volume and weight of children.
Dr. Carter: Yes.
Senator Spivak: How should that be included in this bill?
Dr. Carter: An extra clause must be added.
As far as asthma in concerned, over the past 25 years there has been a four-fold
increase in Canada.
The Chairman: Do you mean generally and not just in children?
Dr. Carter: Yes, generally.
Senator Spivak: Do you know the increase in children?
Dr. Carter: No.
Senator Spivak: Do you have any figures related to California?
Dr. Carter: As you know, it is universal. Developed countries all over the world
are experiencing this increase, which, by the way, has plateaued out now.
Senator Spivak: Are there studies that show cause and effect, and is it toxic
substances as well as particulates? What is your understanding of that?
Dr. Carter: It looks like its multi-factoral. It looks like the situation in
pregnancy, when the woman and the foetus are exposed to certain things, is what
determines the allergic child later on. We need a lot of research into that.
Obviously, it is very important.
As you know, there is cigarette smoking. There is urban air pollution and there
is indoor air pollution. Causation has been proved for both. It certainly looks
like indoor air pollution outweighs outdoor air pollution, however.
Senator Spivak: That might be from the toxic chemicals that are used in making
carpets, oriented strand board, and wood.
Dr. Carter: Yes.
Senator Spivak: That is not something that anyone is paying too much attention
to, is it?
Dr. Carter: We need something to make us pay attention.
Senator Spivak: Even research to ensure that we know what we are talking about
would be helpful.
Dr. Carter: Research is vital. People tend to say, "No more research."
We have very little information on these matters. We need one heck of a lot
Senator Adams: You mentioned the negative effect of eating country food such as
whales and seals. I do not know the effect of eating caribou meat. We have
heard from scientists that anything we eat up North is affected by pollution.
Do you see anything in the future that will stop chemicals getting into our
food chain? What we eat today can never be gotten rid of from the body.
Dr. Carter: We have to stop, as rapidly as we can, the real villains in the
substances. That is essential. As the OECD says, we have to globalize our
environmental agreements. Even the secretary general of the WTO is saying that
now. In order to globalize our environmental agreements, we have to have
strong, regulatory, national domestic agreements -- which, again, the OECD has.
We really have to get down to business on this. Without this new partnership of
strong national agreements, which then could lead to international agreements,
we will not solve the problem.
The POPs treaty is a great light in a dark tunnel. However, we have to have
strong national agreements with economic and regulatory instruments for this
ever to occur; otherwise, we will be just talking decade after decade after
Senator Adams: You mentioned smoking. There are many federal government
regulations concerning smoking. As well, I think every province and territory
has restrictions on smoking in public areas. We know that many children, by
their tenth birthday, have started smoking. By the time they are 13 and 14
years of age, they may be pregnant.
Dr. Carter: I am glad you raised that subject. The world truly has changed. In
the management of toxins, it has always relied on the exposure of ourselves to
toxins in the environment. We are now in a new day. In addition, it is the
timing of the exposure that matters.
Research is telling us strongly that, at various times during foetal
development, certain chemicals or combinations of chemicals have a critical
effect. Also, in the newborn and in children up to the age of puberty, it is
the timing that is important.
Thus, when we are exposed to these pollutants is critically important. We need
new legislation to recognize and address this. I am afraid I do not see that
Senator Adams: When a young girl is pregnant, her doctor has no power to stop
her from smoking.
Dr. Carter: It is very difficult.
Senator Pearson: I am not a regular member of this committee. As such, I am not
as aware of the intricacies of this bill as other members. I agree with
everything you are saying about the importance of the environment for
children's health and the need to raise consciousness and funding for it. We
will be hearing from the Canadian Institute of Child Health. I know the work
they have been doing on environmental health and children, and I am very
encouraged by that.
Although I am not really in a position to ask this committee to do anything,
since I am just a temporary replacement, I would certainly like to see included
in our report references to these issues related to children.
I have a question, which is one that constantly faces me. We are challenged here
in North America and in Canada by these issues related to children and the
environment. My work is mostly with children in other parts of the world. The
City of Karachi has the highest levels of lead pollution in the world. They are
higher even than Mexico City. There is a generation of children growing up there
who will be mentally handicapped as a result of their exposure to lead. You
said that we have choices to make. I hope that the messages you are conveying
would be accompanied by saying that as Canadians we are prepared to raise our
overseas development assistance. We should insist on that, in addition to doing
what we can within this country, since the price for not doing it for all the
rest of the world will be extremely high.
Dr. Carter: Industry Canada has recommended the multi-billion dollar market for
environmental technology, which is a very good part of sustainable development.
I have already said that that we need to globalize our environmental
agreements. Thus, lead standards should be globalized, urgently. I see that as
the only salvation to those people. We live in one world now, where what we do
here affects those on the other side of the globe.
We also need to invest in services, in consultations, in overseas research, and
in technology. There are technological fixes for many of these things. I have
been to those cities. The air pollution is absolutely horrendous because of the
machines they are using.
The Chairman: Dr. Carter, thank you. I am sure committee members share your
Mr. McBane, please proceed.
Mr. Michael McBane, National Co-ordinator, Canadian Health Coalition: Honourable
senators, on the inside cover of our brief is a maple leaf overlaid with a
symbol that most people probably have not seen before. That symbol is used in
Europe, particularly in the United Kingdom, to identify a biohazard. In Europe,
Canadian products that are grown from genetically engineered technology but
which have not been assessed for risk are considered a biohazard. They are thus
banned. One such product is Canadian canola. The question from Europe is: Why
sow what you cannot sell?
There are some practical consequences in Bill C-32 that are not good for
Canadian industry, particularly Canadian farmers. At the end of the day, if we
bypass scientific evaluation of risk and deal only with risk management, we
will jeopardize our trading relationships with the Europeans and with the
Japanese, who have a much more precautionary approach.
This symbol is a warning that the maple leaf may become associated with a
biohazard. That will not be good for trade.
The current CEPA requires a risk assessment of biotechnology products. The
proposed CEPA seriously weakens this requirement. In a sense, it is a virtual
elimination of an environmental evaluation. Canadians would lose the capacity
to protect our health and environment from foreseeable harm caused by biotech
products and toxic chemicals.
We are in the early stages of developing biotechnology. This is the phase with
the largest potential for disasters. Now is not the time to abandon health and
environmental regulations based on precaution.
Honourable senators, we welcome this opportunity to address your committee. We
believe the public has been well served in recent months by Senate committees,
particularly by the recent study by Standing Senate Committee on Agriculture
and Forestry on the recombinant bovine growth hormone and its effects on human
The people of Canada, especially your grandchildren's generation, will be well
served if the same spirit of guardianship and sober second thought is exercised
with Bill C-32. You have a choice to rubberstamp, to follow orders and get this
bill through, or to exercise your public duty to protect the common good.
The Canadian Health Coalition is a non-profit, non-partisan organization founded
in 1979. Our mandate is to protect and improve public health. The first of our
10 goals is to create the conditions of good health. There is no health care
system in the world that can cope with a society that makes people sick as a
part of its economy.
If you pass Bill C-32 in its present form, it will create conditions for
protecting toxic products that endanger public health. I will quote briefly
from an editorial in today's Halifax Chronicle-Herald, entitled "Going
Green in Ottawa":
In another shameless abuse of power, the federal Liberal cabinet has torn the
guts out of proposed new environmental legislation, decimating potential
protection for everyday Canadians in order to favour big business.
And business, we must not forget, is a source of financial support for the
increasingly right-wing Chrétien Liberals, who have made a habit of
putting their friends before Canadians. In Ottawa, going green is linked to
money, not the environment
The primary complaint about Bill C-32 is that it offers minimal protection from
toxic chemicals, particularly pesticides, that are used in industrial and
commercial operations. The bill also offers no requirement for evaluating
genetically engineered food, which is a growing issue internationally.
We hope this committee will serve Canadians with better proposals than those
contained in this bill.
Senator Buchanan: You did not read all of the editorial.
Senator De Bané: It is not necessary. We can dispense.
Mr. McBane: Do you refer to the part about the frustration of Conservative
Senator Buchanan: Yes.
Mr. McBane: This is a significant editorial. I could not get away with saying
words like this, but, coming from an editorial board, I am sure it will get
I return to our brief. Consistent with a regulatory policy of the "see-no-evil"
federal policy of not testing nor assessing biotechnology products for
toxicity, the Government of Canada announced on August 19 that it will join the
United States in preventing our trading partners from labelling genetically
engineered food and crops. Human beings are ingesting altered life forms as food
and they are not even allowed to know or to have the choice of avoiding the
This committee needs to be aware of what is going on at Health Canada and the
Canadian Food Inspection Agency as you examine the bill that has been portrayed
as an Environment Canada bill. In fact, this bill is co-authored by two
departments. The Department of Health seems to have gone missing on the file.
Where is Health Canada on Bill C-32? Where is the Minister of Health?
We heard Dr. Carter refer to the Health Protection Branch legislated renewal. It
is critical that you have an awareness of the developments in these other
departments since you will be anticipating changes here that will be impacted
If you remove or weaken the requirement for environmental assessment of
biotechnology from CEPA, you will be legalizing a policy of avoiding risk
assessment of biotechnology products throughout all regulatory departments,
especially the Canadian Food Inspection Agency and Health Canada. If you have
looked into this, you will know that these two regulatory agencies do not
conduct environmental assessments. They may even pass products without any
health data. You know this, especially any of you who have been on the
Do not assume that if you take that requirement out of Bill C-32 that some other
act will cover that matter. You need to know that and the Canadian people need
to know that.
The Government of Canada has already introduced legislation in the other house,
Bill C-80, the Canada Food and Safety Inspection bill, which would dismantle
the Food and Drug Act and shift responsibility for food safety regulation
enforcement to the Canadian Food Inspection Agency.
This is contrary to the advice of Justice Krever. It creates an institutional
conflict of interest in which the safety regulator is also the promoter of the
Ethicists call this a hybrid. This is a monstrous hybrid mixing guardianship
functions of government with commercial functions of business. Those things
have no right to be mixed together in a regulatory agency.
To give you a specific example, Bill C-80, which I hope you examine in extremely
close detail, requires proof that a food product is "injurious to health"
before a regulator can intervene. Under the current Food and Drugs Act, it is
the exact opposite: a food manufacturer has to demonstrate safety. They have
reversed the burden of proof. It will make it a stronger legal protection for
The determination of the Government of Canada to market untested, unlabelled,
uninsured transgenic food without the consent of Canadians is unacceptable.
This strategy of stealth has not yet received the full attention of the
Canadian public or of Canada's trading partners in Japan and Europe. To quote a
recent Deutsche Bank report, "Ag Biotech: Thanks, But No Thanks," we
should "look out."
Bill C-32 places the regulator in a position where it relies on the judgment,
honesty and expertise of companies like Monsanto. You will know that Monsanto
has a record of fraudulent science and has been found guilty by the Fifth
District Appellate Court of Illinois of not informing its employees and the
general public that its household products contain dioxin.
Bill C-32, if passed in its current form, would repeat the mistakes of the
regulation of blood. It is in direct conflict with Justice Krever, who reported
that the regulator regulates only in the public interest and not in the
interests of the regulated. Regulators must develop their own expertise and not
rely on that of the regulated.
Senators on the Agriculture Committee will remember that the Deputy Minister of
Health, David Dodge, told you that Health Canada has no scientific capacity to
evaluate biotech products. The assistant deputy minister told you that Canada
is facing a 200 per cent to 500 per cent increase in biotechnology products to
be submitted for approval. We are just pointing out the fact that the
department that will now be in charge of regulation has admitted to Parliament
that it has no capacity for the scientific evaluation of this technology.
We want to point to a couple of specific examples in this bill, which we think
show how it endangers public health.
Clause 106(8), for example, gives the minister the right to waive any
requirements to provide information needed to determine whether a living
organism is toxic. What an incredible power to give a minister! Why would you
give a minister the power to waive a requirement for a toxicity assessment? We
are dealing with products that could cause irreversible harm. We are opening up
the potential to benefit a manufacturer of choice. In the current system of
major corporate financial contributions to federal leadership and/or election
campaigns, this discretionary power in the hands of a minister -- or in this
case in the hands of the cabinet -- is potentially open to patronage and
corruption. These provisions make the cabinet unaccountable to the courts. How
can the courts assess liability when everyone is collectively responsible,
meaning that no one is responsible? This certainly is not in the interests of
the public interest.
Finally, Bill C-32 abandons the precautionary principle. That has been
acknowledged by the industry representatives before you in the committee.
Protecting us from hazards has been changed to protecting us from risks and
moving to managing the risks. These are very significant changes.
On the precautionary standard, of course products would have to be tested first.
Before you let biotech corn on to the market, you would have to test it. Under
risk management, you let it go. You let Health Canada monitor the body count
and the disease rates. Then, 30 years down the road, there will be action.
Those are the implications of passing this bill. Put a human face on it. Think
about the generations down the road and think about the impact on your
grandchildren. It is really important to put a human face on this technical
piece of legislation. It would be irresponsible not to think about the
consequences in real life and in the environment.
Finally, honourable senators, Bill C-32 in its current form is legislation with
the greatest potential for endangering health that we have seen in our
lifetimes, given the risks that are in the technology. In the entire history of
scientific discovery, we have never had a technology so totally alter life
itself on the planet, for better or for worse. We are playing with scientific
fire on a global scale that we have never known before. In some ways we are
trying to play God. The need for precaution and wisdom has never been greater.
I am glad to see that there is an aboriginal senator on the committee. We count
on your wisdom. We are going to need it.
To weaken CEPA regulations at this time is to court disaster. We urge you to do
The Chairman: Can you tell us more about the Canadian Health Coalition? Who are
Mr. McBane: The Canadian Health Coalition was formed in 1979 by the Canadian
Labour Congress. It organized an SOS medicare conference with Monique Bégin,
Tommy Douglas and Emmett Hall. Today, the membership consists of health care
providers such as nurses, senior citizens' groups across the country,
low-income groups, national churches, the trade union movement, students and
community organizations. We are a national umbrella group mandated, in essence,
to be a watchdog on public health care and public health.
The Chairman: What are the numbers in your membership?
Mr. McBane: We have about 20 national organizations, some of which represent
millions of Canadians, but we are a small watchdog organization that represents
the member organizations.
Senator Pearson: Does Dr. Brill-Edwards have anything to say?
Dr. Michele Brill-Edwards, Canadian Association of Physicians for the
Environment: I wish to make a few, very brief remarks.
I would ask you most of all in this very complex bill to consider what I deem to
be its most serious aspect, which is the potential for environmental disaster.
I do not say that lightly. I acknowledge Senator Taylor's remarks that everyone
comes before you and says that the world will end if this happens. What we are
dealing with in this bill in one aspect can end the world in the sense that this
bill transfers the duty to conduct the assessment of environmental harm to
another act, that is, the Food and Drugs Act. At least it anticipates the
transfer of those duties to the Food and Drugs Act. This means that the duty to
assess environmental harm from biotechnology products, specifically foods,
drugs, cosmetics and devices, will transfer to a department that is already
under a huge black cloud.
The assessment of health hazards from those same biotech food and drug products
is already in serious difficulty in the Department of Health. The Health
Protection Branch, which conducts the health assessment of risks from
biotechnology produced foods and drugs, is, as we speak, subject to no less
than three criminal investigations, all deriving from the failure to adequately
regulate and protect the Canadian public from relatively non-novel drugs and
I speak specifically of the current criminal investigation into the failure to
regulate breast implants, the criminal investigation into the failure to
regulate Canada's blood supply from the hazards of both HIV and hepatitis C,
and the criminal investigation into the destruction of blood committee
documents pertaining to the failure to regulate blood.
How can you, in your wisdom, find it acceptable to transfer a whole new set of
duties to a department that has so badly failed, so recently, in its duties to
regulate the health risks of these products? As a minimum you should hear from
Mr. Rock, the Minister of Health, on how he and future ministers of health will
find it possible to regulate environmental issues when the department has
already lost public confidence on regulating health issues. I believe that you
must include in your report the means by which those duties will be carried
I will make two comments pertaining to the remarks of industry representatives
that you heard this afternoon. As an experienced senior bureaucrat accustomed
to the sometimes difficult task of regulating industry in Canada, I have the
ominous feeling that we are repeating here, on environmental issues, the same
mistakes that we should have learned were at the root of the blood scandal.
I do not expect that you will have read all three volumes of the Krever report,
but it is important to understand that an eminent jurist, after years of study
on the cause of the contamination of the blood supply in our country, has
written that a major cause of that contamination was the failure of Health
Canada to regulate. In fact, he said quite specifically that the Red Cross was
virtually an unregulated pharmaceutical firm in this country during the period
of contamination in the 1980s. He also points out that the reason for the
failure to regulate the blood industry was reliance on a policy that had the
approval of both parties in power during the period of contamination, and that
policy was called voluntary compliance.
It sends chills up my spine that industry members are telling you that they
believe voluntary compliance is the best way in which to protect the public
from the potential of profit to override safety. We have this example before
us, which tells us that that is not so. When I hear industry members dance
around the issue of whether toxics should be eliminated, it reminds me of the
blood industry throughout the 1980s. No one in the blood industry, neither in
Canada nor in the U.S., said that they did not want to eliminate viruses from
the blood supply. They argued for more time to take measures at their pace
rather than at the pace required for the protection of the public. They argued
that to do it too quickly would not be cost-effective. It is unacceptable, from
a public perspective, for these same arguments to be put before you with
respect to protecting the environment when we know that model has very serious
It is a cruel joke on the Canadian people to transfer the very important duty of
protecting the environment to Health Canada, where we know there is trouble,
and to invoke the concepts of voluntary compliance with no need for rigorous
I shuddered when I heard that there is no definition of "cost-effectiveness"
and that industry says that that is not a problem, that it may be left to the
bureaucrats to define. I have been such a bureaucrat and I do not know if
senators understand what that means. A bureaucrat, as an individual, will be
asked to sit at a boardroom table with major transnational corporations and
have the courage to take a definition of cost-effectiveness that is in the
public interest and against the interests of the regulated industry, with only
his own wisdom to defend himself. Two Houses of Parliament in this country have
not had the courage to define that, yet they will ask a bureaucrat to carry out
the will of the people. Those are the major deficiencies of this legislation,
and they cannot be allowed to persist.
If you are determined to toe the party line and pass this bill as is, which I
pray you do not, I request that you at least include in your report a fair and
equitable definition of the precautionary principle, of cost-effectiveness, and
of virtual elimination, so that the bureaucrats who will have to implement this
legislation will not stand alone against companies who can walk into the
minister's office any day of the week and trash him or her for taking a
difficult decision on the definition of cost-effectiveness.
The Chairman: Thank you, Dr. Brill-Edwards. Could you tell us what your
Dr. Brill-Edwards: I was firstly a family physician. I then did specialty
training in drug development and I am a specialist, in accordance with the
requirements of the Royal College of Physicians and Surgeons, my primary
specialty being paediatrics, my subspecialty being clinical pharmacology, which
is the science and medicine of new drug development.
For roughly 15 years, I was with Health Canada as a drug regulator. For four
years, from 1988 to 1992, I was the senior physician responsible for the
approval of prescription drugs in Canada.
In my former capacity, as you will see, I have sat across the table with
difficult decisions and I know of the pressure and the harm that industry can
bring to bear on officials who take positions that are in the public interest
and that protect life rather than profits.
The Chairman: You have made a major contribution to our deliberations.
Senator Spivak: Dr. Brill-Edwards and Mr. McBane, thank you for your
presentation. I should like details on the way in which the Canada Food
Inspection Agency will operate. My understanding is that if you have a food
that is deemed to be substantially equivalent to a natural food, it does not
need to receive any assessment whatsoever. I also understand that this notion
of substantial equivalency, which we have used in a different context, is not a
scientific concept. Everyone always talks about sound science when it comes to
seeds and foods. The sound science, which I saw outlined in one of the reports
that we have, outlines the procedure that must be undertaken, which are
long-term studies and so on. That is the science. We ran into this in the rBST
Dr. Brill-Edwards, even if you do not venture into the notion of substantial
equivalency, this is what happens. As we saw in the rBST situation, the
proponent, who wants to get something approved, does all the research. That is
brought before the Canadian Food Inspection Agency and there is no capacity to
do any research on the subject. We do not have the capacity to do the basic
research on it. I am not really sure what happens then.
Certainly, we have not yet got the answer of what "analysts" mean
under the bill. Could you enlighten us about this process?
Frankly, I was just as horrified as you were upon reading this when I realized
what was happening. The July 3 regulations do not say anything about the public
interest or the health of Canadians. They talk about a process that needs to be
When Dr. Dodge was here before our committee, as Mr. McBane pointed out, he said
that they cannot really do this. They do not know how to do this. Therefore, in
the modernization of the Health Protection Branch, how will they deal with that
200 per cent to 400 per cent increase? That is the focus. I understand it. When
you see how that will be carried out, you could have a heart attack.
I just want you to comment on that, if you would.
Dr. Brill-Edwards: Your focus on "substantial equivalency" is very
appropriate, especially to a discussion concerning the regulation of
biotechnology products. When I say that, I mean not just environmental
regulation, but health regulation as well. In essence, the concept is, as you
have put it, that a bureaucratic decision is taken saying that a genetically
altered potato, for example, is substantially equivalent to a potato grown in
the traditional fashion. However, there is no basis for that decision. There is
no policy document, research document or scientific basis for that decision.
In my judgment, if it were challenged in the courts, it would not be accepted.
In my knowledge of the management of health hazards under the Food and Drugs
Act, the government has never taken the position that a dramatic alteration
within the molecular structure of a substance is not important. When we say
that a genetically altered potato looks like a potato and tastes like a potato,
that does not alter the fact that we know that it is different. It has a new
genetic road map for both the development of that particular potato and for the
future growth that will issue from it.
From a regulatory standpoint, the whole concept of substantially equivalent
falls apart. Scientifically, it falls apart. It is a very useful economic
vehicle to elude proper research into the environmental and health impacts of
genetically different new products, both short term and long term.
Senator Spivak: How do we know, then, when to adopt the precautionary principle?
In spite of all the comments that we have heard, the precautionary principle
says that it has to be based on the weight of evidence and notions like this.
From your experience, do you think that that has clearly been worked out?
It might be that 98 per cent of these biotech products are perfectly okay. I
cannot really get my mind around it even though I have read the regulations and
the bill. I would defy anyone on the other side to tell me how that will happen
based on the bill. If you do not test and evaluate, how will you know?
Dr. Brill-Edwards: That is one of the more striking deficiencies of this bill.
It sets no standards for how much information we as a society need to know
before we release, either into the environment, into ourselves, or both,
dramatically new products, the nature of which we have never seen before.
Let me be clear that we are talking about a grand leap in technological
development. When we speak of biotechnology, that is the one part of the
rhetoric that we on all sides buy. These products are dramatically new and
different. The approach to that grand scale of change is what separates the
parties in this polarized debate. There are those who say that if there are
dramatically different and new products, let us get them to market quickly and
capture the profit as fast as we can. There are others who say that, yes, these
products can come to market, but let us be wise and ask the right questions and
get the right answers before we let them go to market. That comes back to your
question of whether there are standards? No. For biotechnology at the present
time, particularly with respect to the regulation of food products, the
standards are not there. By labelling these things as substantially equivalent
to the old foods, we in essence let them pass go in the proverbial monopoly
game. They go straight to market without the requirement for the studies that
would allow us to know which is the rare one that will get us into trouble.
Senator Spivak: Perhaps someone else here knows whether the provisions in Bill
C-32 that relate to the precautionary principle can even be applied. It is
exempt from CEPA.
Dr. Brill-Edwards: That is a major question in our minds, as well. With the
intrinsic weakening of CEPA, we worry that another department, such as the
Department of Health, operating under the Food and Drugs Act, cannot even refer
to CEPA as a strong basis for support.
When you are challenging a manufacturer and saying, no, we want 10-year studies,
or five-year studies or even one-year studies, you have to show them the basis
in law upon which your decision rests. In my judgment, I do not see that in the
Senator Spivak: My final question has to do with labelling. We talked before
about choice. You can choose whether to smoke or drink. You have no choice with
these products because we cannot label them.
Dr. Brill-Edwards: We can label them.
Senator Spivak: I know, but it is not the Canadian government's policy at the
moment to label.
Dr. Brill-Edwards: I agree with you, but I would ask you to examine whether that
is legally sound because in all other matters pertaining to food and drugs it
is a requirement to label any element of a food or drug that can potentially
create harm. We know that in altering the genetic makeup for a living product,
the life blueprint for an organism, whether it is a food or a living drug, which
is what many of these new products are, the new genetic code can go wrong.
Senator Spivak: Are you suggesting that the House of Commons and perhaps now the
Senate unwittingly or wittingly is passing a bill that is perhaps illegal? In
what sense do you think it is illegal? When the House of Commons passes a bill,
it is de facto illegal, is it not?
Dr. Brill-Edwards: When laws are incompatible, one with the other, you end up
with challenges that the courts have to settle. Parties concerned about genetic
engineering will bring those challenges.
We have all seen the science pictures of the little atoms that are connected
together in a particular way. If you change one of those, you have a new drug.
You have to go through the whole process of testing again. How can you change
one atom and then have to test a drug, and yet with food, you can change the
genetic makeup of the food substance without considering the potential for new,
unseen harm? I do not think that Parliament in its wisdom has captured the
full, large picture of what it is actually being proposed here.
Mr. McBane: With respect to the Canadian Food Inspection Agency, it may not be
immediately obvious in the regulations introduced on July 3 for Health Canada
to do the environmental assessment. There was a provision in Bill C-32, clause
347, to make a change to the Food and Drugs Act to allow that to happen. This
is extremely important to look at because the Canadian Food Inspection Agency
has no scientific capacity, none whatsoever. Neither does Health Canada.
In this week's issue of the Canadian Medical Association Journal, the associate
deputy minister of health said his job was "to set risk tolerance levels."
If your job is to set risk tolerance levels, you do not need scientists -- you
need public relations firms. That is what they are getting, and they are
getting rid of their scientists. Health Canada cannot get rid of them fast
enough. What kind of an evidence-based approach is that? The food scientists
have been cut. They are caught in the middle of it, so the minister does not
know what to do. However, I can tell you that senior managers are not rehiring
on a permanent basis. I can tell you that science is not a part of the Canadian
Food Inspection Agency.
I quoted their business plan in the brief, and I have given the Web page
address. It is a 12-page business plan for the Canadian Food Inspection Agency.
This is the group that will do environmental assessments of biotech instead of
Environment Canada. It takes some 10 pages of a 12-page document to mention the
word "safety," and when they do mention it, they say that it is the
responsibility of the consumer to prepare the food safely. That is outrageous.
All we are saying is beware when you see the shift in authority that is called
for in Bill C-32 because you need to know that it is a total abdication of
duty. The assessments will not take place because there is a policy saying that
it is equivalent and we do not need to test it.
Senator Taylor: I am as suspicious as you are, but perhaps I am more of an
ingenue on clause 106(8). It says that the minister can dispense with testing.
I took it to mean that a substance had already been tested somewhere else in
the world to show that it was dangerous, not that he was going to sneak
strychnine to you without you knowing about it. In other words, the minister can
dispense because there is other evidence abroad.
You talked all around it, but with respect to genetic modification and
transgenics, there are dangerous products, but then there are some not so
dangerous ones. Some came out just recently. We developed wheat and barley that
can grow in salty soils, which can increase the yield. It may well turn out
that people will turn purple and their eyes will cross 20 years after eating it.
Right now it looks like it is a boon. It seems to me that labelling is your
source until you find something. Otherwise, you are in danger of turning into a
Luddite colony and you will not try anything. You cannot experiment with it
because you have not tried it. I am not trying to say the public should be
The monarch butterfly is a good example. I do not like to eat anything that
kills butterflies because it is probably not too good for me either. Some of
these things were a long time developing.
I would remind Dr. Brill-Edwards that there was a time when thalidomide was
thought to be okay. You cannot just automatically say that everything comes out
fine. Even with the best of testing, some things have not turned out well.
Scandinavia has some of the best testing. I would think labelling is an
in-between thing. Would you like to see us push for labelling?
Dr. Brill-Edwards: Your comments suggest two extreme opposites, the Luddite
approach, which is to not try anything new, and the industrial biotech
approach, which is to try everything right away and let the consumer reap the
harm down the road when the current people in power, either in companies or in
government, are long gone. I think both those extremes are unacceptable to all
We are talking about simply applying to this new field of biotech the same sense
of wisdom that has been applied for roughly 100 years or more in all developed
nations that have the equivalent of our Food and Drugs Act. This is to say that
when something new is done for the first time, test it on small numbers of
people, small numbers of animals or plots of land. Test it in a limited way
before you unleash the unknown on the public and on the environment.
Why is that middle ground so important with biotechnology? If I market
thalidomide, it will do damage, but it will damage some patients, not all. If I
release a new pesticide, it will be put into the environment in certain farming
areas, but not in all. When I find that damage does arise from these products,
I can stop the use.
I can take thalidomide or a pesticide off the market, but with biotechnology,
little snippets of genes, the blueprint for life, are being taken from one
species and put into another. Once that is released, you never get it back.
Genes have a habit of not staying still. There is a concept that this is very
precise high-tech work, but splicing these genes from one species into another
is neither precise nor persistent over time. As an organism divides and
reproduces itself, the next generations change and you can get new genetic
forms over which you have no control.
Senator Taylor: We keep coming back to the same point. What is your solution?
You gave the impression that you did not trust Health Canada. Is there another
department that you think should be responsible? What is the solution?
Dr. Brill-Edwards: Until such time as Health Canada is on its feet again, it is
only common sense that we not give them a new burden that is vastly larger than
the burden with which they have already struggled and failed.
Mr. McBane: Who should do the evaluation is a good question. I have talked to
some scientific evaluators at Environment Canada. They can do it, so why do we
not let them? Why are we trying to evade assessment? Are we afraid that it
might not be safe? Why has there never been an assessment of these products?
Forty-two of these have been approved by CFIA. We are eating 42 of these, and
none have been tested. Environment Canada can test them, if the political will
exists. There is the scientific capacity to do an assessment.
The Chairman: Thank you both very much for your contribution to our
deliberations. You have highlighted some very significant points. I very much
appreciate it personally, as I am sure others do. I thank you for your
patience, your time, your wisdom, and your assistance to us.
Senators, our next witnesses are from Nunavut Tunngavik.
Mr. Jose Kusugak, President, Nunavut Tunngavik, Inc.: Mr. Chairman, I listened
with great interest to the previous presenters. Environmental protection
applies globally. Our presentation comes from our corner of Canada. The last
presenters talked about genetically engineered foods and crops and we talk
about the God-made animals, which are not fenced in. We harvest those animals.
We have fears similar to those voiced by the previous witness, because we eat
walrus, caribou and fish. We consider the oysters we take from the stomach of
the walrus to be a delicacy. We eat this food daily. It is not inspected and
approved by the Canadian government, so we do not know whether we should be
eating it, or how much. When visitors come to our area, we would like to share
Arctic char and other animals with them, yet we feel some guilt because we do
not really know whether this food is safe. It is all connected.
The decisions that are made here will affect your children and your children's
children's children. We are all Canadians and we are all residents of this
planet. This bill deals with our very survival.
With me today is John Merritt, Nunavut Tunngavik's constitutional advisor and
legislative counsel. Nunavut Tunngavik (NTI) is a non-profit corporation that
is the Inuit party to the Nunavut land claims agreement entered into in July of
1993 between the Government of Canada and the Inuit of the Nunavut settlement
NTI is responsible for ensuring that the rights and benefits flowing to the
Inuit through the Nunavut agreement are secured and defended. NTI represents
the Inuit of Nunavut generally, and protects and advances their rights as an
In general, Nunavut Tunngavik applauds the efforts of the Government of Canada
to create a renewed Canadian Environmental Protection Act based on concepts
such as an ecosystem approach to pollution prevention, the polluter-pay
principle, the precautionary principle, and recognition of aboriginal people as
participants in government-to-government relations.
At the same time, NTI is concerned that vague concepts such as sustainable
development, using cost-effective measures to prevent environmental
degradation, and integration of environmental and economic factors in decision
making, which are also contained in Bill C-32, should not be permitted to
interfere with responsible environmental protection in Canada.
NTI is particularly apprehensive that, given the high cost of carrying out
government programs in the Arctic, arguments based on a vague concept of
cost-effectiveness can often become excuses for indifference and inaction.
NTI also questions the process followed with respect to the government's recent
amendments to Bill C-32's virtual elimination provisions, apparently in
contravention of the work previously done by a multi-partisan committee.
NTI has made two previous submissions to the Government of Canada on the renewed
CEPA. In those submissions, we concentrated on issues of direct relevance to
the Arctic ecosystem, a vast and rich inheritance not only of Inuit, but of all
Canadians, including you and me As Inuit are the principal caretakers of the
Arctic lands and waters, we have been very disappointed that our comments have
been virtually ignored in the preparation of Bill C-32. Principal among these
was NTI's strong support for the Standing Committee on Environment and
Sustainable Development's 1996 report in its recognition of the Arctic as a
separate and distinct ecosystem in need of separate treatment under CEPA, given
the unique characteristics of the Arctic environment for short food chains,
greater accumulative effects of toxins among Arctic wildlife, and permafrost and
frost heave as barriers to waste burial, to name a few.
The Arctic must be addressed as a separate case under Canadian law. Matters such
as the treatment of hazardous substances entering the Arctic environment,
hazardous and non-hazardous waste disposal, and ocean dumping require unique
consideration north of 60 degrees. This is lost in Bill C-32.
There are two other general aspects of Bill C-32 upon which I would like to
comment. The first is the structuring of Inuit representation in the advisory
committee that would be established under clause 6. The scheme for providing an
Inuit voice on this committee is very awkwardly conceived and expressed. As
most Inuit regions have supported a blended form of regional political
development with different roles for public and Inuit-specific bodies, it would
be preferable if clause 6 guaranteed representation of the Inuit, not of Inuit
aboriginal governments. Inuit representatives would be selected in accordance
with regulations developed in consultation with organizations representing the
Inuit for the purposes of land claims agreements.
Most of you know that when we opted for self-government under the Nunavut Act we
opted for public government in Nunavut, not specifically self-government for
them, recognizing that we are part of the Canadian population.
A second general concern involves the relationship of Bill C-32 to the
environmental problems that are brought by air and water into Canada from
foreign sources. These problems are especially significant in the Arctic.
The development of a stricter domestic regime with respect to the contaminants
must be accompanied by vigorous efforts aimed at helping our neighbours to
confront problems that have damaging spill-over effects in Canada. These
efforts should not shy away from linkages to trade and investment issues, as
well as informing the direction and levels of economic and technical assistance
to other countries.
I would also like to bring your attention to the provisions of Bill C-32 that
bear directly on the rights of the Inuit under the Nunavut agreement.
As you are aware, a non-derogation provision in legislation is an interpretative
provision stipulating that nothing in the new law is intended to abrogate or
derogate from aboriginal or treaty rights. These provisions are important
reminders to officials responsible for administering legislation, to the judges
interpreting it, and to the public using it that Parliament was mindful of
constitutionally-protected aboriginal and treaty rights when it enacted a law,
and that it had no intention of adopting any measures that would detract from
or erode those rights.
In the past, a significant number of legislative measures adopted by Parliament
that affect aboriginal peoples have contained a non-derogation provision, which
has been acceptable to NTI and, we believe, to other aboriginal peoples. That
language is as follows:
For greater certainty, nothing in this Act shall be construed so as to abrogate
or derogate from any existing aboriginal or treaty rights of the aboriginal
peoples of Canada under section 35 of the Constitution Act, 1982.
Consistent use of this particular non-derogation provision has served the
purposes of clarity and logic in the interpretation of
constitutionally-protected aboriginal and treaty rights and federal laws of
general application that touch on those rights. Unfortunately, for unclear
reasons, differently phrased provisions have found their way into recent
federal legislation, including Bill C-32.
Nunavut Tunngavik has received no explanation as to the inspiration and intent
of this variation in the language and, notwithstanding the Government of
Canada's fiduciary obligation, has not been consulted on the change.
The rationale for inclusion of a non-derogation provision is to minimize
uncertainty. Therefore, it would be unwise to introduce potentially significant
language changes with uncertain legal effects, particularly when the changes do
not have the support of the aboriginal people. NTI urges that the commonly
accepted non-derogation language quoted above be included in CEPA and other
current federal legislation, and that aboriginal peoples be properly consulted
before any new approach is contemplated for inclusion in any
Institutions of public government established under the Nunavut agreement have
authority that overlaps and is, in some cases, inconsistent with the
regulation-making authority in Bill C-32.
The Nunavut Water Board, or NWB, has the sole authority to license inland water
uses and deposits throughout the Nunavut settlement area. Further to that
authority, the Nunavut Water Board may set standards and water licences for
deposits of waste into water. This authority is in direct conflict with clause
209(2)(a) of Bill C-32, which states that regulations may provide for or impose
requirements respecting the quantity or concentration of any substance that may
be released into the environment. NTI recommends that the "provide for"
language be removed and that it be made clear that only minimum requirements
may be imposed by CEPA regulations in the Nunavut settlement area.
Other provisions of clause 209(2) overlap and potentially conflict with the
Nunavut Water Board's authority and with the authority of the Nunavut Impact
Review Board, NIRB. The NIRB screens and reviews, and sets environmental and
socio-economic terms and conditions respecting project proposals in the Nunavut
Problematic CEPA provisions include the authority to make regulations respecting
locations and releases of substances; the manner of disposal of substances;
inspection; monitoring and data-gathering; and site decommissioning, which are
found in clauses 209(2)(b), (d), (q) and (t) to (x).
Subclause 209(3) requires the minister to consult with the government of a
territory and with representatives of aboriginal governments before
recommending regulations under clause 209. Nunavut Tunngavik recommends that
subclause 209(3) also requires the minister to collaborate with appropriate
land claims bodies before recommending regulations that affect matters within
Similar concerns and recommendations apply to the regulation-making authorities
contained in subclauses 93(1) and 105(1) and in clause 177 of Bill C-32. These
regulation-making authorities should also be made subject to the authority of
land claims bodies with powers, duties or functions in relation to these
Finally, clause 121 of Bill C-32 addresses the issuance of environmental
objectives, release guidelines and codes of practice to reduce marine pollution
from land-based sources. It identifies parties with whom the minister must and
may consult in carrying out those functions. It does not recognize the
existence of bodies created under the Nunavut Agreement with jurisdiction in
marine areas in Nunavut. The Nunavut Marine Council, which may make
recommendations to government agencies regarding marine areas, should be
consulted by the minister in carrying out the clause 121 functions.
In summary, Nunavut Tunngavik believes that, with some careful attention to
specific details, Bill C-32 could be brought in line with the Government of
Canada's obligation to the Inuit of Nunavut under the Nunavut Agreement. Making
CEPA responsive to specific environmental concerns related to the Arctic
eco-system would, of course, require more extensive revision.
Regardless of the fate of Bill C-32, Nunavut Tunngavik would encourage this
committee to initiate a special examination of the unique and challenging
environmental and sustainable development issues confronting Nunavut and other
parts of the Canadian and circumpolar Arctic. If nothing else, the complexity
of Bill C-32 illustrates the desirability of this committee equipping itself
with a better knowledge of these issues by travelling there. The creation of
the new government of Nunavut on April 1 of this year would make this effort
Senator Nolin: I am sure you have looked at the Nunavut Act. When you refer to
your agreement and breach of the agreement, does it also breach the act?
Mr. John Merritt, Constitutional Advisor and Legal Counsel, Nunavut Tunngavik,
Inc.: There is an interpretative hierarchy established under the Nunavut
Agreement which says that the agreement prevails against any conflicting law.
The Nunavut Act repeats that interpretative regime. Anything that comes along
in subsequent legislation that would purport to overturn either the Nunavut Act
or the agreement would be read down. Our concern is that not everyone is
familiar with these interpretative rules, and insofar as non-derogation
language is introduced to help Canadians find their way through the law books,
we would prefer that the regime be as consistent and clear as possible.
The Chairman: There is quite a difference in the impact of that wording, which
is the point that you are making. One talks about the protection. The other is
much broader, and talks about any existing aboriginal or treaty rights. There
is a very big difference, in my reading of those, of what you traditionally
receive and what is in this bill. Is that view regarding the impact correct?
Mr. Merritt: That is potentially the outcome. It is all speculative on our part,
and on the part of anyone else, because we do not have any judicial
pronouncements. We are concerned for the reason you mention. If we have an
evolution in language, there will be an inevitable tendency for people to read
differences into the changes in usage. We are not sure what the impact will be,
but we believe the drift is in the wrong direction. The drift is towards
narrowing the protection as opposed to expanding it.
The Chairman: Have you made any inquiries as to why that wording was changed
from the normal wording?
Mr. Merritt: We have made a few subtle inquiries with folks whom we would not
want to quote. Our sense is that the Department of Justice may be attempting to
monitor what it views as the case interpretation of section 35 of the
Constitution Act, 1982. That is speculation. What is worrisome for us, though,
is that while there did seem to be a pattern in legislation, in the immediate
wake of the 1982 amendments, whereby the federal government was willing to
sponsor consistent non-derogation provisions, in the last few years there has
been a drift away from that. We have seen different formulations in different
bills. It is not just one departure. We seem to be witnessing a pattern whereby
different wordings are being tried on, and that is particularly worrisome for
One could make an argument that, at the end of the day, the logical place for a
single interpretation version would be in the Interpretation Act itself, which,
in a way, would forego the need to keep coming back to this point on successive
pieces of legislation. We are very conscious that we do not want to come to
speak to every bill before the Senate and the House of Commons to police this
kind of thing. We do not have the resources, and, in the final analysis, it is
a huge investment of time and energy.
Senator Nolin: We must agree that any bill cannot amend the Constitution, so
section 35 will remain as is, with or without your proposed amendment. What you
want is for the courts, when reading this bill, to assume that we really meant
that we are not trying to amend section 35 or change the rights.
Mr. Merritt: That is so.
The Chairman: Then the question becomes why they need clause 4 at all? Why are
they putting this in any legislation?
Senator Nolin: It must be for more clarity.
The Chairman: I take it that you would like an amendment that provides the same
wording that you traditionally enjoy and not have the uncertainty of this new
Mr. Merritt: Yes.
Senator Nolin: I am more concerned with the breach to the agreement.
Mr. Kusugak: We find dealing with legislation quite a bit more time-consuming
than trying to direct people's heads back to the original language. Using
English as a second language, we often panic when new wording is used, such as
a new adjective, because it makes a difference in a lot of places.
Senator Chalifoux: On the same subject, I have clause 4 before me, as well as
your proposed wording. I had looked at this clause before. It seems to me that
the present clause 4 wording gives you greater protection. It states:
For greater certainty, nothing in this Act shall be construed so as to abrogate
or derogate from the protection provided for existing aboriginal or treaty
rights of the aboriginal peoples of Canada by the recognition and affirmation
of those rights in section 35 of the Constitution Act, 1982.
It seems to me that there is more protection in clause 4 than there is here
where you want to change it to the following:
For greater certainty, nothing in this Act shall be construed so as to abrogate
or derogate from any existing aboriginal or treaty rights of the aboriginal
peoples of Canada under section 35 of the Constitution Act, 1982.
Could you please explain to me why it is so important that that be changed? It
looks to me as though clause 4 in the bill provides more protection.
Mr. Merritt: Keeping in mind that all of this is speculative, our reading would
be that it is a weaker provision. It is possible, given a court interpretation,
that the protection offered by section 35 is not absolute in all circumstances.
We know that there have been cases that say it is possible in certain
circumstances to regulate, for example, aboriginal rights and to regulate the
enjoyment of aboriginal rights.
Once this matter of protection is invoked, essentially what is left out of the
equation are any aboriginal rights that cannot demand an absolute or a very
high level of protection under section 35 under its own force. I appreciate
that may sound like a fairly theoretical argument, but we are satisfied on
fairly close examination that this is a weaker formulation than the previous
provision that has been used in legislation in the past.
Senator Chalifoux: Mr. Merritt, I have been listening to a whole lot of lawyers
around here. Many words and ideas are being put into the act that are really
all supposition. I think that is a theory on your part. It has never been
tested. I would tell any of the aboriginal people I work with that that is all
right because it still states that protection is provided. "Protection,"
I think, is the key word.
The Chairman: Senator Chalifoux, I have to add that the agreements may be much
broader in what they provide. Now it is limited to the "protection of"
and so I agree with Mr. Merritt.
Senator Chalifoux: It says any agreements.
The Chairman: It is only the protection. What about other aspects of the
Senator Chalifoux: I am not here to debate. I have stated my opinion on this
part of the bill.
Senator Adams: Do you have some kind of information with respect to the 1996
sustainable development report? Did that 1996 report have anything to do with
I do not know how many years and how many times we have had scientists come up
north to study the environment and the animals. We heard from the ITC the other
morning that PCBs and mercury are affecting the health of aboriginal people.
My concern is the effect of these contaminants on our country food in the North.
In the hunting season we eat a lot of meat. Earlier, you were talking about
sharing meat with our neighbours. When we go out hunting, we always share our
meat, but we feel like the meat is polluted now.
We hunt many types of animals and mammals 12 months a year. We do not have any
policies like they do down south, where beef is approved by the federal
government with a stamp. We do not have a stamp of approval from the Nunavut
government for that kind of meat. Perhaps you are concerned, too. You skin a
caribou and you worry about what might be wrong with its lungs and its liver. We
should have more inspections to deal with those who are affected in the future.
It is affecting our health. All they will say is that you can only eat so much,
and then you have to stop. But how can we stop?
You can go out on the land and pick berries right now, but are the pollutants
affecting the berries? The berries are best at this time of year, but are they
affected? Nothing like that is grown down south here. How does that food affect
our people, given all of the pollution that is coming into our area? The
witnesses who were here before you told us that all these pollutants are
affecting us up there.
Mr. Kusugak: Some reports have given us an idea of the level of toxins in seal
fat, whale fat and those kinds of things. We do not know how to interpret that
data. We do not know how much we can eat safely.
When you see the effects of global warming where we are, it is very obvious. The
number of polar bears this summer as opposed to other years has been
incredible. As well, we have seen insects that we have never seen before. I
make a point of spending time at my cabin with my granddaughter digging spiders
and other insects. It is amazing the new insects that we are seeing.
We want to trade with Greenland. They really want our caribou and we really want
some of their sea mammals. Given that these things are not inspected, they
would rather trade in ostrich meat than in reality. We need some kind of annual
inspection of some of our traditional foods.
I assure you that we welcome any Alberta-stamped beef, but you can only afford a
hind quarter. By the time it gets up there, it is like eating gold. Maybe gold
is not a good example any more, but we have to supplement everything with
country food, and we need government approval of some of our foods.
We can get some of the sustainable reports from 1996 if you want to see them. I
am sure we can dig them out and provide you with any information we have.
With the experience from Greenland, we are finally, under the Nunavut Land
Claims Agreement, thought the Nunavut Wildlife Management Board, keeping track
of the types of animals that are caught and the types of diseases they have. We
have been depending on the federal government to do all this for years and
years. Through the land claims agreement, we are now caretakers again of our
own area. Come back in 50 years. We will have the information.
Senator Adams: There is a reference in Bill C-32 to Nunavut members, but we
really do not understand what that means. It looks as though we are not
recognized very much in the bill.
Last fall, we elected 19 legislators. We expect that the legislature will have
the same powers as any other jurisdiction and that it will have its own
environmental bill. In Bill C-32, it sounds like the federal government will
still be telling us what to do. We have our own public government. We will make
our own laws. Under this bill, we may have to have our laws in English and
Inuktitut. Do you think our legislation will have to be translated from
syllabics to English? It is very hard to translate Inuktitut.
Mr. Kusugak: Mr. Chairman, that is an important question. We opted for a public
government in Nunavut. Our government represents all the peoples who live in
the Nunavut region. We represent Inuit on Inuit-specific interests. We do not
pretend to be a government, but we represent 80 to 85 per cent of the
population of the Nunavut region. When a language says that there shall be one
representative for all Inuit, aboriginal governments, there is nothing like
that. Our Indian friends have asked that their elder council negotiate with our
elder council. We do not have elder councils. We have elected members. I am the
The federal government wants us to send an Inuit aboriginal government
representative. We do not have those, but we have the largest land claims
settlement ever. We want to represent our people in these kinds of discussions,
but we cannot speak for the other regions in Northern Quebec or Labrador.
On a larger scale, at the Inuit Circumpolar Conference we work on global
environmental protection, but we need unique representation because we are
there. People say that it is so far away, but it is not when you are there. You
are there when you are there.
Mr. Merritt: Mr. Chairman, we understand the intent of this section, which is to
have an Inuk representative, and NTI supports that initiative. The opportunity
to have an Inuk representative is welcome, but the reference to how that Inuk
would be appointed and whom he or she would represent is problematic. Subclause
209(3) attempts to create some flexibility, allowing the minister to propose
regulations, but we are of the view that that subclause is in itself very
difficult to follow. It is very complicated wording. Insofar as that subclause
tries to resolve the issue, we think it is not very effective.
We are not bringing to your attention the intent of the clause as drafted, but
we note that the wording does not work very well with regard to Inuit
participation. With fairly straightforward drafting improvements, a mechanism
could probably be put in place that would give the required result.
The Chairman: The wording you recommend in your brief for clause 6 is that "there
is one representative for all Inuit." That is all you want, and then you
will work it out?
Mr. Merritt: If you introduce the reference there, then you must have some
reference to a process whereby that representative is identified. We think a
reworking of subclause 209(3) could achieve that, yes.
The Chairman: There is currently no Inuit aboriginal government, so that
subclause is useless to you.
Mr. Merritt: It is probably an empty provision. It could be argued that the
minister would have some capacity, through regulations, to overcome that
problem, but arguably the minister's discretion would not extend to actually
creating aboriginal governments if they do not exist, so I do not think that
subclause 209(3) addresses the problem you have identified.
Senator Hays: In your brief, you make reference to the minister's obligation to
consult with the Nunavut government. You then go on to say that you recommend,
in addition, that the minister be required to collaborate with appropriate land
claims bodies before recommending regulations that affect matters within their
What is the status of unresolved land claims within Nunavut territory? I naively
assumed that it was a land settlement of sorts, but I gather from your comment
that there are unsettled land claims within the Nunavut territory. Is that
right? If so, how many are there and how would this work?
Mr. Merritt: That language may have misled you. There are no unresolved land
claims issues in Nunavut, but there are Inuit outside Nunavut. Two of those
groups, the Northern Quebec Inuit and the Inuvialuit of the Western Arctic,
have land claims agreements. The Labrador Inuit are in the process of
finalizing their claim.
There are Inuit regions outside of Nunavut. The Nunavut government
representative on this committee presumably would not purport to speak for
other Inuit, in any event.
Senator Hays: I understand.
Senator Taylor: You have pointed out what you perceive to be some improvements
to the bill. There is some question as to whether this bill should be proceeded
with or whether we should go back to the old bill. This bill mentions
derogation of land claims. It also mentions the obligation of the minister to
give consideration to traditional aboriginal knowledge. This bill also calls for
consultation with the aboriginal people, which the other bill did not.
Do you prefer this version of Bill C-32 to the old version, or would you rather
have the old one?
Mr. Kusugak: If the new one does nothing to improve upon the old one, we would
traditionally stick with the old one.
Senator Taylor: Even with the aboriginal consulting and so on?
Mr. Kusugak: There are other things to consider that we have not talked about.
Other presenters touched on it. They talked about a global look at
environmental protection. I know that we are only talking about the Canadian
Environmental Protection Act, but when you live in our area you cannot ignore
the pollutants that come in from other countries. It is us against the
Martians.It is a matter of our planet surviving.
If there is nothing in the new bill to improve on that, there is no reason not
to go with the old one. At lunch we talked about what would happens if this
fails. We are ignorant, of course, of all the things that you have heard, but
we decided that perhaps nothing would happen.
The Chairman: Thank you very much for your enlightened brief.