Proceedings of the Standing Senate Committee on
Environment and Natural Resources
Issue 22 - Evidence, August 31, 1999 (morning meeting)
OTTAWA, Tuesday, August 31, 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 9:12 a.m. to give consideration to the
Senator Ron Ghitter (Chairman) in the Chair.
The Chairman: Good morning, senators, and welcome to the continuation of our
study of Bill C-32.
We have with us this morning Mr. François Blais, the legal translator
from the Centre for Legal Translation and Documentation, whom we requested to
appear and who has kindly agreed to come to explain to us the definition that
we have discussed on cost-effectiveness and the French equivalent terms.
Mr. Blais, welcome. Thank you very much for appearing. As you know, we are
really only interested in that one particular segment. We would appreciate your
views on it. The floor is yours, sir.
Mr. François Blais, Director, Centre for Legal Translation and
Documentation, University of Ottawa: Mr. Chairman, with your permission I will
introduce myself; I am the Director of the Centre for Legal Translation and
Documentation at the University of Ottawa. I am a member of the Quebec Bar, the
Corporation of Translators and Interpreters of New Brunswick and the Association
of Legal Translators of Canada.
To get to the heart of the matter -- as I mentioned in my letter of which you
have all received a copy -- there is a difference between the English and
French texts. It would seem that the idea of "cost" has been omitted
in the French text. According to the Grand Robert and most other dictionaries,
the term "effectif" simply means "that has concrete results,
that results in actual action" whereas "cost-effective" in
English, on the other hand, conveys the idea of something that offers a good
price-effectiveness ratio. According to the Translation's Bureau (R) databank, "cost-effective"
...economical in terms of tangible benefits produced by money spent.
The French equivalent of this expression is:
A strategy, decision, program, process or operation that produces positive net
results in terms of costs incurred.
You can find exactly the same definition in the Ménard dictionary of
So there seems to be quite a significant distinction between the expressions "mesures
effectives" and "cost-effective measures." There is a nuance
that does not exist in French. Generally speaking, "cost-effective"
is translated as "rentable, efficient ou économique," according
to Termium and most dictionaries. In a bill, I know that the term "rentable"
is avoided because there is the idea of profits involved whereas in the
expression "cost-effective" you do not necessarily have that
connotation. You just need a good cost/effectiveness ratio.
I also did a bit of quick research in federal legislation where the expression "cost-effective"
is often found and has been translated by "rentable" several times.
More particularly in the case of the legislation on alternate fuels, which is
rather recent, section 3 says:
...where it is cost-effective and operationally feasible,
And this is translated as "lorsque cela est rentable et faisable."
In the Canada Transportation Act, section 130(4) states:
...unless there is no cost-effective continuous route wholly within Canada.
And in the same clause, in French:
... il n'est toutefois pas tenu de le faire s'il n'y en a pas qu'il puisse
emprunter convenablement pour un prix concurrentiel.
That aspect of the term was retained. The cost, in other words the price, is
competitive. In the Canada Food Inspection Agency Act which is also a very
recent piece of legislation, the preamble says:
The Government of Canada wishes to have that foods inspection agency deliver
those services in a cost-effective manner.
And this is translated as:
...que cette Agence d'inspection des aliments rende ces services d'une manière
There again, "économique" is a possible equivalent. That aspect
was kept even though, and I point this out again, it is not found elsewhere in
the French text of Bill C-32.
Finally, in the National Housing Act, paragraph 99c), you will find:
...the cost-effective implementation of any federal or provincial housing
Which is given in French as "afin de favoriser la mise en oeuvre au moindre
It is a rather elegant solution, in fact. Finally, in the Oceans Act, subsection
41(2), you will find:
The minister shall ensure that the services referred in subparagraphs are
provided in a cost-effective manner.
And this is given as:
... que les services ... sont dispensés de la manière la plus économique
et la plus judicieuse possible.
That is also a good solution. To summarize, I believe the term "effectif"
in the French version does not quite render the meaning of "cost-effective"
in the English version. It would have been more judicious to use "efficient"
or even "rentable" or perhaps another solution such as those I have
Senator Spivak: Mr. Blais, in your experience, is it possible to fix the two
different versions by any method other than amendment? Do you think this is an
Mr. Blais: It certainly is not a very serious mistake and it is rather easy to
change. You can either change the French text by using a term more appropriate
than "efficient" or "rentable" or change the English
version, which would be more complicated, to align it on the French. The two
versions have to match, that is the goal of the whole operation. To make the
English version match the French one, you just drop the idea of "cost."
It is up to the draughters.
Senator Spivak: It seems from what you say that the term "effectif" in
French is absolutely similar to the English word "effective," which
means "achieving the ends," but does not have any connotation of
cost. Would you agree with that?
Mr. Blais: I totally agree.
Senator Spivak: It has no connotation of cost-effectiveness in whatever manner
one uses to achieve one's ends.
Mr. Blais: That is it, to reach a goal. Except that the English "effective"
and the French "effectif" are deceptive cognates and you have to be
careful. The English "effective" is translated more as "réel"
or "des mesures...." In the dictionary of deceptive cognates, for
example, it says: "Les autorités nous ont apporté aucune
aide effective" in French, and in English this would read as "any real
or material." On the other hand:
I know an effective remedy for headaches.
"Je connais un remède efficace." But according to the
dictionary definitions, "effectif" means there is a goal, a real,
material goal that is to be attained. So to answer your question, with some
nuance, the English "effective" does correspond to the French "effectif."
Senator Spivak: In other words, an effective measure -- "une mesure
effective" in French -- could be a measure that is not cost-effective at
all. In other words, it could be a much more expensive measure. It would not
necessarily be cost-effective. I think that is the important thing because we
are looking here not just at a concept; we are looking here at administration,
and this is a key concept that has been argued during the course of this bill.
You might get totally different versions in the administration in French and in
English, which of course might lead to litigation, which is what we are trying
Senator Taylor: I am venturing into a field in which I know very little.
In your letter, Mr. Blais, you restrict your arguments to cost-effective and "rentable"
and efficient. I have another paper done by the Library of Parliament, which
brings efficacious in. Why did you ignore that entirely in your letter when it
seems to be almost interchangeable with "efficace or rentable" for
Mr. Blais: Yes, "efficace" and "effectif" are
interchangeable, they have just about the same definition in French. I did not
mention it simply because I did not think it was necessary. I was simply asked
to analyze "cost-effective" and "effectif." But, yes, "efficace"
could be used and that would change nothing in the French version.
Senator Taylor: I notice that "efficace" is used in a number of other
Let us go back a step further. What is the Latin root of "rentable"?
You say it is a product; it also gives a benefit sufficient to support capital
investment. How does the usage of that word differ from "louer"? What
is the difference in the two roots?
Mr. Blais: Probably; I have not seen the Latin version of both terms, but I
think that the word "effectif" is more modern than "efficace."
"Effectif" came after and it is said to go back to 1792. Perhaps that
happened during the reform of the French administration during the French
Revolution and they decided that "effectif" was the flavour of the
day rather than "efficace." It has a specific meaning that is perhaps
more precise than "efficace." "Efficace" would be the more
general of the two terms. "Effectif" means: "something that has
concrete results, that results in actual action." Whereas "efficace"
means: "that gives a good return, that has a good result." I am
sticking my neck out a bit, here, as I do not have much of a basis to answer
Senator Taylor: The words "efficacious" and "efficient" in
English are very similar to the definitions you have given. "Efficient"
means that it should return profit. "Efficacious" just means that it
gets it done.
I have a little trouble with "rentable" and "louer." I
digress a bit, but on my walk to work now will I sound superior to my French
storekeeper when I use "rentable" rather than "louer"? Where
should I use one versus the other?
Mr. Blais: I did not quite understand the second term you used. "Rentable"
Senator Nolin: "Rent" and "rentable."
Mr. Blais: "Rent" and "rentable."
Senator Taylor: Now you get an idea of what the complication is. The other
committee members finally understand the questions so now they want to chip in.
It is like taking a blanket off a canary cage.
The Chairman: Now we know why the West does not understand the East.
Mr. Blais: To answer your question, there may be a common root in that the word
probably comes from a common root: "rentable" and "rent."
There is also an economic aspect in "rentable" and in "rent."
Perhaps the two words could be linked that way. The word "rentable"
means: "that will result in some benefit, that also offers a good
cost/effectiveness ratio." Whereas the word "rent" simply means:
"to rent, a rental." In French, there is no connection.
Senator Taylor: So, "louer" need not have an economic sense. I end my
questioning -- for lack of a better word -- by saying that we seem to be
counting how many angels can dance on the head of a pin.
The Chairman: Those are pretty big pins.
Senator Nolin: Mr. Blais, it appears to me there is a difference that is perhaps
not major, but there definitely is a difference -- and I would not say it is
intentional -- in the terms used in the English and French versions. If the
courts were seized of this possible contradiction between the two versions, in
your opinion what might their conclusion be?
Mr. Blais: A court looking at a problem stemming from the interpretation of the
English or French texts should refer to the intent of the lawmaker. In this
case, it is not quite clear because there really is a difference between the
two terms. In French, as I said before, the term does not include the notion of
"cost," profitability or economy, whereas in English, you do have that
idea. A court would probably have to determine what the legislator meant in
using these terms based on the entire act. It would note that there is a
difference but it would have to decide either in favour or to the detriment of
the person bringing this before the court.
Senator Nolin: Have you had time to examine the legislator's intent?
Mr. Blais: No, Senator Nolin.
Senator Nolin: You restricted your examination to the two terms used?
Mr. Blais: Only to the two terms used.
Senator Nolin: Which you hold to be different.
Mr. Blais: Different, yes.
Senator Nolin: Not to say contradictory?
Mr. Blais: That is it.
Senator Hays: Was the answer yes?
The Chairman: The answer was yes to the contradictory.
Mr. Blais: I said they were contradictory, but maybe that is a bit strong. You
have to shade that because it would depend on the definition you would want to
use for "cost-effective" and "effectif." There really is a
difference. That is why I answered yes to Senator Nolin's question.
Senator Nolin: The fact that in French there is no reference to the mercantile
or economic notion of efficiency leads me to speak of contradiction. Now, the
term you used is different and certainly appropriate. It does not seem strong
enough to me, but it is definitely different.
The Chairman: Mr. Blais, would it help if "cost-effective" was defined
in the legislation?
Mr. Blais: It would certainly help any court which might have to consider the
matter. The definition would also have to correspond in French. At that point,
you would certainly have to amend both wordings of the legislation. It would
probably be easier to amend either one or the other.
The Chairman: If there are no other questions, we thank Mr. Blais for coming.
Colleagues, I should like to introduce you to Mr. Sam Bock, who came to see me
in Calgary, highly recommended, I might add, from other sources. I found his
approach to be refreshing, interesting and of great background. He wanted to
appear before the committee. I said that I would do what I could to have him
appear and present a point of view from the citizens' aspect, albeit a very
Please proceed, Mr. Bock.
Mr. Sam Bock, Individual Presentation: Honourable senators, I really appreciate
the chance to be here today. I should like to say, as I said to Senator
Ghitter, that I think it is terrific that we have an appointed Senate, which I
did not appreciate until I got a chance to look over many of the transcripts of
past deliberations. I have been very impressed with everything I have read. I
had been won over by a position in the West that we need an elected Senate,
without really looking at it, and I do not feel that way any longer.
Senator Nolin: You do not mind if we use your testimony for other purposes, do
The Chairman: Perhaps you could begin by telling us about your background,
experience and education.
Mr. Bock: I have been interested in the environment and sciences all my life.
The study of particle physics, nuclear chemistry and health sciences has been a
major focus of my work for the past 20 years. I have a B.A. in economics and
environmental studies, and my thesis was an economic and scientific analysis
and forecast of North America's energy needs and technologies, focusing on
fossil fuels, nuclear power and alternative sources.
After working several years on Wall Street and in Denver in energy-related
project finance, I left business to become a full-time athlete and coach in the
area of bobsledding and track and field. To develop new coaching methods and
training programs, I began research into nutrition chemistry and sports
biochemistry and mechanics.
To improve our athlete's chances of success, I started Paragon Technologies, a
little R&D company, to research, develop and manufacture new sports
equipment for competition and training. This company has provided and continues
to provide design and manufacturing consulting of high-performance sports
equipment to the world's leading athletic shoe manufacturers.
Paragon's sport-related programs -- ones we developed under an association and
this company -- helped Canadian athletes win Olympic and world championship
medals as well as set many world records. Much of this was due to new equipment
we developed and, just as importantly, applied nutrition chemistry, which
allowed us to succeed naturally in sports that are still rife with steroid use.
I feel that 10 years of coaching and biochemical study combined with finance,
design and manufacturing experience has exposed me to the concerns of
environmentalists and industry alike. I firmly believe that the two can and
must operate in harmony if we are successfully to meet the challenges of the
What I am here to talk to you about today are a few of the chemical issues that
I think are important to the bill and how the wording of the bill affects
those. There are two basic types of chemical activities and they work
The first type, the one used most in industry, is randomly occurring chemical
activity, where one substance reacts with another when they are brought
together under certain conditions. A car randomly mixes gas with oxygen and
burns it to create carbon dioxide and water. If the fuel and oxygen ratios are
correct, as we all know, the emissions are non-toxic to plant and animal life --
water and carbon dioxide. However, if there is only enough oxygen to combine
one oxygen atom with every carbon, carbon monoxide is produced instead. As
well, impurities in the fuel, such as sulphur compounds, might react with
oxygen creating sulphur dioxide, for example.
The creation of chemical by-products in a car is random and essentially
uncontrolled. That is a very important point. Most of the chemical activity
used in industrial processes is of the same nature -- random and uncontrolled.
We can control it to a degree, and we do a good job of that, but we are always
creating something we do not necessarily want.
Random chemical reactions create random by-products. If this were the only way
for chemicals to interact, there would be no life on earth, as life processes
are orderly and require the recycling of specific by-products, not ones that
are randomly produced.
To prevent the generation of random by-products and to maximize nutrient use,
all life uses enzyme chemical reaction as the basis for catalyzing growth and
maintaining health. Enzymes allow life forms to build precise and complex
designs at very high speeds. Enzyme reactions are up to 3,000 times faster than
random reaction, allowing life to bloom and regenerate.
More important, enzymes react only to specific compounds in a distinct manner
and do not normally produce random by-products. That is very important because
a particular by-product of one enzyme is the fuel for the next. Because of
this, we can reorganize chemicals over and over again in our bodies. The
orderly progression of life would not be possible if enzymes produced random
by-products, as these would clog up our systems by interfering with the complex
matrix of interdependent enzyme action.
To clarify, we have hundreds of thousands of enzymes within our systems. They
all work in a balance with each other. If you manage to screw up one,
eventually it trickles down and affects all the others. It can take a long
time, and we see this in a bigger picture in nature.
It is important to understand that the body recycles materials over and over
again. It is possible to do this only because enzymes do not really pollute.
They only produce a specific product that we can use again.
Because cars and most industrial processes do not recycle their fuel, as humans
and animals do, their randomly produced products do not affect them. However,
synthetic or randomly produced chemicals often disrupt the enzyme-based
chemistries of plant and animal life forms.
It has taken millions of years of evolution to develop enzyme systems. Plant and
animal life are unable to adapt to the explosion of chemicals developed over
the past 40 to 50 years, as they cannot evolve new enzymes to process new
chemicals overnight. Enzyme systems have only evolved to work with natural
compounds. That is why the billions of tonnes of synthetic chemicals produced
have become problematic for healthy plant and animal life. Therefore, the 7
million chemicals we have created need to be used very carefully and controlled
Our most current understanding of chemistry allows no other conclusion. Why,
then, are Canadians spilling hundreds of millions of pounds of toxic substances
all over our environment? Clearly, we do not understand the full ramifications
of our actions.
In the U.S., annual production of organic chemicals soared from 1 million tonnes
in 1930 to 500 million tonnes or one trillion pounds in 1990. As of 1994 in the
U.S., there is approximately one tonne of municipal waste created per person
per year. Incredibly, there is also one tonne of hazardous waste created per
person per year and, even more shocking, one tonne of industrial waste created
per person each week.
The manner in which all developed nations are polluting the earth is turning out
to be one of the most irresponsible actions mankind has ever committed. As
reported on CBC Radio recently, of all the individual Canadian provinces and
U.S. states, Texas and Ontario were the number one and number two polluters.
That was devastating but predictable news and indicates that our per capita
pollution totals cannot be much different from those of the U.S. by any
significant magnitude. I think we all know that Canada tends to use resources
and energy along the same levels as our partners to the south on a per capita
Unfortunately, there is not a lot of data in Canada upon which I could draw for
actual Canadian figures, so I have had to try, without bending things too far,
to use U.S. data to get an idea of what we are doing.
One drop of dioxin is enough to kill 1,000 people. In 1993, in the Great Lakes
basin alone, Canadian companies reported that they dumped 111 million pounds of
toxic chemicals. While reported figures are lower today, the actual figures for
then and now are much higher. That is because Environment Canada's National
Pollutant Release Inventory reporting excludes many large sources of toxic
emissions. It is hard to believe, but the agriculture, forestry, fishing, oil
well drilling and operations, and mining industries are exempt from basic
reporting. Only downstream industries that process their products must report.
Obviously, these primary industries are major contributors to pesticide and
As a former worker on the oil rigs, I can tell you what I used to see. We would
dump everything that we used on the rigs into a big pit and then cover it up.
Into those pits went diesel fuel and half the chemicals used on those jobs.
Having lived in Alberta for a large part of my life, it bothers me to know that
there are such contaminated sites throughout the North.
The NPRI data also fail to show discharges of several very poisonous substances,
such as dioxin and mercury, which are released in amounts below reporting
thresholds. How many drops of dioxin are included in the above mentioned 111
million pounds of toxic waste? The government has essentially created pollution
reporting rules that allow industry to pollute covertly, and is thereby
misleading the public to believe that industry is accountable to Environment
To compound the problem, approximately 95 per cent of our industrial chemical
production is petroleum derived. As a result, many of these compounds are fat
soluble and get stored in our fat tissues. These petrochemically based residues
concentrate in fat-based animals at the top of the food chain. It is estimated
that 90 per cent to 95 per cent of all pesticides sprayed on conventional food
concentrate in meat, fish and dairy products, or the animals highest in the food
chain. We are the highest such animals.
Olympic performances by our athletes have been made possible by eating organic
nutrition. I have been very careful to keep them away from conventional sources
of food because those are laced with too many pesticides that will interfere
with their performance. In addition, those foods have been depleted of required
minerals by conventional fertilizers and chemicals.
The potential for concentration is alarming. The U.S. EPA estimates that fish
can accumulate up to 9 million times the levels of PCBs in the water in which
they live. That is a shocking figure. If that is not bad enough, consider the
fact that half the world's fish catch is fed to livestock where toxins get
further concentrated by the animals eating them.
Often we do not have the enzymes or capacity within our lymph system to properly
process synthetic foods or other compounds that enter our body. A build-up of
synthetic compounds can interfere with or block the body's normal biochemistry
and lead to genetic mutation or degenerative disease.
It was not long after Monsanto began producing PCBs that it became apparent that
these chemicals posed major problems to human life. Three years after
production began, the faces and bodies of 23 of the 24 workers in the Monsanto
plant had become disfigured. That did not stop Monsanto. Since then, more than
1.5 billion pounds of the chemical have been produced by Monsanto and other
producers. It is thought that PCBs can probably be found in the tissues of every
fish on the planet.
Synthetics that closely resemble organic compounds can also fall into
biochemical receptor sites and erroneously stimulate the body in undesired
manners. That is the problem with endocrine mimickers and disrupters.
Health is normal. Disease is not. Genetic defects are normally very rare. Almost
everyone's genetic design has been successfully passed on from generation to
generation without interruption since the beginning of life on earth. It is
estimated that one's chances of having a true genetic defect are about five in
1,000. Our genetic composition has been continuously re-engineered by nature
throughout man's evolution. Nature's genetic engineering is so thorough and
redundant in its ability to repair and regenerate that nothing man has designed
comes even remotely close to being as sophisticated.
If the body works so well, why are so many people sick? Why is cancer now the
leading cause of death in the country? Why are we spending $74 billion a year
in health care, more than $2,000 per person per year? At this rate, we will
spend $150,000 per person on health care throughout a Canadian's life, or
almost $1 million for a family of six. We are in the process of bankrupting our
society and our future.
The governments of the world have not properly regulated the chemical revolution
that began in the 1930s. Cancer now kills more U.S. children than any other
disease. Cancer in children was practically unheard of 40 years, as I am sure
you all remember. Our agriculture and chemical industries are inadvertently
ruining our soils and the foods generated there with chemical waste, chemical
fertilizers, pesticides and genetically altered crops.
Pollution in the form of contaminated air and water, chemically and genetically
altered foods, chemical fertilizers which alter the mineral balances of the
soils, pesticides sprayed on crops and yards, artificial food additives,
electronic radiation, et cetera, is causing much of the degenerative disease
and biological mutation among life forms. Many of us now get sick because our
bodies are overwhelmed trying to eliminate non-natural substances that
interfere with our own biochemistry.
Contrary to what experts and governments thought in the past, we are discovering
that there are no safe levels of toxic chemicals. These chemicals have slowly
spread themselves throughout the food chain and are weakening immune systems
and causing illness to all life forms. There is no reason for this to be
happening. Short-term political and economic interests have created enormous
environmental damage and are unnecessarily giving the chemical industry a bad
Most people do not understand how toxins make us sick. If they did, they would
not be eating and/or using so many of the products we buy today. Chemical
pollution can take a long time to damage the genetics of an adult animal or
human so that it almost looks as though there is nothing wrong until it is too
Worse, it creates immediate genetic damage in the unborn. In 1986, in Arkansas,
the milk of 70 per cent of breast feeding mothers was found to be contaminated
with heptachlor, a commonly used but toxic pesticide that had been banned
several years before. Around the same time, a study from Hawaii of 120 infants
whose supply of breast milk was found to contaminated with heptachlor found the
development of the infants' brains to be severely retarded.
Unfortunately, these are not isolated cases. There are too many cases to include
in brief, but they were widespread across the U.S. where these studies have
Recently, more than a decade later, the U.S. Agency for Toxic Substances and
Disease Registry finally confirmed that long-lived toxic chemicals have now
been determined definitely to affect the intelligence of children exposed to
chemicals in the womb. Examples such as this one show the need for a
precautionary principle when evaluating new chemical compounds and deciding
whether to use a substance.
I will now go to what I consider to be the most important part of my brief.
Examined as a whole, all these facts and statistics present some very scary,
yet unavoidable, conclusions. Even if we were to stop releasing toxins
tomorrow, as a result of those spilled so far, cancer rates should continue to
get worse for several years to come as historical data show that widespread
environmental repercussions lag behind the actions that cause them. Since it is
unlikely that we will be able to stop toxic polluting immediately, we can
thereby further infer that cancer rates will most likely accelerate at an even
faster rate than they are now. It is not unreasonable to forecast that we will
lose a high percentage of our society to early cancer death. That has already
begun, as evidenced by the changing mortality statistics.
While this is a horrifying prospect, an even greater threat to our society's
future lies with the bigger problem of immediate genetic damage to the unborn,
the future of our society. We can expect huge numbers of children with
diminished intelligence, permanent learning disabilities and weak immune
systems, thereby lowering the overall intelligence and physical strength of our
society. In a short period of time, we threaten to undo millions of years of
evolution. It cannot be regained once lost.
This is absolutely unacceptable. The decision to allow this destruction to
continue lies in your hand and those of the other members of our government.
Most Canadians are not interested in environmental chemistry and if Canadians do
not understand enough chemistry to make the proper choices for themselves,
government has to do the necessary research and classification needed to
protect them. Canadians trust and expect their government to make the right
CEPA must address basic chemical realities. It needs to develop principles for
sustainable use of chemicals from which we can advance a viable economic and
social framework. It needs to require immediate classification of any compounds
we create so that we can properly regulate chemical use and eliminate the
generation and use of dangerous substances.
How we use chemicals will significantly affect our economic and social welfare.
It is backward to be considering short-term economic and social matters when
building a foundation for long-term chemical policy.
Bill C-32, as presented by the standing committee in the House of Commons in May
of this year, was a good starting point for Canada. While it leaves some
environmental concerns unaddressed, it provides a framework for what is most
important. It will provide a properly defined precautionary principle and an
independent fast track for eliminating certain toxic substances based on their
The bill also provides classification of 23,000 of the 80,000 common chemicals
in use today around the world with virtual elimination of those substances
deemed toxic. The responsibility would be placed on the manufacturer to prove
the safety of a substance prior to its introduction to the commercial
marketplace. Power is given for the Minister of the Environment to implement the
precautionary principle and to act quickly and independently when necessary to
protect the environment and Canada's citizens.
Those important features were nullified by subsequent amendments requested by
industry and moved by the Minister of the Environment, which left it
contradictory, ambiguous and ineffective. Each of these changes represents a
significant barrier to quick and effective action to protect human health. I
will provide a summary of how these features have affected the bill.
The definition of the precautionary principle was watered down by reinserting
the words "cost-effective." A cost-effective precautionary principle
is a contradiction in terms. Canada is already signatory to many environmental
agreements in which this principle is reasonably defined; it does not include
An independent fast track for eliminating certain toxic substances based on
their inherent toxicity was removed. The virtual elimination provisions have
been diluted. There is no longer a clear requirement to push towards the
ultimate reduction of the most dangerous toxic substances. There is now an
unnecessary emphasis on short-term economic considerations.
The environment minister's power was reduced, requiring the minister to get
cabinet approval of many decisions when trying to take action against activity
that endangers our environment and health. Instead of manufacturers having to
prove the safety of a new chemical as proposed by the House of Commons standing
committee, the bill passed at report stage irresponsibly places the onus on the
Minister of the Environment to prove that a substance is toxic. The act as it is
currently written relieves industry from behaving in a responsible manner and
leaves Canadians potentially exposed to even more toxins than we have now. What
kind of government would knowingly place business above the health and welfare
of its citizens, including themselves?
For the exact wording changes to these important parts of the bill as proposed
by the House standing committee, please see the compendium that you all have
that I have attached as Appendix A.
The Senate should not allow Bill C-32 to pass without those critical sections
returned to their full strength. Not to do this will merely condone the
destruction of our environment.
A strong and effective CEPA should be the first step in getting our chemical
house in order. To complement this bill, we should be creating new legislation
to provide significant R&D tax credits and other tax-based incentives for
Canada's industry to develop environmentally friendly industrial and
transportation technologies for the twenty-first century.
Pollution-induced health problems and global warning will leave society no
choice but to develop such technologies. In our free enterprise system,
technology is developed based on demands for it. Forward thinking governments
and corporations recognize future demands and then implement programs to
research and develop the technology to meet them.
The engineering expertise necessary to develop such technology lies within
Canadian industry. Canada must help its industry invest in the future. These
technologies will be as necessary to the twenty-first century as computers and
communications systems have been to the latter half of this century. Their
development will make the nations and companies developing them just as wealthy
as the developers of those earlier technologies. Canada and its industry should
be leading the way. There is no reason why we cannot be healthy and wealthy.
Senator Hays: I think you reflect to some degree things we have already heard on
the view of many Canadians about what is happening in their environment. The
most disturbing thing is that we really do not know what the consequences of
release of chemicals are over a very long term. Human life lasts on average now
75 years, let us say.
I am reminded a bit of the title of a play, "Stop the World, I Want to Get
Off." Of course, we cannot get off. We are inextricably involved in a
process that is trying to address the concerns that you have from many
perspectives -- from your perspective as a concerned member of the human race
who has strong beliefs regarding the consequences of uncontrolled release or
controlled release of chemicals about which we know nothing, and a desire to
be, as you put it in your last sentence, wealthy as well as healthy.
This requires provincial governments to take positions they do. You did not say
it, but I can imagine the reaction in my province of Alberta, which I gather is
yours as well, if the federal government said that they were going to regulate
oil and gas exploration and production, or the reaction of Manitoba if we went
in and said that now we are going to take over how they exploit their forest
Senator Spivak: I wish they would.
Senator Hays: Of course, and some do, but I can only imagine the reaction that
it would invoke. Other governments feel they have responsibilities there and
feel that they are doing a good job of carrying them out.
You portray business as many do. In the last bullet on page six you say that
this bill is bad because it responds to business and in your last paragraph you
say that it lies within Canadian industry, which is also business, to solve the
I am being very general here to get an answer from you to the question that we
have asked almost all of the witnesses. Given the point that we are at right
now, where we have invested a huge amount of resources -- dollars and human and
emotional resources -- in getting to where we are, is it a good idea to stop at
this point or do we accept Bill C-32 as another step?
Mr. Bock: No. I have been thinking about this question. I have heard more and
more that we are at a point now where we are considering whether we should take
this legislation or go back to the 1988 legislation. Neither is acceptable.
In my opinion, you must do what I tell my athletes. We have done a heck of a lot
of work to this point. I remember when I developed a Bobsled that had a big
chunk of my life in it. It went down the track, and it did not go anywhere. But
I kept trying with that silly thing and, believe it or not, with just a few
more changes in that thing, it set a world record. They were minor changes to
make for something that we worked on for a long time. Look at someone like
Donovan Bailey, as arrogant as he may be, or any number of our high performance
athletes: they are continually running into hurdles. As you make your way to
the top and try to make something the best possible, you are going to run into
problems, and the key is not to quit.
You have done an amazing amount of work and I do not think we are far off from
where we need to be with this bill. I am an environmentalist but my movement at
times has embarrassed me because it comes off as being too extreme. We have run
into this division; we have set up in our minds that there is no way for
industry and environmentalists to get along, and there will be continual battles
and business is always against the environment. I do not buy that one bit.
We need new programs in place. We must recognize what drives our society. What
is driving all those athletes? Money. What drives business? Money again -- tax.
If we can set up certain things up in a proper manner, we can stimulate our
businesses to adapt and to meet their goals. Without that extra stimulus, like
a coach pushing an athlete, that kind of thing often does not happen.
That is where we sit. This committee and the government need to keep pushing. I
know Mr. Anderson is in a difficult position. His party has taken a very solid
position against moving any further on this legislation, but I think that will
prove to be short-sighted. We are just about there. You had some terrific
legislation proposed at the end of May from the House of Commons subcommittee.
I do not think industry should be so concerned that they will suffer under such
a bill. We need proper reporting of what is actually being spilled into the
environment. This bill will at least help to gather that information. We need
to control those substances. If we do not do that, we will be paying a high
price for a long time. We may be jeopardizing the future of our whole country.
Senator Hays: On page 5 you have listed the important parts of the bill. If I
read the bill correctly, we will see some action on those items. An attempt has
been made to set out the precautionary principle, although it is not the
definition preferred by the House of Commons committee nor by many members of
As I read the list, something will happen on each of those items under Bill
C-32, but nothing will happen on some of those items under the existing CEPA.
This is a bit like your bobsled analogy. I don't know much about bobsleds, but
they are rather frightening and dangerous-looking. What is the basis of
success? Is it the bobsled? That is what we are talking about here -- the
runners, the cabin, the aerodynamic configuration, all the important aspects.
Or is it the team that uses the bobsled? I think both must work together. A
good team on a bad bobsled can probably do very well, but a poor team on a bad
bobsled may not do so well.
The real test of how Bill C-32 will work in law will be how the government uses
it. I hear you and many other witnesses saying, "Please run the department
better; please ensure that all these things happen that have not been
Mr. Bock: I do not mean to interrupt, but we need to work toward virtual
elimination of persistent toxic substances. The writing is on the wall. I have
not cited the studies that I have read in my work as a nutrition chemistry
researcher and as a health field worker trying to figure out what is going wrong
in our system, but I have seen so many young kids who are listless, who have no
fire in their eyes, because they are eating poor foods. They are eating junk.
Countless studies now exist, but they do not get media attention because they
just seem too scary.
The scenario I presented here seems scary, but we are living it right now.
Twenty-seven per cent of our population are now dying of cancer. That is a huge
percentage. We are living the nightmare. Perhaps it does not seem too bad
because we are surviving, but when we write it down and look at it, it looks
We can get used to a lot of pain and hardship, and that is what we are doing
right now, but it will continue to get worse. There is no question that the
human race will survive, but how many of us will survive and how strong will we
be when we emerge from this in another 20 to 30 years?
We must provide certain incentives to industry to begin to change. Canada is
always playing catch-up. Why? We have many innovative people in this country.
We should have more faith in our industries and in our government to lead the
way. We should not follow the U.S. and British systems that look like they may
be working. Let us use our own initiative. We designed the Arrow. We have had
any number of other great achievements in Canadian industry. Let us develop our
new technologies and sell them to the world. Let us be the leaders and reap the
rewards as well.
Senator Buchanan: Mr. Bock, you used the term "scary." We have heard a
lot of comments around this table in the last week or so. Yours is probably the
most scary in terms of what may or may not be happening out there in the world.
I am not saying you are wrong. You state statistics about organic chemicals
soaring from some 7 million tonnes in 1950 to a trillion pounds.
Mr. Bock: That is 500 billion tonnes.
Senator Buchanan: That is a big move.
Mr. Bock: That is right.
Senator Spivak: It is an industrial revolution.
Senator Buchanan: How do you explain that people are living longer in 1999 than
they did in 1930, 1940, 1950?
Mr. Bock: It is a little complicated, but there are good explanations for that.
This is the best analogy I can give you: When you look in the mirror every
morning, you see the same person. It looks like not much is happening, but your
chemistry is turning over. This is debatable, but some say your entire
chemistry turns over once every two to three years, and every atom in your body
is replaced by others through your nutrition. Your genetic code is continually
being copied over and over again and passed on.
You have an advantage being older on this planet, because anyone born before the
1950s has their entire chemistry built primarily on organic nutrition. So you
have a very strong base on which to begin. I am 40 years old. I was born right
in the heart of the chemical revolution. My generation is not quite as strong
as your generation. We are seeing children born now with greater numbers of
deformities and general genetic problems that were not around before.
It takes a long time for your genetics to be hammered away by some persistent
chemical, because DNA is so well designed. The double-helix structure allows it
to repair itself repeatedly, but that repair power can eventually be broken
down. We may be living longer now, but many of us are not living longer in good
Senator Buchanan: Are you saying that there will be a reversal of longevity?
Mr. Bock: I think so. I cannot prove that today, but that is my position as a
researcher. Yes, we will see that pattern. Look at what has happened in Russia.
The life expectancy of a people can be knocked down. Absolutely.
Senator Buchanan: In North America do you see a reversal coming?
Mr. Bock: I see cancer statistics flying upward, yes, absolutely. I look at my
parents' friends. My wife's grandfather has outlived several of his children.
He is far healthier at 96 than his son is at 67.
Senator Cochrane: You cannot draw that conclusion.
Mr. Bock: Did I say I was? I am seeing certain things. I cannot prove what I am
saying to you right now. I am just saying that there is evidence.
Statistics show that cancer rates are climbing and that the incidence of
degenerative disease is climbing. If we want to live into long years with
degenerative disease, that is one thing, but quality of life is very important.
Senator Buchanan: I realize that. Someone mentioned politics a few minutes ago.
I was a provincial politician for 25 years. During all that time we promoted
fish for health reasons, and we still do. Yet, as I read your brief, we should
be doing just the opposite and telling people not to eat fish. My God, I would
never go to Sambro again.
Senator Spivak: They say that to people in many places.
Senator Buchanan: No, they do not. We are still promoting fish as healthy food.
Mr. Bock: That is right. We are also promoting our conventionally grown
agri-production as healthy food. If you were to ask me if that is healthy for
my athletes, I would say no, it is not. I do not let them eat it.
Senator Buchanan: But athletes eat fish.
Mr. Bock: Yes, they eat fish, but you have to understand that it takes a long
time to collect these toxins in our systems. They will not necessarily knock us
down right away.
Particle physics is something I have been studying a long time. You can be
radiated with beta radiation for a long time and not see the effects until 20
years later after the mutations in your DNA have caused changes.
I have a piece of property on the Stikine River, a beautiful part of remote
Canada. I have recently learned what is happening to the fish there. It will be
very hard for me to eat the fish that I love up there. It is driving me crazy
to think that as an omnivore I am being pushed to vegetarianism of an organic
source because I cannot get a good supply of meat in the country. It will have
toxic compounds in it.
Ask Senator Adams what is happening in the North. We know what has happened to
the food supply up there and the people who are eating it. We are at the top of
the food chain. We are the strongest organism on the planet. We can take the
most punishment before we get clobbered, but many of us are now feeling that
punishment, as the rising rates of death due to cancer show us. Heart disease
was the number one killer a short while ago. Cancer has just crept past it now,
and I think we can expect that to continue.
Senator Buchanan: Let me end by saying that 30 years from now I will discuss
this with you again.
Mr. Bock: There are ways to get around these tricky problems. As I sit here
wanting to create a family and wondering if I should bring kids into this
world, I am basically an optimist. I coach kids and try to get them to the
Olympics. I am a positive thinker, generally. We have to think positively about
this rather serious situation.
The statistics are alarming. If I had to bet on whether those statistics would
turn out to be true, I would bet that they would. At the same time, I think
there are ways we can begin to look at in order to improve the situation.
Nature has a way of healing itself, but not until you identify the problem and
do something about it.
Senator Taylor: Mr. Bock, you paint quite a scary picture, a little bit like
those old revivalist preachers I used to see coming through the countryside
when I was a kid. They said that we should repent or something terrible would
happen to us.
You referred to new equipment and applied nutrition chemistry. In your coaching
of athletes, do you prescribe certain herbs and vitamins?
Mr. Bock: We do prescribe certain food groups and we avoid certain types of fat.
I think you will see that what we consider good nutrition today will be
changing in the future. On the leading edge of nutrition research, there are
many different views of what is good, as compared to what many of our
governments are telling us is good to eat.
Generally, we use more of certain chemical compounds to fire our muscles and do
certain things, as compared to most people. We might enhance that, but,
generally, I have all my athletes eat organic sources of food.
The name of the game in athletics, for example, is getting somewhere faster than
someone else. To do that, you need to rest and recover and use your energy
effectively. If your body is doing extra work to clean out toxins and your
liver is having to work harder on keeping the body clean rather than building
new tissue for athletic performance, you are just holding yourself up.
This was all triggered by Ben Johnson's positive tests. It became apparent to us
that you could put a needle in yourself and stimulate one tiny part of your
biochemistry -- your RNA -- to produce more muscle by using anabolic steroids;
or you could look at the overall picture and stimulate your overall health. All
of those different biochemistries are working to create the person you are. That
is the approach we take.
We do not necessarily prescribe specific herbs, although at times we might, if
it were deemed appropriate. However, we try to increase certain organic sources
of minerals and rich oils that help draw oxygen into one's system and increase
one's metabolism. We also use certain types of protein that may be richer than
others. Most definitely, we use a very specific diet.
Senator Taylor: In addition to your equipment, do you manufacture and sell any
of these aids to nutrition?
Mr. Bock: No. I do a little consulting to help people who may not be doing so
well and who might be sick in some manner. I help them work with their doctors
to improve their nutrition.
We design specific types of running pants that allow us to maintain body
temperature properly. Donovan Bailey wears those. We design bobsled equipment
for our athletes, track and field spikes, and things like that.
Senator Taylor: I really enjoy my own workouts now, which are mostly jumping to
conclusions, skipping the facts and labouring under misapprehensions.
Are your aware of the difference between the old CEPA and the new CEPA? The
chairman put it well. I think he was being funny, but out of the mouths of
babes comes truth and the ongoing saga.
We have discussed in the committee the concept of a five-year renewal. Of
course, five-year renewals start a few years ahead and something goes on and
on. I get the impression that you are critical that the bill has not moved
along as fast as you would want it to.
You coach Olympic athletes, and trying to coach the House of Commons on an
Olympic performance is hard, but you are right to do so. I get the impression
that Bill C-32, although it has faults, is still a platform from which we can
move on to renew it for the next four or five years. It would be wrong to slip
back to square one and try to reinvent the wheel. Imperfect as we are, we have
got this far in our training; therefore, we can go on a little further. You
would like to see these improvements, but am I putting words in your mouth when
I say, imperfect as it is, it is still better than it was five years ago?
Mr. Bock: I have heard the argument you are making a lot recently in the press
and from Minister Anderson. I think most of the work was done to get that bill
to where it was prior to report stage.
Senator Taylor: We slipped back a bit.
Mr. Bock: That is right.
Senator Taylor: Did we slip back all the way to zero?
Mr. Bock: I think you slipped back much too far. Not to have virtual elimination
in that bill is unacceptable.
Senator Taylor: Let us pull virtual elimination out and look at it. What is your
definition of "virtual elimination"?
Senator Hays: Take mercury as an example.
Mr. Bock: I am not an industrial chemist, but I am sympathetic to industry
because of my experience with building a bobsled, for example. A bobsled is not
only a piece of steel. It is a complicated chassis with fibreglass aerodynamics
built into it with all of our modern industrial processes. I had acetone all
over my hand when working on the bobsled. I was surrounded by fibreglass and
metal shavings and everything else you can imagine.
I know that we need to build and get on in life. However, there are certain
compounds that we are generating. Mercury is a naturally found compound, as is
radiation. Every brick in a building is throwing off some form of beta
radiation because there are tiny amounts of radio nuclei in the earth from
which the brick is made.
We cannot completely eliminate some substances, but PCBs are not normally found
in nature and we can certainly move to reduce production of those substances.
We will not be able to "virtually eliminate" them, having spilled
them, but we will be able to virtually eliminate the use of them.
One can play around with those words. It may be scary for industry to start down
the route that must be taken, but many things in life are scary. For example,
it was scary for me to come and present a brief to you. Having never done this
kind of thing before, I was heading into the unknown. I did not know what would
happen when I got here. My athletes are another example. They do not know where
they are going. Industries see the problem of environmental pollution in the
same way. However, once you are forced to begin taking steps in the direction
that you need to go, you find that the route is not as difficult as you might
have convinced yourself that it would be.
Industry is in a fuss over virtual elimination. The bottom line is that we will
have to virtually eliminate these things at some point, so why not get started
Senator Taylor: You may be closer to industry's definition than you think. They
say "down to the lowest measurable amount." Their concern is that
measurement techniques will change and it then becomes a moving target. They
want virtual elimination, but they are worried about the definition. They want
to eliminate as far as can be measured today and then have some security for
four or five years. I think you are close to their position.
Mr. Bock: We need a strong CEPA to help us monitor. We are simply not monitoring
the toxins that we are dumping. There are high thresholds on some of them and,
on others, no reporting in some industries.
It was interesting to note, in the NPRI report put out in 1996 by the minister
of the environment, how fast industries were reducing the numbers of toxins
they were putting out, just based on the fact that they had to report them.
When an industry realized that it was first on the list, there was an incentive
to reduce so that they would not be the target of Greenpeace, for example.
The numbers were being reduced in two ways. First, they were being careful not
to make errors in their reporting that might exaggerate the numbers. Second,
the closure of one inefficient mine, which had become a PR headache for a
company, resulted in a large reduction in pollutants.
It is very important that we get reporting up to speed and that we motivate
industry to make the necessary changes.
Senator Taylor: I agree that reporting is the best tool we have, because it
enables the public to become sufficiently informed to make comparisons.
You said that the onus is on the Minister of the Environment to rule that
something is toxic. I thought that was an advantage. Where would you prefer the
onus to be?
Mr. Bock: I would prefer a reversal of responsibility. Under the earlier version
of the bill, manufacturers had to prove that these substances were safe. I can
understand industry's problem with that. If it is too difficult to prove that
something is safe, nothing new will be introduced, which might not be good
either. However, with the onus on the Minister of the Environment to prove that
something is toxic, under the limitations of traditional scientific methods it
may take 25 years to find out that something is toxic. In the meantime, we may
have deformed embryos as a result of heptachlor in the womb.
Senator Taylor: It may be good to make the Minister of the Environment
responsible, because political pressures would keep him on his toes.
I represented the Minister of Health in Rome at the Codex Alimentarius, the
international body that rules on what is safe and what is not safe in food.
There is a new trend toward labelling. Labelling would give the minister the
opportunity to warn people that a product is new, with no evidence that it is
either good or bad.
What do you think of that process?
Mr. Bock: I do not think that will protect the worker in the plant, or Canadians
generally. Much is known about acetone; yet no one told me to keep my hands out
of the acetone I was working with. However, I will never put my hands in
I have worked at different levels. I was fortunate to do some white collar work,
but I really enjoyed my blue collar work and seeing what goes on in the blue
collar work place. We cannot expect an oil rig worker to know what is safe. I
climbed into a big mud tank one time to retrieve a wrench. To keep my clothes
from getting soaked, I went in in my underwear. I went right up to my neck and
reached down for a wrench. I was saturated in diesel and I did not even know
Luckily, I am still healthy. We will see how my health is in a few years after
all this work in various pretty tough areas. Our workers are too busy trying to
get the job done without getting fired to be checking on what particular
substance they should be using. That applies to labs and plants.
Senator Taylor: I was referring to unknown substances.
Senator Adams: Your brief is very interesting. I was especially interested in
your comments about the build-up of toxins in animal fat. My concern is that
Bill C-32 says nothing about the country food that we live on in the North. You
referred to mercury in the fat. Our greatest concern is PCBs and mercury in
At this time of the year, we usually make oil from the fat of whales and seals.
We use that in the winter time to heat our homes. I am concerned about how
those chemicals are affecting the people of the Arctic. People in communities
in the High Arctic are sending me petitions with their concerns about Bill
How can we reduce air pollution and mercury pollution in the water? Right now,
our people are out hunting caribou. There are toxins in the fat, which is what
we like to eat. When you go to the store to buy beef, the butcher cuts the fat
off. That does not apply in the North. The same applies to seal meat. We use
the oil from seals to heat and cook our food. That is very typical for me.
The minister is not saying that he will protect us from the pollution that
affects the country food that we eat. That is my main concern with Bill C-32.
The minister promised me that he would work with Mr. Rock. However, Mr. Rock
does not work in the Senate.
The people of the North are really worried about how much of these substances
are detected in the body, because they are quite aware that the meat they are
eating is affected by the chemicals. As you say, more people are contracting
cancer every year, and we would like to know how to prevent that from
happening. How do the chemicals get into the fat of the animals and then into
Mr. Bock: It is very tricky. When I am in the North, I live within a native
community, and I try to get up there several months a year. It is discouraging
to see native communities eating food that has been shipped up all the way from
the U.S. For one thing, it is no longer fresh, and it is often processed in
many ways. However, instead of eating the traditional foods that are right there
for the taking, they are eating those imported foods, because now the
traditional foods, as you know, are too contaminated by airborne pollution and
pollution from the waters which so much of the food ultimately comes from.
Personally, I think your people will have to be eating a lot of roots, which
does not help you very much in the winter when you need the oil and the fat to
keep up their energy and to keep them warm. It is a very tricky problem.
There is the same problem in the diet of non-aboriginal North Americans; they
are eating their traditional western diet, but they have very little
understanding of what has happened to the fats within that diet. Margarines and
other modified fat compounds are full of pretty nasty things. That is not well
known, because there are big lobby groups within the food processing industries
to try to keep some of that information down as long as possible. It is
starting to come out, though. You see it at the fringes of society, for
example, where athletes require the best nutrition and are out looking for the
answers. They have access to that kind of information.
It is not just the diet of traditional peoples, but it is the diet of the rest
of North Americans as well that has been altered. We are finding more and more
that there is a big problem. Traditionally, doctors are not trained in
nutrition chemistry. I have talked to many doctors about this. In fact, I
lecture to doctors on nutrition chemistry. They get six hours of nutrition
chemistry training in their 4,400 hours of training to become a doctor. That
seems a little crazy when you consider that they are trying to deal with human
biochemistries. If you are not studying nutrition chemistry for human
biochemistry, I do not know how you can look at the whole situation.
However, that is changing now. More and more doctors are going out and getting
private educations in these areas. They are doing their own research and
becoming aware of the problems with the current food supply and what people
need to do to try to minimize the effects of any detrimental things that might
be in there.
Let us keep in mind, too, that the human body is very tough. Our lymph system is
the garbage can of our bodies. As long as that garbage can is not full, you can
operate. As it starts to fill up and overflow and starts to spill toxins into
the other parts of your system, it puts an even greater demand on your body. It
is not great to have these things in your system. They concentrate in your liver
and in any number of places. They can cause problems.
It is not as if we were exposed to carbon monoxide for the first time by the
creation of engines. Carbon monoxide is created in fires. We have been
breathing smoke and any number of other things for ages. Humans and other
animals are very strong. They are designed to deal with a certain amount of
crud and to be able to get on with it. However, I think we are now starting to
hit the limitations. We are seeing that in any number of government studies.
For example, how much more dioxin can our environment take? There are groups
thinking, "Not much." There are scientific groups that think that we
are just about at that threshold now, and that the overall world environment
cannot handle any more.
Senator Spivak: Thank you, Mr. Bock, for a very interesting presentation. I know
what you are talking about when you talk about nutrition chemistry, because my
family physician is into that right now. It is quite enlightening.
Environmentalists know what you are saying. Most are very aware of it. You are
challenging an entire civilization and life-style and therefore many people are
in denial. It is the same thing Galileo went through. The church persecuted him
for his views. It is quite understandable what is happening. It will eventually
percolate through. The only thing is: Will we have enough time to repair the
As you know, most of the important things are not covered under this bill; they
are covered under other legislation that deals with pesticide products, seeds
and foods and drugs. All new food, drugs and cosmetics will be handled by the
Canadian Food Inspection Agency. The interesting thing about that is that they
will not have to assess anything. They will not have to do any assessment at
all. First, most of the assessment will be done by the companies and then
someone will look at it and say, "Oh, that is great," and pass it.
Apart from that, if there is substantial equivalency, that is, if you look at a
potato and it seems to look like a potato, there is no need to assess it. That
whole concept of substantial equivalency was introduced by, I am sure, the
companies to ensure that their products are not challenged.
It was said in one of our briefs that the notion of substantial equivalency is
not at all scientifically based. It has never been tested. The scientific
process for evaluating things like biotech products is quite different. Could
you comment on that, since you are a nutritional expert?
Mr. Bock: It is a tricky area because I do respect the scientific method
enormously; however, at the same time, I see its limitations. I was trying to
explain to Senator Ghitter when we first met that, if we approached athletic
performance just using the tools that scientific analyses allow us, we would not
be able to get anywhere. We just would not get any data in time. As a result,
we have to use the precautionary principle when we are trying to develop
athletes. We have to quickly recognize whether something is working for them or
not. Sometimes you are using science and sometimes you are using your gut
instinct and common sense. You are reading all the signals around you and you
might not have absolute proof of something, but history has shown us that "Some
things like this work and we see seem to have a trend here," and you base
a decision on that. I do not know how we will get around some of these
Senator Spivak: Maybe I can be more specific. If you have a food in which one
gene has been altered, I am asking whether that food is then no longer the same
as the natural occurring substance.
Mr. Bock: Absolutely.
Senator Spivak: That is the point. However, the practice is that that food is
considered just the same as the natural substance so we do not have to test it.
Mr. Bock: We know that is just not right.
Senator Spivak: We got that argument in the rBST hearings constantly from the
companies, that rBST was the same as the natural occurring BST. This is a very
Mr. Bock: I have a way of trying to explain this when people come to me with
diet problems, or health problems that might be rectified by diet. One of the
big problems we have with our food supply, two or three major ones, is
pesticides. There is a highly contaminated or altered number of fats in our diet
that many people do not know about. What is very important to realize is that
our soils have become demineralized because plants need 24 to 25 nutrients and
our chemical fertilizer have only three or four. They use the three or four and
they leech the ground for the others. That has been going on for 40 years.
There are studies showing that these foods that we are buying in the store do
not have anywhere near the minerals they once had. In fact, you need five basic
minerals in your body, and most people do not know that, but sodium is the most
important one -- bio-organic sodium, not table salt. If you listened to
conventional wisdom, you would not be touching sodium; it will give you
hypertension and any other number of problems. In truth, sodium is the mineral
you require the most. Next are chlorine, then potassium, calcium and magnesium.
Sodium has been reduced to almost nothing in the ground. It is down by 2,000
times in many soils where fertilizers have been used. Plants need sodium. Life
comes from the oceans. It is obvious why sodium and chloride are a big part of
our chemical composition. However, there is no longer sodium in the ground in
many places. It differs by soil test from one place to another.
A nice head of romaine lettuce at your conventional store, refrigerated
properly, looks terrific; if you put that up against an organic head of
lettuce, the two will look essentially the same. However, if you chemically
analyze them, you will find that one is very different from the other.
To try to get this point across to people, who may not understand this, I put it
this way: Imagine that you are the head of lettuce and you are looking at two
human babies. One happens to be born with Down's Syndrome and the other is "normal."
You look at those two babies and they look essentially the same. You cannot
tell that there is anything different from one to the other. There are subtle
differences from one to the other, but they are important differences, as we
know. Many people do not know that.
This is not supposed to be a nutrition briefing, but the lack of minerals in our
foods is causing many problems with degenerative diseases and many other
biochemical factors in our lives. The point you are making about the small
changes to foods often being significant and not remaining the same is
The Chairman: Thank you, Mr. Bock, for appearing this morning. You have come
here, not as a lobbyist for either side, but as an interested citizen with an
amazing background. You have made quite an impact on the committee.
Like you, I am an optimist. Mankind has been able to overcome many things in its
evolution, and we will do the same here, but we need some help. Judging from
what you have said, and help me on this, your bottom line is that neither of
the suggestions by Senator Hays, either to get on with it or to go back to
where we were, is acceptable to you. You are telling this committee that there
are areas in which we can improve the bill. We should go ahead and do our work.
Mr. Bock: That is right. I have been so impressed with what government has been
able to do for Canada. I was not so impressed prior to looking into a number of
issues, but when I saw the body of work that had been accomplished by the
standing committee at the House level, I found that remarkable. It is
remarkable that so many people from different backgrounds could agree on
something. A very diversified group agreed that this was the best way to
proceed. They were our experts looking at this issue for the House of Commons.
I am surprised that we did not have the guts to listen to our experts, and I
hope that the Senate too, when going forward, listens to this panel that has
been put together based on their expertise.
You have put in charge of the difficult job of assessing this legislation, but
much work has been done. It is good work and I just think we should be
listening to what our House committee members had to say in the first place.
They did a very good job too and we should continue that.
The Chairman: Thank you.
Senator Nicholas W. Taylor (Deputy Chairman) in the Chair.
The Deputy Chairman: Honourable senators, we welcome our next panel from the
Environmental Law Centre and the West Coast Environmental Law Association.
Ms Arlene Kwasniak, Staff Counsel, Environmental Law Centre: Honourable
senators, thank you for this opportunity. We wish, through you, to thank the
Senate for taking this bill so seriously and for having it go through this
The Environmental Law Centre has existed since 1982. We are situated in
Edmonton, Alberta. Our main objective is to do what we can to see that
environmental laws and policies work to protect the environment. That might
sound trivial, but, as a matter of fact, in the past few years environmental
laws have been developed to protect other things like economics and industry.
Because we believe environmental laws should mainly aim to protect the
environment, this CEPA review is very important to us.
We have been involved with CEPA since its inception. We had representatives here
in the 1980s when CEPA was being developed and also throughout this review
The Senate has a very fitting and vital role in CEPA review. As Sir John A.
Macdonald said, the Senate, as the upper house, has the responsibility for
sober, second thought in legislation. As I am sure you have heard before, CEPA
really needs that sober, second look. Sir John A. also said of the Senate:
It must be an independent House, having a free action of its own, for it is only
valuable as being a regulating body, calmly considering the legislation
initiated by the popular branch, and preventing any hasty or ill considered
legislation which may come from that body, but it will never set itself in
opposition against the deliberate and understood wishes of the people.
Further, it was also said by the Honourable J. Cauchon in parliamentary debates
on Confederation in 1951 that the Senate's role is to:
...counterpoise to prevent any party legislation, and to moderate the
precipitancy of any government which might be disposed to move too fast and go
too far -- I mean a legislative body able to protect the people against itself
and against the encroachment of power.
Finally, I quote Sir Richard Cartwright from the Debates of the Senate of May
It is not by any manner of means a trifling thing to say when I say that the
value of a Senate is not only in what the Senate does, but in what the Senate
prevents other people from doing.
From these quotes, I distil the following points. The Senate should calmly and
rationally take a second look where legislation is made in haste. The Senate
should make appropriate changes to legislation that is ill-considered. The
value in the Senate is in what it prevents other people from doing. It protects
against the encroachment of power. The Senate shall not set itself in opposition
against the deliberate and understood wishes of the people.
Obviously, at first blush, it seems Bill C-32 was not made in haste. From the
beginning of the five-year review to these Senate committee hearings, almost
five years have passed. However, considering what transpired over those years
it is apparent that many aspects of the bill were made in haste and do not
reflect the deliberate and understood wishes of the people. Instead they reflect
intensive lobbying of powerful, self-interested, regulated industry.
My submission takes six issues and follows them through the various stages
showing where there was not haste, where the full realm of possible input was
made by all kinds of stakeholders, where there was careful review and where the
wishes of the people are reflected. In those stages, there is one kind of
result, but where there was haste and heavy-duty lobbying, another result has
Time does not allow going through all six issues here. I will instead briefly
focus on the federal role of environmental protection, the precautionary
principle, elimination and toxicity assessment.
In June of 1994, the House of Commons referred the CEPA review to the Standing
Committee on Environment and Sustainable Development. In its review, that
committee criss-crossed the country, heard hundreds of witnesses, and read
written submissions from the whole ambit of stakeholders including the public,
aboriginal Groups, industry, environment, health, labour, governments and
As a result of that process, the committee published its report, "It's
About Our Health! Towards Pollution Prevention." In that committee's own
words it made its recommendations:
...to reflect the powerful views expressed to us during our public meetings over
the past year. It is clear that an increasing number of Canadians recognize
that environment and wealth are mutually sustaining and that healthy ecosystems
bring not only better health and quality of life, but also a better and more
sustained material well-being.
This committee's report reflects the deliberate and well-understood wishes of
the people. It was made after careful consideration and not in haste. It
listened to all sectors. It was not overly influenced by any of the powerful
self-interested lobbies. In its 365-page document with 141 recommendations, the
committee called for a thorough revamping of CEPA to facilitate and compel a
more ambitious federal agenda for environmental health and protection.
The committee recommended a strong, aggressive federal role in environmental
protection, which includes caution in harmonization; asserting federal
constitutional jurisdiction in areas of environmental protection, including
setting national standards for products of biotechnology, toxic substances,
pesticides and substances that pose transboundary threats.
I would just mention that this study was done before the famous Hydro-Québec
case had been reported by the Supreme Court of Canada. That case challenged the
federal government's constitutional right to regulate toxic substances that
have no apparent extraprovincial effects. The Supreme Court of Canada said very
clearly that the federal government has that right.
The committee insisted on pushing through with its hearings even while the
question was being considered by the courts. Since that time, the Supreme Court
agreed they had the right to do that. So it is even more important now that the
federal government go ahead and act. The Supreme Court has said it is okay.
The committee recommended an effective and operative definition of the use of
the precautionary principle, and it formulated the principle as:
...where an activity or substance poses a serious threat of harm to the
environment or human health, precautionary measures will be taken even in the
face of scientific uncertainty.
On the elimination of toxic substances, the committee recommended a three-track
approach that required the actual phase-out of the worst substances. "Phase-out"
meant eliminating the substance from manufacture, production and use, and not
With respect to the CEPA toxicity assessment, the committee recommended that
CEPA enable a finding of CEPA toxicity either through an inherent hazard
toxicity assessment or a full risk assessment. That could trigger CEPA action.
We now come to the government response report. The government issued its formal
response to the committee's report in December of 1995. There was no formal
public or non-governmental stakeholder input process involved with the response
development. Nevertheless, it was widely known that regulated industry heavily
lobbied government not to accept many of the House of Commons standing
committee's recommendations. Of the areas that I will discuss in relation to the
federal role, while the committee recommended scrutiny and caution with respect
to equivalency agreements, the response recommended that we should have more of
Except for regulated toxic substances contrary to the committee's
recommendations for national standards, the response favoured objectives and
Whereas the committee stressed a strong federal role in environmental
protection, the response stressed harmonization.
On the precautionary principle, the response thought that it should only be in
CEPA if the words "cost-effective" were in it.
On elimination, where the committee called for actual elimination from
production and use, the response called for only virtual elimination, meaning
restricting releases and not actual phase-out from manufacture, production and
With respect to toxicity assessment, the response stated pretty much that it is
committed to a risk assessment approach to determining CEPA toxicity.
There was another opportunity for public involvement. The government gave 90
days for anyone to comment on the government response. Indeed, many people did
comment on it. It compiled its responses in a document called "CEPA
Review: Compilation of Comments on the Government Response."
Although I could not go through the two volumes of responses, I had my summer
student do quite a bit of work on them. From her review, it was clear that the
vast majority of the people who wrote in favoured the standing committee's
views over the government response. In a fairly long footnote, I spell out the
process that she followed to reach that conclusion.
One would think that if the bill were actually going to reflect what everyone
had said and not just what one industry had said or what the government in
consultation had said, it would look more like the House of Commons committee
report. Instead, we got Bill C-74, which was introduced in December 1996. It
largely reflected the views of the government response. That bill, of course,
died on the Order Paper with the election.
In March of 1998, the House of Commons introduced the second CEPA renewal bill,
Bill C-32. This bill, like Bill C-74, reflects the government response on these
key public interest issues instead of the public interest views evident from
the two public stakeholder input processes.
With respect to the four items that I am highlighting in respect of the federal
role, there is a rather amazing insertion in the bill, which states that in
...the Government of Canada shall...act in a manner that is consistent with the
What they are referring to here is harmonization agreements, which raises the
harmonization agreements to the level of law, where all they represent are
As well, clauses were added that would require CEPA to become a residual
statute, and they compel CEPA not to apply wherever other federal legislation
Indeed, Bill C-32, instead of following the suggestion by the committee that the
federal government strive for national standards, sees only objectives and
guidelines being authorized, except for matters that would be actually
On the precautionary principle, the words "cost-effective" were added.
On elimination, following the response, Bill C-32 calls only for virtual
elimination, meaning the ultimate reduction on the release below any measurable
quantity at or approaching the level of quantification determined by the
regulations. That means that a minister can determine what "measurable
On toxicity assessment, again it followed the response and relied solely on risk
When the bill went to second reading, there was much debate, and it was referred
to committee again. That committee review took over 11 months. The committee
accepted submissions and heard witnesses again from every relevant sector.
Following clause-by-clause review, it made 157 amendments. Although many of
those were of a technical nature, some were substantive. From a
public-interest, environmental and health advocate's perspective, they
strengthen the review.
Like the first committee process, this one and the amendments that resulted are
the result of a careful, lengthy review in which the entire range of
stakeholders was represented.
On the identified issues, such as the federal role, although a far cry from its
1995 report on the basis of presentations made to it, the committee did
strengthen federal role provisions. A good example of that is the fact that
clause 2(1)(l) was amended so that the act is only to be administered with "regard
to" harmonization and other federal-provincial agreements and not "consistent
On the precautionary principle, although there are many occurrences of the
principle, at least in the preamble the words "cost-effective" were
On elimination, as I said, "virtual elimination" meant below the level
of quantification as defined by the regulations. The committee amended "as
defined" to "specified" in the regulations, which, in my mind,
removes a bit of discretion in the regulations. That was a good thing.
As well, it changed provisions relating to virtual elimination to enable the
ministers to set interim targets by limiting releases, but always for the
purposes of achieving virtual elimination. Those were improvements.
On toxicity assessment, the committee also amended the assessment provision so
that, where appropriate, CEPA could authorize control action on the basis of
evidence other than a full-blown risk assessment. That means that we do not
need the exposure assessment having to determine precisely how much of a
substance or combination of substances has to enter the environment to cause a
harmful effect in every case. However, that would only happen where a substance
or a combination that is inherently toxic, persistent and bioaccumulative has a
long-term harmful effect on the environment. Hence, stringent rules still would
have to be followed in order for something to have a CEPA control on the basis
of inherent toxicity. You need all kinds of scientific evidence to show, for
instance, the long-term effect on the environment and the relationship between
that substance being in the environment and the effect. What you do not have to
show is exactly how much has to be there.
On April 15, 1999, the committee tabled its report to the House of Commons.
Notwithstanding the fact that it made its amendments on the basis of a careful
11-month review in which all relevant stakeholders had ample opportunity to
participate, the government introduced and passed amendments that turned back
many of the substantive changes. It added many amendments to increase statutory
duties to consult with provinces and territories before taking CEPA action.
On elimination, as urged by industry, it made amendments that, in my view, gut
the virtual elimination sections. They removed the words, in clause 65(3), "When
taking steps to achieve the virtual elimination of a substance," so that,
although the ministers are required to set interim targets, that is, allow
releases, albeit descending releases, there is no ultimate goal of virtual
On toxicity assessment, the government amendments changed the definition of
toxic substances in clause 64 to remove the reference to inherent toxicity. It
used to say that, except where the words "inherent toxicity"
appeared, a substance was CEPA toxic if certain criteria were found. It took
that reference to inherent toxicity out, therefore making full risk assessment
a requirement for determining CEPA toxicity, whether or not a substance is a
persistent organic pollutant.
Throughout the many years of CEPA review, all CEPA processes in which the public
interest sectors, including environment and health, participated, the message
was always clear: CEPA should promote active, aggressive leadership for the
federal government in environmental and health protection. There are many
people in Alberta who will say that, including myself. There was another person
in Alberta here just before me who said that. There are many agencies and
organizations in Alberta that want the federal government to take a very strong
Obviously, the Canadian Chemical Producers Association and the industry will not
want that. We ask that you do not further amend CEPA to in any way allow for
more harmonization, as is requested in the CCPA brief.
In his 1999 report, Brian Emmett, the Commissioner of Environment and
Sustainable Development, cautions against harmonization. He says that it has
been found that these agreements do not work as intended, that many activities
that are essential to implementing them are not working as well as they could.
A large part of my brief to the House of Commons committee was on harmonization,
and in the Sun Pine decision the way in which industry and some governments
interpreted that decision made it clear that by "harmonization" they
mean that, when there is joint jurisdiction over a matter, only the provincial
process should apply. In that brief I called that the virtual elimination of
federal processes. We have to be very careful with harmonization.
With respect to federal leadership, I will refer extensively to the brief of the
Canadian Institute of Environmental Law and Policy. Dr. Winfield itemized all
the provisions in the bill as passed by the House of Commons that require
offers of consultation with the provinces and others before proceeding on
matters. Clauses that follow say that a minister may act if an offer to consult
is not accepted within 60 days.
As Dr. Winfield said, if the minister may act if an offer of consultation is not
accepted, that implies that if an offer of consultation is accepted the
minister may not act, at least while the consultation is ongoing. There is no
process in the bill to end consultation and if the provinces wish to continue
consultation, this could tie the hands of the federal government in areas where
there are mandatory offers of consultation.
We suggest that those provisions in the bill be amended to make it discretionary
and that the clauses relating to that 60-day period be deleted.
With respect to making CEPA a residual statute, it is just common sense that any
ministry will be an advocate for what it regulates. The Environment Department
should advocate for the environment. It is important that the Department of
Environment be able to regulate environmental matters.
With regard to the precautionary principle, in my footnote I have included many
occurrences of the precautionary principle that do not include the words "cost-effective"
through international agreements to illustrate that the accepted and standard
one includes the words "cost-effective."
On virtual elimination, there is a treaty on persistent organic pollutants of
which Canada is meant to become a signatory. In fact, Canada was a leader in
the development of that POPs treaty. There is a requirement that each party
shall prohibit the production and use of chemicals listed in Schedule A. If we
are a signatory of that treaty, we will have to have more than virtual
elimination; we will have to eliminate.
Many of the listed substances are already prohibited in Canada, but new
substances will be included in that treaty. We cannot tie the hands of the
federal government on this.
On toxicity assessment, there is much evidence, especially with endocrine
disrupters, that exposure is not a definitive gauge for the determination of
toxicity. We must keep up with the times and have in our legislation the
potential for federal government action on the basis of toxicity assessment.
Let me say in closing that you have a great opportunity to do something of value
for Canadian society and for the future. I know that you will take your role as
a Senate committee very seriously in considering this legislation.
The Chairman: Mr. Shrybman, please proceed.
Mr. Steven Shrybman, Executive Director, West Coast Environmental Law
Association: Mr. Chairman, the West Coast Environmental Law Association will
celebrate its 25th anniversary this September. Some important people are alumni
of our board of directors, including the current federal Minister of the
We have been a part of the process of developing progressive environmental
policy and law in British Columbia, Canada, and internationally, for the last
25 years. We have played a central role in helping to develop the provisions
that became the Canadian Environmental Protection Act 11 years ago.
We have also done a great deal of work with the federal government in terms of
helping it accomplish, in the international context, some important milestones
in the area of climate change, biodiversity and, most recently, the
transportation of hazardous wastes.
Looking back on the last 25 years is an opportunity to remind ourselves of just
how much progress we have made in establishing a legal framework of
environmental policy and law in this country -- a framework that did not exist
at the beginning of the 1970s. Unfortunately, that progress seems to have
stalled. With respect to federal policy in law, it has ground to a halt in the
last 10 years. There are a couple of exceptions, but the last decade has not
been a very productive one for the environment at the federal level in this
CEPA was proclaimed into force on June 22, 1988, about 11 years ago. Some of you
may also remember that that year was the year a climate summit was held in
Toronto at which a great deal of talk was offered about the need to reduce
greenhouse gas emissions. Tentative commitments were made then by the
Government of Canada to reduce those emissions by something in the order of 20
per cent by the year 2000.
About three or four years later that objective had been watered down;
nevertheless, in Brazil, countries committed to stabilize greenhouse gas
emissions by the year 2000 at 1990 levels. However, we have failed to achieve
that objective. Indeed, emissions have increased. It is kind of a testament to
the failure of voluntary measures that we have done so poorly in living up to
our international obligations in that context.
Throughout the 1990s we have been reminded repeatedly about the seriousness of
the various ecological crises before us. Climate change is one of them. We are
beginning to see evidence in extreme weather events of the seriousness of the
consequences of failing to come to terms with that agenda.
We have recently been reminded by biologists of how serious the problem of
biodiversity loss is, with a majority of biologists responding to a survey
conducted by the U.S. Museum of Natural History saying that they were pretty
confident that we were well into the process of the sixth great mass extinction
of life on this planet, this time the extinction being caused by the activities
The warnings are becoming more and more dramatic and more and more disturbing.
Yet, as the evidence grows that we really do face ecological crises that put at
issue the very survival of our species, something that the Brundtland
Commission indicated might, indeed, be before us more than a decade ago, the
capacity of governments to take charge of this agenda and to use the tools
available to them to deal with these problems seems to be in retreat. At the
same time, we have embraced, in the context of international trade and
investment obligations, agreements that have put at the disposal of
corporations some pretty powerful tools to dismantle the regulatory and
legislative achievements that we have been able to establish. In Canada, we are
aware of the fate of federal regulations banning the use of MMT in gasoline.
Our own government is not only the victim of international trade rules, but has
also used them actively to assail regulatory initiatives that have been put in
place by other governments, such as using the World Trade Organization to
challenge food safety regulations in Europe. The result of that challenge was
the decision by the appellate body of the World Trade Organization to discount
the precautionary principle as a reasonable basis upon which to regulate for
public health protection. The federal Government of Canada now is using the WTO
to challenge asbestos regulations in France.
As the evidence grows to point out that we should be doing more, we are doing
less. Indeed, we have created some new tools that benefit those who would
dismantle legislative and regulatory initiatives.
I offer that as parenthetical context for the submissions that we are making,
which you have before you and which are quite detailed and precise in many
respects. However, let me highlight the most important of them.
Before I criticize the deficiencies of this legislation, I should also say that
I recognize the dedication and sincere commitment of the people who work at
Environment Canada, the ministers and the committee. They are doing the best
they can in the circumstances; but it is a testament to our diminished
expectations that we are doing so poorly in terms of setting a reasonable
standard for environmental legislation in this country.
From our perspective, the most significant deficiency of Bill C-32 is that it
fails to include its most important provision, that is, a provision that would
prohibit as a matter of statute the release into the environment of the most
pernicious, persistent, bioaccumulative substances in use in this country. I
think most Canadians would be shocked to discover that Canada's flag ship
environmental statute does not include a simple prohibition against polluting
activity. That is a feature of environmental statutes at the provincial level
in this country and has been for almost three decades in some cases. It is a
feature of the federal Fisheries Act, but it is missing from the Canadian
Environmental Protection Act. Rather, we will regulate, control or even ban the
release of these substances into the environment only when cabinet decides in
its wisdom that those controls are needed.
We have had 11 years of experience with this legislation. We know that the
progress of environmental regulatory reform has been excruciatingly slow.
Moreover, by failing to put in place that simple prohibition against the
release of pollutants into the environment, we create a status quo which
favours those who would stall the progress of regulatory initiative. Thus, each
regulatory initiative then becomes the battleground for the next fight between
business and health advocates and environmental groups as we slowly inch our
way forward with the effective mechanisms that will actually improve the
environment under this legislation.
It is a testament to the subtext that, during the 1990s, at the federal level,
we have abandoned the notion of governments playing a strong role in regulating
corporate activity in the public interest. We have embraced the concept that
all we need to do is offer an invitation to business to do better, that
volunteerism, as our colleagues and friends in the business community are so
anxious to remind us, is the way forward. We do not need government regulatory
I am sorry that in preparing these submissions I deleted from them some of the
material that we presented to the House standing committee. I would be happy to
gather that material together again. It dealt specifically with the issue of
volunteerism. It offered some evidence to expose the fact that voluntary
measures do not work very well. They may have a role to play in some contexts.
People's participation in the blue box programs is a good example. I have
worked with people in industry over the years who have been leaders in their
industries and who have been willing to demonstrate the efficacy of improved
environmental management performance. More often than not, however, CEOs
recognizing their fiduciary obligations to shareholders do not do more than the
law requires them, and most people in business will tell you that. Indeed,
Price Waterhouse conducted a survey of CEOs. The results of that survey
revealed precisely that. Companies respond to legal requirements. They do not
respond to invitations to participate in voluntary programs.
Environment Canada has done a study of the performance of industries in response
to a voluntary context and then documented precipitous declines in pollutants
that begin to reveal themselves as soon as governments actually regulate.
Our failure to reduce greenhouse gas emissions is yet another testament to the
failure of voluntary initiatives and measures. It is simply not an approach
that will get us where we need to get.
The fact that CEPA lacks its first and most essential statutory element is
simply evidence that the government has conceded its powerlessness in the face
of the new global reality of deregulation and privatization and free trade.
They do not even now have the temerity to advance the statutory and regulatory
provisions that I believe many of them feel are necessary in order to deal with
the problems before us.
I am going to skip through the brief just to highlight a couple of other
elements of it. I should like to talk to you briefly about the pollution
prevention provisions of Bill C-32.
You know that the bill flies the banner of pollution prevention. The phrase is
used within the first three or four words of the statute. We believe that
pollution prevention is a powerful and important new paradigm for dealing with
the environmental performance of companies operating in this country. The last
two decades have demonstrated the limits of "end of pipe" pollution
control strategies. They are expensive. The risk is run of shifting pollutants
from one medium to another, and of actually shifting risks from the environment
to workers. You embrace a whole approach that relegates the environment to an
add-on or afterthought. The approach is one where: "We will figure out
what we are going to make, and how we are going to make it; only after we make
all those decisions will we consider what impact that may be having on the
environment ,and then we will try to fix it at the end of the day."
Over the last several years we have had, largely in consequence of much stronger
pollution prevention statutes in the United States than those in Canada, ample
evidence of the efficacy of that approach. Some jurisdictions in the U.S --
Massachusetts, New Jersey, the federal government -- have been able, in
consequence of those regulatory initiatives, to bridge this gap that has
separated workers from people in communities and environmentalists so that they
have not been able to work effectively together on what really represents a
We know that approaches like input substitution and changing the production
process itself, and maybe even reformulating products, are incredibly effective
not only as a way of dealing with pollutants but as a way of using resources
and energy more efficiently in the production process. Companies that seriously
embrace pollution prevention principles discover that often there are very
substantial economic benefits associated with looking at production from inputs
to outputs as a much more cost-effective way of getting the job done.
While CEPA waves the flag of pollution prevention, it does not actually require
anyone to engage in pollution prevention activities. Again, it allows the
ministerial regulatory authority to make that requirement; however, the statute
itself is silent. Thus, we have again left it to the political exigencies of
cabinet processes that do not engender full public and parliamentary debate, the
most essential element of this statute.
The failure to require people to plan and implement the measures that planning
reveals is exposed by a survey that the government of the New Jersey, which
does have strong legislation in place, conducted of environmental managers in
the companies that were subject to mandatory requirements to plan around
pollution prevention. They conducted a before-and-after survey. Before
pollution prevention planning, the environmental managers had a very modest
estimate of what pollution prevention planning would actually yield as benefits
to the company. When they had finished planning, they discovered that there was
a whole array of measures that made a great deal of sense for the companies to
We are in a Catch 22 scenario. If companies understood the benefits of pollution
prevention planning, they would happily undertake it. However, as they are not
required to plan, they never discover the benefits. In our submission, there is
a great advantage in actually requiring the companies to do those things that
so many others in industry have demonstrated as making very good business
practice, in terms of the efficient use of resources, energy, and better
measures of environmental performance.
I will close by simply noting one other issue that we deal with in our
submissions. It is in regard to the failure of the federal government to
declare, in any meaningful way, a commitment to improve the environmental
performance of activities taking place on Crown lands and by federal
undertakings. These are not subject to provincial laws and regulations.
We fund a number of community groups in British Columbia that are dealing with
the problems created by polluters operating on federal land who are not subject
to provincial law or permit requirements. The act offers us again the promise
of regulations, but in the last 11 years we have not seen any. There are many
examples of the demonstrable failure of the approach that the federal
government has taken in terms of issuing guidelines and protocols. They are
simply often disregarded. We represent many clients in B.C. who must deal with
the consequences of this void that the absence of federal regulations in this
There is an easy way to solve the problem. It should be indicated that federal
undertakings on federal land would be subject to provincial environmental
statutory requirements. There is a precedent for such an approach in the Indian
Act. We commend it to the federal government and we hope that you will take the
time to review the other substantive proposals that we offer in our brief.
The Deputy Chairman: Before I open the meeting to questions, I have a quick
question that has come up a number of times in briefs. You mentioned that the
World Trade Organization allowed the Canadian government to counter-tariff
because of the European restrictions on hormone beef. How did the voting blocs
work in the World Trade Organization? One generally thinks of the international
organizations as being tougher on that than maybe we are. How did that get
Mr. Shrybman: There is no vote now that takes place after a decision is made by
the World Trade Organization appellate body. Once the ruling is made it is
implemented unless within 60 days from the date of the ruling all of the
members of the WTO, including the victor, agree to block implementation of the
appellate body ruling.
Most people do not understand that when we created the World Trade Organization
in 1995, we created an international institution with binding authority. That
was not part of the GATT regime. However, now decisions of the World Trade
Organization are binding and there is no effective way to block implementation
of them once they are rendered.
The Deputy Chairman: What voting blocs went into that decision? How many people
are in that, or how many countries are?
Mr. Shrybman: The decision about food safety regulations in Europe was made by
the appellate body of the World Trade Organization, which is made up of three
officials, not affiliated with any member government, who are, I believe, drawn
from a roster of 17 experts on international trade. Thus, they are
adjudicators; they are trade judges. They are not members of the WTO themselves.
They do not represent particular countries. They are a court. That is the body
that made the decision on food safety regulations. That is the body that
decided that the precautionary principle was not one that the WTO recognized as
reasonable for environmental or food safety regulation.
The Deputy Chairman: Would you know, off the top of your head, which three
countries those were?
Mr. Shrybman: No, I do not.
Senator Hays: Thank you both for excellent presentations. I think they cover the
ground you wanted to cover very well.
Subclause 65(3), as it came out of the House committee, provided for taking
steps to achieve virtual elimination. At report stage, that was changed to
When the level of quantification for a substance has been specified on the List
referred to in subsection (2)...
I think that is the PSL. What is the difference between the two versions, from
your point of view?
The ministers could do pretty much what they wished in terms of taking steps by
quantifying and, in effect, regulating the elimination of a substance. They
must be regulating the elimination to stay within the criminal law power, which
is the basis of Part 5.
You might comment on that. The Hydro-Québec case was very close, namely
one judge, on whether we would have a Part 5 at all. We might still be sitting
here today, perhaps under the peace, order and good government provisions, but
we would be speaking in a context of much greater uncertainty, if not for the
What is the difference in the ministers' position now? Assuming the ministers
decide they want to do something, will they be obliged, in an administrative
sense, to do more under subclause 65(3) at House committee stage than under the
same clause at report stage?
In my opinion there is as much flexibility in subclause 65(3) at House committee
stage as there is in the same clause after report stage.
Ms Kwasniak: At the house committee stage, the endpoint was virtual elimination.
All of the interim targets should lead to that goal. That was the point. The
difference at report stage is the goal of interim target-setting. Indeed the
statute says "shall" and so creates a positive obligation to allow
releases. There is no endpoint of virtual elimination. I do not like either of
Senator Hays: Perhaps I am not well informed, but I believe that subclause 65(2)
did not change between committee stage and report stage. That is what my notes
Senator Spivak: All the administration leads back to subclause 65(3).
Ms Kwasniak: I will refer to my brief. I also want to comment on your
interpretation of the Quebec Hydro case. I do not agree that the decision was
as narrow as you describe, although it was close.
Senator Hays: It is not so much the five-four split on which I want you to
comment as the rationale expressed by the majority.
Ms Kwasniak: I am on page 12 of my brief. As urged by industry, the government
made amendments to the virtual elimination provision that had the effect of
gutting them. Because of these amendments, CEPA would only authorize virtual
elimination plans aimed at meeting interim targets instead of meeting the goal
of virtual elimination. That was accomplished by amending subclause 65(3) to
remove the words "when taking steps to achieve virtual elimination of a
Removing those words renders subclause 65(3) to only state that the ministers
shall provide amounts of substances slotted for virtual elimination that may be
As well, the governments also made amendments to other clauses to remove
references to the goal of virtual elimination and replaced them with references
to subclause 65(3) and the interim goals. Plans and actions will aim at interim
goals and not at the endpoint of virtual elimination.
Senator Hays: Subclause 65(2) is the same, as far as we know. It states:
The Ministers shall compile a list to be known as the Virtual Elimination List,
and the List shall specify the level of quantification for each substance on
In other words, it was always anticipated that there would be a level of
Ms Kwasniak: That is true in both reports, yes.
Senator Hays: -- in the process of achieving virtual elimination, which we know
from subclause 65(1) is to be defined as "the lowest measurable amount."
I am not satisfied that I have a good answer to this question. The ministers are
responsible for the administration of the act. Assume that they decide on a
certain time frame or allowance for a certain toxic substance on the PSL to
exist in the environment, either in a process or whatever. Why are the
ministers more restricted in taking action under one version of that clause as
opposed to the other?
From my point of view, the House committee version does not drive a different
administrative decision than that driven by the report stage version, assuming
that the ministers choose the action they want.
Ms Kwasniak: I think you are right that, with the right political will, you
could end up with the same result. Whatever that result was, it would be below
quantification at the end. The difference is that they must take that action
with a goal of virtual elimination in the one case. In the other case, they
Senator Hays: They have to be more clever.
Ms Kwasniak: I do not like either version. I would like to see elimination and
not just virtual elimination. Mr. Shrybman wanted a prohibition and then
regulatory steps, as provincial legislation typically does. It will prohibit
pollution and then give ways or steps.
Senator Hays: I follow you. Do you want to comment on the basis of the
legislation? Being based on the criminal law power, it acknowledges that the
province is also able to regulate in that area.
Ms Kwasniak: That is correct.
Senator Hays: Because it is under the criminal law power, the court held that it
was not interfering with the province's ability to regulate either. The
argument seems a bit thin in terms of the larger regulating role for the
federal government that some witnesses desire. For instance, the government
should be involved where forest products are exploited or where hydrocarbons are
sought and developed.
Ms Kwasniak: Mr. Justice La Forest said that the class of things that can be
regulated under the criminal power is not a closed class, but it must be a
legitimate exercise of that power.
He made some rather suggestive remarks about the kinds of things that could be
regulated. The one qualification he made was that the power cannot be employed
to permit colourable invasions of exclusive provincial legislative competence.
Those are matters of joint competence.
As I have it in my notes, the majority decision, strengthened by the common
ground between the majority and the dissenting opinion, paves the way for a
spectrum of environmental laws. The main disagreement between the majority and
the minority opinions was about the format of such laws. The majority would
allow prohibitions and penalties evolving from regulatory schemes, while the
dissenting opinion would require direct statutory prohibitions and penalties
My reading of the dissenting opinion in that case was that he thought this
looked like a regulatory statute. It did not look like a criminal statute, and
that was the problem. The justices did not seem to be disagreeing that
regulation of toxics was something that could fall under a legitimate objective
for an exercise of criminal power.
Senator Spivak: It is important to note that the clauses that talk about actual
implementation lead back to subclause 65(3), not 65(2) or 65(1). This is a very
complicated and convoluted part of the bill. We are led back to making sure
that we look at "any other relevant social, economic or technical matters,"
not just the question of what the minister shall do. That means it might never
Industry said to us that in subclause 65(3), the way it was, the minister's
hands would be tied and here they would not be tied. I did not understand that,
but that is what they said. When we look at the preamble, industry lobbied to
take out the words "phase out the generation and use of" in the
preamble. That part of the preamble now reads "virtually eliminate."
When we look to the definition of "virtual elimination," again it is
the release of substances.
If we cut through all the verbiage, one emphasis is on controlling the release
of substances and the other emphasis is on phasing out the generation and use
of substances. It is important to remember that we are only talking about the
most serious substances, things that are not naturally occurring, generally.
That is the difference in emphasis.
Even when we look at the most persistent organic pollutants, we have to look at
economic matters. Where is the harm here? It is very difficult to virtually
eliminate let alone phase out the use and generation of these substances.
Senator Hays: Mr. Chairman, with Senator Spivak's indulgence, perhaps I could
put to the witness another comment before they comment on Senator Spivak's
intervention, which I think is very helpful.
The problem I have is that unless the federal role is one ultimately aimed to
prohibit something -- that is, the existence of this toxin in the environment
or its release into the environment -- the federal government simply loses its
head of power. If they simply regulate, as Senator Spivak's comments suggest,
then I think they are in trouble under the basis of Part 5 of this act and Part
2 in the old act.
I would appreciate it if the witnesses, in responding to Senator Spivak, kept
that in mind as well.
When your power is the criminal law power, it is narrower than the full power to
regulate, which apparently the provinces have. We might see them proceed under
a residual power. In any event, in terms of what we know today, they will have
to stay within what is envisaged in the criminal law power, which I think
ultimately involves some sort of prohibition or ending of a practice, ending of
a release, ending of a substance's existence, as envisaged by Part 5.
Mr. Shrybman: A blanket prohibition is not always necessary. It may be a
prohibition against the release of a substance in quantities or in ways in
which environmental harm is caused that the statute exists to prevent. It is
not always all or nothing.
In this case I think we are dealing with all or nothing in terms of the virtual
elimination of substances that actually meet the criteria that they are
persistent and bioaccumulative. However, prohibiting the release of substances
to a degree that causes environmental harm is perfectly within federal
government authority, although the act would be stronger with a statutory
prohibition for the very reasons the dissenting opinion offered in the Hydro-Québec
The Deputy Chairman: Mr. Shrybman, you did not mention that the federal act in
the first principle should have talked about a safe environment, and yet you
said every province has that. Did I understand you correctly?
Mr. Shrybman: I have not read the statutes of all the provinces, but certainly
The Deputy Chairman: The provinces are certainly no paragons of virtue when it
comes to looking after the environment. I am wondering, therefore, why you
thought that copying the provinces with sanctimonious words would suddenly be
of use for the federal government, or are you simply saying you would like to
see it and you would feel more comfortable, even if they do not follow it?
Mr. Shrybman: I have to disagree with you that the words are sanctimonious. If
we look at the Environmental Protection Act of the Province of Ontario, which
was promulgated in 1971, it simply includes a blanket prohibition against the
release of substances into the environment that will damage health and the
Senator Taylor: I just spent three years on a committee looking at the pulp and
paper industry in every province in the country. Saskatchewan is the only one
that remotely comes close to living up to that goal. I do not think you want to
brush your teeth in any Ontario stream, no matter what the 1971 act said.
Senator Spivak: Elimination of the notion of inherent toxicity is another
barrier to phasing out the generation and use of these substances. I do not
know what industry was worried about here, because the chances of that making
it up into that very select club are very slim since the way is fraught with
all kinds of obstacles. I do not know if it will ever get there.
Moreover, I wish to remind you that the memo in the bureaucracy suggested that
it will be impossible to virtually eliminate.
Mr. Shrybman: As a veteran of several struggles to establish law reform and
regulatory initiatives, I know that sometimes the business community gets it
wrong. They certainly did around the "spills bill" in Ontario where
they pulled out all stops to prevent the regulatory initiative; but it was
established and turned out to have very little effect on business.
On other occasions, the business community has been very supportive, as they
were of the Environmental Bill of Rights in Ontario. I was part of the process
of pulling together the small committee that crafted that legislation. Much of
it has to do with personalities and the vigour with which lobbying
organizations pursue their agendas, but you cannot judge the ultimate effect of
environmental regulatory initiatives by the way in which the business community
responds to them. Sometimes they overreact and sometimes, arguably, they do not
react forcefully enough, but there may be much ado about nothing here.
The Deputy Chairman: Ms Kwasniak's recommendation on harmonization was that we
do not further dilute federal power or authority by making further amendments
to compel harmonization. I get the impression that you think that provincial
rights may have blocked a more effective environmental act. We must remember
aboriginal governments and consultation with aboriginal peoples. Is that a form
of harmonization that is negative? Harmonization refers not only to provincial
governments but to aboriginal governments and aboriginal peoples and groups.
Ms Kwasniak: Could you clarify the kinds of things that you see as harmonized
with respect to aboriginal governments?
The Deputy Chairman: I gathered that you felt that the ability of the federal
government to act unilaterally on environmental issues was diluted. You seemed
to be of the opinion that it is the provinces that are slowing that down. In
addition to the province, does Bill C-32 not contemplate consultation and joint
action with aboriginal governments and aboriginal peoples? It seems to me that
you were slapping around aboriginal governments and aboriginal peoples as well
as the provinces.
Ms Kwasniak: No, I was talking about a few things, one being the harmonization
agreements that the federal government has with respect to matters such as
environmental assessments and releases. Under the duty to consult, there are
provisions that require the federal government to consult with provinces,
aboriginal groups, and others, before it takes action.
The problem with those clauses is that in addition to the duty to consult there
is the inability to act unless the offer of consultation has been refused.
Something must be done about that.
The Supreme Court of Canada has shown us that there is a duty to consult with
aboriginal nations on many issues. In B.C., the province has a legal duty to
consult before they give out forestry permits if the land is the traditional
land of aboriginal people. I am not suggesting that the federal government not
fulfil its legal obligations to consult, as imposed by the Supreme Court. It is
absolutely necessary that the federal government comply with all its duties to
consult under treaty, aboriginal law, and generally in regulation.
What I think is not right is that the government's hands would be tied because
of this duty to consult. There must be a way to cut off consultations in order
that the government can act. The duty to consult with aboriginal groups is
different from the duty to consult with provincial governments. I do not know
why all these extra duties to consult with the provinces were put in the
statute. They were not in the original CEPA. There is no process to contain
that duty. That is why I said it should be discretionary. I must admit that I
am a little uncomfortable with its being only discretionary, but even if it is
a mandatory duty there must be some process to end the consultation. My main
concern is that it ties the hands of government.
The Deputy Chairman: It is most unusual to hear an Albertan say that.
Ms Kwasniak: I do not think it is so unusual.
Senator Ghitter: We saw that in the gun control legislation and I do not think
it is a problem. It is a matter of reasonableness. The federal government had
not consulted with aboriginal groups on gun control. They then sent some people
into the North on a quick trip and said that that was consultation and everyone
accepted that. We argued that it was not. Senator Adams, in particular, will
remember that, when Bill C-68 was going through, there really was not
consultation under any reasonable interpretation. I suppose that if anyone
wanted to contest it they would do so by going to court. I do not know if you
could ever define it. However, I think it is appropriate that it be there,
because, for too long, aboriginal groups were never consulted. It was included
to ensure that they would be consulted, and I am sure that we all support that.
Ms Kwasniak: Absolutely, and under law there are duties to consult.
Nevertheless, there should be some process to define consultation and to
determine when there can be action.
The Deputy Chairman: It seems to me that harmonization and consultation are
closely linked and I wondered which side of that you come down on.
Senator Hays: For the first time in legislation, I see in this bill some comment
on economic instruments, which I think most of us believe is a necessary tool
for dealing with what we will ultimately do on the climate change issue.
Do you agree that that is an important new government initiative in Bill C-32?
Mr. Shrybman: I agree, but we have some concerns about the way in which Division
6 is drafted in terms of the ability of the government to rely on the
provisions there to deal with climate change issues. We make some suggestions
for clearer wording with regard to the release of substances into the
environment that cause global warming, even though they may not interfere with
local air quality.
The Deputy Chairman: Thank you very much for your most informative and well
We will now adjourn until 1:30.
The committee adjourned.