Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 3 - Evidence - June 8, 2006
OTTAWA, Thursday, June 8, 2006
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 8:07 a.m. to
review the Canadian Environmental Protection Act (1999, c. 33) pursuant to Section 343(1) of the said act.
Senator Tommy Banks (Chairman) in the chair.
The Chairman: Good morning, we are here to continue the study by the Standing Senate Committee on Energy, the
Environment and Natural Resources of the Canadian Environmental Protection Act. We are seeking instruction and
expertise from stakeholders and interested expert parties as to exactly how we pursue that study, areas to study and to
what depth and breadth. We anticipate the study will take several months.
This morning we have with us from PollutionWatch, Dr. Kapil Khatter, Director of Health and Environment, and
Mr. Hugh Benevides, who is the Staff Counsel. From the Sierra Legal Defence Fund, we have Mr. Robert Wright, who
is the Managing Counsel.
I think you asked if you could make your presentation together, so I presume you are organized. Mr. Benevides will
Hugh Benevides, Staff Counsel, PollutionWatch: Yes, Dr. Khatter and I present together and Mr. Wright has a
presentation as well. I wanted to get some idea of time availability?
The Chairman: We must be out of here by 10:15, at the latest. We want to allow time for members to ask questions,
and so I leave it to your judgment. Our ordinary direction is that we ask presenters to stay within about 10 minutes and
hit the high spots so we can ask questions.
We are by no means expert in this area, but on the other hand we are not entirely unfamiliar with it as well. Govern
yourself by that, if you would.
Mr. Benevides: Thank you, Mr. Chairman.
Thanks for having us, honourable senators. I am staff counsel with the Canadian Environmental Law Association,
CELA, in Toronto, providing representation and law reform services to the public. We have been doing that function
Dr. Khatter is a family doctor as well as Director of Health and Environment with PollutionWatch. By way of
introduction, PollutionWatch is a collaborative project between my organization, CELA, and environmental defence.
On our website, which is www.pollutionwatch.org, we provide tools that allow Canadians to access information about
pollution in their communities using data from the National Pollutant Release Inventory which was established under
the Canadian Environmental Protection Act, 1999.
To begin our joint presentation, I will pass things over to Dr. Khatter..
Dr. Kapil Khatter, Director of Health and Environment, PollutionWatch: Chair, committee, the Canadian
Environmental Protection Act, CEPA, is the backbone of Canadian environment legislation. It brings to one place the
powers to deal with air pollution, persistent organic pollutants such as flame retardants and stain repellents,
greenhouse gases and metals such as mercury and lead.
CEPA gives the federal government the powers to regulate any substance that it deems to endanger our health or the
environment. It offers the government a range of tools to reduce pollution and to prevent harm. CEPA, though, has
not been effective in reducing pollution in Canada or in getting the worst chemicals off the market.
We need a detailed but focussed review of the act that is an investigation into the failings of CEPA. We need to
study what the barriers are to protecting human health and the environment. Canada ranks 28 out of 29 developed
countries in emissions; 29 out of 29 in releases of volatile organic compounds; 27 out of 28 in sulphur oxides; 26 out of
28 in nitrous oxide; and 27 out of 29 in greenhouse gases, et cetera.
The Ontario Medical Association estimated in 2005 that two air pollutants alone, ground level ozone and fine
particulate matter, will be responsible for over 5800 premature deaths in Ontario, over 16,000 hospital admissions,
nearly 60,000 emergency room visits and over 29 million minor-illness days costing Ontario almost $1 billion in a single
Canadian facilities report air emissions of over 4 billion kilograms per year. A recent comparison between Canadian
and U.S. facilities in the Great Lakes basin found that per facility, we emit 93 per cent more potentially cancer-causing
air pollutants and almost four times the pollutants that cause reproductive or developmental harm.
Environmental Defence's recently released report ``Polluted Children, Toxic Nation'' demonstrates CEPA's inability
to protect Canadians from exposure to toxic substances and it did so by testing the levels of these chemicals in
volunteers. Of 68 chemicals tested, 46 showed up in Canadians' bodies, all known to cause cancer or reproductive and
neurological illness. For most of the substances tested that are still in use, children had higher levels than their parents,
including repellents, flame retardants and air pollutants. Banned substances such as PCBs and DDT still showed up in
children but the levels were higher in adults — a demonstration that banning works but it takes time to be effective.
Volunteers from the industrial city of Sarnia and from a First Nations community near Sarnia had the highest levels
of many substances.
CEPA is clearly broken. It is not getting the results we need in decreasing pollution and reducing toxic exposures.
We, and other groups that have monitored CEPA over the last years, have some concrete suggestions as to fixing many
of the problems. For instance, CEPA lacks mandatory timelines and important stages in the process. This lack allows
chemicals to remain on the market with unfinished assessments. It can also mean that little or no action is aken even
when chemicals are declared toxic.
For example, the chemical Perfluorooctane Sulfonate, PFOS, was generally banned, in the United States in 2000,
with a few exceptions, but Canada took until October 2004 to post an assessment and that assessment still has not been
There is a mechanism in the act, virtual elimination, which is a ban on release except for trace amounts. The
mechanism is meant to do away with the most toxic and persistent chemicals. Virtual elimination, as written in the act,
does not work and the process needs to be streamlined. Only one substance has been proposed for virtual elimination
during the life of the act and none, so far, have been eliminated.
My colleague Mr. Benevides will continue with some of our other suggestions.
Mr. Benevides: In addition to themes of the need for more mandatory timelines and a more streamlined virtual
elimination process, I want to cover three additional, interrelated subjects, which are overarching in nature, to provide
you with a further overview of the difficulties we see with the act and suggestions for its improvement. As you all know,
the statute is complex, so it is difficult to address all the different implications in that thematic way. Of course we are
happy, both here and in future contact and communication, to drill down, as it were, into more specific topics, and to
get into the meat of things a little more.
I believe you have an outline of the topics that I want to address before you. The first one is the issue of precaution.
The precautionary principle is a recognized principle of international law increasingly recognized in Canadian law,
notably as a result of the Supreme Court of Canada's decision in Spraytech v. Hudson. There are many articulations. I
do not refer to definitions of the precautionary principle but rather to the various alternative articulations of the
principle. The principle is crystallizing around a few notions. First, the principle imposes obligations increasingly on
governments to act sooner and more decisively in the face of information that we gather continually about
environmental and health dangers. In the context of toxic substances, this means, first, that we need greater powers to
compel information from proponents — sooner and more definitively. Second, it means using the available
information that we have from proponents, other jurisdictions and the public to take action to ban the worst
substances and to replace them with more benign alternatives.
The precautionary principle also requires that evidence that a substance may pose a danger creates a presumption
that the substance is dangerous and cannot be used. This principle in turn imposes a burden on proponents to use those
alternatives, where they are available.
My second theme is consumer products. I will be brief in this respect. CEPA needs a clear, legislated materials-use or
substitution rule. That rule, in its direction, would be relatively simple. If a substance is CEPA-toxic, that is, toxic as
defined under the act, then its use in products should be prohibited. The only exceptions would be essential uses where
no reasonable alternatives exist. It may be that there are sufficient powers in CEPA at present — I emphasize the word
``powers'' — to regulate or prohibit the use of toxic substances in products in CEPA, but clearly such powers have not
been used. There is other legislation in Canada federally, but we think CEPA is the place for that power to be much
clearer and also to be implemented.
Finally, I want to talk about the significance of the Great Lakes in the context of CEPA and toxic substances. I
include the St. Lawrence in that: I am talking about the Great Lakes-St. Lawrence Basin. We propose a new part of
CEPA that would allow the identification by the Minister of the Environment or by the Government of Canada of
areas that are environmentally important. For example, identifying an area as a national treasure, as has been done in
other jurisdictions could be used for the significance of the areas in terms of their cultural and environmental
importance and those sorts of things, but also those areas that are, at the same time, vulnerable. Creating a new part of
CEPA that would allow this kind of designation to be used in other areas such as the Arctic, which of course in the
context of toxics is an important and unfortunate sink for POPs.
The Chairman: For the folks who are watching, would you define ``POPs,'' please?
Mr. Benevides: I forgot for a moment we are going outside this room. POPs are persistent organic pollutants, and
Canada was the first signatory and ratifier of the Stockholm convention, which addresses those pollutants. Of course,
many POPS are the same chemicals we are talking about in this legislation.
Let me outline some of the reasons for identifying the Great Lakes as the first such area to be identified. The Great
Lakes have been a crucible for pollution law and policy in both Canada and the United States. The Great Lakes region
is internationally significant as a water source for a significant number of North Americans, and people around the
world are aware of the Great Lakes. The basin includes 30 per cent of Canada's population and, at the same time,
almost half our toxic air pollution is generated in the basin.
Among the things that we would propose are specific pollution-reduction targets for the Great Lakes. This is the tie-
in to international agreements, a legislative objective of achieving the goals of the Great Lakes water quality
agreement. It so happens that the Great Lakes water quality agreement, which was originally negotiated under the
Boundary Waters Treaty in 1972, is also up for review at the moment. Notions such as virtual elimination have their
origin in the Great Lakes Water Quality Agreement, as well as having a presence in The Clean Water Act in the U.S.
There is an opportunity, therefore, for a synthesis of new obligations on both parties to the agreement. There is also an
opportunity and a need for both the existing obligations in the existing agreement and any new ones that are added as
that agreement is negotiated, to be implanted in CEPA because, of course, federal legislation is where the rubber hits
the road in terms of those agreements.
We have more detailed suggestions. Under this new Great Lakes part of CEPA, or following from the designation of
the Great Lakes, there would be a Great Lakes coordinating office in the federal government. The mandate of the
office would be to implement federal programs and to coordinate inter-jurisdictional programs to tighten up and define
the research agendas, and to clarify the types of information-gathering and reporting requirements for the Great Lakes
In summary, then, as I said, it is a complex act. We have tried to give you an overview of some interrelated but, I
think, relatively straightforward recommendations. We would be pleased to answer your questions today and in the
future as you continue those deliberations.
Robert Wright, Managing Counsel, Sierra Legal Defence Fund: Thank you for inviting Sierra Legal Defence Fund. I
am the managing lawyer of the Toronto office. We also have an office in Vancouver. We like to think of ourselves as a
legal watchdog on environmental issues. We act for other environmental groups such as Friends of the Earth and the
Sierra Club, so we are not to be confused with the Sierra Club.
In our pollution work, we engage in strategic litigation, including private prosecutions, most notably under the
Fisheries Act. We also do a number of reports and report cards on pollution.
Sierra Legal has been in operation for 15 years, yet we have never used CEPA in our work, either in private
prosecution or in the other significant forum. To me, that indicates the act lacks something in the form of citizen
participation and public interest rights.
The first page of my paper is general support for positions of other environmental non-governmental organization,
ENGO, groups. You will receive at some point a letter from the Canadian Environmental Network, CEN, giving the
position of various groups. CEN has a toxics caucus that will make comments specifically. I have given a highlight to
indicate our support for its position in addition to supporting the work by PollutionWatch in its presentation. I have
added a few others. I know you will hear from Pollution Probe, and we support the issue they will raising on mercury
contamination and mining issues that tie in with the National Pollution Release Inventory.
At the bottom of the first page, I have commented on a few issues I know are out there because in my presentation I
will focus on only citizen participation and enforcement. As there may not be another opportunity other than a formal
written submission, I wish to indicate our view on these other issues.
On comprehensive review versus tinkering, we agree with the other groups that comprehensive review is required.
However, in the area we focus on, namely, enforcement and citizen participation, we think much can be done with
what we call ``tinkering'' to a mechanism that would have a large effect in practice.
Turning to the focus of our submissions, the first item I want to deal with is Public Participation, CEPA Part II. The
second item is Enforcement, CEPA Part X. Much of what I have to say or at least point you to is in the appendices. I
have taken extracts of various materials and highlighted those portions with sidelining that are relevant, apart from the
charts, which I suggest you may want to look at as a whole.
In citizen and public participation, under Part II, we refer to the environmental protection action under Section 22
of CEPA. There are a number of hurdles in the legislation for that provision, one of them being the requirement to ask
for an investigation. Once you ask for an investigation, which is the first hurdle, the environmental protection action
can proceed only if the minister failed to conduct an investigation and report within a reasonable time, or the minister's
response to the investigation was unreasonable. That is from Section 22 of CEPA. Most importantly, the end of that
provision provides that you can claim any other appropriate relief, including the cost of the action — here is the kicker
— but not including damages. You have a potential action here with many hurdles, many pullbacks, an action that is
unlikely to be used. That was the view when this action was first put in, and, in fact, it has not been used. We are
talking about a civil proceeding that parties or citizens may take if they feel CEPA is not being enforced.
With respect to what a third party thinks of these provisions, I have attached as Appendix A, a document called the
Formative Evaluation of CEPA 1999: Environment Canada. This document was released in March 2005. I have quoted
in my notes a section that I think is particularly apropos. Paragraph 2.2 of that document is about public participation,
and says expected outcomes are as follows:
(1) Canadians have better access to information.
That outcome seems to have occurred to some extent. There are a few issues on the national pollution release
information, but I will not deal with that today.
(2) Canadians have the opportunity to initiate investigations of alleged offences, recover personal damage of
economic loss, make personal claims and file citizens' suits.
At page 24 is a report prepared by Environment Canada itself:
Very few public applications for investigations or public environmental protection actions have been made.
Barriers to increased public participation have not been formally examined.
In my recommendations, I suggest that this issue is a good one for the committee to focus on. Environment Canada
itself feels it is a good area to focus on. Let us formally examine it and see what we can do better.
To follow up from that document, the second quotation in the last sentence reads as follows:
Work needs to be done to identify and address barriers before the opportunity provided through the public
action provisions of the Act can be fully realized.
That is the civil and public-participation right of action in Part II.
The second matter I want to refer to is enforcement. Part X is the enforcement provision. I participated in the
committee that went to the public to find out what issues they were concerned about. I suggested enforcement should
be there. I did not see it in the workshops around the country, and that is unfortunate. It is the back end of CEPA, if
you will, but in many ways it is the front end as well. If the back end is not working, the front end will not go anywhere.
Again, the Formative Evaluation of CEPA 1999: Environment Canada, under Conclusions on page 70 says:
It is not possible to determine whether expected outcomes with respect to Part X of the Act will be achieved as
measurement and reporting systems capable of documenting progress towards expected outcomes in this area
remain under development at the time of this evaluation. Such systems will need to be developed and
implemented in order to ascertain the likelihood of progress relating to the expected outcomes.
That is a long way of saying we are not doing a whole lot, we are not there yet and what we can do better. CEPA has
many good enforcement mechanisms, if they were used. The tools are there, and that is what we do. We look for tools
to either prod the government to do what it should do or take initiatives that set a precedent. The tools are available
but they are not used frequently enough. I suggest they are not used because people do not have the resources to use
them. Many good people would like to use these mechanisms more and are unable to do so.
If you go to Appendices D, E and F of our presentation, you will see a summary of enforcement results under
CEPA. I want to explain briefly those appendices.
In appendix D, statistics for the period 1999 to 2005, we have ``backed out'' the 1988 CEPA enforcement measures
to give a truer picture of where we are going with 1999 CEPA. That is why the figures are slightly different between
appendix D and appendix E. It is also why there is a slight difference in the figures from Environment Canada when
they refer to the amount of enforcement that has been done.
To recap, appendix E contains prosecutions that have spilled over from CEPA 1988. We have backed those out in
appendix D to give a truer picture of CEPA 1999.
In the prosecutions column, we see that not much has happened. Our office, with four lawyers, could have pumped
out more prosecutions had they traditionally not been stayed by the Auditor General in that period of time. That is not
to say that prosecutions are the be-all and end-all, but we do not know because they are not used enough. We feel they
are not used enough and studies show that greater enforcement has a huge impact, particularly if it goes to the
prosecution stage. I know the trend is to work on voluntary compliance and that is a great scheme. However, this is an
indication that it is not working properly.
The same thing is happening under the Fisheries Act, which we use a lot.
We have gone to the Commission for Environmental Cooperation, CEC, under NAFTA, about the failure to
enforce the Fisheries Act regarding pulp and paper. The same situation is happening under the Fisheries Act. CEPA
and the Fisheries Act are the two main acts we use for pollution prevention. The one we use most, ironically, is the
There is another reason for that, which brings me to another recommendation. There is a fine splitting provision in
the Fisheries Act. I have included that in appendix C. This is where I talk about ``tinkering'' as opposed to
Section 62 of the Fishery (General) Regulations states:
Where an information is laid by a person in circumstances other than those referred to in section 60 or 61, ...
the payment of the proceeds of any penalty imposed arising from a conviction for the offence shall be made
(a) one half to the person; and
(b) one half to the minister ...
A private prosecution under the Fisheries Act, which we do, costs a whole lot more than whatever fine you end up
getting at the end of the day. It is a sign that the government, under the Fisheries Act, wishes to encourage public
participation. This is one way of doing it. In a private prosecution, the government has the opportunity to step in and
stay it, allow it to proceed or work with the private prosecutor in tandem. We have cases of all three. I can give you
It works. It cannot open the floodgates as is apparent from the Fisheries Act data itself. I am not sure if that data
includes private prosecutions. If it does, even some of those prosecutions would not have been done through the
government but privately.
One recommendation we make is to provide a similar provision in CEPA as the one in the Fisheries Act that has
worked well for a long period of time.
In conclusion, I am not sure where you are in the process, but we have made a few simple recommendations
regarding public participation under CEPA, Part II on page 3. For the most part, that recommendation is to remove
these hurdles to the public right of action and to allow claims for damages on private prosecutions that can be brought
in any case. The act does not foster private prosecutions. Provisions similar to the Fisheries Act would go a long way
towards removing that barrier.
The last recommendation — as can be seen from the government's own review of CEPA, the government feels that
in the area of enforcement and public participation, the government does not have enough information on enforcement
to know which tools are used and whether they are effectively enough. Our view is that prosecutions are not used
enough. I think a request for an Auditor General's report on that to tie in funding may be one solution. Something
needs to be done because neither CEPA nor the Fisheries Act are utilized as they could and should be.
I ask that you focus on those issues if you decide to focus on certain issues rather than a comprehensive review.
Senator Cochrane: Dr. Khatter, the stats you provide are staggering with regard to CEPA's inability to protect
Canadians. You mention how Sarnia and some native communities have the highest level of toxins: Why these areas?
Dr. Khatter: To put my comments about the Sarnia area in perspective, what I said was based on a study of 13
people across the country. It is just a snapshot. We do blood testing and it is expensive so we can do only a little.
We are particularly concerned that the Sarnia area is highly polluted with petrochemical industries in the city. The
First Nations communities are downwind from them. In one of the First Nations communities, there is a change in the
ratio of boys and girls born, and we are terribly concerned that it may be due to environmental contamination.
Senator Cochrane: Has CEPA been informed about that?
Dr. Khatter: The federal government knows about it and they are looking towards studying it further. As part of the
preventative approach that we expect the federal government should take using CEPA, we need to move as soon as
possible to reduce the contamination of those areas, both in industrial cities such as Sarnia and in communities that
live downwind and are affected by those industries.
Senator Cochrane: At this point you do not see anything happening?
Dr. Khatter: I am not sure. I know there are plans, but I can get back to you on what is going on at this moment in
terms of that.
Senator Cochrane: You said that CEPA fails to require problems to be fixed once we find them. CEPA fails to do
that. It lacks timetables to get the job done. Once we know that a chemical is a serious risk to the environment or
health, government process to regulate the chemical can be slow and ineffective. Can you give me specific examples of
Dr. Khatter: In the assessment and management processes for any substances, there are places within that journey
where timelines are mandatory and places where they are not. For instance, if a substance is chosen — something we
are worried about — and is put on a priority substances list, there is a five-year timeline, which is not short, in making
an assessment and coming to a conclusion about that substance. After that point, there is a certain amount of time, 18
months, in which we need to develop an instrument or regulation, or propose an instrument or regulation.
At the same time, while we do not actually have to do anything, that proposal may be that we do not know enough
to do anything now and will do research. Then, 15 years later, even though this substance may be considered toxic, we
have not done anything about it.
Substances come into that process through other routes. For substances that were on the toxic substance list when
CEPA was created, the biggies and baddies, such as lead, there are no timelines whatsoever for doing anything about
them. We know, for instance, that lead has been taken out of some consumer products, such as children's jewellery, but
there is plenty of lead in other consumer substances. Nothing in CEPA says that even though we know that this
substance is toxic and even though we know that studies show that the level at which children are affected by lead
exposure is lower than we thought, there is nothing in CEPA that says we have to do anything about that. As a result,
we are doing little about it.
Senator Cochrane: Let us continue with the word ``toxic.'' When industry stakeholders appeared before this
committee on Tuesday, they voiced concern about use of the term ``CEPA toxic.'' They feel the use of the word ``toxic''
leads to confusion for consumers. Essentially, they want the word ``toxic'' removed. It was also suggested that the name
of Schedule 1 be changed to the effect of ``assessment and management of substances.'' Can you give me your opinion
on the use of the word ``toxic'' in CEPA? Do you have any concerns with it? I am sure you do. How do you respond to
those concerns of industry?
Mr. Benevides: Not surprisingly, our view of this matter is quite different. To be blunt and clear, I do not think that
referring to substances as toxic is at all confusing. In fact, it is very clear, and something that has been in place for the
life of both CEPA 1988 and CEPA 1999. The word is simple in both official languages. It designates and suggests to
people, whether they are officials dealing with these issues or the public, that these substances are serious and need to
be dealt with.
Yes, we have concerns. Removing that signal from parts of the act, from the schedule that lists those substances,
apart from what we say about action that may be taken, could be seen as nothing but a retreat in our battle against
these substances. I emphasize the link here, the dual responsibility in this act not just of Environment Canada but also
Health Canada. We are not talking merely about environmental health but also about the health of Canadians.
The very presence of that word, I would suggest, is a powerful, communicative tool. We would strongly resist any
further suggestion to remove it from this legislation.
Senator Cochrane: Would you leave it as it is?
Mr. Benevides: I do not think there is any need to do anything differently. We are talking about communication here
as much as we are talking about the law. If one was to substitute the word ``hazardous,'' we already have particular
regulations internationally and elsewhere where ``hazardous'' has a different meaning, so that would be confusing. I do
not see the need for that.
Dr. Khatter: One thing that has not been contextualized in terms of the word toxic in CEPA is that CEPA defines a
substance as toxic only if it enters the environment at a level enough that it could cause a problem. Even if something is
poisonous, such as a solvent like toluene that you do not want to inhale, if we do not use enough of it, even that does
not get called toxic. The definition of ``toxic'' may seem broad because it encompasses so many different substances,
but it is actually specific to something that the government has decided potentially causes a problem in Canada. I do
not think we should play with that in terms of watering down a definition of something that is not only a potential
hazard but something we suspect we are exposed to or is entering the environment at a level that potentially causes
Senator Angus: When these stakeholders said the things that Senator Cochrane referred to, they made a big point
about stigmatization in relation to the use of the word ``toxic.'' Is there an element we need to focus on?
The Chairman: They gave us a specific example because we asked for one. A grocery store manager says to his
supplier that a label on a can says it contains this product. Is this element, this part of this product, on one of the lists in
CEPA that is declared toxic? The answer is yes. The store owner says, ``Get that stuff off my shelves.'' There is a toxic
substance in Windex, and we all use that. It is that kind of stigmatization that senators are asking about. How do we
deal with that? People need to know that in some situations, this substance is toxic, and in others it is perfectly safe to
use. Is that correct?
Mr. Benevides: Let me start on the question of stigmatization by asking if we are concerned about stigmatizing a
chemical or stigmatizing people? I do not share the concern that we need to be worried about stigmatizing products or
chemicals. The proof is in the action that we take in response to that stigmatization. The foundation of the act has a
great deal to do with assessment, assembling the science and putting that together. For the most serious substances in
the most serious quantities with the most serious exposure, it is a long journey on that long road, which we want to see
shorter. During that journey, it is a matter of communicating that those substances are dangerous.
To change that language would impair us on that journey. Simply to change the wording but to leave the process
intact would not assist us. In fact, it would impair our efforts because we would no longer have that communicative
Dr. Khatter: Our experience with consumer products is that there is a lack of stigma. We understand their argument
that substances may be stigmatized by calling them toxic. For the majority on the list, I think that is what Canadians
want. We want to know that lead has a stigma as being toxic and that we should not put it in consumer products and
say it is okay in this one and not in that one. There are essential uses, such as shielding for x-rays where we do not have
an alternative, but if we look at lead as a stigmatized substance, we want to use as little as possible anywhere. We do
not want to say that because it is in a computer monitor and nobody is directly exposed to it, that it is okay, because
that computer monitor will end up in a landfill and that lead will leech out and back into our environment.
There are substances for which the concerns around stigmatization have some reality. By and large, it is important
those substances are stigmatized as a way of keeping our eye on the prize and knowing that these substances are things
we need to get out of the system and out of the market as much as possible.
Mr. Wright: Many concerns for toxins are incremental concerns as well. More important, public education and
public knowledge have outstripped the objection to the public perception on what is toxic and what is not. People in
Parry Sound, Ontario, which is in cottage country, now have bad air days. Bicyclists in Toronto wear masks so they do
not inhale fumes. Our kids receive a great deal more environmental education than we ever had. Public knowledge is
outstripping the concerns raised on the use of the term ``toxic.''
Senator Cochrane: Mr. Benevides, could you give that some more thought and if you have another solution to that
toxic concern for CEPA that we expressed this morning, please get back to us.
Mr. Benevides: I will do that.
Senator Angus: Thank you very much, gentlemen for coming this morning. I am sorry I was not here at the
I would like to ask you, Mr. Wright, a couple of questions about your organization. I have a legal background
myself, so I am always curious when I hear things such as what you have said and I have the normal suspicions about
certain things. Can you tell me first about your organization? Is it not for profit?
Mr. Wright: It is not for profit; we receive no government funding. We are funded two-thirds by individual donors
and one-third through various foundations that have environmental goals in their own directive.
Senator Angus: Who are the members of the Sierra Legal Defence Fund? Are these non-profit organizations
members of your non-profit organization?
Mr. Wright: No. We are like almost —
Senator Angus: A service organization to the others?
Mr. Wright: That is correct.
Senator Angus: Like a law firm?
Mr. Wright: Yes, we have four lawyers in Toronto and four in Vancouver but we also are science-based. Our
organization relies on a lot of science, which is why we do a lot of reports. Government asks us when our reports are
coming out. They pay attention to them and find them, to a large extent, useful; the reports are like report cards.
We have two things. We provide the legal expertise free of charge to other environmental groups. We also do the
science work to back it up. We have our own investigations, which has allowed us in the past, for example, to engage in
the Fisheries Act prosecutions.
Senator Angus: To cut to the chase, I will tell you what I derive largely from your comments. This is a huge
generalization. CEPA needs a review and if it is to be an effective environmental tool, it needs to be shored up. The fact
that there have been few, if any, prosecutions under CEPA and that enforcement was not even on the list of things
considered when they did the preliminary review, tells me something but I am not sure what. I think it tells me that they
do not have enough resources. It is wonderful to have this big statute and huge bureaucratic infrastructure, but if you
do not have the tools to use this infrastructure and legislation, you might as well have nothing.
Mr. Wright: I agree and disagree with you. They have the tools but not the resources. I agree with that.
Senator Angus: Are we talking of financial resources or other kinds of resources?
Mr. Wright: The financial end of it impacts on the bodies out there doing the work.
In this case, certainly, there is a lack of resources. That is a common complaint. The tools are there. However, I do
not think they are an entire answer; they are part of the answer. I think I prefaced my comments on that at the start.
There is a lack of resources but also a lack of will, perhaps, in the directives they use as to how they enforce; a
prosecution is too far down the road to get to.
My submission to you dealt with two things: the civil right of action and the prosecution and enforcement side of it.
Senator Angus: I want to deal with both. In terms of the tools, is it fair to say then that, to derive from what you
have said, the legislation itself, the statute's provisions that you would use for either a private lawsuit or a public
prosecution, are okay and need not be changed?
Mr. Wright: I suggested one change, certainly from a standpoint of spurring action, and that was to bring it in line
with our other major piece of federal pollution prevention legislation, the Fisheries Act. To make them equivalent and
bring in a fine-splitting provision would encourage citizens in appropriate and reasonable cases. Those provisions are
strictly monitored by the Attorney General and the courts. To be able to bring forth private prosecutions would be a
nice tinkering. In general, the tools are there. This change would be a nice way and an easy way to make them much
more effective, bring them to the public's knowledge and allow the public to participate. I did say ``tinkering'' and I
agree with you.
The Chairman: May I interrupt for one second? On that exact point made by Senator Angus, would you still leave in
place the prohibition against damages in civil suits that is in the act now? Would that be taken care of by the fine
Mr. Wright: No: Much happens through the civil bar. Organizations such as ours are focused as a watchdog. I see a
huge amount of potential activity to help clean up our environment and enforce these provisions in the civil bar. This
activity would not benefit our organization. We do not commence damage claims. When I talk about damage claims I
am looking at the power of the civil bar to bring claims forward to keep large polluters accountable. Then you get into
the wheel of insurance, and that kind of thing. Things really start to happen because it brings it home in a ``money
sense'' to corporations. You need both. One is an enforcement mechanism that uses prosecutions under the act. The
civil mechanism is hugely important, too, because it brings in the machinery of the civil bar. No one has used this
action. It is right in their own report. This thing is virtually useless.
The Chairman: Is the reason the absence of damage claims or the prohibition on them?
Mr. Wright: The reason is two things: damage claims and the hurdles. Remember I spoke about the hurdles? You
have to ask for investigation. I have CEPA open here before me. The act states it still will not go ahead unless ``the
Minister failed to conduct an investigation and report within a reasonable time; or the Minister's response to the
investigation was unreasonable.''
You do not have that in Ontario's Environmental Bill of Rights, which this provision was largely modelled after.
This section in CEPA is much more prohibitive than the Environmental Bill of Rights and even there it is not used.
That is how difficult it is to get one of these things off the ground to bring in civil society.
Obviously, it is not something we should look at all the time. Government should enforce our pollution. This is a
second tier, if you will.
Senator Angus: You talk about the minister under CEPA — the Minister of the Environment. The Department of
Fisheries and Oceans has a different minister; correct? You say that if anything is done, it is usually done under the
Fisheries Act, under these general regulations, as opposed to CEPA?
Mr. Wright: It is, except what happens is it then moves to the Attorney General. A private prosecution goes to the
Attorney General to decide whether to allow a prosecution to move forward.
Senator Angus: From both?
Mr. Wright: Yes.
Senator Angus: I understand you to say the machinery within the Department of Fisheries and Oceans appears to be
more efficient — there is a quicker response.
Mr. Wright: We have problems of enforcement under both the Fisheries Act and CEPA. If you recall, I referred to
the Commission for Environmental Cooperation, where we brought a complaint on failure to enforce regarding pulp
and paper. We see a problem in both areas — government enforcement.
One way we deal with that is with private prosecutions. They are more prevalent under the Fisheries Act because
you have this fine-splitting provision, so someone bringing the action can recover some — believe me, only some — of
their costs. It is not a windfall, but it is enough of an advantage to make things happen.
Senator Angus: In these early days, we try to focus on how deep or shallow to go in our review of CEPA.
Collectively in the steering committee, we looked at this massive legislation and the time and resources available and
said, we want to do something useful and constructive. How can we focus it? We are in that process now and you are
One thing we heard, not only in these preliminary hearings but in other parts of our work generally, concerns this
massive overlapping legislation, with its turf wars and jurisdictional disputes — who is on first base, who should take
the prosecution? We were given a chart on the first day of these hearings that showed 37 different pieces of legislation
related directly or indirectly to CEPA. From my point of view, this overlapping is the problem. That is where you
should go first.
There has been a growth in demand, a mushrooming of different little statutes, laws and regulations to try to protect
our environment. The result is that we have a big web of interactions. We have different departments involved. The
Department of Transport feels it should deal with the ocean and oil pollution. Then another department feels it should
act on the migratory birds legislation. The result is that by the time it is decided who should do the prosecution, the
perpetrators have disappeared into thin air and they say, let us get on to the next case.
That is an oversimplification, but do you get my drift? Are we onto something here? Would it help to totally
overhaul our pollution laws, streamline it and have it all in one-stop shopping?
Mr. Benevides: I do not think we need to do an overhaul. Yes, there are some overlaps; I do not know what the 37
are, but I would also acknowledge that different departments have their turf. However, CEPA is not only recognized
but also touted by the government as the cornerstone of federal legislation.
I am always interested in looking more closely at the kind of language used. What do we mean by that? Some
provisions in CEPA, for example, apply only where other legislation does not. That is one point.
Some provisions suggest that there is not overlap, but actually a sharing, which goes back to the roles of those
different departments. The main point is that Mr. Wright earlier used the expression ``back end and front end.'' As he
said, the enforcement side and the provision for good civil suits is a good back end, which, in turn, helps to push the
However, the real potential for CEPA is in this process of identifying substances and then moving swiftly to action:
the more serious hazards those substances pose the swifter the action. That is why and where CEPA should be the
cornerstone and the main act — why the Minister of the Environment, together with the Minister of Health, who is
responsible for CEPA, need to hold the stick, as it were.
In keeping with not only this legislation, but also the government's long-standing determination to make pollution
prevention its main way of avoiding problems with toxic substances, this is the place to do it. That is why we advocate
quick action — to facilitate pollution prevention, the ability to act sooner and more decisively when we have some
evidence of the potential harm of those substances, in keeping with the precautionary principle.
Senator Adams: I will start off with a question for Dr. Khatter. I am especially concerned about pollution and you
mentioned that mercury is causing some pollution.
At one time — I think around the late-1970s — there was a lot of talk about mercury in the Arctic. At that time,
even health department officials told us not to eat seal liver, or even some of the fish, including char. All of a sudden, it
was not dangerous any more.
The last time we heard about it was four or five years ago, when Sheila Copps was still the Minister of Health. She
went to a community called Broughton Island, where people were affected by mercury — especially women
breastfeeding their babies. From then on, we never heard any more about it, even though there are now more people in
the community. Some are living in the Arctic and others have moved elsewhere — some are even living in Toronto.
A couple of weeks ago, when I was in Rankin Inlet, I heard on the radio that in one Arctic community with only
about 300 people, there were 9 or 12 people with cancer. I am not sure if mercury gets into the environment up there
through the air or the water. I have heard that because of the cold weather in the Arctic, chemical pollutants travel
Where do we stand in relation to the rest of Canada? Is there a difference between the summer and the winter, in
terms of how much pollution reaches the Arctic from the south? Is it being monitored? We do not have any chemicals
in the Arctic except those used in mining. There was a mine operating in Yellowknife for 40 years. It finally closed
down, but they have a problem there now with arsenic. Now more mining is coming into the Arctic, mostly gold and
diamond companies setting up operations. There is not much yet in Nunavut; it is mostly in the Northwest Territories,
where they have quite a few diamond and gold mines.
People in the communities are worried about what is happening. Why do we have so much cancer not only in elders
but also in young people? Is it caused by pollution? Perhaps the government should do more studies on drinking water
Legislation was passed when David Anderson was Minister of Fisheries and Oceans and Allan Rock was Minister
of Health. I asked that country food in the Arctic be monitored, foods such as fish, seal, whales and caribou, but that
never happened. The only time monitoring was done was when someone was sick. A couple of years ago we learned
that someone contracted a disease from walrus meat. Since then, before eating meat from a walrus you have to send the
tongue to a lab in Winnipeg. If the tongue is okay, the meat is okay. That is the only monitoring we currently have of
meat in the Arctic.
Dr. Khatter: Mercury is a perfect example of how we are contaminating the North. The mercury levels there are
higher than in the South. The wildlife and fish are more contaminated, and that mercury is coming from industry,
power generation and incineration of garbage in the South. That is called northern transport or long-term transport
and it has to do with temperature and chemicals such as mercury going into the atmosphere and depositing in the
Mercury levels in country food in the North are high enough that if it were not for the health, social and cultural
benefits of eating that food, we would tell people not to eat it. That is true of breast milk as well. We know that breast
milk is the best thing for babies and, as doctors, we never tell women not to breastfeed, but breast milk is contaminated
and we need to do something about that.
The reason we need CEPA to do this job is that it needs to be done nationally. Incineration, power generation and
industry all across southern Canada is contaminating the North. One province taking care of their business will not do
the trick. CEPA gives us the power to regulate mercury emissions across Canada and we are not using those powers
Senator Angus: Is that due to lack of resources?
Dr. Khatter: I would not say so. Rather than doing the work on mercury under CEPA, we have moved it to the
Canada-wide standards process where we are negotiating with provincial governments on standards that are
reasonable, and the decisions are more political than science-based. We are not saying that we have the authority to
regulate mercury emissions and solve this problem.
Mr. Benevides: The area to which Dr. Khatter has alluded is one in which we look for more ``mandatoriness,'' if that
is a word. With the infrastructure in CEPA we can gather and assess information to learn about substances. However,
in taking action is the government required to use its powers in a way that compels reduction of emissions or
elimination of them? For example, on standards that are not enforceable, the use is necessary of the Canadian Council
of Ministers of the Environment, whose role is good in principle in terms of cooperation among jurisdictions.
However, under CEPA we look for leadership by the federal government to establish those obligations and then have
the other jurisdictions act if they can. In the absence of that willingness by other jurisdictions, the federal government
would act to enforce reductions, bans or what have you.
Senator Adams: I have been working on the fishery with DFO for the last four years, since we settled our land claim.
We have had some difficulties. We have had difficulties with some departments that took 30 years to resolve after the
settlement of a land claim. Sometimes they do understand the agreement. Ottawa imposes the exact same policies on all
fishermen, even those in the Arctic, and some of those policies were introduced in the fishing act of 1884, which is a
long time ago. The Fisheries Act should be amended or there should be a new act.
Since we settled our land claim in 1993, commercial fishing has developed in the High Arctic at Davis Strait.
However, the DFO still has the policy that anyone who wants to use dragging vessels can do so in the Arctic.
Water temperatures in the Arctic have been monitored for the last two or three years by the Canadian Coast Guard.
We learned at a meeting in Iqaluit last February that in some of the deeper areas where turbot are fished the
temperature on the bottom was as high as -1 o C. You talked about the fishery in B.C. and I wonder about the water
The Inuit people have good memories. We remember when the cod fishery collapsed in Newfoundland over 10 years
ago. We want to have long-term planning in the Arctic so that what happened in Newfoundland will not happen to us.
I remember when we passed Bill C-9, the Canada Health Act. I was on the committee that examined that bill. Under
that legislation, any testing has to go through five departments; Transport Canada, the Canadian Coast Guard, Health
Canada, DFO and Environment Canada. There used to be insufficient authority, but now there is too much.
I believe there are over 10,000 people working in the Department of Fisheries and Oceans across Canada. With new
legislation could DFO do more monitoring of the environment?
Mr. Wright: Your question covers a number of bases and perhaps comes back to Senator Angus' point about the
chart and the overlapping legislation and where we go with it. The Fisheries Act is one act that overlaps with CEPA.
The point is a good one. Should we also look at amalgamating other acts into CEPA? That is not a tinkering thing.
CEPA 1988 amalgamated a number of acts: the Clean Air Act, the Ocean Dumping Control Act, Part III of the
Canada Water Act, as well as the Environmental Contaminants Act. The act itself was an amalgamation of acts. You
are asking if we should change the Fisheries Act, and amalgate other acts so things are more focused. I do not have the
answer to that today.
On the fisheries end, I have a lot of familiarity with the habitat provisions and the pollution prevention provisions.
As I have said, for various reasons, we have used those provisions with greater and lesser effect. They have been
effective. I would not want to see them tinkered with in the sense of getting rid of those provisions. If we try to
amalgamate the pollution provisions in one spot, that is one thing. The chart I am looking at divides things into
products, emissions and effluents, and then habitat protection and land use management. The Fisheries Act straddles
the habitat and the emissions and effluents portion of that chart.
If you are talking about taking the pollution prevention provisions out of the Fisheries Act and putting them into
CEPA, I would not want to do it under the current regime in the way that CEPA does not have the teeth that the
Fisheries Act does for the work we do.
Senator Adams: Do you monitor the temperature of water? I am not good with metric, I use inches. Arctic char
grows only about one inch every year. I do not know how many inches salmon grow every year. We are looking at the
connection between that and water temperature on the East Coast, the West Coast and the North.
Mr. Wright: Unfortunately, the Fisheries Act is not designed to look at that issue. It looks at allocating quotas.
Quotas have to be changed because the temperatures change and the fish are going somewhere else or disappearing.
That is the back end, if you will. It is not the solution to the problem.
Senator Adams: Mostly I am concerned with damaging the bottom. We have been fishing for over 100 years. The
people in the community are concerned about that. Draggers are coming up north.
Mr. Wright: I was counsel on the draggers case in Nova Scotia, so I am familiar with that. Unfortunately, the
Fisheries Act did not help us on that either, but it can deal with that issue. It is a broad issue. When you go to court,
you have to focus on a particular instance. I do not think there is a solution in the Fisheries Act at the moment to your
concerns, which are global areas of concern.
Mr. Benevides: Environment Canada has administered those pollution prevention provisions of the Fisheries Act
under an administrative agreement with DFO for many years now. While the provisions are in the Fisheries Act, the
prosecutions that are undertaken or not are initiated or not by Environment Canada.
More important, I want to go back to the earlier discussion stemming from a question from Senator Angus about
whether resources were needed and the differences between the statutes. The differences are on those pollution
prevention provisions. I think one of the reasons there has been a longer history of at least initiating prosecutions
under the Fisheries Act is that the provision there is from a different era, one we hearken back to, when we had much
stronger provisions. The provision was a simple prohibition that one is not allowed to deposit deleterious substances
into waters frequented by fish, and there are regulatory exceptions to that. That prohibition is, in simple terms, why
that provision is used more often at the enforcement end of things.
Senator Tardif: I understood you to say that the government needs to act sooner and more decisively in keeping with
a precautionary principle. I believe that precautionary principle states that when there are threats of serious and
irreversible damage, even though there is a lack of full scientific certainty, there is a need to move forward to consider
cost-effective measures. Has the fact that the expression ``cost-effective measures'' been included in that statement of a
precautionary principle had any impact on the effective application of the principle?
Mr. Benevides: Addressing the last part of your question first, it is difficult to see how that cost-effectiveness
language affects implementation because that goes to decisions taken or not taken at the level of regulations that are
developed. The whole process behind that is one that is difficult for the Canadian public to see and, therefore, it is hard
for me to comment on that.
I will go back to my earlier comments. There was controversy, as senators may recall, when the bill was enacted as
to whether that particular articulation of the precautionary principle should be there. The Environment Committee in
the other place removed the words ``cost-effective'' and, when the bill returned to the house for final reading, those
words were put back in following a strong lobby effort.
My earlier comments were that the spirit of precaution is not necessarily to be derived from one articulation of the
precautionary principle. We have one in CEPA and another in the Canada Oceans Act, for example, and in other
legislation. In talking about acting sooner and decisively, I noted that, as an emerging and clear requirement in
international law, now recognized in Canadian law, it is those requirements that are important to precaution rather
than the precise wording. That is a two-prong answer. I hope it is clear.
I have an articulation from an ministerial declaration of 1990, the Bergen Ministerial Declaration on Sustainable
Development, which is a different articulation in the same spirit. They all give us a similar message.
Senator Tardif: Perhaps you have mentioned this already. How can this principle be measured? What criteria do we
use? I think you alluded to some criteria, but would you mind reviewing that for me?
Mr. Benevides: I did not go into a lot of detail, but I could.
As Mr. Wright mentioned a moment ago, CEPA was an amalgam of a number of environmental statutes. Most of
our focus here today is Part V, the toxic substances part, and Part IV, the pollution prevention part.
Within Part V is the whole process that allows us to identify substances and then continue forward with ultimately
regulating or prohibiting those substances, their use and manufacture. There are a number of places throughout that
process where precaution could be more clearly articulated and required on the part of officials and ministers — and
cabinet, although that is not normally done in legislation. However, there is always an exception.
It is true that the administrative duties section of the CEPA requires a precautionary approach to be taken and that
applies throughout the act. However, because of the various places in the act that allow for discretionary decisions, we
suggest that precaution requires some of that discretion to be eliminated or tailored. For example, when we know that
a substance has certain serious characteristics, such as persistence, bio-cumulative properties or it is inherently toxic,
our mandatory timelines would factor in. We would then take the fastest action in completing the science or declaring
that we have enough science. That is precaution. We would take action within a limited period of time, which would be
reviewable down the road, but we would eliminate it. That is the spirit of pollution prevention.
There would be a similar process for substances that have some but not all of those serious characteristics. There
would be provisions that require action with somewhat longer timelines. The mandatory element would come into
We would be happy to provide examples. The committee could make recommendations to draft some provisions. I
expect that there would be more resources within Parliament for that purpose. We would be pleased then to make the
initial suggestions, to comment and to assist with that.
Senator Tardif: I would appreciate your getting back to the committee on that.
The Chairman: Dr. Khatter, when you began your comments this morning, you said that a means by which to
compel commercial interests to provide more information is lacking and needed to be put into place. At the same time,
I am aware that you recognize that proprietary interests in that information must be protected by definition. Is there a
mechanism in place by which both those ends can be achieved?
Dr. Khatter: I do not think I talked about it much in my presentation this morning.
The Chairman: Yes, you said that one of the powers lacking was the power to compel the provision of information
under the act.
Dr. Khatter: A provision in the CEPA gives the federal government the option to compel companies to provide data.
Environment Canada can ask companies for existing data at any time. In terms of asking for data where gaps in the
data exist, a clause in the act says that the government must have a certain amount of suspicion that these chemicals
cause harm before they can make the request.
I assume that you are speaking to confidential business information problems. Other acts in North America have
dealt with this problem. For instance, the pest control products legislation that will come into force soon differentiates
between proprietary information that is commercial and information about health and safety. Health and safety
information is not considered confidential business but is considered to be test data. Anyone in Canada will be able to
look at the test data provided they sign a declaration that they will not use it for commercial purposes.
Canada has signed international agreements, such as the Strategic Approach to International Chemicals
Management, in which we recognize that health and safety information data on testing chemicals and products that
tells us whether they are safe or harmful needs to be in the public domain. I believe the pest legislation in the U.S.
provides that anyone who uses the information must pay royalties to the respective company. That is one way to keep
the information available while still protecting the company.
The Chairman: Does that royalty provision exist in CEPA?
Dr. Khatter: No.
The Chairman: Perhaps that should be considered. Anyone in Canada can look at the test information so we must
assume that one's competitors can look at the information.
Dr. Khatter: Part of the problem is that CEPA does not clarify this well enough. We could make differentiations
between the commercial value of formulation versus the test data, as with the pest control products legislation, such
that people would need only to sign a promise not to use the information for commercial interests.
We need to be clear about what information is truly important for companies to keep commercially secret and what
information should be in the public domain and whether companies might use a confidential business information
category as a way of hiding.
The Chairman: Those two are not always mutually exclusive. The protection is important but if we add a
compulsion, then we need to add a reasonable balanced protection. Do you agree?
Dr. Khatter: Yes, I agree provided the health and safety data is available for people to examine and determine
whether a product is safe.
Mr. Benevides: Briefly on the question of balance, we often use that phrase. I simply reinforce that there is a
perceived balance now. In terms of the thrust of the CEPA, which is supposed to be about pollution prevention, we
need to look hard at how that balance is resolved. We are talking about changing that thrust or the nature of the
existing balance in favour of health and safety, as Dr. Khatter suggests.
The Chairman: All of you have talked about the lack of, or gaps in, clear timelines and requirements in the act to
which the government would adhere. There needs to be a clearer provision in the act about the application,
implementation and enforcement of it. Can you give us one or two specific examples anecdotally, now or later in
writing, of an instance in which the lack of that capacity in the act puts Canadians as individuals or the Canadian
environment at risk? Is there anything tangible on the ground or in the air that could present such a risk? If so, can you
tell us why it is there and why it has not been removed, taken care of or looked after? Is it because of this existing
impediment in the CEPA?
Dr. Khatter: There are many such examples. Sometimes it is difficult but we are still trying to get a sense of the
barriers in the process and why the process stalls at certain points in the process.
One example I gave in my presentation was the PFOS, which is a breakdown product from stain repellents and the
coatings they put on microwave popcorn bags to prevent greasiness. Although Canada does not produce that chemical,
countries around the world such as the U.S., Germany and Japan, use these chemicals and the chemicals that break
down into PFOS and put them into products that are imported into Canada. The U.S. Environmental Protection
Agency saw this chemical as a huge problem. The company recognized first that this substance is extremely persistent
— way more than PCPs, DDT or those things, bioaccumulating in the Canadian North — and we need to do
something about it. In 2000, they said no more PFOS in the U.S., except for certain small uses in aviation and micro-
electronics where there were no alternatives yet.
Our question to the government is why did it take until 2004 for us to complete an assessment and publish it in the
Canada Gazette, proposing that we do something to get rid of this chemical? Why, since then, has there still been no
final decision? Do we not need mandatory timelines within those gaps that say if it was in the Canada Gazette in 2004,
why in the spring of 2006 do we not have a final decision?
Is it sitting in the minister's office? Is it sitting in cabinet? We understand that at the cabinet level, sometimes a
decision about a certain substance takes a back seat to the five priorities the government has. That is why the act needs
to push that along and ensure those decisions are made in a timely way so the Canadian public is protected in a timely
In a broader scheme that we have not talked about yet, I am sure you have heard there is a categorization process in
Canada in terms of chemicals. The categorization of the 23,000 existing substances that were on the market, which
were grandfathered into Canada with almost no data on which ones are safe and which ones are not, will be completed
on September 14, 2006. The government has done a scoping exercise to get a sense of which ones are probably the
worst ones that we should start with. That categorization exercise is finishing because we had a mandatory timeline
that said we have to get this done in six or seven years. Guess what? They got it done.
The problem now is that there are no mandatory timelines from this point on. By law, they need screening
assessments and management plans. We have no idea how long this will take and there is nothing in the law that says
how long they have, even for the worst ones. It could take 15 years; it could take 20 years — there are no requirements.
We have seen that when those requirements are not there, these things take a lot longer than we need them to.
The Chairman: Do you see the usefulness, in that case, of a device such as the Committee on the Status of
Endangered Wildlife in Canada, COSEWIC, process that exists in the Species at Risk Act? I do not know if you are
familiar with it, but it says, in effect, that if science says this species should go on the list — whichever list it talks about
— and makes that recommendation, then the cabinet must either implement it or respond within a given time. Failing
such response, the species is placed on the list. Is that kind of philosophical approach something you think would be
useful in this act?
Dr. Khatter: We would definitely support something like that.
Mr. Benevides: I do not want to paste the COSEWIC process into this act, for obvious reasons — it is a different
context. However, that principle, that idea is the kind of thing we are talking about.
The Chairman: When you talk about prohibition, when you say do not use that stuff as opposed to virtual
elimination, are those two contending concepts in your mind — and that we ought to substitute one for the other? In
other words, do you advocate the removal of the concept of virtual elimination because, given the capacity to measure
these things, that target is constantly moving?
Are you looking at the example of Registration, Evaluation and Authorisation of Chemicals, REACH, that is being
considered in Europe, which is more prohibitive? I am talking about the difference between prohibition and virtual
elimination, and what your view of that is.
Mr. Benevides: There is an important distinction. Although bans are rare, they have happened in Canada. At the
same time, the notion of virtual elimination was to get to the point where that substance or product is no longer in the
The Chairman: There are those who say that virtual elimination is sophistry — it is a euphemism. Why not say ``get
rid of it'' instead of ``virtual elimination''? Is there a scientific distinction that makes a difference?
Mr. Benevides: I do not know about a scientific distinction, but virtual elimination evolved for the reason that
something was already in commerce or in the environment or both. I think the initial intention of virtual elimination
was a lot closer to banning than it is now.
Once again, timelines are lacking. For example, virtual elimination is identified as the ultimate reduction of a release
of a substance. It is not about the immediate absence of the substance. It is difficult to ban something that is already
out there. One sees immediately the practical use of eliminating something over time.
However, one problem is precisely that the ultimate reduction of release does not tell us when or in how many steps.
Does it mean reduced by half in two years and the rest gone in five, or does it mean 10 steps over many years? The act
does not tell us anything about that, and in any case, we have not listed substances on the virtual elimination list either
after all these years, except for one.
There is a place for both but clearly the virtual elimination provisions, as they exist, are not strong enough — and
even then, they are not used.
Senator Sibbeston: I come from the Northwest Territories. We live generally in an environment that is fairly pristine,
and yet we know a certain amount of pollution occurs from the South. It is hard to understand how we are so far from
the South, and all the manufacturing and pollutants created there, yet pollutants travel by air and end up in the North.
We also know that the effect of global warming is there. Winters are not as cold, and we see signs of birds and other
species that were not in those communities a number of years ago. For example, one of the small Inuit communities
encountered a bumblebee. These are signs the North is warming up.
When you say in your statement, Dr. Khatter, that CEPA has not been effective in reducing pollution in Canada or
getting the worst chemicals off the market, is that because it is a difficult task? Canada is a manufacturing country and
many industries cause a fair amount of pollution, such as oil sands extraction currently. Is that because, in the country
as a whole, a certain amount of industrial development is occurring, and there is immense pollution with all these
activities? Unless we deal with this pollution through Kyoto or through made-in-Canada emissions or greenhouse gas
elimination programs, we will never deal with the whole question of pollution in our country.
Dr. Khatter: I think the reality of industrialization, and the fact that there are a lot of chemicals out there — a lot of
pollution already in plants, and the factories are already built — is an issue.
In terms of an international comparison, it has not stopped other industrialized countries from doing a better job
than we are. We are falling behind almost all other industrialized countries in terms of greenhouse gas emissions and
reducing pollutants. As I was saying in my presentation, on a per facility basis, the U.S. is doing a better job than we
are of not pumping toxic pollutants out of their facilities.
There is no reason we cannot do that as well. We need an act that pushes us to do that job, and that shows us the
reality that having national standards for emissions and having strong regulation will lead to the kind of changes that
we need to make in our economy and in our industry. Green chemistry, better technologies and alternative fuels are the
kinds of changes that will allow us to produce fewer greenhouse gases and pollute less. They will be a benefit to the
economy, not a drag on it necessarily.
CEPA can be a stick, but it can also be an incentive. Those emissions and standards can be an incentive for us to
overhaul our economy and do a better job.
Senator Sibbeston: Mercury was mentioned as one pollutant that shows up in the North and gets into fish and
caribou. The people of the North would be interested to know which manufacturing sector that comes from.
The Chairman: Or what human activity.
Dr. Khatter: The major causes of mercury pollution are power plant emissions, particularly coal, and incineration of
municipal waste. Medical waste incineration causes 10 per cent of mercury emissions. Various other industries
contribute broadly as well. Much of it comes from Ontario, which is one reason there needs to be a focus in CEPA on
some of the areas that pollute the most, such as the Great Lakes. Specific efforts on the Great Lakes will not only
improve the health of the environment and the people in the Great Lakes area, but will also improve the health and the
environment of people in other parts of Canada, including the North.
Senator Angus: To be sure I understand this, in terms of controlling the emission of toxins such as mercury, is it fair
to say that the cities along the Canadian side of the border are worse than cities on the U.S. side because they have
some controls in place?
Mr. Wright: We generate much ourselves, particularly in Ontario. The government is moving toward eliminating
coal-fired electricity generation, but much of it comes from the United States. Our organization has put in a petition
through the U.S. Environmental Protection Act to see what can be done about cross-border pollution. This is a cross-
border issue. CEPA will have to wrestle with trans-boundary issues as well.
Certainly much of it comes from the States, particularly the Mid-west. The U.S. is taking steps, largely in New
York, interestingly enough, because it is downwind, and also in conjunction with Ontario. Our petition has recently
been signed on by the municipality of metropolitan Toronto and others. The Ontario government itself has signed on
to a different U.S. procedure. The issue is trans-border but by no means is it only a U.S.-engendered problem. It is our
own problem as well.
The Chairman: In that specific respect I think a number of American state governments are suing the United States
federal government for changes that it has made in lessening the requirements for scrubbing and the like.
Dr. Khatter, with respect to the questions that have now been asked, in your earlier submission you talked about the
studies by the Organisation for Economic Co-operation and Development, OECD. We have those, but you said a
recent comparison between Canadian and U.S. industrial sites in the Great Lakes basin found that per facility — not in
the aggregate — Canadians emit 93 per cent more potentially cancer-causing air pollutants and almost four times the
pollutants that can cause reproductive or developmental harm, as compared to U.S.-based facilities.
Would you send the derivation of that to the clerk so we know where it came and can rely upon it? I do not mean to
say we do not rely upon your having said it, but its source would be appreciated because that is a powerful argument.
Senator Sibbeston: Has the Sierra Legal Defence Fund any involvement in the North, or is most of your activity in
Mr. Wright: We do have involvement with the North, particularly recently with regard to the boreal forests. A
group in the United States looked at issues in the Arctic. I believe Earthjustice was involved in some Arctic issues. They
are sort of covering that field.
We are involved in planning processes across the boreal. That brings closer involvement with various Aboriginal
groups. I am involved in a fisheries case in Labrador that also involves the Metis there. In fact, the case is a private
prosecution under the Fisheries Act.
The Canadian Arctic Resources Committee is active in the North and does a good job of keeping its finger on the
issues. I could provide you with a better list of other groups that are particularly active in the North.
Senator Sibbeston: The issue of development is ongoing in the North. In the 1970s, when there was any talk of
industrial projects in the North such as pipelines, mining, and so forth, Aboriginal people were often aligned with
environmental groups because they had similar concerns. They were concerned about the disruption of life and the
environment. More recently, native people in the North have been interested in some development because of their
need for work. As people become educated in both Nunavut and the Northwest Territories, people are interested in
In the last few decades, the views of Aboriginal people in the North have sometimes differed from those of
environmental groups in the South. At a meeting at Bathurst Inlet a number of years ago, the Canadian Arctic
Resources Committee was concerned about environmental disruption and how the migration paths of the caribou
would be disrupted if a highway was built in that part of the North. I found it interesting that the Aboriginal people in
the North wanted development, highways and a certain amount of mining even though the environmental groups
expressed concerns about the effects on caribou, et cetera.
There has been a change of view on the part of the people of the North. They want meaningful work and they want
a certain amount of development. As long as the concerns are addressed sufficiently and they are satisfied that the
environment will not be devastated, they are interested in development.
Mr. Wright: That is the classic view of sustainable development — combining economic, social and environmental
issues, the three legs of the stool — and we respect that. On the other hand, our focus is environmental protection and
On boreal issues, for example, we see the tug and pull between preserving the environment and economic activity. In
my view, and I think that many people are headed this way and that economists will lead us this way, the two do not
necessarily have to butt heads. When you take in the true environmental costs development, I think you will find that
there is no reason why economics and protecting the environment should not be headed in the same direction.
A recent case in the Supreme Court of Canada went into environmental costing issues.
I will not get into it now, but there is more out there than just market value. As far as this issue goes, in CEPA, no
one wants mercury in what they eat, or mercury ending up in their body. It is one issue where both Aboriginal and
northern interests are going in the same direction.
Senator Adams: Senator Sibbeston reminded me that there are only two of us here. I am from Nunavut, and Senator
Sibbeston is from the Northwest Territories. There are about 25 environmental groups from Toronto, each one telling
us that we should not develop the North.
There is concern about the caribou which, until now, was the domain of the department and the government. They
are putting radios on the caribou's neck and monitoring it via satellite. Sometimes only one or two caribou have a
radio, but they can track a whole herd. We now understand the movement of caribou and where they will be in the
summer, fall and winter.
The territories have settled land claims, and we want to do something about the future of our economy. We want to
get into development and we are telling the government they should prove what they are saying. The organizations
take into consideration the time of the year. We do not have oil tankers coming through there year round. At Baffin
Inlet, the water is open only for two months, July and August, for the tourists. People from Cambridge Bay have said
that if they could develop that harbour for the future, ships would come in there apart from just in September.
In the wintertime, we have to haul everything up to the mining companies, and most of the time we travel in the
wintertime to deliver fuel. The mining companies are in different areas. Some are close to lakes, and the only way to
build a road is on the lakes.
In some places, over 85 per cent of the people are unemployed. Between us and the environmental people, we ensure
that nothing is damaged there, especially in regard to mammals. We ask ourselves, what is more important, the animals
or us? The animals are going to be there. They have four legs and they can go anywhere they want to.
We are also fighting over the park there. The former chairman of the committee said we should save the caribou, but
85 per cent of the people there have no jobs, and there is no money for the park office. That is the kind of stuff we are
concerned about. We are not against it. We say, do not try to stop us: we know what we want to do.
The Chairman: We have to find that balance.
Gentlemen, thank you very much. Sadly, we are out of time. We will call you back, I expect, with more specific
questions. In the meantime, I appreciate your getting to the clerk the background information for which we asked.
The committee adjourned.