Monday, June 20, 2022

The Standing Senate Committee on Energy, the Environment and Natural Resources has the honour to present its

THIRD REPORT

Your committee, to which was referred Bill S-5, An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act, has, in obedience to the order of reference of April 7, 2022, examined the said bill and now reports the same with the following amendments:

1.Clause 2, page 2:

(a)Replace line 3 with the following:

“of Indigenous Peoples, including free, prior and informed consent;”;

(b)replace line 17 with the following:

“of science and Indigenous knowledge in the process of making decisions related to”;

(c)replace lines 22 and 23 with the following:

“ment of substances to replace, reduce or refine the use of vertebrate animals;”.

2.Clause 3, page 3:

(a)Replace line 3 of the English version with the following:

“not be used as a reason for postponing effec-”;

(b)replace lines 13 and 14 with the following:

“subject to any reasonable limits;

(3) Subsection 2(1) of the Act is amended by adding the following after paragraph (k):

(k.1) encourage the development and timely incorporation of scientifically justified alternative methods and strategies in the testing and assessment of substances to replace, reduce or refine the use of vertebrate animals;”.

3.Clause 5, pages 3 and 4:

(a)On page 3, replace line 37 with the following:

“(2) The implementation framework, in a manner consistent with the purposes of this Act, shall, among other”;

(b)on page 4,

(i)replace line 5 with the following:

“— the principle of non-regression and the principle of intergenerational equity;”;

(ii)replace lines 8 to 11 with the following:

“ment referred to in paragraph 2(1)(a.2);

(c) the reasonable limits to which that right is subject, resulting from the consideration of relevant factors, including social, health, scientific and economic factors; and

(d) mechanisms to support the protection of that right.”.

4.New clause 5.1, page 4: Add the following after line 19:

“5.1 (1) Subsection 13(1) of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c), and by adding the following after that paragraph:

(d) for each substance on the Domestic Substances List,

(i) every action, process, decision, assessment, request or activity — however called — that is carried out in relation to the substance under any provision of this Act, whether it has occurred, is in progress, or is proposed, and

(ii) every international instrument to which Canada is a signatory that applies in respect of that substance.

(2) Subsection 13(2) of the Act is replaced by the following:

(2) The Minister may determine the form of the Environmental Registry and how it is to be kept, so long as the registry is maintained in the form of a publicly accessible and searchable electronic database.”.

5.Clause 9, page 5: Add the following after line 19:

“(k.2) hydraulic fracturing;

(k.3) tailings ponds;”.

6.Clause 10, page 5:

(a)Add the following after line 33:

“(1.1) Subsection 56(1) and the portion of subsection 56(2) of the Act before paragraph (a) are replaced by the following:

56 (1) The Minister may

(a) identify every person or group of persons that manufactures, imports, processes or releases, or that uses in a commercial manufacturing or processing activity,

(i) a substance or group of substances specified on the list of toxic substances in Schedule 1,

(ii) a substance or group of substances to which subsection 166(1) or 176(1) applies, or

(iii) a product that contains a substance or group of substances specified on the list of toxic substances in Schedule 1 or that may release such a substance or group of substances into the environment; and

(b) publish in the Canada Gazette, and in any other manner that the Minister considers appropriate, a notice requiring any person or class of persons identified by the Minister to prepare and implement a pollution prevention plan in respect of a matter referred to in subparagraphs (a)(i) to (iii).

(1.1) For the purpose of identifying the persons or groups of persons referred to in paragraph (1)(a), the Minister may publish in the Canada Gazette, and in any other manner that the Minister considers appropriate, a notice requiring any person of group of persons described in the notice to provide the Minister with any information that may be in their possession or to which they may reasonably be expected to have access, including information regarding their engagement in any activity involving a matter referred to in subparagraphs (1)(a)(i) to (iii).

(2) The notice referred to in paragraph (1)(b) may specify”.

(b)add the following after line 37:

“(2.1) Subsection 56(5) of the Act is replaced by the following:

(5) On written request of a person who is the subject of a notice under paragraph (1)(b), the Minister may waive the requirement for that person to consider a factor specified under paragraph (2)(c) if the Minister is of the opinion that it is not reasonable or practicable to consider the factor on the basis of reasons provided in the request.”.

7.New clause 10.1, page 6: Add the following before line 1:

“10.1 Subsection 58(1) of the Act is replaced by the following:

58 (1) Every person who is required to prepare a pollution prevention plan under section 56 or 291 or under an agreement in respect of environmental protection alternative measures shall file, within 30 days after the end of the period for the preparation of the plan specified in the notice referred to in paragraph 56(1)(b) or extended under subsection 56(3), or specified by the court under section 291 or in the agreement, as the case may be, a written declaration to the Minister that the plan has been prepared and is being implemented.”.

8.New clause 11.1, page 6: Add the following after line 11:

“11.1 Subsection 60(1) of the Act is replaced by the following:

60 (1) The Minister may publish in the Canada Gazette, and in any other manner that the Minister considers appropriate, a notice requiring any person or class of persons who is the subject of a notice under paragraph 56(1)(b) to submit, within the period specified by the Minister, the plan or any part of the plan for the purpose of determining and assessing preventive or control actions in respect of a substance, group of substances or product.”.

9.Clause 15, page 8:

(a)Replace lines 2 to 4 with the following:

“striking out “and” at the end of paragraph (c) and by replacing paragraph (d) with the following:

(d) respecting the conditions, test procedures and laboratory practices to be followed for analysing, testing or measuring the property or characteristic, including procedures and practices for replacing, reducing or refining the use of vertebrate animals; and”;

(b)replace lines 6 and 7 with the following:

“classification of a substance as a substance that is carcinogenic, mutagenic, toxic to reproduction or poses other risks of highest concern.”.

10.Clause 16, page 8: Replace line 25 with the following:

“(iii.2) whether there is a vulnerable population or environment in”.

11.New clause 16.1, page 9: Add the following after line 18:

“16.1 The Act is amended by adding the following after section 68:

68.1 (1) The Ministers shall not generate data or conduct investigations using vertebrate animals for the purpose of assessing

(a) whether a substance is toxic or capable of becoming toxic; or

(b) either the need to or the manner in which to control

(i) a substance,

(ii) a product that contains a substance, or

(iii) a product that may release a substance into the environment, including a substance specified on the List of Toxic Substances in Schedule 1.

(2) Subsection (1) does not apply if

(a) it is not reasonably possible to obtain the data or to conduct the investigation by methods other than using vertebrate animals; and

(b) the data or investigation is necessary to achieve objectives related to protecting the environment or human health.”.

12.Clause 18, page 11: Add the following after line 25:

“(a.1) the conditions, methods, test procedures and laboratory practices to be followed to replace, reduce or refine the use of vertebrate animals;”.

13.Clause 19, page 12:

(a)Delete line 18 of the English version;

(b)replace line 25 with the following:

“the opinion should be prioritized; and

(c) that specifies activities or initiatives to promote the development and implementation of methods not involving the use of vertebrate animals that would provide information sufficient for assessing risks to health or the environment posed by substances assessed under this Part.”;

(c)replace line 38 with the following:

“vidually, with a view toward avoiding substitutions within the class that may be harmful; and”.

14.Clause 20, page 14:

(a)Replace line 4 with the following:

“(3) The Minister shall delete a substance from the List, as well as any information regarding the substance that is specified on the List, if an order is made under subsection 90(1) adding the substance to the list of toxic substances in Schedule 1.

(4) The Minister shall publish the List and any amend-”;

(b)replace line 7 with the following:

“(5) The List is not a statutory instrument as defined in”;

(c)replace lines 31 and 32 with the following:

“any vulnerable population or environment in relation to the substance and on the cumulative effects on human health and the environment that may result from expo-”.

15.Clause 21, page 16:

(a)Replace line 6 with the following:

“(i) is inherently toxic to human beings or non-human organisms, as determined by laboratory or other studies,

(ii) is persistent and bioaccumulative in accordance”;

(b)replace line 8 with the following:

“(iii) is present in the environment primarily as a re-”;

(c)replace lines 10 to 16 with the following:

“(iv) is not a naturally occurring radionuclide or a naturally occurring inorganic substance;

(b) the substance may constitute a danger in Canada to human life or health and is, in accordance with the regulations, carcinogenic, mutagenic or toxic for reproduction; or

(c) the substance is, in accordance with the regulations, a sub-”.

16.Clause 29, page 21:

(a)Replace lines 15 to 17 with the following:

“Schedule 1, the Ministers shall give priority to pollution prevention actions and, in particular, in the case of a substance specified in Part 1 of the list of toxic substances in that Schedule, to the total, par-”;

(b)replace lines 20 to 26 with the following:

“the environment.

(1.2) For the purposes of subsection (1.1), the Ministers shall, in respect of a substance specified in Part 1 of the list of toxic substances in Schedule 1, consider whether the activity or release can be un-”.

(c)replace line 29 of the French version with the following :

“sur l’environnement ou la santé humaine, et s’il”.

17.New clause 39.1, page 28: Add the following after line 14:

“39.1 Subsection 108(1) of the Act is replaced by the following:

108 (1) Subject to subsection (4), the Ministers shall, within the prescribed assessment period, assess information provided under subsection 106(1), (3) or (4) or paragraph 109(1)(c) or otherwise available to them in respect of a living organism in order to determine whether

(a) it is toxic or capable of becoming toxic; and

(b) it shows a demonstrable need for the living organism.

(1.1) The Ministers shall ensure that the public is provided with opportunities to participate meaningfully in the Ministers’ assessment.

(1.2) The Ministers shall, within the prescribed assessment period, solicit public comments in respect of the testing of all evidence and may request additional evidence from any individual.”.

18.New clause 44.1, page 31: Add the following after line 18:

“44.1 Subsection 114(1) of the Act is amended by adding the following after paragraph (g):

(g.1) prescribing processes for meaningful public participation in

(i) an assessment under section 108, and

(ii) the determination of whether to grant a waiver requested under subsection 106(8);”.

19.Clause 50, page 35: Delete lines 10 to 13.

20.Delete clause 54, page 37.

21.Clause 56, page 38:

(a)Replace line 1 with the following:

“56 (1) Subsections 332(1) and (2) of the Act are re-”;

(b)add the following after line 21:

“(2) Section 332 of the Act is amended by adding the following after subsection (3):

(4) In addition to any other requirement of this Act, a notice under this Act, a notice of any consultation to be held in relation to a matter under this Act and any decision made under this Act for which a notice is not otherwise required under this Act must be made public, including by being published

(a) by the Minister on their departmental website;

(b) in a newspaper or other periodical that, in the Minister’s opinion, has a large circulation;

(c) in the Environmental Registry; and

(d) in the Canada Gazette.

(5) A notice published in accordance with paragraphs 4(a) to (c) must include an indication of any opportunities for public participation that may be available in relation to the content of the notice.

(6) In addition to any other requirements of this Act, a notice of a public consultation is to be published in accordance with paragraphs (4)(a) to (c) at least 60 days before the consultation is to occur.”.

22.New clause 57.1, page 38: Add the following after line 34:

“57.1 The Act is amended by adding the following after section 342:

342.1 (1) The Minister shall, five years after the coming into force of this section and every fifth year after that, prepare a report regarding the operation of this Act in respect of the aboriginal peoples of Canada during the preceding five years.

(2) The report referred to in subsection (1) must include details on

(a) consultations with aboriginal peoples and aboriginal governments in relation to matters under the Act;

(b) measures implemented to ensure that the Act is administered in a way that complies with

(i) section 35 of the Constitution Act, 1982,

(ii) the principle of the honour of the Crown, and

(iii) Canada’s treaty relationships with and its fiduciary obligations to the aboriginal peoples of Canada;

(c) any evaluation completed in respect of the effectiveness or implementation of the measures described in paragraph (b); and

(d) any findings or recommendations in respect of the administration of this Act in respect of the aboriginal peoples of Canada.

(3) The Minister must cause the report to be laid before each House of Parliament no later than six months after the conclusion of the five-year period to which the report relates.”.

23.New clause 67.1, page 46: Add the following after line 11:

“Report

67.1 (1) The Minister of Industry must, no later than one year after the day on which this Act receives royal assent, cause to be tabled in both Houses of Parliament a report regarding measures to

(a) ensure that manufactured goods that come to Canada meet the environmental requirements imposed on Canadian manufacturers; and

(b) test imported products for compliance with Canadian standards to ensure that they are safe for Canadian consumers and that Canadian producers are not at a disadvantage.

(2) The report must include

(a) an evaluation of existing measures and their effectiveness;

(b) recommendations for any new measures; and

(c) a proposed timetable and cost estimate for the implementation of new measures recommended under paragraph (b).”.

24.Schedule, page 47:

(a)Replace the references below the heading “SCHEDULE 1” in the schedule with the following:

“(Paragraphs 56(1)(a) and (c), section 68, section 68.1, subsection 71(1), paragraphs 77(2)(c) and (d), subsections 77(7) and (9), 90(1) to (2) and 91(1), paragraph 91(2)(a), subsection 93(1), paragraphs 94(1)(a) and (5)(b), subsections 95(1) and (3) and 96(1), paragraph 199(1)(a), subparagraph 199(1)(b)(i) and subsection 317.1(3))”;

(b)replace, in the English version, the second line of the note in Schedule 1 set out in the schedule with the following:

“and “y” refer to the number of atoms.”.

Your committee has also made certain observations, which are appended to this report.

Respectfully submitted,

Observations to the third report of the Standing Senate Committee on Energy, the Environment and Natural Resources (Bill S-5)

1.The committee heard concerns that biomonitoring and toxicology assessment capability located within Health Canada, is inadequate to address the demands that Bill S-5 will create for: longitudinal studies of sufficiently large and disaggregated cohorts that will provide for the ability to collect, store and analyze the health impact of substances in both general populations and vulnerable groups; the biobanks needed to be able to study cumulative effects of substances; the large data sets that will allow for causal inference analysis and other essential scientific studies. The committee urges the Government of Canada to commit to building capacity in collaboration with the academic and Indigenous communities, determine where this capacity would be best situated and to ensure that this is properly funded and functional within a year of Bill S-5 coming into effect.

2.The committee heard that biomonitoring of health/environment interactions is currently not being conducted on reserves nor in off-reserve Indigenous populations. And, that toxicity analyses, may not be conducted in concert with Indigenous health, nutritional and cultural practices. We urge the Government of Canada to ensure that Indigenous populations are provided equal access to biomonitoring and exposure assessments and that Indigenous perspectives be included in the development of the Chemical Management Plan.

3.To complement legislative amendments such as those proposed above, we recommend that the Ministers establish an advisory committee under section 7 of the Act to report to the Ministers on eliminating the use of vertebrate animals in toxicity testing and promoting the use and development of non-animal methods. The committee could be tasked with developing a work plan or strategy, similar to that released by the US Environmental Protection Agency (“EPA”). The advisory committee should also have a reporting requirement.

4.This committee would like to state their concern that the right to a healthy environment cannot be protected unless it is made truly enforceable. This enforceability would come by removing the barriers that exist to the current remedy authority within Section 22 of CEPA, entitled “Environmental Protection Action.” There is concern that Section 22 of CEPA contains too many procedural barriers and technical requirements that must be met to be of practical use. As Bill S-5 does not propose the removal or re-evaluation of these barriers, this Committee is concerned that the right to a healthy environment may remain unenforceable.

5.This committee wishes to convey their concern surrounding industry data collection where information gaps exist on the toxicity of substances they use or emit. Bill S-5 authorizes collection of data on whether a substance is an endocrine disruptor. Bill S-5 also authorizes the Minister to consider available information on vulnerable populations and the cumulative effects of a potential toxic substance. However, in none of these cases does Bill S-5 direct the Minister to require testing by industry when data gaps exist on whether a substance is toxic or is capable of becoming toxic. In such instances, this committee believes that testing should be done by industry where and when available information on substance toxicity is unavailable or inconclusive.