THE STANDING SENATE COMMITTEE ON ENERGY, THE ENVIRONMENT AND NATURAL RESOURCES
EVIDENCE
OTTAWA, Tuesday, June 7, 2022
The Standing Senate Committee on Energy, the Environment and Natural Resources met with video conference this day at 6:32 p.m. [ET] to study Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act.
Senator Paul J. Massicotte (Chair) in the chair.
[Translation]
The Chair: Good evening. My name is Paul Massicotte. I am a senator from Quebec and the chair of this committee.
Today, we are holding a hybrid meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources.
I would like to introduce the committee members who are participating in this evening’s meeting: Margaret Dawn Anderson from the Northwest Territories; David Arnot from Saskatchewan; Pierre J. Dalphond from Quebec; Rosa Galvez from Quebec; Stan Kutcher from Nova Scotia; Mary Jane McCallum from Manitoba; Julie Miville-Dechêne from Quebec; Dennis Glen Patterson from Nunavut; Judith G. Seidman from Quebec; Karen Sorensen from Alberta; and Josée Verner, P.C., from Quebec.
Welcome to the honourable senators and to all the Canadians who are watching our proceedings.
Today, we are continuing our clause-by-clause consideration of Bill S-5, the Strengthening Environmental Protection for a Healthier Canada Act.
[English]
Before we begin, I’d like to make members aware that we have government officials on the Zoom call should members have any technical questions to raise as we go through the bill clause by clause.
[Translation]
With us this evening, we have the following officials from Environment and Climate Change Canada: John Moffet, Assistant Deputy Minister, Environmental Protection Branch; Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch; Jacqueline Gonçalves, Director General, Science and Risk Assessment, Science and Technology Branch; and Bryan Stephens, Acting Manager, Legislative Policy, Environmental Protection Branch. Lastly, from Health Canada, we have Greg Carreau, Director General, Safe Environments Directorate.
[English]
Senators, we will resume debate on clause 50. As we finished this morning’s meeting, an amendment proposed by Senator Miville-Dechêne was stood with a promise from the officials who said they would answer Senator McCallum’s question. Is Ms. Farquharson here to satisfy that undertaking?
Laura Farquharson, Director General, Legislative and Regulatory Affairs, Environmental Protection Branch, Environment and Climate Change Canada: Yes, I can start. There were a number of aspects to the question. I could start with a further explanation on when does CBI come into question and when should it be determined whether something is CBI.
As I clarified before, we’re talking about the general regime under section 313 that applies to the whole act, except where there’s another specific regime, which I mentioned this morning. In the context of this bill, it applies to all parts of the chemicals management program process, and as Senator Dalphond rightly pointed out, it applies to information provided to a board of review as well. I thought it might help to explain a little bit about how the process works.
Let’s take a risk assessment process of a substance. That usually starts with assessors in Environment and Climate Change Canada and Health Canada gathering information about a substance or substances, and on any particular substance programs will get many claims for confidential business information. On a section 71 notice, which asks about information on lots of substances, they may get up to thousands of claims.
So at this point, officials presume that the CBI claim is valid and they handle the information accordingly, and they’re using all the information to assess whether the substance is toxic, and then they write a draft risk assessment. Before that risk assessment is published, government officials will validate the CBI claim for the subset of information that’s included in that risk assessment. Doing it at this stage enables the government to focus on the information that will be published and ensures that we’re not revealing information that is confidential business information, also have a chance to validate that it is and, if it truly is, have a chance to sometimes engage with the person who is claiming it to find another way to give that information. Then if all that fails, the minister can still disclose it.
I thought that might be a helpful explanation for when it comes into play, and how much information there is and if it were required to be done at every moment at every time before any of the information was used or you took any other step, it really would grind the system to a halt.
The Chair: Thank you.
Senator Galvez: Maybe I will ask the question in this form: Does public safety and security supersede commercial secrets, or is it the other way around? Do commercial secrets supersede public safety and security?
Ms. Farquharson: For sure under this act environmental protection and human health is the concern, and if the information is confidential business information but it’s crucial that it be disclosed, as say it’s the basis of an assessment and there’s no way to sort of frame it so you don’t have to reveal the confidential part of it, then the minister can disclose it, so long as the public interest outweighs the private interest and confidentiality. It’s not prohibited under the Access to Information Act.
The Chair: I think that’s very useful.
We’re going to go back to the motion of Senator Miville-Dechêne. She had a motion on the floor.
Senator Miville-Dechêne: Dear colleagues, I had wanted to improve on the improvements that Bill S-5 made on the issue of transparency. However, the comments of my colleagues this morning seems to indicate that the language I propose is too prescriptive and will limit the margin of manoeuvre of the environment department in the case of emergencies.
With your permission, I will withdraw my amendment that was under discussion. Is that agreed?
The Chair: With leave? She withdraws her proposed amendment.
Hon. Senators: Agreed.
Senator Miville-Dechêne: Instead, I’m proposing another amendment, JMD-S5-50-35-10a, which was just distributed to you. It’s very short.
With this amendment, I’m going back to my first idea, which is to try to limit the loopholes in the section about confidentiality. I will read this amendment. Clause 50, page 35. I move:
That Bill S-5 be amended in clause 50, on page 35, by deleting lines 10 to 13.
Let’s go to Bill S-5 so we can understand what we’re talking about. This is a simple and direct amendment. I want to remove from the bill three lines, which read as follows:
Exceptions to requirement to give reasons
(3) In the case of information provided under a regulation, order or notice, reasons for a request for confidentiality are not required if the regulation, order or notice so specifies.
As I mentioned earlier, when he testified, I did ask the minister, Steven Guilbeault, why this extremely broad exception was present in the section of the bill that was supposed to reinforce transparency. We were told we would receive a written answer to that question. We have pushed and pushed, without much success, to understand what kind of information this exception was trying to protect, why it was necessary and under what circumstances.
We didn’t get an answer, which would have enabled us to write a more focused sentence that permitted exceptions for confidentiality under certain circumstances.
It is impossible for me to understand why this giant loophole is necessary. I think we should eliminate those three lines, because the exception is overly broad and essentially would allow the government to undo or contradict the spirit of Bill S-5 through executive action.
It’s much more focused now. I’m not going into “the minister” and the “shall” and all that. I’m just taking out three lines that have not been explained to me and which I think are superfluous and essentially too broad to permit anything to go. As we see, this is supposed to be about transparency.
Senator Kutcher: Senator Miville-Dechêne, as sponsor of the bill, it’s my duty to inform you and the rest of the committee that the government will support your amendment.
Senator Miville-Dechêne: This is good news.
The Chair: Any other questions or comments? It is moved by the Honourable Senator Miville-Dechêne:
That Bill S-5 be amended in clause 50, on page 35, by deleting lines 10 to 13.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Very good.
Does clause 50, as amended, carry?
Hon. Senators: Agreed.
Senator Patterson: If I may, now that we’ve concluded this matter, I would like to raise a matter that has come to my attention today. During the committee meeting on May 19, before we started considering these amendments, we had agreed that we could review clauses that have been dealt with if something came up, provided we had the agreement of the committee.
If I may, I want to say that I’ve been flooded with concerns about the new 10.1 amendment that we have already approved. With your permission, I would like to briefly explain the concerns.
The Chair: Is there a particular reason to deal with it at this point in time? Is it relevant to clause 51?
Senator Patterson: No.
The Chair: Could we delay that, as we did for the others, until the very end?
Senator Patterson: Yes, that’s fine.
The Chair: Does the committee agree to deal with this?
Hon. Senators: Yes.
The Chair: Shall clause 51 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 52 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 53 carry?
Hon. Senators: Agreed.
The Chair: Clause 54, I’m being told by our experts, is in conflict with the amendment we just accepted.
Senator Miville-Dechêne: It is, and I was waiting for the vote, clause by clause, to ask for it to be suppressed, because it says exactly the same thing. I don’t know what way is best.
The Chair: If I can provide an update. It is the tradition that when we have a clause that conflicts another clause, when we get to the second clause, we vote it down because there is one clause already that we did vote.
So when I ask, “Shall clause 54 carry,” you should say “no.”
Shall clause 54 carry?
Hon. Senators: No.
The Chair: We’re doing well.
Senator Miville-Dechêne: Thank you.
The Chair: Clause 55?
Ms. Fortin: This is not an amendment. It’s a clause in the bill that was conflicting with Senator Miville-Dechêne’s amendment. So it’s not in the road map.
The Chair: We’re at clause 55, so I think we’re at page 59.
Ms. Fortin: We would be at number 59 in the road map.
The Chair: We’re going to go to 59. After we finish 59, we’ll come back to 55 and 56 for some reason.
We’re back to clause 55, and Senator Patterson has a proposed amendment.
Senator Seidman: Paragraph 59, clause 55.
The Chair: Senator Patterson.
Senator Patterson: Yes. Thank you, Mr. Chair.
This is DGP-S5-55.1-37-39. I move:
That Bill S-5 be amended on page 37 by adding the following after line 39:
“55.1 The Act is amended by adding the following after section 331:
331.1 (1) The Minister may issue an emergency certificate authorizing any activity that does not comply with this Act if the Minister is satisfied that the activity is necessary to deal with an emergency in which there is danger to public safety.
(2) An emergency certificate is not a statutory instrument for the purposes of the Statutory Instruments Act, and the contents of an emergency certificate may be issued orally, but the emergency certificate shall be issued in writing as soon as possible and the writing is conclusive proof of its content.
(3) An emergency certificate may include terms and conditions governing the authorized activity, and if any of the terms or conditions are not complied with in the course of carrying on the activity, the Act and regulations apply to the activity as though the certificate did not exist.
(4) An emergency certificate may specify the persons who may carry on the activity.
(5) The Minister may revoke an emergency certificate as the Minister considers appropriate.”.
This amendment would provide the Governor-in-Council the right to suspend the application of certain provisions of the act during times of emergency or exceptional circumstances. It’s the elaboration of the section in the act, in the bill, that deals with emergencies.
This provision is present in other critical federal acts and regulations; however, when industry asked for flexibility from the government to suspend these requirements during the COVID-19 pandemic, the government could not provide anything other than “compliance flexibility,” which I took to mean casting a blind eye to the practice. We heard testimony on that from industry.
It is important to note here that the Transportation of Dangerous Goods Act has a similar provision. While no one wants another pandemic, this would provide the government with the ability to issue emergency certificates in a variety of manners allowing for the seamless continuation of business. It would also grant the government with the ability to revoke those emergency certificates once the public emergency is over.
The amendment has been structured in such a way that it is meant to continue to ensure accountability, transparency and oversight, while recognizing that sometimes things beyond our control make it impossible to operate business as usual.
The pandemic was a perfect opportunity to realize that there was, in my view, an omission in the regime that this amendment seeks to correct to deal with such emergency situations only.
Thank you, Mr. Chair.
Senator Kutcher: The government opposes the motion for the following reasons: First, there is still a due diligence defence for all infractions.
Before taking enforcement action, ECCC considers aggravating factors such as emergencies; and, second, Environment and Climate Change Canada’s laws protect the environment, human health and conservation and, therefore, it is vital that they remain in effect at all times. Environmental standards should not be weakened due to a crisis, including the COVID-19 pandemic.
I would ask the officials, if they have anything further to elaborate on this particular issue, to chime in at this time.
John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada: Senators, when the pandemic started, all departments reviewed their statutes and regulations and had to decide how to deal with the issue of the impossibility, in some cases, of full compliance with requirements, federal statutes and regulations, while at the same time complying with public health orders that were issued from time to time across the country.
At Environment and Climate Change Canada, we concluded with the minister that we did not need to make any changes to our legislation. We did not need to stand down our regulations, precisely as Senator Kutcher has explained, because of the defence of due diligence.
If a company that is subject to a regulation does everything reasonable in its powers to comply, but cannot take certain steps because of an emergency that has arisen — whether it’s for 24 hours or two years — then, first of all, there would be no need to take enforcement action and, secondly, if we did, there would be the defence of due diligence.
That’s why we didn’t proceed with any amendment of this nature. We’re also concerned that if we put in place an amendment like this that we would then have to immediately issue such emergency certificates and, on a case-by-case basis, remove them in a timely way.
We concluded that the more appropriate thing to do would be to leave all environmental requirements in place and rely on the obligation of due diligence.
The Chair: Apparently the interpretation is not working.
Your headset is not connected, I suspect, Mr. Moffet.
Mr. Moffet: Can you hear me now?
The Chair: Yes, we can.
Mr. Moffet: I was repeating Senator Kutcher’s point that, from the very outset of the pandemic, we relied on the defence of due diligence. We concluded that that was a more appropriate approach, rather than pursuing an amendment like this, which would require us to issue certificates for close to 100 regulations and obligations, and then remove them on a case-by-case basis to ensure that there is timely protection of the environment. Instead, we leave all environmental obligations in place and give companies and all regulated parties the defence of due diligence.
Minister Wilkinson explained this approach to all companies via a series of letters and teleconferences. We heard absolutely no complaints about the approach, and no inappropriate enforcement activity has occurred in the last two years to our knowledge.
Senator McCallum: For Senator Patterson or the officials, how would this emergency certificate affect Indigenous people? Sometimes it’s that emergency situation that can overpower the ability of First Nations to address concerns that they have. How would they be protected?
Senator Patterson: This would still require that the minister issue a certificate and publish that order, so there would be transparency for all concerned in the amendment I propose. It wouldn’t be done in secret. I hope that answers the question.
The Chair: Are we ready to proceed with the question? It is moved by the honourable Senator Patterson that Bill S-5 be amended on clause 55.1, page 37, after line 39.
Is it your pleasure, honourable senators, to adopt the motion in amendment? Those for, hands up. Those against, hands down. Defeated.
Shall clause 55, as amended, carry? Carried.
Shall clause 56 carry? Senator Patterson, I believe you have an amendment.
Senator Patterson: Thank you, Mr. Chair. This is an amendment to clause 56 on page 38.
The Chair: It’s number 60.
Senator Patterson: Number 60 on the road map.
The Chair: S5-56-38-1.
Senator Patterson: I move:
That Bill S-5 be amended in clause 56, on page 38,
(a) by replacing line 1 with the following:
“56 (1) Subsections 332(1) and (2) of the Act are re-;
(b) by adding 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 to the greatest extent possible, 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; and
(c) in the Environmental Registry and 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.”.
Mr. Chair, if I may speak to the amendment. Karen Wristen of the Living Oceans Society told us the story of AquaBounty. This is the GMO-modified Atlantic salmon species company that operates in Prince Edward Island. As a lawyer in the environmental NGO space, she felt she should not have been taken by surprise that a new species of salmon had been introduced in Canadian lands and waters.
Ms. Wristen told our committee that:
In the complete absence of any public information in Canada regarding the risk assessment or the status of Aquabounty’s application, Living Oceans and Ecology Action Centre filed for judicial review of the decision to permit the manufacture and export of AAS. It would be fully a year before the government produced its record of decision and longer still until we were finally permitted to see the risk assessment.
I was discomfited to hear about the details of their lawsuit, and I believe we have an opportunity here with this amendment to ensure that government decisions and all relevant information is released to the public in a timely and transparent manner. This amendment would set the disclosure of documents done expeditiously after a decision has been rendered as well as a 60‑day notice period prior to the start of a public consultation.
Senator Kutcher: Mr. Chair, the government appreciates the senator’s motions but opposes it on the basis that it would be redundant and duplicative. The government feels that the act already provides publication requirements to the greatest extent possible. For example, the Environmental Registry scope, as determined in Part 2 of the act, is already widely available.
I could ask officials to provide us additional information about this issue at this time.
Senator Galvez: I understand the comment of Senator Kutcher that this is being redundant, but I think it’s in different parts. I think this clarifies and makes transparency increase and improve. When it comes to transparency, there is not enough redundancy. I support this.
However, I will ask Senator Patterson if he will agree that in the line where it says “not otherwise required under this Act must be made public” to strike out “to the greatest extent possible” because he’s making a list there. So take out “to the greatest extent possible” and continue with “including by being published (a) and (b).”
I will suggest that (c) be split in two because these are two completely different media outlets. So it would read “(c) in the Environmental Registry” and “(d) in the Canada Gazette.”
But I support this amendment.
The Chair: Just to be very clear, you mentioned you support the amendment, but if I understand it, you’re also proposing an amendment for the amendment.
Senator Galvez: A subamendment.
The Chair: Can you repeat exactly your proposed amendment?
Senator Galvez: I will read it:
(a) by replacing line 1 with the following:
56 (1) Subsections 332(1) and (2) of the Act are re-;
(b) by adding 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 to the greatest extent possible, 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 . . . is to occur.
The Chair: Can I ask you just to pinpoint as you read all of the amendment exactly what is being changed, exactly what words? Could you do that for us?
Senator Galvez: Yes. Sure. In item (4), the last line is “not otherwise required under this act must be made public,” and then strike “to the greatest extent possible.” Take that out.
The Chair: Could you repeat that slowly? You’re on paragraph (4). The sixth line?
Senator Galvez: Yes, in the third line in section (4), “is not otherwise required under this act must be made public, including by being published.”Take out “to the greatest extent possible.” Because he’s already listing the places. So take out “to the greatest extent possible.”
Then continue with (a), (b), strike out “and” and do “(c) in the environmental registry” and “(d) in the Canada Gazette.”
Senator Seidman: I guess I’m speaking to both the subamendment and the amendment. I just find this quite extraordinarily unusual in the sense that the sort of regular practice is the use of the gazettes, one and two. They’re both published so all stakeholders can see them. There are lots of consultations publicly with the parties who might be involved. If I look at 332 (1), “the minister shall publish in the Canada Gazette a copy of every order or regulation. . . . .” This is under the current clauses that you’re trying to change. But it already says:
The Minister shall publish in the Canada Gazette a copy of every order or regulation proposed to be made by the Minister of the Governor in Council under this Act . . . .
And then notice of objection, so stakeholders can make notices of objection within 60 days after the publication of a proposed order or regulation in the Canada Gazette.
This is pretty routine and standard in making regulations for every piece of legislation. So why would we want the minister to put it on his departmental website and other periodicals? It just seems very exceptional, to me.
The Chair: Senator Galvez, did you want to answer that?
Senator Galvez: Well, it’s because what we hear from the witness. We were hearing that the environmental registry needs a road map, that the information is difficult to access. For example, as Senator Patterson said, once people were aware of these genetically modified salmon they were already in the water. That demonstrates that there is a lack.
You’re right, Senator Seidman, that everything should be in the Canada Gazette. Maybe the question is: Is the Canada Gazette consulted enough by everybody, by the common mortals, the citizens? Is that enough? I understand that there is a long list, but we heard witnesses say that the information is not enough and not easy to find, so how can we improve this?
Senator Gold: With the greatest respect for all, Senator Kutcher expressed the government’s position opposing this amendment on the grounds that it was redundant and duplicative, alluded to the publication requirements and gave an example, and then asked a question of the officials. But before they were given a chance to answer, we’ve now gone to this further amendment, which is worthy of discussion and debate, but with respect, I would like to hear from the officials so that at least we can complete or at least that they could add whatever they choose to add or respond to Senator Kutcher’s question. Thank you for that.
The Chair: Let’s get the officials to respond more fully.
Ms. Farquharson: I will answer if that’s okay. CEPA provides extensive opportunities for transparency and also public participation. I think there was a point that these different parts applying to different parts of the act in terms of what gets published, but the registry applies to the whole act and so does this 332 section.
In fact, as one senator had noted, there are requirements to publish all orders and regulations for comment or notice of objection and then made available to all stakeholders and Canadians through the Canada Gazette and CEPA registry, as well. In fact, I think more prescription is problematic, especially at this time when people are moving to electronic consultation, and I think the Canada Gazette is imminent at that stage where things will become even more accessible.
This actually says including by being published on all those three things. So it is redundant.
Senator Patterson: Mr. Chair, the reason for this amendment is we had a very controversial approval given on genetically modified Atlantic salmon that lawyers in the environmental field said they got no notice of. They had to sue Canada, and it took them a year before they got the documents. So it’s fine to say the act is transparent and public participation.
Mr. Butler said to our committee that back in 2013, you had to have a large magnifying glass and partiality for obscure parliamentary documents to find any notice of the approval process for genetically engineered salmon.
So I’m saying, regardless of what’s in the act, it didn’t work in a very important, high-profile case. People in the Atlantic region that I’ve talked to are still not fully aware of what’s gone on here. So it isn’t working, despite what may be in the act.
So, it may be reinforcing what we all want to believe in, but it did not happen in this case. My question to the official is: Can you explain why the Living Oceans had to sue and wait a year before the government finally produced its record of decision and longer still until they were finally permitted to see the risk assessment? Transparency and accountability did not work in that high-profile case. Is there an explanation for that? Thank you.
Mr. Moffet: At this point, I don’t think I’m in a position to explain government practices or what happened in that particular case, and indeed, I wouldn’t make any pretense that everything we have done in the past has been perfect. There is plenty of room for improvement, particularly in our ability and the way in which we disseminate information and make it accessible to all Canadians.
I guess the main point that I would like to urge senators to consider is that there are many areas in which practice and policy can be improved. Legislating yet another requirement may not be the right way to fix this problem. We already have an obligation to publish on the registry. We already have an obligation to publish many things in the Canada Gazette. Having a third obligation to publish won’t necessarily lead to increased accessibility.
The Chair: Thank you. I would like to proceed with a vote, but first I want to be very clear. We’re going to vote on the subamendment that Senator Galvez detailed, and I think we have a pretty good handle on that.
Senator Patterson: I would be happy to accept the proposed subamendment and modify my proposed amendment, if that makes it easier. I would accept Senator Galvez’s recommendation on the subamendment.
The Chair: We have to vote on the subamendment before we get to the amendment.
Senator Patterson: All right.
The Chair: All in favour of the subamendment, please raise your hand. Those against the subamendment, hands down. Carried.
Let’s go to the amendment. All those in favour of the amendment as proposed by Senator Patterson that Bill S-5 be amended on clause 56 at page 38 on line 1 after 21. All in favour of the amendment, please raise your hand. All those against? Carried.
Shall clause 56, as amended, carry? Carried.
With leave, shall clauses 57 to 56 carry?
Clause 57.1, which is a new clause submitted by Senator Arnot and Senator Sorensen. So clause 57, carried. The floor is yours.
Senator Sorensen: Senator Arnot will speak to it.
Senator Arnot: Thank you, chair, and thank you, Senator Sorensen for introducing this amendment. Of course, I fully support it. I am beseeching senators here to give due consideration to this. I think it has the potential to make a statement by the Senate on a very important issue and one which needs to be addressed.
As everyone here knows, Senator McCallum has spoken about pollution issues and environmental issues, particularly as it affects First Nations people, land reserves and lands. She’s made these comments at every meeting of the committee right from its inception, and she has brought forward evidence to support arguments and given evidence herself from her own knowledge, which has been very instructive.
In addition to that, I can say that because I’m a member of the Aboriginal Peoples Committee and Senator Sorensen, Senator Miville-Dechêne, Senator Patterson and I have heard some augmenting evidence that is very important, particularly from the Tataskweyak First Nation in treaty 5 territory in Manitoba on the Nelson River waterway, and most recently last Friday from Chief Marshall from the Mi’kmaq first nation of Potlotek in Nova Scotia concerning alarming evidence from both of those witnesses. I say that Canadians would be shocked, appalled and ashamed if they knew what their government has done and not done with respect to the environmental issues and the water issues facing First Nations people. There has been a clear breach of the treaty relationship. There has been a clear breach of the honour of the Crown. There has been a clear breach of the trust relationship or the fiduciary duty that Canada has towards Indigenous people. I say that is symptomatic of a lack of respect and a lack of understanding, and it’s symptomatic of a broken relationship.
The remedy, in part, is this one that’s being forward in 57.1. Here, the minister shall report every five years and include consultations with Aboriginal peoples, Aboriginal governments in relation to the act, measures implemented to be in compliance with section 35 of the Constitution Act, 1982. The high principle of the honour of the Crown, the principle in the treaty relationships, and Canada and the Federation of Sovereign Indigenous Nations agreed in 1999 that there are 16 common principles that underlie the treaty relationship, one of which is the honour of the Crown and a fiduciary duty to Indigenous people.
The goal of this motion and this provision in the act would be for the executive branch of government have heightened accountability. That enforces the notion that policy-makers must focus on the lens of those four principles. Why? Because they continually overlook these principles, in my opinion, and they do that because they’re not measured against those principles. The simple premise is that if something isn’t measured, then change can’t happen. This would force policy-makers and the ministers to focus on their primary constitutional duties, the treaty responsibilities and the fiduciary responsibilities.
A Canadian statesman said when the constitution was patriated that section 35 was an open vessel. That vessel has been filled by default with litigation and case law for quite a long time, incrementally over 40 years. But most important, former Chief Justice Lamer, one of the most respected chief justices that Canada has had, said in 1991 in the Delgamuukw case — and this is very instructive — he said to the parties, don’t keep coming back to the courts for solutions to your problems. Litigation doesn’t give us the tools to help you. You need to deal with this in a proper forum. It is a political problem. It requires a political process.
That political forum has not been built. That vessel could be filled in a more proactive way with upstream thinking if the government would work with Indigenous people, Aboriginal people and Aboriginal governments to be collaborative, cooperative and constructive, and it would provide a much better cure for that dysfunctional relationship.
I think it’s very clear that this is designed to be proactive instead of reactive. It calls for a constructive engagement with First Nations people, Aboriginal people, Indigenous people in this country, and it focuses on those high-level principles that have been honoured in their absence in this relationship for a good part of the past 40 years. We require a paradigm shift. Measurement begets change from the status quo, and that’s really what this is doing. I note that this would be actually very complementary to the United Nations Declaration on the Rights of Indigenous Peoples because many of these environmental issues affecting Indigenous people would be the subject of this report, which would be complementary to the action plan required in the UN declaration.
I could say much more about this, but I want to be succinct as much as possible. I’m beseeching my colleagues in the Senate to see this as an opportunity that doesn’t come along very often to make a real statement about the priority that should be given to these noble constitutional principles that will produce a much better relationship with Indigenous people in this country and be completely in concert with the principle of reconciliation.
Senator Anderson: I wanted to speak in support of this amendment.
Specifically, I want to point out the mandate letter to the Minister of Environment and Climate Change, and I’m going to read an excerpt from it:
This year, Canadians were horrified by the discovery of unmarked graves and burial sites near former residential schools. These discoveries underscore that we must move faster on the path of reconciliation with First Nations, Inuit and Métis Peoples. We know that reconciliation cannot come without truth and our Government will continue to invest in that truth. As Ministers, each of us has a duty to further this work, both collectively and as individuals. Consequently, I am directing every Minister to implement the United Nations Declaration on the Rights of Indigenous Peoples and to work in partnership with Indigenous Peoples to advance their rights.
Further, to support this, I want to point out Article 18 and Article 19 of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP. Article 18 states:
Indigenous peoples have the right to participate in decision‑making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Article 19 reads:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
I just want to put that on the record in support of the amendment. Qujannamiik. Thank you.
Senator Galvez: I want to add to the points that have been explained. First, I want to thank Senator Arnot for his clear, strong words describing the history of the situation with Indigenous people. I can add that, professionally, I have been involved in so many occasions where pollution is present in Indigenous communities, and nothing is done. This is completely sad. It’s really about time — we’re late on this — to require from the minister to prepare a report every five years, as the amendment says, on how CEPA complies with section 35 of the Constitution on Indigenous rights and how it aligns with the UNDRIP act that we passed recently in Parliament. I support this amendment completely. Thank you.
Senator Kutcher: I think we should go to a vote.
The Chair: It is moved by the Honourable Senator Sorensen:
That Bill S-5 be amended on clause 57.1 on page 38 at the lines 34-35 . . .
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
The Chair: All in favour raise your hands. Those against, thumbs down. Agreed to. Accepted.
Shall the new clause 57.1 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Senator Arnot: Congratulations, senators.
The Chair: We’re on clause 67. Shall clause 67 carry? I think Senator Patterson has an amendment.
Senator Patterson: Yes. This is DGP-S5-67.1-46-11. I move:
That Bill S-5 be amended on page 46 by adding 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).”
And if I may speak to that, Mr. Chair, this comes from witness testimony from the Canadian Manufacturers & Exporters Association. They basically told us that as we develop a stringent regime in Canada — and we’ve worked very hard in this committee to ensure that there’s a rigorous process for protecting our environment in Canada — we also have to make sure that imports are held to the same standards as domestically made products.
I’d like to quote Ms. Allison Bernholtz of the Canadian Manufacturers & Exporters Association who told us in committee:
. . . we stress that it is critical that imports to Canada are held to the same standards as products manufactured locally. To ensure fair competition between Canadian and foreign companies, and to protect the health and safety of Canadians, standards of products imported into Canada and purchased by Canadians must be identical. In other words, Canada should ensure that its manufacturers can compete on as level a playing field as possible. Within Canada, we should have confidence that the products we purchase and rely upon have met certain testing standards. This is why, among our recommendations for the implementation stage of this legislation, we urge that it is important to design policies and regulations that clearly outline that the standards of imported products must meet the same high standards as those made locally.
What good is it if we hold Canadian manufacturers to stringent standards but let lower quality, dangerous products come into the country for sale and use, without any requirements to meet the same high standards as those we impose on Canadian manufacturers? I would like to, in closing, point out that this concept of making sure exports are held to the same standards as domestically made products was part of the current Liberal government’s 2021 platform in the section that spoke of carbon adjustments to imports, on page 41 of the platform.
After much consultation with the Law Clerk’s office, it was determined that there are many intricacies and coordinating amendments required. It’s not even clear who the responsible lead minister would be on this file. The amendment was phrased in a way that would give flexibility to the government to figure out those intricacies. Thank you, Mr. Chair.
Senator Kutcher: Thank you very much, Senator Patterson. The government feels it has to oppose this, not because it’s not a really important issue — and the issue of product standards is important — but Senator Patterson was correct in identifying there are numerous intricacies and complexities in this type of work. We haven’t had the extensive analysis and consultation to decide which is the best way to address this issue. In fact, our committee did not fully study this. I think we had one or maybe two witnesses that commented on it. The feeling here is that it would be premature to put it into this act before a very thorough study has been conducted.
I would like to ask the officials if they have anything further to add to this observation.
Mr. Moffet: I don’t think that at this point we can add much to what Senator Kutcher said. This is indeed an area of priority and complexity. We already apply the same requirements to many imports as to domestic products. The issue is largely one of practicality. A challenge with this amendment is that it would introduce a brand new obligation on another minister who doesn’t have any responsibility under CEPA at the moment.
Senator Miville-Dechêne: Maybe there’s no easy answer, but if we look at the other countries that are dealing with the same problems, is this done generally in other countries to balance it and to try to have the same standards for importation of a product that could have toxic substances also applied to those products made in the country itself?
The Chair: Mr. Moffet can you comment on that?
Mr. Moffet: The general answer is yes. Canada applies the same standards to imports as to domestically produced products, as do many other countries. As I said, one of the issues is practicality, not so much what does the law say. That is, what is our ability to test all imports.
Another issue that we work on extensively is trying to ensure that other countries where products are produced have similar domestic obligations to ensure that all products that they produce are of the same standard. Therefore, we can be more reassured that they will comply with Canadian obligations. That’s why we have extensive international activity under our chemical management program endeavouring to create a level playing field globally.
Senator Patterson: If I may respond to the comments of the officials, first, with the greatest of respect, I do believe that we still have products in Canada that are made in countries with less stringent environmental standards.
The more important point I’d like to make is that Mr. Moffet and Senator Kutcher have said that this needs to be studied; we need to make a plan. In fact, I think that is an argument in support of the amendment. May I remind colleagues that the amendment simply asks that there be a report tabled in both Houses of Parliament regarding measures to ensure that manufacturers’ goods that come to Canada meet the environmental requirements imposed on Canadian manufacturers. Basically, the amendment calls for the development of a report regarding how this could be done. The government has said they need to do further study on this. Well, that’s exactly what the amendment calls for. It calls for study on how this can be done to level the playing field for our Canadian manufacturers and to table that report regarding proposed measures. That’s exactly what the amendment proposes. It’s just a report.
Senator Galvez: Yes, I remember looking at this issue too because of the witness that we heard. We have been rushed to study this huge, important bill. We couldn’t read everything. We couldn’t place our attention on everything. We had to choose. This is one issue that I choose not to take because I didn’t have time. However, it is of extreme importance.
I think you already know that we import products that contain toxic substances. With kitchen appliances, a lot of things are toxic. This is very important. But we didn’t have time. We should have brought more witness before us, but we didn’t. Whose fault is that? We don’t know.
If we want to apply the precautionary principle, we should vote in favour of this. I know that the officials say no and the sponsor says no, but I’m going to vote for this. If it does not pass, I will encourage Senator Patterson to create an observation because this issue is too important.
Senator McCallum: I have a question for Senator Patterson. If you look at exporting out of Canada, would you want the same standards applied? We’re shipping out material, and people in other countries are mining computers because it’s dangerous to do it in Canada. So they do it over there. There are other examples of where there have been exports of goods that haven’t been good for other countries. Would that be considered under this as well?
Senator Patterson: Thank you for the question, Senator McCallum. My amendment deals with goods that are coming into Canada. I know full well that Canada exports toxic garbage to Asian countries — that’s on record — and computer parts that cause huge pollution problems in other countries. But that’s not what my amendment is about. That would have to be dealt with otherwise.
My amendment is about things that are coming into our country. I would hope that other countries would begin to take measures to protect their environments from imports from Canada and from other countries, but my amendment doesn’t cover that.
The Chair: Let’s go to the question. It was moved by the Honourable Senator Patterson that Bill S-5 be amended on clause 67.1, page 46 at line 11 —
Is it your pleasure, honourable senators, to adopt the motion in amendment? Please raise your hand if you’re in agreement to it. Against, put your fingers down.
Hon. Senators: Agreed.
The Chair: So carried.
Shall clause 67 carry?
Hon. Senators: Agreed.
The Chair: Should clause 67.1 carry? That’s that new clause.
Hon. Senators: Agreed.
The Chair: Shall clause 68 carry?
Hon. Senators: Agreed.
The Chair: Clause 69 carry?
Senator Miville-Dechêne: No.
The Chair: Go ahead.
Senator Miville-Dechêne: This is a very simple amendment. I move:
That Bill S-5 be amended in clause 69, on page 46, by replacing line 15 with the following:
“69 (1) Subsections 10(1.1) and (2.1) and sections 10.1 and 11.1 come into force 12 months after the day on which this Act receives royal assent or on any earlier day that may be fixed by order of the Governor in Council.
(2) Section 64 and subsections 67(2), (5) and (6)”.
This has nothing to do with what Senator Patterson was talking about recently, it has to do with a former amendment I did on the prevention plans. You remember we changed the clause and said that the minister shall identify every person or group. There was a big change in that regime, and we think it needs 12 months to be put in place. That’s what this particular amendment is doing. It’s related to the amendment on pollution prevention plans.
The Chair: To be coherent, if you approve the other amendment, you naturally should agree with this amendment as they fit in together.
If that is the case, do we proceed with the question?
Senator Patterson: As I said at the beginning of this meeting, I do have some concerns about 10.1, and I am going to propose an amendment to 10.1. I don’t know if now is the time to raise this.
Senator Miville-Dechêne: It’s a question of giving 12 months.
The Chair: We will come back to your proposed amendment, Senator Patterson.
Senator Patterson: Thank you, Mr. Chair.
The Chair: For clause 69, it is moved by Senator Miville-Dechêne that Bill S-5 be amended in clause 69, page 46, line 15. Is it your pleasure honourable senators to adopt the motion in amendment?
Senator Kutcher: For the record, the government wants it on the record that it doesn’t support this amendment for the same reasons it didn’t support the previous 10.1.
The Chair: All in favour raise your hand. Against, thumbs down. So moved.
Shall clause 69 as amended carry? Done.
Shall the schedule carry?
Senator Galvez: This is amendment number 62-a.
The Chair: You’re right.
Senator Galvez: I will read it:
That Bill S-5 be amended on page 47, by replacing 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))”.
This is very simple, because, as you know, I had a suite of amendments regarding animal testing. I therefore added one section, and that section was called 68.1 and that is the number that I need to add to this list of paragraphs.
It’s just to complete the suite of amendments on animal testing.
The Chair: Any questions or comments?
Senator Kutcher: Could I ask that we defer to the officials on this one to help us understand the impact of this amendment?
The Chair: Mr. Moffet?
Mr. Moffet: I think the amendment is exactly as Senator Galvez has described it, so I think it’s a corollary to the amendment that she introduced previously. I just would reiterate the government’s opposition to that initial amendment, but I think it’s consequential to the one that was discussed earlier, as Senator Galvez explained.
The Chair: Any other comments? Let’s go to the question.
It is moved by the Honourable Senator Galvez that Bill S-5 be amended at Schedule 1, Part 1, page 47. Is it your pleasure, honourable senators, to adopt the motion in amendment? Raise your hands. We’re voting on the Senator Galvez amendment to the schedule. I ask again for those in favour of the motion of Senator Galvez to please raise your hand. Those who are against, thumbs down. Carried.
Senator Galvez, there was also another amendment, just 47, not 47-a. Are you dealing with that also?
Senator Galvez: Yes, let’s deal with it right now.
I consider that this is just a small mistake that needs to be repaired. Maybe it could be considered a technical amendment, and I will read it:
That Bill S-5 be amended on page 47 by adding the following before the heading “PART 1” in schedule 1 of the Schedule:
“List of Toxic Substances”.
I’m doing this because we need to be coherent and clear, and I think we have to correct this mistake.
In the original CEPA 1999, Schedule 1, the title is called “List of Toxic Substances,” and in Bill S-5 there isn’t an amendment that takes away that title. But in the papers that we receive, that title doesn’t appear, so I’m just putting it back because it was in the original CEPA 1999.
The name was not changed in an amendment in Bill S-5. That should not be changed. In Bill S-5, the CEPA Schedule 1 is currently named just like that, Schedule 1, not descriptive of what the list contains, and it should just go back to what it was, “List of Toxic Substances.” I have other arguments, if you want to hear them.
The Chair: I think we’re okay. Senator Sorensen?
Senator Sorensen: I need clarity on that. Thank you, Senator Galvez, for suggesting that. I assume that it had been amended to Schedule 1, which I support, because, as I understand it from some of our witnesses, it’s not so much the item, but it’s the dose that makes these products toxic, and that the term “toxic substance,” can be misconstrued or can be confusing for a consumer. One example I was given was selenium. A lot of us take that, and it’s the dose of it that would be toxic, so I support the words “Schedule 1,” but I didn’t have the piece that suggests it just disappeared and was never amended as such, so I’m not sure what to do with that now.
Senator Kutcher: The government opposes this amendment. Thank you, Senator Sorensen, for bringing up the issue about the dose.
First of all, section 64 of the act defines the term “toxic” in a specific and particular manner. As a result, certain substances can be designated as toxic under CEPA, even though they would not be considered toxic based on the common understanding of the term. The title of Schedule 1 is being removed, because the label “toxic” can cause confusion, as we’re seeing here. Substances can be CEPA toxic, but not toxic in the common use of the term, and this could have negative impacts.
I would just ask the officials if they could provide us additional information on this particular issue, please.
The Chair: Mr. Moffet.
Mr. Moffet: Senators, clause 58 of the bill provides that Schedule 1 to the act is replaced by the Schedule 1 set out in the schedule to this act or bill, and then the new schedule that replaces the old schedule has a new title that does not include the word “toxic.” I appreciate that it is not crystal clear, but the title was deliberately amended by clause 58 and the new title to the schedule.
The reason the term “toxic” is not included in the title of the new schedule is precisely the explanation that was just given. Although the legal term in the act for inclusion in the schedule is “toxic,” that term, in public parlance, does not apply to many of the substances in the schedule and it has, indeed, created significant challenges for users of some of those substances, even when they use them in ways that impose absolutely no risk to the environment or health, including a number of metals and minerals, for example.
So the idea was to avoid that public misinterpretation by changing the name to the schedule.
The Chair: Thank you.
[Translation]
Senator Miville-Dechêne: Frankly, as I see it, if we are referring to a list of potentially toxic substances — certain substances, I should say, depending on the quantity, of course — as Schedule 1, we might as well be talking Klingon. It’s bureaucratese that doesn’t mean anything to anyone. What is Schedule 1? I appreciate that the idea was to avoid alarming anyone, but my understanding is that the purpose is to reduce the use of many of these substances. That’s why they’re on the list.
Yes, it’s true that “List of Toxic Substances” is stronger language, but it’s in line with the purported intent of Bill S-5, which is to reduce the use of these substances in production and industry processes. The title “Schedule 1” really couldn’t be any more vague.
[English]
Senator Galvez: Chair, before you move anything, I would like to address the points of the official. In Bill S-5, 44 times it is written, “List of toxic substances Schedule 1.” That’s the way it has been used in the whole of Bill S-5. Of course, if we go to the original CEPA, it is everywhere, too. So I find that very incoherent.
My second point is this: What is the percentage of the 12 plus 139 substances that are listed in this Schedule 1 that are not toxic? Selenium and plastic were mentioned.
I want to address those two things. Selenium, or iron, they are all elements and we need them but at very low concentrations. When we exceed, there are chronic effects due to this consumption.
Let me tell you about plastic now. Three quarters of plastics are toxic substances. When plastic enters the environment by mechanical forces, it breaks down into microplastics and nanoplastics. We have found microplastics in the blood, uterus placenta and in the lungs. I hope I don’t have to draw you a picture to show you how toxic this could be.
I think that putting just “Schedule 1” is actually misleading and is not honest with the public.
The Chair: Thank you.
It is moved by the Honourable Senator Galvez that Bill S-5 —
Senator Galvez: Senator McCallum wants to —
Senator Patterson: Go ahead, Senator McCallum.
Senator McCallum: I want to say that I agree with Senators Miville-Dechêne and Galvez. When you look at the list of “toxic,” that list has the capability and the possibility of being toxic for whatever reason that it becomes a toxic substance. When you look at the gradient and where we’re concerned about the toxicity, then what is the problem of listing it as toxic? It alerts people using the material that this is capable of being toxic but not at certain levels or concentrations. Thank you.
The Chair: We’re going to pursue the question: “It is moved by Honourable Senator Galvez that Bill S-5 be amended in schedule page 47, replacing the references below the heading.”
Is it your pleasure, honourable senators, to adopt the motion in amendment? Please raise your hand if you agree. Those against, thumbs down. So carried.
I think there is an amendment by Senator Kutcher relative to this paragraph. Is that the case?
Senator Kutcher: Right, there is. It’s a technical amendment to correct a grammatical error.
I move:
That Bill S-5, in the schedule, be amended by replacing, in the English version, the second line of the note in Schedule 1 set out in the schedule, on page 47, with the following:
“and “y” refer to the number of atoms.”.
I hope everyone else caught that, too.
The Chair: We did, yes. Is it your pleasure, honourable senators, to adopt the motion in amendment? Raise your hands in agreement. Thumbs down for those in disagreement. So carried.
Does the schedule carry? Carried.
We are now resuming debate on clause 2.
Senator Sorensen: We’re going to withdraw this amendment on the basis of the earlier one passing. This now seems redundant.
The Chair: That’s what I figured.
Senator McCallum, you had a proposed amendment to clause 2.
Senator McCallum: Clause 2, page 2. That Bill S-5 —
The Chair: Line 17.
Senator McCallum: No. I move:
That Bill S-5 be amended at clause 2, on page 2, by replacing line 3 with the following:
Of Indigenous people, including free, prior and informed consent.
That was stood. Isn’t that the next one after Senator Arnot?
Ms. Cardinal: It’s road map 1.
Senator McCallum: So that’s the one, right? S5-2-2-3?
The Chair: Yes. The one in our chain.
Senator McCallum: That’s the one, though: S5-2-2-3.
We had discussed this at length where I had given the reasoning behind why I pulled out “free, prior and informed consent” from the United Nations Declaration on the Rights of Indigenous Peoples. I wanted it to be the last so that everyone could hear what has happened on Indigenous lands and to Indigenous lives.
The AFN stated that the current CEPA from 1999 fails to provide adequate protection of First Nations’ rights, citizens and environment. The statement said:
First Nations experience disproportionate exposure to toxic substances due to siting of environmentally hazardous activities located in close proximity to reserves and on traditional territories. This has led to detrimental impacts on the ability to exercise our Inherent and Treaty Rights to health, safe food, and water.
They go on to say that they:
. . . need to overhaul the current framework pertaining to the Crown’s duty to consult and meaningfully implement the minimum standards set out in the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), including free, prior, and informed consent.
They continue:
. . . As it stands, First Nations have not been given their free, prior, and informed consent on the framing of the right to a healthy environment within the Bill, and it is unclear how this will change during the implementation . . . .
Furthermore, under the recognition of the UN declaration and the Canadian Environmental Protection Act, or CEPA, they say Bill S-5 falls short of those minimum standards pertaining to self‑determination, the conservation and protection of the environment, First Nations’ lands and resources, and to consent‑based decision making through consultation with the words “free, prior and informed consent.” It merely adds a recognition of Canada’s commitment to implement the implement [Technical difficulties] in the preamble.
Under the recognition of the UN declaration and the Canadian Environmental Protection Act, or CEPA, the AFN says Bill S-5 falls short of those minimum standards pertaining to self‑determination, the conservation and protection of the environment, First Nations’ land and resources, and to consent‑based decision making through consultation with the words “free, prior and informed consent.” It merely adds a recognition of Canada’s commitment to implement the implement [Technical difficulties] in the preamble.
I’m almost done here; it states:
. . . CEPA 1999 must be amended to ensure this consistency, including with Article 18 of the UN Declaration, which states that Indigenous Peoples have the right to participate in decision-making in matters which would affect our Rights,as well as with Article 32(2), which mandates good‑faith consultation and cooperation with Indigenous people to obtain our free, prior and informed consent for projects affecting our lands or resources.
When you look at the United Nations Declaration on the Rights of Indigenous Peoples, every single article requires free, prior and informed consent, whether it’s self-determination, the rights to our economic development or our governance structures. It is this absence of free, prior and informed consent that has led to all the degradation of our lands, our lives and our culture.
In the 20 years that CEPA 1999 has been in effect, there have been a few positive changes, but it has actually led to more degradation, so that’s why I included “free, prior and informed consent.” I know people are hesitant about it.
Senator Arnot: I’d like to speak to this. I don’t have a vote in this. However, my position on this would be to support this amendment. This is the fundamental, salient feature of the UN Declaration on the Rights of Indigenous Peoples, as Senator McCallum has said. Moreover, it’s fundamental to concerns that were always raised about the making of treaties in Canada. There is no downside to emphasizing that key fundamental point, the salient feature of the UN declaration. I would support this. I think it would be helpful and instructive to the government.
Senator Kutcher: I remember that in our previous discussion, concerns were raised about what this meant and whether it would be limiting. Someone commented that throughout UNDRIP, it identifies the importance of this issue, that references to free, prior and informed consent are found throughout UNDRIP and these are already identified in the preamble.
It’s been a few days since we had those discussions, and I don’t know if your minds are like mine, but I forget some things. Perhaps I would ask the officials about this particular issue. Would that be helpful? Could the officials help us out, please?
Mr. Moffet: I’d be happy to start. I won’t go into an interpretation of UNDRIP. What I would like to mention is that as you, of course, all know, almost a year ago to the day Canada passed the UNDRIP Act, and in that act there is a commitment. The act commits the government to work with Indigenous peoples in Canada to develop an action plan within one year, in other words, to publish an action plan that’s developed collaboratively with Indigenous people by June 2023.
The intention of that action plan is to include a description of the way in which the declaration, including the core principle of free, prior and informed consent, will be implemented throughout all Government of Canada statutes and decision making. Consistent with that and with the desire to ensure that there is a coherent approach across all statutes, any federal statute that has been passed or amended since last June has referred to UNDRIP but has not added additional detail or, for example, specific references to free, prior and informed consent.
The concern we have is definitely not in opposition to the declaration or to the principle of free, prior and informed consent. It’s a desire to ensure that the government establishes a coherent plan and then ensures that decisions under CEPA itself are made consistent with that overarching plan.
A second concern is that if at this point, we single out one principle, we frankly don’t know what the legal implications of doing that would be in terms of the way in which we would need to apply the full set of principles in the declaration.
Senator Miville-Dechêne: I wanted to hear Senator Arnot’s thoughts on this in legal terms, because I’m not an expert. Can the fact that we’re singling out one important part of UNDRIP and repeating it — free, prior and informed consent — have legal implications that would be negative or complicated? Because, obviously, there is a lot of redundancy in this law. Does this redundancy — because it is redundant — complicate it in the future in terms of the interpretation of this act?
Senator Arnot: I’m not a legal expert, but the preamble is really a guide. The Supreme Court of Canada would eventually, perhaps, give some ruling on this, and they’re not going to be blinded by that. They will make a decision that would not be constrained by any advice in the preamble, in my opinion.
Senator Miville-Dechêne: Thank you. Sorry to put you on the spot.
Senator McCallum: I wanted to say that when he said that free, prior and informed consent would be interpreted, it means that there is a possibility that it will not be full free, prior and informed consent. I’ve always considered that. There will be qualifiers along all of this, so it’s not really what First Nations had envisioned.
However, when you put in free, prior and informed consent and the government decides this is the restrictive interpretation of it, then it will apply to this law. That will be applied. So I don’t know what he meant that it hasn’t been decided yet.
I’m just saying that it involves every single article, and every single article is about self-determination, and the core principle of self-determination, which I tell you was removed from me in residential school and by law, that the free, prior and informed consent is instrumental in bringing about self-determination and self-governance and independence of Indigenous people. Thank you.
The Chair: I suggest we proceed to the question. It is moved by the Honourable Senator McCallum that Bill S-5 be amended in clause 2, page 2 at line 3. Is it your pleasure, honourable senators, to adopt the motion in amendment? Raise your hand if you’re in agreement. Thumbs down if you’re in disagreement. So carried.
Senator McCallum, there was also S5-22-17 which we had stood, and I think we should withdraw it given that we approved the 17a. Do you agree with that? I think we should withdraw it. We dealt with it by the first thing. Do you agree with that, Senator McCallum? This is your amendment.
Senator McCallum: It’s withdrawn. Sorry I was talking and thought the microphone was on. Just withdraw as it carried with number 3. Okay?
The Chair: Shall clause 2 as amended carry? Carried.
Now, we have maybe seven minutes left. Do you want to try to do a bit more?
Senator McCallum: Some of mine have been stood, and it has to do with the clause “balanced with and considered against” that I had withdrawn to support the wording by Senator Galvez.
The Chair: Let’s proceed then.
We’re resuming debate on clause 5.
Senator McCallum: Can we look at 13a? I just need to go through them and make sure the wording is there.
The Chair: 13a was adopted.
Ms. Cardinal: Thirteen was defeated.
The Chair: Exactly.
Senator McCallum: Let’s look at number 9a and 9. What I am concerned with there is that I withdrew them, but I think the wording that was in there needed to be changed to look at Senator Galvez’s, because that’s the one with the consideration of that right in respect of relevant factors. That one was stood, I think. It says stood here. Yes, 9 and 9a are stood, and I think it’s the wording.
The Chair: Excuse me. We’re going to follow chronological order, obviously. Senator Miville-Dechêne had an amendment that we had stood, and it’s S5-5-4-5. We had two amendments. There was one by Senator Miville-Dechêne and one by Senator Kutcher, and they’re in duplication.
Senator Kutcher: Point of order, Mr. Chair. Sorry, I’m confused. Senator McCallum, did we deal with your question? I couldn’t quite follow where we were with the issue.
The Chair: She was somewhat ahead of us, and that’s why we went back.
Senator McCallum: Because they’re all together. Those four amendments all deal with the same thing, but now let’s go to Senator Miville-Dechêne.
Senator Galvez: Chair?
The Chair: Yes?
Senator Galvez: I’m sorry. There are five minutes left in our meeting, and I think we are all very confused with all our papers. Why don’t we refresh and come to the next meeting with fresh minds? I think that we are all tired.
The Chair: I think that’s a good idea.
(The committee adjourned.)