Strengthening Environmental Protection for a Healthier Canada Bill
Bill to Amend--Second Reading
April 7, 2022
Honourable senators, I rise to speak to Bill S-5, known by its short title as the strengthening environmental protection for a healthier Canada act.
Our colleague Senator Kutcher, the sponsor of the bill, pointed out that the long title is a mouthful, so I will take his lead and just refer to it as Bill S-5.
Given what we have been through these last two years, it is hard to imagine anyone being opposed to legislation or anything else that looks to provide all Canadians with as healthy an environment as possible. Health is at the forefront of all our minds and will be for some time to come.
Protecting the environment has always been at the forefront for Conservatives. After all, it was Brian Mulroney — voted Canada’s greenest prime minister — who took strong and successful action to stop the acid rain problem. Successfully navigating that issue was no small achievement at the time.
However, if the coronavirus pandemic demonstrated anything, it was the limits of governments to deliver on such promises as the right to a healthy environment. Yet this is what the government has, with great fanfare, made a cornerstone of this bill.
It’s not that I don’t applaud the effort, but we all know there are limits to what the government can do to protect that right — limits that stem from environmental threats beyond their control, obviously, but also from government ineptness, which has been a hallmark of this NDP-Liberal government in particular. Their handling of the pandemic is a good example. No government should have been better prepared to deal with a pandemic, given our experience with SARS and H1N1. But still, we were totally unprepared.
Not only were we unprepared, but the NDP-Liberal government’s actions in the year leading up to the pandemic made things worse by closing down three of our emergency stockpile warehouses and throwing out millions of items of PPE that could have been used to deal with the first-wave surge, effectively shutting down our world-renowned infectious disease early warning system in the six months prior to the outbreak and sidelining scientists at the Public Health Agency in favour of administrators.
I don’t want to belabour the point, but suffice it to say that while we all support Canadians having the right to a healthy environment, I am less than confident that this government can deliver on that promise.
Remember, too, that the right to a healthy environment, as recognized in Bill S-5, is not a legal right like a Charter right. It is entirely confined to areas under the Canadian Environmental Protection Act, or CEPA. It remains to be seen what exactly is accomplished by recognizing this right in the legislation.
I am not arguing against it. I am just somewhat worried that the government is claiming more by it than is justified, that there is less here than meets the eye, but that can be sorted out at committee.
Honourable senators, as Senator Kutcher informed you, this is the first time that the Canadian Environmental Protection Act has been updated since 1999 — so, it has been more than 20 years. Again, it is hard for me not to look at this through the prism of the pandemic where we — this government, in particular — clearly let our guard down in the 20 years that have passed since the SARS report that, in fact, established the Public Health Agency.
It is hard to argue with finally updating CEPA after 20 years. From what I have seen, most stakeholders agree. Many of you, like me, have probably heard from some of them. Stakeholders like the Chemistry Industry Association of Canada support the bill as a good way to address the shortcomings in CEPA. Cosmetics Alliance Canada supports it as well, as long as decision making continues to be based on sound science and risk assessment.
Furthermore, they wrote in their letter in support of the bill that they believe it is important to review any and all regulatory frameworks from time to time. That is good advice, and taking a look at the entire regulatory framework will hopefully be a by‑product of our study of the legislation when it gets referred to committee. However, what they didn’t support were amendments to the legislation that do not have the support of all the stakeholders, most of whom, from what I gather, were consulted in the preparation of this legislation.
Honourable senators, this bill is really a housekeeping bill. It deals with regulatory modernization and is not in any real sense an expansion of environmental protection in spite of what the government has freighted on to it. For instance, there is nothing wrong with specifically singling out vulnerable Canadians for mention in the right to a healthy environment, but even if they were not specifically mentioned, they would have that right by virtue of simply being Canadian. But this government cannot resist any and all opportunities to signal its own high virtue. That is not always in the best interests of science.
Honourable senators will recall that the government allowed virtue signalling to get in the way of science when it refused to ban foreign flights from China in the early days of the pandemic, calling it racism. Yet the SARS report was clear that “. . . travel plays a pivotal role in the rapid dissemination of disease.”
In fact, the science on this was well established even before SARS, but the government that supposedly follows the science, as they like to tell us, ignored that.
So while the bill ticks off the usual boxes for virtue signalling to the NDP-Liberal government, it does not address the environmental committee recommendations around national standards for clean air or clean water.
Honourable senators, we cannot let the science get sidelined or hijacked by activist causes. The danger from toxic substances is real. Senator Kutcher, in his speech, provided us with two stark examples of the damage done to a community by toxic chemicals: one in Japan and the other in Grassy Narrows in northwestern Ontario. In both instances the cause was mercury dumped into the water, and the results were tragic.
There are other well-known instances of toxic chemicals wreaking havoc that I will mention. We have all heard of the Love Canal, an abandoned waterway in New York State, into which the Hooker Chemical Company dumped 21,000 tons of chemical waste in the 1950s. Twenty years later, in 1976, the canal overflowed its banks and the chemicals made their way into the developed area in the surrounding neighbourhood. Area residents began to report children suffering from chemical burns, foul odours, including nausea, undrinkable water and black sludge due to the resurfaced chemicals. One local resident, the president of the Love Canal Homeowners Association, began to mobilize public attention, organizing petitions, protests and speeches, culminating in the passage of the Comprehensive Environmental Response, Compensation, and Liability Act. The New York State health commissioner declared a public health emergency. He sought to relocate particularly vulnerable pregnant women and children out of the area.
In 1978, he published a report entitled Love Canal: Public Health Time Bomb describing Love Canal as a modern-day disaster, both profound and devastating. The governor of the state of the New York, Hugh Carey, in the midst of an election, got involved and agreed to relocate 239 families living close to the canal.
Not long after, President Jimmy Carter declared an emergency in the area. The Love Canal incident galvanized U.S. public opinion about hazardous waste sites that persist to this day. Billions of dollars have been spent to clean up abandoned waste sites, all galvanized by the Love Canal.
Similarly, in the late 1980s the Natural Resources Defense Council, an environmental think tank, concluded that the continued use of Alar, a pesticide long used on apples, would cause cancer in 1 out of every 4,200 preschool children. That finding made its way on to the news show “60 Minutes,” whose host Ed Bradley called Alar the most potent cancer-causing chemical in our food supply.
Celebrities like Meryl Streep became involved, as did an activist group called Mothers and Others for Pesticide Limits. The demand for apples plummeted, and they were removed from store shelves and widely banned in schools.
The problem with both Alar and the Love Canal story is that the dangers were non-existent in both cases, or at the very least vastly overexaggerated. In the Alar case, the U.S. Environmental Protection Agency, EPA, estimated the risk for preschoolers not to be 1 in 4,200 but in fact 1 in 111,000. In the Love Canal case, peer-reviewed follow-up studies conducted by the New York State Department of Health uncovered no abnormal health trends in Love Canal residents.
This finding was later supported by analyses done by the American Medical Association, the National Research Council and the Centers for Disease Control and Prevention. In fact, an exhaustive study by the Environmental Protection Agency in 1982 found no evidence of environmental contamination at the Love Canal. But in both instances, the science and politicians were overwhelmed by an activist-led outcry that caused great social panic and cascaded into real-world consequences with no basis in fact.
Honourable senators, I say this neither to undermine Senator Kutcher’s very legitimate examples of the damage that can be done nor to undermine Bill S-5. I say this to you to underscore the complexity of the issue we are facing, the need for, as the cosmetics association said, decision making to be based on sound science and risk assessment, not on activism, and to urge the committee that studies this bill to undertake a thorough and careful study of all the issues involved and to bring all the stakeholders to the table.
Colleagues, the Conservative caucus supports this bill going to committee for extensive study, and I also support it at second reading. Thank you, honourable senators.
Honourable senators, I too rise to speak to Bill S-5, with the short title “Strengthening Environmental Protection for a Healthier Canada Act.” This bill proposes to do three things. If passed, it would make over 100 changes to the Canadian Environmental Protection Act, or CEPA, as we fondly know it. It would make related amendments to the Food and Drugs Act, and it would repeal the Perfluorooctane Sulfonate Virtual Elimination Act.
I would like to focus my remarks on the first slough of amendments related to CEPA. It is known internationally as a world-leading, flexible and risk-based piece of environmental legislation. It declares that:
. . . the protection of the environment is essential to the well‑being of Canadians and that the primary purpose of this Act is to contribute to sustainable development through pollution prevention.
According to the Environment and Climate Change Canada website, “Canadians have indicated that the Act is fundamentally sound.”
That said, no legislation is perfect. Between 2004 and 2007, consultations were undertaken by Environment Canada and Health Canada in an effort to identify issues with CEPA that could be addressed during a comprehensive review of the legislation.
According to a 2017 paper posted by Environment Canada entitled The Canadian Environmental Protection Act, 1999: Issues, these consultations identified 12 specific concerns and 3 broader ones.
The 12 specific concerns all sought to bring clarity and certainty to the bill, as well as to alleviate unnecessary bureaucratic red tape by streamlining certain processes. How, for example, would the government deal with substances added to the Domestic Substances List created in 1988, prior to the requirement for rigorous testing established by CEPA?
There was also the question of national consistency. The report states that national consistency with regard to regulations:
. . . creates a more level playing field by reducing problems associated with having a patchwork of different regulations across the country being applied to the same industry sectors.
This overall desire for more certainty and consistency across jurisdictions in an effort to mitigate a guessing game by potential investors and proponents is what has helped shape my opinions on this bill.
Colleagues, Bill S-5 seeks to add a preambular clause that would recognize the right of all Canadians to a healthy environment. Clause 5 of the bill then goes on to outline the multi-year consultative process that will set out how to implement this right.
However, as we look at this bill, my question is this: What does that right actually mean for Canadians? To explore this question, we must first look at Canadian jurisdictions that have similar provisions and look at the body of jurisprudence we currently have available.
Ontario, Yukon, N.W.T. and Nunavut all recognize the right to a healthy environment in their legislation in preambular clauses. Quebec put the right into its Environment Quality Act in 1978 and added it to its provincial Charter of Human Rights and Freedoms in 2006. This has resulted in the ability of cases to be brought against CEOs of companies, who, in that province, can be held personally liable for any detrimental environmental effects resulting from their companies’ mismanagement.
In recent years, four actions have been launched in Canada asserting that the Constitution guarantees Canadians a right to a healthy environment. In late 2018, a group called ENvironnement JEUnesse launched a class action, alleging that the Government of Canada, by adopting what they felt were ill-conceived GHG emission targets, failed in its duty to protect the right of Canadians to a healthy environment. They argued that this right is inherently granted under section 7 of the Charter of Rights and Freedoms, which lists a right to “. . . life, liberty and security of the person . . . .” In their submissions, they stated that:
. . . by adopting inadequate targets and failing to put in place the necessary measures to achieve these targets, the government is violating the class members’ right to live in a healthful environment in which biodiversity is preserved, protected by the Québec Charter.
The Government of Canada submitted, in turn, that this issue was not justiciable, as those were inherently political arguments. In the end, the class action was not certified. The July 11, 2019, decision did not disagree with the substantive issues but instead found that the age group of Québec residents, 35 years or younger, that the organization claimed to be representing was an arbitrary one. So Justice Morrison did not certify the claim based on procedure, and the substantive question about what a right to “a healthful environment” entails went unanswered.
In 2019, La Rose v. Her Majesty the Queen and Mathur, et al. v. Her Majesty the Queen in Right of Ontario were launched in quick succession of one another. They were both launched by children throughout Canada and Ontario, respectively. Some of the plaintiffs were Indigenous children, while others were vulnerable children whose medical conditions or geographical locations made them more susceptible to pollutants or drastic changes in the environment. Both claims stated that section 7 of the Charter created a constitutional obligation to protect the right to a healthy environment.
According to the summary by climatecasechart.com regarding La Rose:
On October 27, 2020, a Federal Court judge dismissed the lawsuit by Canadian youth against the Canadian government on a pretrial motion to strike for failing to state a reasonable cause of action. . . .
A similar motion was put forward in Mathur, but it was rejected by the Ontario Superior Court of Justice, so that case has yet to be heard.
The final case that follows this theme is Lho’imggin et al. v. Her Majesty the Queen, which was launched in February 2020 during the blockades resulting from some Wet’suwet’en opposition to the Coastal GasLink pipeline. The plaintiffs argued that Canada has failed in its international obligations under UNDRIP, and that the government’s inaction on climate change has caused irrevocable damage to their traditional lifestyles and land. They also contend that Canada “. . . has a constitutional duty to maintain the peace, order and good government of Canada . . .” The case has not yet been heard.
Honourable senators, I am concerned by what I have learned. With two cases looking to define what the right to a “healthful environment” would afford, it seems prudent to wait to introduce such a right in legislation.
It brings me back to the need to preserve the certainty that so many have lauded in CEPA. Environment and Climate Change Canada, on their own website, describes CEPA as providing:
. . . a structured predictable approach to risk management decision-making that provides for the input and full consideration of public values and concerns at all stages of the decision-making process. . . .
In my opinion, if we are to agree to put the official recognition of this right into a bill that industry relies upon for clarity on process and policy, we must ensure we know right here and now what that right means. We should not be waiting years for answers regarding how to implement this right or what actions and expectations that right entitles Canadians to.
There are many other concerns that I have with this bill, colleagues, that will not fit into the short time that I have in speaking to it today. I have not had a chance to discuss my concerns regarding the potential infringement on provincial or territorial jurisdiction, nor do I have time to fully discuss concerns regarding the change in how substances are labelled “toxic” or, as clause 75.1 states, “. . . capable of becoming toxic.”
I will close in saying that I believe careful and thorough study of this bill must be done in committee. I sincerely hope our committee is not rushed as it considers this important bill since I, for one, am hoping to gain more clarity and comfort through that process.
Thank you.
Honourable senators, I rise today to speak to Bill S-5, the strengthening environmental protection for a healthier Canada act.
As you know, I am a longtime supporter of the agricultural industry, and it’s what I know best. So as you can likely assume, my focus today will be the way in which Bill S-5 may impact the agricultural industry. I understand that this is the first time the Canadian Environmental Protection Act, or CEPA, has been amended since 1999. It is clear, as my colleague the Honourable Senator Kutcher highlighted in his earlier speech, that a great deal has changed since then. A great deal has changed about our world in general but also in the world of agriculture. Farming is smarter and more connected now than it ever has been before. As things are continuing to change, the agriculture community is ready to change with it.
That being said, I have recently learned from a few agricultural stakeholders that there are minor concerns about the inclusion of and language around a precautionary principle throughout the bill, particularly since it states that a weight-of-evidence approach and a precautionary approach should be taken.
Members of the agricultural community are concerned that it’s commonly understood that a precautionary approach is used in the absence of data. A weight-of-evidence approach, on the other hand, suggests there is evidence in place.
While the balance between the precautionary principle and weight-of-evidence approaches referenced in the bill isn’t new, as it already is in CEPA, there is a need for clarity as to how it is to be applied to the broader subset of potentially toxic substances this bill brings into CEPA consideration.
It is important to note that there is existing guidance on how the two are balanced by Environment and Climate Change Canada. However, agricultural stakeholders have highlighted the critical need to ensure the end result is as fully informed decision making as possible. And I agree with their concern that Canadian regulators should have a clear mandate to pursue additional evidence where it’s found lacking.
Ultimately, given the important role this bill will play in evaluating substances present in our environment, I believe that where there is an absence of data, there should be legislated processes and mechanisms to request more data. I am hopeful that members of this chamber will consider such a matter at committee and investigate how we can possibly strengthen this bill to ensure its success.
Another area that members of the agricultural industry have flagged is regarding chemistries that are not yet registered as pesticides and whether or not they will fall under the Canadian Environmental Protection Act, 1999, or CEPA. This would be critical to receive clarification on this, so that manufacturers can be mindful of speed to market for innovation and tools that will support food producers.
Due to administrative burdens, farmers remain concerned with lost competitiveness and any further delays in getting access to new innovations. In fact, every year that Canadian farmers go without a product that’s available to our major trading partners represents an additional obstacle to their competitiveness and to Canada’s competitiveness on the world stage. Health and safety are paramount for and to farmers, but the efficiency of Canada’s regulations in addressing this priority needs to be examined closely to ensure it supports and strengthens the competitiveness of the Canadian agricultural industry.
One additional area of concern that agricultural stakeholders have raised is with respect to section k, wherein it states:
expand certain regulation-making, information-gathering and pollution prevention powers under that Act, including by adding a reference to products that may release substances into the environment;
Depending on how they are applied, there is a question about whether these powers will impact on farm activities. I am hopeful that farmers and the greater agricultural community will be consulted on this section to assess potential implications.
Finally, as Senator Kutcher highlighted, thousands of substances have been identified as needing risk assessments, and many that have been previously assessed may require re‑evaluation because of new uses, new scientific information and greater exposures than were the case at the time of the original evaluation.
This could cause delays and backlogs in the use of these substances, which could potentially lead to further issues and concerns. While I am pleased to see that the time is being taken to understand the potential risks of these substances, we must ensure it is an efficient and effective process.
All that being said, there are aspects of the bill that members of the agricultural community have voiced their support for, namely, the efforts to reduce, refine and replace animal testing. Agriculture has actively worked as a partner towards this change, but it cannot be successful without further support from government.
I heard from Syngenta Canada, a leading agriculture company offering innovative products, expert agronomic advice and support for best management practices, on their work in animal testing. They shared that the scientific community has been working to help the government make scientifically backed decisions that protect both human and environmental health with the use of fewer animal studies. To that end, Syngenta has been working with multiple agencies to develop other methods and evaluation strategies that will allow the agricultural industry, government and regulatory agencies to make better decisions. In fact, some of the methods they have developed and advocated for have already been accepted by regulatory agencies.
As a long-standing member of the agricultural community, I’ve risen on a number of occasions in the Senate Chamber to highlight the role of Canadian agriculture in relation to their efforts to protect the environment and support the fight against climate change.
Across the country, farmers are changing the way they farm by adopting more sustainable approaches, like the way they seed, till and prepare their land, as well as the control of weeds. Practices such as crop rotation and the use of cover crops to help improve soil health, slow erosion and increase soil organic matter all promote healthy crops and livestock, as well as contribute to a healthy ecosystem. All of this helps support a healthier, more sustainable environment.
The challenge for the agriculture and agri-food sector will be to mitigate greenhouse gases while adapting to the impacts of climate change without jeopardizing food security. To do so, Canadian agriculture producers and food processors will need government support in transitioning their operations to be more sustainable, and they will also require the government to continue engaging with the industry as they seek to change decades-long practices and procedures.
On that note, I would like to commend the government for its recently published discussion document on reducing emissions arising from the application of fertilizer in Canada’s agriculture sector. This document addresses one of the measures put forward in the government’s strengthened climate plan, which is a national target to reduce absolute levels of greenhouse gas emissions arising from fertilizer application by 30% below 2020 levels by 2030. This is an important measure. While many in the agriculture sector are already working to improve nutrient management and reduce emissions associated with crop production, it is important to note that fertilizers are responsible for a growing share of overall agricultural emissions.
I was pleased to see that the document discusses the 4R Nutrient Stewardship approach developed by Fertilizer Canada, as it was raised by a large number of stakeholders during the first phase of consultations as a pathway for achieving emission reductions. This is exactly the type of ongoing consultation and collaboration that is needed going forward.
I hope that the officials from Environment and Climate Change Canada, in addition to those of Agriculture and Agri-Food Canada, will continue to strengthen and enhance their relations with Canada’s agricultural community. As farmers and the agricultural community at large are the stewards of our land, they must be involved in the conversation around protecting our environment. Most importantly, they are willing to be partners in that conversation and those efforts to safeguard Canadian ecosystems.
Honourable colleagues, I am pleased to see that steps are being taken to update the Canadian Environmental Protection Act, especially after so much has changed since 1999, including our understanding of the environment. However, as I mentioned earlier, the agricultural community has some concerns about the language and use of some of the matters included in Bill S-5, and we all believe these issues should be investigated further by both the committee and government. Further, it is my hope that this investigation will lead to amendments to this bill in committee and, therefore, before it reaches the other place.
We are all well aware that our world continues to change. With it comes changes in industry, science and the environment. It is my hope that Bill S-5 will give Canadians a well-thought-out and integrated plan for the assessment of substances insofar as it remains committed to the risk-based approach.
It is also my hope that the public and private sectors, as well as everyday Canadians, will continue working alongside and supporting the agricultural industry as they work to adapt to a changing environment and seek to strengthen and enhance their practices. It is not enough to tell farmers what needs to be done to make their operations greener and more environmentally friendly. It must be a collaborative effort that will keep Canada’s agricultural industry strong for generations to come.
Thank you. Meegwetch.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to and bill read a second time.)
