Strengthening Environmental Protection for a Healthier Canada Bill
Bill to Amend--Message from Commons--Motion for Concurrence in Commons Amendments--Vote Deferred
June 8, 2023
Honourable senators, almost a year ago, on June 22, 2022, I rose on debate in this chamber and spoke about Bill S-5 and changes that I strongly felt were necessary to not only make it a stronger bill but to ensure that it responded to the serious and legitimate concerns that stakeholders had raised to me and later in committee.
I presented amendments in committee that had been accepted by the committee, but, to my great frustration, were then defeated by the same committee when we had to unexpectedly redo an entire week’s worth of clause by clause because the previous virtual participation of a senator and member of our committee had been deemed out of order due to their being out of the country at the time.
It was aggravating enough to have had amendments passed in committee and then have to vote again days later and have those same amendments defeated after the government had more time to formulate rebuttals. But what added insult to injury is to receive the message back, which we’re debating today, and see that other amendments of mine were deleted on the other side and know that this bill isn’t as strong as it could be.
My amendments on genetically modified organisms in clause 39.1 of the bill were aimed at responding to very thoughtful and alarming concerns by Nature Canada and other witnesses who appeared before the Energy, the Environment and Natural Resources Committee. They added transparency and opportunities for public input when the minister is considering allowing new genetically modified organisms to be bred and sold in Canada.
It was disappointing to see those amendments removed during committee in the other place and to be replaced, as we see in this message, with watered-down versions that do not provide a robust regulatory process that supports true consultation. I would add that my recommendations were supported by the Assembly of First Nations and the Atlantic Salmon Federation.
In this disappointing message, we see that notices are the only thing required and that the minister shall, “consult any interested persons before the expiry of the period for assessing that information.” That qualification of “interested persons” as opposed to my original wording of ensuring the public could participate meaningfully puts the onus on the public to stay abreast of regulatory developments as opposed to putting the onus on the government to make sure that they are doing more than just posting a notice on some government website most people won’t see or be able to find.
I am reminded again of Ms. Karen Wristen of the Living Oceans Society who told our committee that she had been taken by surprise that a new species of genetically modified Atlantic salmon had been introduced into Canadian waters in Prince Edward Island. As a lawyer working actively in the environmental non-government organization space, she was disconcerted — as was I — as she told the committee that she didn’t know about such a significant event. It makes me wonder how other potentially interested parties will be kept abreast of opportunities to participate and provide input to the minister.
In considering my response to the message, I made sure to follow up with Mr. Hugh Benevides and Mr. Mark Butler of Nature Canada to get their thoughts on the proceedings in the other place, as I believe our role as senators includes ensuring voices that are otherwise marginalized are heard during the legislative process. I understand from them that there were compromises offered to try and find a middle ground between the amendments we passed in our committee process and the amendments passed in the other place. It was their hope that all parties would appreciate the compromise, pass them as recommended and then have senators be satisfied once we received the message since these suggested amendments would have ensured an opportunity for at least some degree of public participation in the all-important work of risk assessments.
Instead, the offer of a compromise was rejected in the other place. There is now no guarantee that the CEPA — the Canadian Environmental Protection Act — ministers will determine that any persons are interested and therefore ought to be consulted. It’s entirely at the discretion of the minister, in a department that doesn’t seem to consider this issue of genetically modified organisms being introduced into Canada is at all important. There is neither a requirement as to the type or quality of the consultation or that any information will be brought to the consultation, nor do the amendments made in the other place allow the regulations to provide for the consideration of Indigenous knowledge or scientific information provided by other than the proponent — obviously very self-interested — or the government.
The compromise amendments to proposed section 108.1, on the other hand, would not depend on any determination by the ministers who might be interested. The opportunity to “. . . bring forward any relevant Indigenous knowledge and scientific information . . .” would not depend on such a determination as set out in subsection 108.1(1).
Instead, a proponent filing information indicating a wish to manufacture or import a new living organism under section 106 of the CEPA would trigger automatic publication of that fact in the Canadian Environmental Protection Act Registry, subsection 108.1(2), thus notifying Indigenous peoples and the public of the proposed new living organism. But no such thing happened in the case of the genetically engineered salmon, forcing members of the public to seek judicial review in the Federal Court.
The proposed amendment to the regulation-enabling section 114 would simply allow the government, following its still-promised but yet-to-be-seen reform of the New Substances Notification Regulations (Organisms), to include provisions in the regulations for how the regulator may receive “. . . any relevant Indigenous knowledge and scientific information . . .” so that it may be considered as part of the assessment.
Colleagues, as we’ve heard, this is the first time in decades that the CEPA is being substantively amended. The Standing Committee on Environment and Sustainable Development in the other place, after studying these issues carefully, recommended in 2017 that:
The Committee recommends that CEPA be amended to establish a more open, inclusive and transparent risk assessment process that better enables public participation in the evaluation of new living modified organisms.
Especially considering this clear recommendation from a thoughtful and thorough committee study in the other place, I felt it important that we take this opportunity in this chamber to address that recommendation rather than letting it join the many well-intentioned parliamentary reports that are sitting on a shelf somewhere gathering dust.
Honourable senators, I am speaking today because I’m incredibly disappointed in the convoluted journey this bill has taken throughout the legislative process. It is discomforting to me that we have lost the opportunity for full, meaningful public participation in a decision as important as the introduction of genetically modified organisms in Canada, including iconic species like Atlantic salmon. We have a real example here of the perils of this watered-down bill. That’s why I will be voting against this message. Thank you.
Honourable senators, I rise to speak to the message on Bill S-5, Minister Guilbeault’s update to the Canadian Environmental Protection Act, known as CEPA. Bill S-5 will make changes to CEPA that are exciting and timely, with Canada following Quebec in recognizing citizens’ rights to a healthy environment. This message also accepts and even improves the Senate’s many amendments to minimize and, hopefully, eliminate the cruel practice of toxicity testing on animals. Thank you, Minister Guilbeault and Senator Gold, for this fantastic result that Canadians, the government, the Senate and the other place can jointly celebrate.
Colleagues, for context, CEPA is an important statute that has been used to ban plastic microbeads in toiletries, to prohibit asbestos and to prevent the use of dangerous chemicals in baby bottles. Last year, the government used CEPA to ban single-use plastics to address the plastic pollution that is filling our waterways and oceans and killing marine life like whales and sea turtles. This change is being fought in court by Dow, Imperial Oil, and other representatives of Big Plastic, along with the governments of Alberta and Saskatchewan.
However, let us focus on the positive with this Bill S-5 message, particularly the acceptance and enhancement of Senate amendments aiming to reduce and, hopefully, phase out animal toxicity testing.
As senators may recall, in Question Period on March 3 of last year, I asked Minister Guilbeault if the government was open to Senate amendments to strengthen Bill S-5 to support the government in fulfilling their election commitment to phase out chemical testing on animals by 2035. The minister’s answer was an enthusiastic yes, and shows that even ministerial Question Period can be helpful and useful.
Today, I also want to thank Senator Galvez, who has agreed to put forward some amendments that were drafted by my team with the support of associations involving animal rights. Thanks to the minister’s openness and Senator Galvez’s willingness to participate in the adventure, we have a bill which is now close to Rideau Hall that contains provisions about animal testing thanks to all of us and the efforts that were made.
This change is a big deal. As I said at second reading of Bill S-5, toxicity testing is the most harmful and painful use of animals in scientific research. Toxicity tests impacted approximately 90,000 animals in 2019 alone. Moreover, such tests fall into the Canadian Council on Animal Care’s Category E tests. What is a Category E test? This is the most severe category of harm that can be imposed on an animal. Category E tests cause death, severe pain and extreme distress and may include procedures such as inflicting burns or trauma on unsedated animals and forcing ingestion or topical application of deadly substances.
I was shocked to learn of the scale of this testing in Canada. I was also surprised to learn of the range of species involved in Category E testing. That includes guinea pigs, rabbits, mice and other small mammals, pigs, sheep, beavers, chickens, turkeys, hummingbirds and many species of marine and freshwater fish. With this message, we take a major step to a more compassionate and humane Canada, recognizing that these animals are our fellow creatures and sentient beings who deserve our respect.
With the openness of Minister Guilbeault and the assistance of Senator Galvez, we now have a promise fulfilled.
I would also like to thank and congratulate the organizations responsible for this milestone.
They are Animal Justice Canada, Humane Canada, the Canadian Centre for Alternatives to Animal Methods, Humane Society International/Canada and the Canadian Society for Humane Science.
Camille Labchuk, a lawyer and the Executive Director of Animal Justice — a national animal law advocacy organization — has the following message for us, senators:
The amendments to Bill S-5 championed by senators improved upon the aspirational preamble originally included in the bill. Instead, we now have a bold and concrete path forward, aimed at getting animals out of painful toxicity tests for good. This will bring us more in line with other jurisdictions that are leading change for animals used in science, like the US and the EU.
Animal lovers across the country are grateful for the work of senators on this bill and many others. The Senate has been a true leader in driving change to Canada’s outdated animal protection laws, whether it be animals used in testing or cosmetics, whales and dolphins trapped in aquariums, sharks killed for their fins, or other wild animals in captivity.
In this tremendous achievement, I would like to single out for special recognition Kaitlyn Mitchell, a staff lawyer for Animal Justice. Her expertise was critical in developing our Senate amendments regarding animal toxicity testing. Wherever Ms. Mitchell is today, I say, “Thank you,” and please stand and take a bow. You have saved countless animals from meeting a horrific and painful end through your personal determination and legal skill.
I trust senators will join me in congratulating Ms. Mitchell and all of the organizations and individuals who played a role in this landmark accomplishment.
On a related and positive note, the government is taking action to end animal testing for cosmetics through measures in Bill C-47, the budget implementation act. This fulfills the goal of former senator Carolyn Stewart Olsen’s bill on this subject in the Forty-second Parliament.
We are seeing progress for animal welfare on many fronts in Canada, with several major government election commitments on this subject also awaiting further fulfillment. This progress is something to celebrate in this time of crisis for the environment and our fellow creatures, whom the Honourable Murray Sinclair has taught us to consider as “all our relations” as we pursue reconciliation with nature.
Therefore, I trust colleagues will join me in concurring with this excellent and well-received message from the other place.
Thank you. Meegwetch.
Honourable senators, I rise to speak to the message from the House of Commons regarding Bill S-5, the strengthening environmental protection for a healthier Canada act.
As all of you are well aware and, I am sure, appreciate, my speaking time today is unlimited, so in order to ensure senators are under no illusions about precisely what we will be voting on, I thought I would begin my remarks by reading the entire message that the Speaker read to us the other day, unless somebody suggests I dispense. I might be convinced to do that.
All right. Once was enough, and I’m sure all senators agree.
Bill S-5 was adopted by the Senate and sent to the House of Commons on June 22, 2022. That was 351 days ago. For a bill that the government was in a hurry to get passed, which is why it was originally introduced here, it has been slow going. Bill C-28, which was identical to Bill S-5, was introduced in the previous Parliament in April 2021. So it has been two years — some hurry.
As my Conservative colleague in the House of Commons pointed out when he spoke to this bill a couple of weeks ago, the responsibility for its slow progress lies squarely at the feet of the current Prime Minister, who selfishly triggered a pointless and expensive election in order to try — unsuccessfully, I might add — to win back the majority that Canadians had denied him in 2019. That failed attempt, colleagues, cost taxpayers $600 million — $600 million to end up with, essentially, the same minority government Mr. Trudeau had been saddled with prior to that election.
Now, I exaggerate, of course. It is not exactly the same minority government Canadians saddled him with in 2019. It is, indeed, now an NDP-Liberal costly coalition that no Canadian voted for.
A $600-million sum — imagine if that money had been spent on the environment instead. Then again, given the government’s sorry record on the environment, it would have been millions of dollars wasted in a different way. To be sure, this government has talked big on the environment but has done precious little. It has never met a single carbon emissions reduction target, for instance, in all their years in power, targets they adopted from the Harper government after criticizing that government during the 2015 election for having those very same targets.
Carbon emissions have gone up under this NDP-Liberal government, not down, and that is despite his vaunted carbon tax, which is an absolute and abject failure and is costing Canadians dearly at the worst possible time — a time of high inflation and rising interest rates.
While the government talks glowingly about rebates offsetting the carbon tax, the Parliamentary Budget Officer has made clear that the majority of Canadians pay more in carbon taxes than they get back in rebates. Last year the Commissioner of the Environment released 10 reports on the performance of the Liberal government on protection of the environment. More than half of the reports show the government was failing to meet its targets.
Even the United Nations has weighed in. It noted in a report at the COP 27 in Egypt that Canada placed 58 out of 63 nations on environmental issues.
“Canada is back,” as Justin Trudeau claimed at the COP 21 Paris conference. Canada is back — way back in fifty-eighth position.
I will not delve into the specifics of the bill or the message. Both houses of Parliament have already spent a lot of time on this. Those efforts, collectively, resulted in a bill that had the support of all parties as well as government, industry and environmentalists when it came out of House of Commons. But then, honourable senators, in tried-and-true fashion and at the last minute during the report stage of the bill in the House of Commons, the Liberals couldn’t pass up the opportunity to do more virtue signalling. I can explain the situation no better than was done in the press release issued by the Alberta Conservative caucus on May 19, in which they wrote:
At Report Stage, the NDP put forward an amendment which encroaches on provincial jurisdiction in respect of regulating mining tailings ponds and hydraulic fracturing, which the Liberal members had opposed at the Environment Committee. Despite their opposition at Committee, the Government flipped-flopped and voted in support of the NDP amendment encroaching on provincial jurisdiction.
The NDP amendment, passed with last-minute Liberal support, is a clear infringement on provincial jurisdiction. This makes the legislation open to more jurisdictional court battles and uncertainty.
As a result, the Conservative Party will be withdrawing its support for Bill S-5.
It goes on:
Canada’s regulatory oversight framework is based upon clear division of responsibilities between the provinces and the federal government, as defined in our Constitution. The continued attempts to muddle this jurisdictional responsibility have led to a convoluted process of project approvals, duplication of costs, and uncertainty amongst investors.
The uncertainty brought about by the unpredictability of the NDP-Liberal government on energy policy has a real cost for Canadians. Canada needs to articulate a clear federal government policy if we want to attract and retain jobs and investment.
To be clear, colleagues, the NDP amendment gives the federal government the power to compel the production of information about tailings ponds and hydraulic fracturing — out of that arises the infringement on provincial jurisdiction.
The Senate had, unfortunately, adopted these amendments to the original version of Bill S-5, and the Liberal members of the House of Commons voted to remove this from the bill because they felt it was redundant. For no other reason than posturing for some environmental groups, the Liberals did a 180-degree turnaround and put this back in the bill. The Liberal position on this issue is that it’s redundant one week and essential the next week.
Alberta has already taken the federal government to court over the fact that plastic is listed in Part 2 of Schedule 1 of the bill as a substance to be regulated.
Does anyone here really doubt that recently elected Alberta Premier Danielle Smith, who has been scathing about the federal government’s energy policy, will not hesitate to challenge this aspect of the bill in court?
Honourable senators, let me conclude my remarks with these words from the Library of Parliament publication called The Division of Federal and Provincial Legislative Powers in Sections 91 and 92 of the Constitution Act, 1867.
It says:
. . . determining whether a matter falls under federal or provincial jurisdiction is not always as easy as simply reading the text of the Constitution. This is for several reasons. First, numerous policy areas have arisen over time that were not explicitly assigned in the Constitution. Second, judicial interpretation has expanded certain sections of the Constitution beyond what might be expected from a plain reading of the language and, conversely, has narrowed other sections. Courts have also interpreted some policy areas as being areas of overlapping or “concurrent” jurisdiction.
Surely the environment is one of those policy areas — that has arisen over time — that was not explicitly assigned in the Constitution. It is also well understood that the provinces generally legislate in the area of natural resources.
In 1982, section 92A was added to the Constitution and expanded the area of exclusively provincial jurisdiction around natural resources to include the exploration of non-renewable resources in the province and their development, conservation and management, as well as the conservation and management of sites and facilities for electricity production.
To be sure, there are exceptions in which the federal government can regulate. However, this last-minute amendment at report stage — that had been rejected by the House committee, and which we were told is redundant — unnecessarily opened a can of worms, and once again targets a province that this government has seemingly had in its sights since it came to power in 2015.
Honourable senators, the government’s flip-flop on this issue, and the intrusion into provincial jurisdiction that this opens the door to, is a deal breaker for us — and it should be for all senators. We are, after all, appointed to represent our regions and our provinces, as is spelled out in the Constitution. As our former esteemed colleague Senator Joyal pointed out in his book entitled Protecting Canadian Democracy:
One of the key elements of the Confederation compromise was the creation of a Senate with the necessary legislative powers to defend sectional interests.
He quotes no less a personage than our first Prime Minister — the great Sir John A. Macdonald — who wrote:
To the Upper House is to be confided the protection of sectional interests; therefore is it that the three great divisions are there equally represented, for the purpose of defending such interests against the combinations of majorities in the Assembly.
We are appointed by province. We introduce ourselves at committee by naming the province that we represent. I represent Manitoba and the western division that also includes Alberta, British Columbia and Saskatchewan. It is our duty to look after our regional and provincial interests, so I am here to defend the interests of my region.
It is incumbent upon us, as the Senate, to take a closer sober second look at how we safeguard provincial jurisdiction when it comes to federal intrusions.
The Conservative Party of Canada is and will always be there to ensure that the provinces are defended against the centralization tendencies that the Liberals and the NDP have.
With this provision of Bill S-5, the federal government is extending its powers over the mining industry. We know that the Liberals would love to force onto the provinces some of the so-called national quality standards on air or water. We cannot allow these attacks on our Constitution.
Colleagues, I invite you to join us and Senator Patterson in voting against Senator Gold’s motion — and send a clear message that the Senate rejects this Ottawa-knows-best approach, and that the Senate is proud to play its role as a defender of the rule of law and the respect of the Constitution. Thank you.
Are senators ready for the question?
Is it your pleasure, honourable senators, to adopt the motion?
Those in favour of the motion, please say “yea.”
Those opposed to the motion, please say “nay.”
I think the “nays” have it.
I see two senators rising. Is there an agreement on the length of the bell?
Pursuant to rule 9-10(2), the vote is deferred to 5:30 p.m. the next day the Senate sits, with the bells to ring at 5:15 p.m.
