Strengthening Environmental Protection for a Healthier Canada Bill
Bill to Amend--Third Reading--Debate
June 22, 2022
Moved third reading of Bill S-5, An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act, as amended.
He said: Honourable senators, I rise today to speak at third reading of Bill S-5, the “Strengthening Environmental Protection for a Healthier Canada Act,” which modernizes the Canadian Environmental Protection Act, or CEPA.
I would first like to acknowledge the work done by the members in this chamber of the Standing Senate Committee on Energy, Environment and Natural Resources as we studied this bill. A huge thank you is also owed to our staff: the clerk, analysts of the committee and all those whose support has brought us to this point.
I would also like to especially thank Senator Arnot, who kindly gave up his space on the Energy Committee for me, as sponsor of the bill, to participate. I congratulate him on having his first amendment to a piece of federal legislation accepted by the committee. It will not be his last, I’m sure.
When Minister Guilbeault, in his opening remarks at committee, invited the Senate to study and seek ways to improve this bill, senators took this to heart. You all heard about the number of amendments that were proposed to this bill from Senator Massicotte. We all discovered that modernizing an act as complex as CEPA is not an easy task.
As Senator Massicotte noted yesterday, the committee made a number of amendments to the bill. It also refused some amendments after vigorous debate and thoughtful deliberation. In my opinion, in these decisions around which amendments to accept and which to refuse, the committee exercised its due diligence — moving ahead on those areas it had comfort with and not moving ahead on areas that gave it discomfort.
Over the past two months, the committee heard from numerous witnesses representing many and diverse perspectives. I acknowledge the interest and valuable input of all those who took the time to testify, to provide briefs and to reach out to discuss the many issues that arose during our committee work. The engagement of civil society and industry in our study of this bill illustrates the importance and value of our democratic process.
I am proud to support this bill as it has been amended, and I urge all senators to vote to adopt it and send it to the other place for their consideration.
CEPA is one of Canada’s core environmental laws. It protects the health of our people and our environment, largely by enabling federal action on a wide range of pollution sources.
Much has changed since its last significant update in 1999. The proposed amendments to CEPA, if passed, will strengthen the protection of Canadians and our environment, and will provide Canadians with an environmental protection law that confronts 21st-century issues with 21st-century science.
This bill proposes a number of changes to achieve this goal, which can be summarized in two major themes. First, Bill S-5 recognizes that every individual in Canada has a right to a healthy environment, as provided under the act.
To ensure that the right to a healthy environment is meaningful in the context of CEPA, this recognition is paired with a duty of the government to monitor and protect that right. How that will be operationalized will be elucidated in an implementation framework to be developed in collaboration with Canadians within two years of Royal Assent of this bill. That will explain how the right will be considered in the administration of the act.
With amendments that were made in committee, that implementation framework will, among other things, elaborate on principles such as environmental justice, which includes avoiding adverse effects that disproportionately affect vulnerable populations; intergenerational equity, which means meeting the needs of the present generation without compromising the ability of future generations to meet their needs; and non-regression, which means not rolling back environmental protection and continuously improving the health of the environment and of all Canadians. It was clear from the thoughtful discussions in committee that senators were keen to ensure that this right would be meaningful and the guidance on developing the implementation framework clear.
I think the bill reflects those considerations.
Second, this bill proposes to modernize Canada’s approach to chemicals management. It requires a new plan of chemicals-management priorities to give Canadians a predictable, multi‑year, integrated plan for the assessment of substances, as well as the activities and initiatives that support substances management. That includes, but is not limited to, information gathering, risk management, risk communications, research and monitoring. It also adds a mechanism for the public to request the assessment of a substance.
The bill sets out a workable regime for substances of the highest risk, which include persistent and bio-accumulative substances, as well as certain carcinogens, mutagens and substances that are toxic to reproduction. The bill requires that, when considering how to manage such substances, priority be given to prohibiting them.
The bill also reorients the act to additional considerations based on emerging concerns of Canadians and the growth of a robust and yet-developing scientific understanding of the impacts of cumulative effects of substances. It also extends its acknowledgement of the necessity to identify and protect vulnerable populations, and, as a result of the committee’s discussion, vulnerable environments.
The bill also now includes several provisions to avoid regrettable substitution. That means taking a substance which could be quite toxic to human health and putting it into commerce. The most important of these remains the watch list, which will give an early warning to industry of substances that, for example, are hazardous and may be determined to be CEPA‑toxic if exposure to them or their uses change.
The bill further eliminates duplication between acts and departments, and, if passed and if appropriate regulations are adopted, would remove the requirement to notify, assess and manage new drugs under two separate acts as is currently the case. For example, the Food and Drugs Act for the safety, efficacy and quality of a drug; and, concurrently, CEPA for the environmental risks of the drug’s ingredients. This would provide a more efficient and effective approach to assessing and managing the risks of drugs in Canada.
Finally, the bill increases transparency with changes to the confidential business information regime and now includes substantive requirements to accelerate efforts to replace, reduce and refine animal testing.
As someone who is familiar with the issues regarding the use of animals in health-related research, I am particularly pleased that the Senate amendments to this bill have moved the yardsticks toward the goal of eliminating animal testing of substances as soon as is scientifically possible.
As I mentioned previously, there was vigorous and thoughtful input from civil society and from industry during the committee’s study of this bill. We heard from over 35 witnesses and received numerous written submissions covering a wide swath of issues, items of concern and suggestions for changes. The committee heard from Indigenous organizations, industry organizations, non-governmental organizations, academic experts and individual Canadians, all of whom shared their opinions on the bill and CEPA reform in general.
We heard commentary on a variety of topics, including animal welfare, increasing transparency, public access to information and the assessment and management of toxic substances, among others.
We heard pleas for increased transparency and easier access to information provided under CEPA, confidential business information and modifications to the online CEPA Registry to make it more user-friendly.
We had calls for increased specificity in the risk assessment and risk management processes. We heard about some of the many long-standing hardships faced by Indigenous peoples in relation to pollution and the need take to heart the UN Declaration on the Rights of Indigenous Peoples as well as our constitutional duties and to ensure that the implementation of CEPA would be guided by these.
We heard about the need to “put the health of people and the environment first” and to ensure that vulnerable people and vulnerable environments would be top of mind, not bottom of the pile.
The committee adopted several amendments related to these topics. I will highlight three recurring themes in our discussions and address some of the adopted amendments that address those.
To begin, several amendments were made to better incorporate Indigenous rights and perspectives. Indigenous knowledge was explicitly recognized alongside current and emerging science.
The committee also addressed consultation and reporting requirements. New requirements were added to provide greater notice of actions and decisions under the act, and emphasis was added on the need for a searchable, electronic registry.
The committee added additional protections for vertebrate animals by including substantive provisions to the bill that go beyond the aspirational statement in its preamble and that reordered the three Rs — reduce, replace and refine — to reflect that the first priority is to replace entirely the use of vertebrate animals in toxicity testing. If that is yet not possible, then their use should be reduced and refined. That means attending to their welfare when used for testing.
Among other changes along this theme, the committee also adopted an amendment to require that the plan of chemicals management priorities include specific activities or initiatives to promote the development and implementation of alternative testing methods that do not involve the use of vertebrate animals. This will encourage the development and timely incorporation of scientifically justified alternative methods and strategies in the testing and assessment of substances and is consistent with actions being taken by international partners such as the United States and the EU.
The committee also made a number of observations that I personally hope will drive the government to improve its ability to deliver on what this bill now demands.
Bill S-5 amendments have noted, for example, in section 44 that:
The Ministers shall conduct research, studies or monitoring activities to support the Government of Canada in protecting the right to a healthy environment. . . .
Another amendment replaces paragraph 45(a) with a new passage that requires the Minister of Health to “conduct research and studies, including biomonitoring surveys, relating to the role of substances in illnesses or in health problems.”
Unfortunately, honourable senators, as we heard from witness testimony, the government is not at this time able to provide the essential, robust and comprehensive biomonitoring, biobanking, ongoing longitudinal cohort studies and toxicogenomic analyses that are necessary to support what this bill promotes. Additionally, the committee learned that existing biomonitoring activities do not currently include an appropriate representation of Indigenous peoples. Both of these issues will need to be resolved, as without a robust and fulsome scientific capability in all the areas that I have mentioned, the promises that this bill makes for improved health for people and the environment will not be met.
Many Canadians will be watching to see how rapidly this need for enhancing our capacity to do this essential scientific work will develop and what funding and expectations for the development of this scientific capacity the other place can put into the bill to further promote this necessity.
I am proud to support this bill and urge all senators to vote to adopt it and to send it to the other place for consideration. This modernization of CEPA will be an important step for the Government of Canada toward the continued protection of people’s health and the environment, and I trust it will not be the last.
Many parts of CEPA were not modified as they were not within the scope of this bill, but we hope that in the not-too-distant future, as alluded to by Minister Guilbeault’s testimony before our committee, we will soon have a chance to address other parts of the act and continue to improve CEPA.
I look forward to following the debates on Bill S-5 in the other place, and I hope the revised and improved version of Bill S-5 which is before the Senate today will be adopted here and moved forward as expeditiously as possible.
Thank you, wela’lioq.
Senator Kutcher, will you take a question?
Absolutely.
Thank you. Could you expand on biomonitoring as it applies to Indigenous people and when you think it will come to fruition? In other words, what are the areas we have gone over that will be excluded because this cannot be done at this time?
Thank you very much for that excellent question. Biomonitoring, which means looking at the accumulation of substances in the human body — you can look at that through blood work or your nails, hair, tissue and other things — is an essential component of being able to determine how substances impact human health, not just at one point in time but over longer periods of time.
We need the capacity to do that kind of biomonitoring work in the general population, but also very importantly in vulnerable populations. With respect to people who are living in environments in which toxicity is known to be potentially greater, biomonitoring tells us what we need to know in terms of the impact of environment on human health. Canada currently does some biomonitoring but not enough. We heard from witnesses that the biomonitoring has to be much more robust. Many more people need to be involved. It has to reflect the variety of Canadians, of the Canadian population. It cannot just be given to one group. All Canadian groups have to be involved in the biomonitoring so we can see what differential effects the environment can have on different groups.
We also heard testimony that Indigenous peoples are not included in the routine biomonitoring, and certainly not as included as they should be in terms of large enough numbers for us to get a good understanding of what’s happening to Indigenous peoples.
Because we can’t put money into this bill in the Senate, we strongly urge through our observations that these scientific necessities be improved dramatically within Canada and that the other place address those in this bill. Thank you very much, Senator McCallum, for that question.
Honourable senators, I rise to speak to Bill S-5, the strengthening environmental protection for a healthier Canada act. As you may know, the Canadian Environmental Protection Act, or CEPA, was adopted in 1999 and has not seen any significant modernization since. Twenty‑three years is too long of a wait to update our protection regime in a fast-changing world. More than 28,000 chemicals are registered for use today, and more than 600 new chemicals are introduced every year in Canada, which is more than triple than in the U.S.
I encourage you to vote in support of Bill S-5 as amended in committee and want to use this opportunity to explain how and why CEPA affects all of us, and why it is important that we frequently study and review this act.
CEPA provides the framework for how, why and when chemical substances are assessed for toxicity, and whether and how they need to be regulated. Bill S-5 seeks to strengthen this assessment and regulation-making framework.
The House of Commons Standing Committee on Environment and Sustainable Development studied this bill in 2017 and made 87 recommendations. Just a few of these recommendations were taken into account in Bill S-5, most notably the consideration of vulnerable populations. A number of the recommendations from the committee and from experts have not yet been included, such as the requirement of justification for confidentiality requests, risk assessment, climate change, pesticide management, radioactive substances, electromagnetic radiation and genetically modified organisms.
A number of senators tried to fill these gaps by proposing amendments during the committee’s study. I want to thank Senators Miville-Dechêne, McCallum, Patterson and Arnot for their thoughtful proposals. I also want to thank Senator Kutcher, the sponsor of the bill, for agreeing to take on the difficult task of sponsoring such a large and highly technical bill.
Yesterday, the Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources shared some statistics about our work and our overall findings. I won’t repeat everything that he shared, but I do want to emphasize that 64 amendments were presented, 34 of which were adopted. I’m pleased that my colleagues supported 14 of my amendments, many of which had to do with the reduction of assessments and the number of tests on vertebrate animals.
Under CEPA, the government is tasked with assessing substances and categorizing them depending on their toxicity. The Government of Canada assesses approximately 600 new substances in the Canadian market each year. Yet, with all these substances and thousands of new products imported to Canada annually, the government has not given itself sufficient resources to undertake adequate testing. If you heard my question earlier to Senator Gold, we don’t know if the government is overly reliant on industry to provide the scientific basis for assessments, if university labs will play a bigger role in this testing or if government officials rely on literature reviews.
This ambiguity is problematic. A literature review, however useful in getting a broad picture, might not include testing in the right conditions to determine if a substance is toxic in the environment, if it might lead to long-term chronic effects in humans or if there are equivalent substances that are less toxic, for example. While these assessments are the responsibility of the minister by law, the government relies on data from experiments that are overwhelmingly designed, performed, analyzed and disclosed by industry for the purpose of sales. This overreliance on industry-provided data should warrant an additional layer of precaution, not less.
CEPA references the precautionary principle several times, an approach that emphasizes caution when addressing substances for which extensive scientific knowledge is lacking. This is a wise approach when dealing with substances that have the potential to destroy ecosystems or cause lasting health impacts on human health. Unfortunately, our environmental protection regime is more grounded in risk management than precaution.
In fact, Bill S-5 changes the CEPA preamble by removing an acknowledgement that we “. . . need to virtually eliminate the most persistent and bioaccumulative toxic substances. . . .”
This was in the initial CEPA. Today, we would rather focus on “the need to control and manage pollutants.” This is neither a precautionary approach nor prevention. It sends the wrong signal, by suggesting that there is no need to eliminate pollutants — only to manage and control them.
When it comes to prevention, we heard from the government that only 25 substances from the list of toxic substances have pollution prevention plan requirements. They went on to suggest that this should not be concerning because not all uses of substances create a risk. We must point out that highest risk and acceptable risk are not defined in Bill S-5. Without these boundaries, risk management may lead to situations where it is acceptable that citizens are exposed to different levels of dangers, which creates more inequalities. This issue is avoided when the focus is put on prevention.
I appreciate that the government proposed an amendment brought forward by Senator Kutcher in committee to extend the priority of pollution prevention actions to both parts of the list of toxic substances in Schedule 1, rather than just part 2. The committee also adopted Senator Miville-Dechêne’s amendment giving authority to the government — should they need it — to require pollution prevention plans from any manufacturer of toxic substances. Prevention is a cornerstone of adequate environmental protection, and these amendments make Bill S-5 stronger.
The bill also introduces a tool that I think will be good for the environmental protection framework, and that is a list of potentially toxic substances. This list sends a clear signal to industry that a substance may become toxic if it is used differently or if more of it enters the environment. It also indicates that further regulatory action may be taken if necessary. It acts as a warning system, one that is not limited to substances tied to a new activity. Although some industry witnesses were opposed to it, I believe it will benefit industry by helping them avoid substances that they would otherwise have to replace eventually.
With great expectations from citizens, Bill S-5 introduces in its preamble the right to a healthy environment. Sadly, Canadians won’t benefit from this right in its due form when the bill passes. At this stage, the bill only instructs the minister to develop and implement a plan to set out the exact nature of this right within two years of coming into force.
I’m sorry, Senator Galvez, it is now six o’clock. I apologize, but I have to interrupt you.
Pursuant to rule 3-3(1), I’m required to leave the chair and suspend until eight o’clock unless it’s agreed that we not suspend. If you wish the sitting to be suspended, please say “suspend.”
The sitting is suspended until 8 p.m. Senator Galvez, you will have the balance of your time when we return.
