Strengthening Environmental Protection for a Healthier Canada Bill
Bill to Amend--Third Reading--Debate
June 22, 2022
Honourable senators, with great expectation 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 because 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 the coming into force of the bill. Moreover, although Bill S-5 stipulates that the implementation framework must consider the principle of environmental justice, it must also consider the balancing of the right with other factors, including economic factors. Obviously, rights are subject to reasonable limits. Our charter and judicial system recognize this clearly. However, I couldn’t find any similar usage of balancing factors in other rights legislation. Colleagues, what if your right to religious freedom, for example, was balanced with economic factors? Would you accept that?
This right is better than nothing, and when Canadians will benefit from a form of this right, they will join 156 other nations around the world who already have this right enshrined in law in their constitutions. Interestingly, 110 of them afford this right constitutional protection, something that we are far from doing with Bill S-5.
Finally, I’m concerned about the government’s decision to remove the title of Schedule 1, “List of Toxic Substances.” Although the schedule is referred to as “the list of toxic substances” everywhere else throughout the bill, the title itself was removed. At first glance, it seemed like a minor omission since each substance on Schedule 1 has already been declared toxic under CEPA. However, upon further reflection, I think that it could have unintended or intended constitutional ramifications. The 1997 Supreme Court ruling in R. v. Hydro-Québec upheld CEPA as adopted in 1988 as valid legislation on the basis of its criminal law power. Justice La Forest, writing for the majority, noted that:
. . . the stewardship of the environment is a fundamental value of our society and that Parliament may use its criminal law power to underline that value. . . .
He also stated that the act “. . . is an effective means of avoiding unnecessarily broad prohibitions and carefully targeting specific toxic substances.”
In other words, CEPA is within its constitutional jurisdiction as long as it stays narrowly focused on regulating toxic substances, an analysis that is shared with the Canadian Environmental Law Association.
Under CEPA, a substance is declared toxic if it may enter the environment under conditions that may have an immediate or long-term harmful effect on the environment or its biological diversity, may constitute a danger to the environment on which life depends or may constitute a danger to human life or health.
Lead, mercury and plastics, for example, are on Schedule 1 precisely because they are toxic, despite what you might hear from some industry representatives. As with everything, there are cases where these substances do not pose a risk, but that doesn’t mean they aren’t toxic substances as defined by CEPA. Removing the label “toxic substances” from Schedule 1 could undermine the precedents established by the Supreme Court of Canada in that 1997 ruling, ultimately weakening the government’s authority to regulate these substances.
From another angle, simply naming this list as Schedule 1 is meaningless for most Canadians and gives no indication of what this list represents. At worst, it is misleading the public just to satisfy some industries that don’t like seeing the substances they use defined as toxic.
I have opted not to bring forward an amendment to reverse this government decision, but I hope the House of Commons will consider this issue seriously for clarity and transparency.
In conclusion, Bill S-5 does improve certain aspects of Canada’s toxic substance management framework, but as explained, there is still lots to cover. We really need to better protect our environment, as our health and safety depend on it. Vulnerable populations are overexposed to pollutants present in the water and fish they eat. Without proper labelling, we buy food and items that are sprayed or treated with substances that can bioaccumulate in our bodies. Plastics that are composed in their majority of toxic substances break into microplastics that are found today in human blood and placentae. Chronic, low‑dosage exposures are also very dangerous.
I hope that we will continue improving CEPA in the years to come and we won’t wait another 23 years to update this important law. Thank you, meegwetch.
Honourable senators, I rise today to speak to third reading of Bill S-5, the strengthening environmental protection for a healthier Canada act. I want to acknowledge my brothers and sisters of the Tataskweyak Cree Nation.
[Editor’s Note: Senator McCallum spoke in Cree.]
This is for you; this is your voice. Thank you to James and Anna for all their work, spirit and energy in working alongside me.
I would like to begin by registering my concern on the continuous assault of the water and lands surrounding vulnerable populations and vulnerable environments. The assault that I speak of largely occurs at the hands of resource-extractive companies. This unrelenting pressure and demand on our natural resources comes from various industries, including oil and gas, whose activities result in tailings ponds and orphan wells and whose hydraulic fracturing on both land and water comes with its own list of environmental concerns; hydro, which has had devastating effects on the quality and calibre of water, the health of the people and species who live in and rely on that water and the surrounding lands that are flooded or eroded with the changing water levels, affecting cultural and spiritual practices; forestry, which discharges effluent that has adverse impacts on surrounding land and waterways; agriculture, due to both herbicides and pesticides making their way into water sources as well as the effluent sewage and related runoff from farms; and mining, whose tailings and effluent are often discharged into the river system.
The vulnerable populations who are disproportionately affected therein, colleagues, are First Nations. Many nations and reserves are located on or in proximity to resource extraction sites. They experience many burdens that are largely unknown and unseen to Canadians who live in cities and in rural settings isolated from the multiple devastations that occur.
Honourable senators, the Assembly of First Nations’ brief to the Standing Senate Committee on Energy, the Environment and Natural Resources, under the heading “Right to a Healthy Environment Requires a Remedy,” states:
First Nations experience environmental racism throughout the country, resulting in disproportionate exposure to toxic substances and hazardous activities. Children living in communities or on reserve are disproportionately impacted by unregulated chemicals (e.g., the lack of regulation on use of pesticides and herbicides on and around reserves).
The Assembly of First Nations continues:
As noted by the United Nations Special Rapporteur on Human Rights and Hazardous Substances and Wastes, “[t]he invisible violence inflicted by toxics is an insidious burden disproportionately borne by Indigenous [P]eoples in Canada.”
The rapporteur states that the rights to health, safe water and food, adequate housing, safe and healthy working conditions and others implicated by toxins do not appear to be directly actionable under Canadian law.
Colleagues, CEPA, 1999 has been in effect for 20 years; yet, where is the protection for First Nations promised by this legislation? There was much discussion on the concept of “balancing” in the Energy Committee’s study of Bill S-5. Was the protection against toxins “balanced” with other factors like employment and economic considerations, factors that then took precedence over the lives and lands of First Nations?
Has this misaligned “balancing” led to vulnerable populations and environments? The term “vulnerable environment” was defined for the Energy Committee by Mr. John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada. He stated:
. . . the concept of cumulative effects is becoming better understood in the scientific community, and so an environment could be considered vulnerable, for example, if it has been subjected to multiple stresses over a period of time and a new stress, a new emission or pollution that might not have a large effect somewhere else might have a significant effect in an area that has already been subject to multiple stressors over time.
Honourable senators, I would like to raise the case of Tataskweyak Cree Nation, a community in northern Manitoba. Their stressors include the cumulative impacts of residential school and intergenerational trauma; dispossession of lands, culture, livelihood and spirituality and their impact on food security and health; endangered sturgeon population; the devastation of hydro impacts including unsafe drinking water; effluent discharge from mining in Thompson, Leaf Rapids and Lynn Lake, including tailings; and being a water basin for interprovincial and international drainage that flows into Split Lake — the water that is sacred to them.
Now, Tataskweyak Cree Nation has found that new toxins, resulting from the presence of blue-green algae, have added to the myriad of stressors already burdening their waterways. This compounding of issues is a prime example of the term “vulnerable environment.”
Colleagues, as we balance economic concerns against health and environmental concerns, we must understand the concept of poverty. Poverty is not simply the lack of income or economy. It is the lack of ability to achieve minimally satisfying living conditions. It is the devolution of one’s ancestral home territory into a hazardous environmental wasteland — as we see occurring with Tataskweyak Cree Nation and many communities.
People continue to remain disempowered due, in large part, to the regulatory gaps within federal and provincial jurisdictions. Poverty cannot be removed mainly in terms of economic growth; social changes are required. It is incumbent on us as parliamentarians to identify and remove these barriers to change.
Honourable senators, while CEPA endeavours to protect all aspects of the environment, I will largely focus on issues related to water and environment, as First Nations have been fighting for clean water in their own homeland of Canada and on their reserves for the past 100 years.
Generations of youth have never experienced clean water, having lived their entire lives under a boil-water advisory. The physical, mental, spiritual and emotional burden that this causes cannot continue to be ignored by parliamentarians. These kinds of assaults on the basic needs and human rights of human beings, as well as on those of Mother Earth, are unconscionable.
The issue of blue-green algae raised by Tataskweyak Cree Nation, or TCN, was highlighted in a brief provided to the Energy Committee by TCN’s Chief Doreen Spence, who wrote:
We are particularly concerned about the presence of the blue-green algae toxins in our Lake and drinking water supply which is why we are asking for this amendment.
In an accompanying brief, Mr. Ian Halket, TCN’s project director and a hydrologist, states:
Our lake receives the wash loads from watersheds as far away as the Rocky Mountains in Alberta, southern Minnesota, and North Dakota, as well as, the wash from Winnipeg and English River in Northern Ontario. . . . Our Lake sits at the bottom of watersheds that [drain from the above]. By the time these waters reach our Lake, the plant-available nitrogen has been used up and blue-green algae dominate.
Mr. Halket continues:
When the natural balance [of nitrogen to phosphorus] gets out of hand (low nitrogen and high phosphorus) blue-green algae start to dominate the algae community in the lake. Blue-green algae release toxins, some of which are the most toxic substances we encounter in the environment, even if you include industrial pollutants. With the advent of big agriculture, wastewater treatment plants and industrial and mining releases of effluents, the natural balance of plant-available nitrogen to phosphorus is being altered, swinging it towards the thresholds that encourage the growth of blue-green algae and increasing concentrations of cyanotoxins in lake water.
He continues:
Blue-green algae toxins . . . can result in serious illness. . . . In 2020, Health Canada confirmed that more severe symptoms include liver and kidney, nerve and muscle damage.
On this point, Chief Spence wrote:
People in our community have health complaints ranging from gastrointestinal upsets and skin rashes to disease of the liver, kidneys and nervous system, symptoms that parallel effects of exposure to blue-green algae toxins. Ours is not the only northern reserve that is experiencing these health symptoms.
Although some have tried to argue that blue-green algae are naturally occurring, it has been well established that human activity and intervention have been the main culprit in the spread and propagation of this serious matter that has brought with it dire health consequences for the surrounding communities.
As such, honourable senators, the onus is on us to embrace this opportunity and ensure that toxins from blue-green algae are addressed under Bill S-5.
As the proliferation of these toxins is largely attributable to human activity, it goes to follow that this issue would logically fall under section 46 of the CEPA legislation, which deals with “activities.”
For context, colleagues, I would like to quote Mr. John Moffet, from Environment and Climate Change Canada, where he defines “activities” within the bill. He says section 46:
. . . covers authority to gather information on a range of pollutant-related issues and covers all of the various authorities in the act: toxic substances, nutrients, intergovernmental water and air pollution, et cetera.
He goes on to say:
What we are trying to do by adding (k.1) is to go beyond information on substances and gather information about activities themselves that may, when the activity is carried out, create pollution. Then we can have better information to devise risk management approaches focused on preventing pollution as opposed to just identifying it and managing it once it occurs.
And further:
. . . the idea of (k.1) is to focus on activities related to pollution, and by that I meant activities that contribute to the kind of pollution that releases substances that are harmful to the environment or human health.
Colleagues, as Mr. Moffet has stated, this section has been specifically created to gather information on a range of pollutant-related issues, including toxic substances. I would like to point out that the Energy Committee’s report on Bill S-5, adopted yesterday, added hydraulic fracturing and tailings ponds to this section already, establishing an important precedent.
