My name is Mark Winfield. I'm the director of the Pembina Institute's environmental governance program. With me today is Dr. Matthew Bramley, the director of our climate change program.
The definition of toxic substances under the Canadian Environmental Protection Act has been one of the most contentious issues in relation to the act. The assessment of substances against the definition of toxicity in CEPA is the centrepiece of the act's structure. Once substances are classified as toxic and added to the list of toxic substances, also known as schedule 1, the federal government is able to exercise a wide range of regulatory authority over their production, import, export, use, and release into the environment.
In recent years, the classification of a number of substances that are produced and released into the environment in large quantities, but which do not have high inherently toxic—for the purposes of CEPA—properties, has been a source of major controversy. These substances included road salt, certain criteria air pollutants, and greenhouse gases. These substances have been classified as toxic on the basis of the severe cumulative effects of their releases into the environment and on human health.
It has been argued by some that due to their lower inherent toxic properties relative to other substances that have been added to the list of toxic substances, these substances should not be described as toxic. Arguments have followed from this contention that they should be removed from CEPA's schedule 1 and dealt with under separate legislation, or that the substances meeting the definition provided in section 64 of the act be relabelled with some other term.
In approaching this issue, it is important to understand the legislative history behind the definition of toxic substances in section 64 of CEPA. When CEPA was originally drafted, the legislation's authors were trying to balance a number of factors. These included the need flowing from the Supreme Court's 1988 Crown Zellerbach decision to ensure that the scope of federal regulatory activity under the act was of a nature that obtained a “singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution”.
This implied that regulatory activity under the act would need to be bounded in some way and simply could not cover all matters related to environmental protection.
The establishment of a limited list of substances—the development of which was subject to a series of extremely rigorous tests—in relation to which federal activity would occur, was seen as a way of addressing the need to bound the scope of federal regulatory activity with respect to the environment.
At the same time, the drafters of CEPA wished to establish a definition of toxicity that was broad enough to provide a basis for federal regulatory action in relation to global environmental threats or other serious threats to human health from the environment that did not fit the traditional model of exposure of individual organisms to substances with inherently toxic properties. Rather, they sought to provide a legislative basis for the federal government to address threats to the structure and function of the ecological and global systems on which life depends. Indeed, at the time CEPA was being drafted, its authors wanted to be certain that the act would provide a basis for federal action on a class of pollutants with low inherent toxicity, but that were having a severely adverse effect on the global atmosphere and were subject to a major international agreement, namely CFCs.
It is also important to understand how difficult it is for substances to meet the definition of toxicity as laid out in section 64. Substances are required to be identified and assessed by Environment Canada and Health Canada, a process that usually takes several years. The departments' assessments are subject to extensive external review and may be challenged before boards of review. Decisions to add substances to schedule 1 of CEPA are ultimately made by the cabinet and not by individual ministers.
It is also important to recall that the addition of substances to schedule 1 of CEPA does not mean that the federal government will actually regulate their use, production, release, or disposal. Rather the addition of substances to schedule 1 merely provides the basis for federal action. It does not, in and of itself, mean that the use, production, or release of a substance has been restricted or controlled. In fact this been identified as a major weakness in CEPA's structure.
My colleague Dr. Bramley is going to speak directly to the issue of the status of greenhouse gases as substances on schedule 1 of CEPA.
I'd like to make clear, at the beginning, that there is very clear and abundant evidence, underpinned by a strong scientific consensus, that greenhouse gases meet all three criteria for toxic substances as defined by CEPA. The professional climate science community--and that is to say, the people who publish their findings in peer-reviewed journals--is virtually unanimous that greenhouse gases from human activities are now a dominant cause of the very rapid global warming observed in the past half century, and that these emissions will cause far greater warming over the course of this century unless dramatic reductions are achieved in emissions.
Since 1988, governments have mandated the Intergovernmental Panel on Climate Change, the IPCC, to review and assess the wealth of scientific research on this subject. The IPCC's conclusions have been endorsed by all the leading national science academies.
Paragraph 64(a) of CEPA establishes a criterion of immediate or long-term harmful effect on the environment or its biodiversity. Specifically on the point of biodiversity, it's widely understood that the climate change that is under way is so rapid that many species simply won't be able to adapt or move in time to survive. A paper was published in the journal Nature in 2004 that stated: “we predict, on the basis of mid-range climate-warming scenarios for 2050, that 15–37% of species in our sample of regions and taxa will be 'committed to extinction'.”
Paragraph 64(b) of the act establishes the criterion of danger to the environment on which life depends. On this point, it's projected that by the 2080s, with only two degrees Celsius of global warming above pre-industrial levels, tens of millions of additional people worldwide would be at risk from coastal flooding and from hunger, hundreds of millions of additional people would be at risk from malaria, and three billion additional people would be at risk from water shortage.
Paragraph 64(c) of the act establishes the criterion of danger in Canada to human life or health. On this point, it's expected that rapid warming will harm life and health in Canada in a number of ways. I would mention heat stress affecting particularly the young, frail, and elderly during heat waves. We saw an example of this in southern Europe a couple of years ago; warming induced increases in the frequency of smog events and the spread of vector-borne diseases.
In summary, it's very clear, from many years of accumulation of scientific study, that greenhouse gases do meet all three criteria for toxic substances as defined by CEPA.
Good morning, Mr. Chair, members of Parliament. It's a pleasure to be here today.
As per our presentation in May, we have two key issues we wish the committee to consider and make recommendations on in your report to Parliament for amendments to the Canadian Environmental Protection Act. I will also outline a few comments on the CSDSL process as it is on the agenda today, and we did mention it in May.
My name is Shannon Coombs and I'm the executive director of the Canadian Consumer Specialty Products Association. However, I am here today representing FPIC, the Formulated Products Industry Coalition.
Our unique industry coalition is a group of 15 trade associations that formed in 2001 when the Food and Drugs Act became subject to CEPA.
FPIC's member companies provide food, personal care products, household cleaners, cosmetics, medical devices, and pharmaceuticals to Canadians. Collectively we represent over 750 member companies and we comprise a $66 billion a year industry and employ 375,000 Canadians.
Why are we here today? Why are substances in the Food and Drugs Act subject to products captured under CEPA?
CEPA is the legislation that governs new and existing substances in Canada. In 1999 parliamentarians requested that CEPA be the safety net for all environmental assessments, and that assessment also includes a health assessment of substances.
In section 81 of the act there is a requirement for other acts that have pre-market assessments to meet or exceed CEPA. Other acts had two years to meet that requirement, and if they did, they were scheduled for exemption under CEPA. If they did not meet the requirement, then CEPA would be the act to govern environmental assessments. Other acts, such as the Seeds Act, the Fertilizers Act, and the Pest Control Products Act, met CEPA's requirements and were scheduled for exemption. The Food and Drugs Act did not meet those requirements, and therefore environmental assessments for substances in Food and Drugs Act products were subject to CEPA's regulations, the new substances notification regulation, the NSNR.
We have been working under this regime for the past five years and believe CEPA is the most appropriate legislative authority for these substances. However, when the Food and Drugs Act substances were captured under CEPA, it left in limbo a list of approximately 9,000 substances that have been used safely and effectively by Canadians for almost 20 years. These substances are in limbo because they are considered new, not existing under the act, and this needs to be remedied. I will refer to 9,000-plus substances as the in-commerce list.
Since most of our member companies have never been subject to anything other than rigorous pre-market assessment and/or notifications under the Food and Drugs Act, being subject to CEPA was new and challenging. Despite the learning curve, FPIC has recognized that CEPA's systems and regulations provide predictable, rigorous submission reviews to member companies and protection to Canadians and their environment.
FPIC is requesting that the committee consider this key recommendation for improving and adding clarity to the act, which only Parliament, you, can provide. It is as follows: acknowledge the in-commerce list as a list of existing substances under the law by creating a provision in CEPA to recognize them as such.
You might be asking yourself what is on the in-commerce list. It's quite a range of substances. There are pharmaceutical actives, cosmetic ingredients such as extracts. There are surfactants, food colourings, flavourings, kiwi essence, and oil of lemon, just to name a few.
Why do we want them treated as existing? The substances and the products have and continue to provide benefits to Canadians. These substances have been in commerce for almost 20 years, and clearly they're new, not existing, and this makes sense. To ensure there is a mechanism for the in-commerce list to be treated as existing, such as those on the domestic substances have been treated, we're suggesting that the government categorize, prioritize, or whatever word you'd like to use, the in-commerce list and then, if needed, provide a screening level risk assessment.
At the meetings in May there was a session where officials provided an overview of the categorization and screening of the domestic substances list, plus there were comments made on this initiative last week.
We believe that assessing and processing all existing substances the same makes sense. We recommend that parliamentarians recommend to the government in their report that substances in the Food and Drugs Act products be ensconced in the legislation by modifying section 66 of the bill. This would outline the parameters of the in-commerce list. We'd also seek an amendment to sections 73 and 74 to ensure there is a post-categorization process as well as a form to have appropriate risk assessments conducted, and then we'd also like to see section 81 amended, which is very important, so that all substances in the Food and Drugs Act products are formally subject to CEPA's NSNs, the new substances notification assessments regulations.
FPIC did provide a brief yesterday to committee on the key areas where we'd like to have the in-commerce list addressed in the legislation, and we do note that the list is not inclusive, and we're willing to work with all partners to ensure that the list is as fulsome as possible.
I'd like to turn to our second issue and recommendation request to the committee, and that is the issue and meaning of the term “toxic” in CEPA.
FPIC requests that the committee considers removing the term “toxic” from the legislation so that there is clarity and understanding with respect to how substances are assessed and managed under the act. If the risk assessment of the substance meets that definition, it is placed on schedule 1, and then some type of management for that particular use will often be invoked. As stated in our submission, the challenge is the misunderstanding around the term “toxic”.
It is our belief that Canadians, regulators, and non-governmental organizations interpret CEPA's toxic substances as being intrinsically toxic, i.e., poisonous and/or lethal. There are examples that cause confusion. CFCs destroy atmospheric ozone. They're toxic to the environment, but they're not toxic to humans, which is why they have been used in the past in asthma inhalers. Ammonia, which is a substance that was debated last week, is only CEPA toxic in the environment from ammonia traces found in waste water effluent. This substance is used in numerous other applications, such as fertilizer and glass cleaner. These products have subsequently become targets, because of the listing and because of misinterpretation. Carbon dioxide is also on schedule 1 so that greenhouse gases can be managed, but it's not intrinsically toxic as we all exhale this gas and plants rely on it for photosynthesis.
I will provide two examples of where the term “CEPA toxic” is being misinterpreted.
One is from an NGO group that has all schedule 1 substances listed on a website, along with the interpretation of products that the substances would be in and how they should be avoided. The first on the list is ammonia. It clearly says that it is CEPA toxic, that it's used in glass cleaner, and that you should not use these products.
The second is from the B.C. Buildings Corporation, which has a cleaning management chemical content standard; it's a procurement criterion. It states clearly in section 6 of that document that all substances on schedule 1 are not to be used in any products. This means that ammonia and other substances are stigmatized. There's no relation to the risk assessment that was completed and the use and the risk that's being managed.
Clearly, the prevailing challenge before us all is that the term “toxic” in CEPA is misunderstood, so actions that are not warranted are taken. From my examples, groups and regulators target products that may contain the substance, apply the label “CEPA toxic” to all uses of the substance, and alert Canadians to a risk that's not a risk.
We are recommending that the committee consider removing the word “toxic” from the legislation and include the wording suggested in the last budget bill, Bill , part 15, where in section 64 the definition of “toxic” remains; however, the title is “Assessment and Management of Substances”. This accurately reflects what CEPA does and would assist with the government's challenge of adding substances to schedule 1. It would put them in context, i.e., the use of a substance, the risk assessment, the results of that assessment, and how they are being managed. We believe that if the term “toxic” is removed, it would provide clarity and enhance the credibility of the act.
With respect to the issues raised about the constitutionality of changing the word “toxic”, which has been raised by other witnesses, we would assert that this issue and validity of the revisions for CEPA would have been thoroughly discussed and addressed by Department of Justice lawyers prior to part 15 being added to the last budget bill and presented to Parliament.
In our experience, legislation from this Parliament is respected and upheld, but it needs to be flexible and responsive to unintended consequences. I'm sure that's why parliamentarians in their wisdom decided on a five-year review of this act--which is why we're here today--which has also set a precedent to include review periods for other acts. I don't believe our legislators would have known about the stigmatization issue and the unforeseen challenges arising from the listing process in section 64 when they included the word “toxic” in the legislation .
I would like to turn my comments to our final issue, and that is the categorization and screening of the domestic substances list. At our meeting in May, when the question about whether there is anything that can be done better regarding CEPA was posed to witnesses, we replied that there is always room for improvement.
CEPA is a huge piece of legislation. Our key concern at the time, and which currently remains, was that we need to increase the communication about the successes of this act and how it provides protection for Canadians. We believe a proactive communication strategy would be in everyone's best interest, especially around the results of categorization. Why? The CSDSL program mandated under CEPA 1999 is a made-in-Canada program. While other OECD countries have similar programs, Canada is in the lead. There have been 23,000 substances reviewed against criteria to determine safety for humans and the environment. The diversity of the substances on that list includes everything from industrial chemicals, gasoline, water, vitamins, sugar, etc. It's a very comprehensive list. Results of the program have provided government with priorities for further review, if warranted; and products and their ingredients are safe when used according to the product's directions.
While the results of the program have yet to be made public with an action plan from Ministers Ambrose and Clement, CCSPA would challenge the government that the list of potentially 4,000 substances that met specific scientific criteria needs to be put in context and communicated properly to Canadians.
We were most pleased to hear from the witnesses last week that they have been involved in the process, but they have been quoted consistently in our national newspapers as characterizing the list as the “baddies of the bad” and the “worst of the worst”. We're sure that everyone has seen the last publicly available list of substances provided to all interested parties in July of this year. The 4,000 substances may include such substances as tamoxifen, which is a life-saving cancer drug. Those also include titanium oxide, a key ingredient in sunscreen, which prevents cancer; vinegar; almond flavouring; and vitamin A, just to name a few.
Instead of scaring Canadians or not advising them about the facts, we should be telling them about the enormous work the government has undertaken and its plans to address any future concerns with all stakeholders, and most importantly, put into context what the list really means to Canadians. We need some true risk-benefit communications.
We would ask that you consider our two key recommendations: remove the word “toxic”; and add provisions to ensure that the ICL, or in-commerce list, is treated as “existing” during your deliberations. Our collective priority is to ensure the protection of Canadians and our environment.
Thank you, Mr. Chairman.
Good morning. I don't have prepared notes this morning, because the committee indulged me and my colleagues last week. On the issue of “toxic”, my colleagues last week and now Drs. Bramley and Winfield and Professor Collins will address that today.
I am here, however, because PollutionWatch, as you know, is very concerned that the momentum from the categorization exercise needs to continue with action on not necessarily all of those 4,000 substances immediately, but on the “worst of the worst”. To clarify in response to Ms. Coombs, what we've asked for is that indeed the worst among those 4,000 are those that need to be dealt with first, and then those that are less serious can be put on the second tier. But the emphasis is that the processes of screening and then of taking action by means of regulation is, as we've heard this morning already, a long process. So you know that we acknowledge the importance and significance of the completion of categorization, but just to repeat, it is indeed just the beginning of what needs to follow before Canada should really be celebrating a great deal.
Secondly, on the issue of the in-commerce list, I would very much like to be able to review Ms. Coombs' submission and recommendations on what they would like to do with that, before giving our own specific recommendations on it. But what we would say in general is that to simply identify or to look at those substances and ask if they are better categorized as existing substances or as new substances is not an adequate way of deciding how to deal with it.
What we would recommend is that the path taken for those substances be the one that has the most binding timelines on regulating at the end of the process, but earlier than that, where there is any hint of dangerous characteristics--not hard, complete evidence, but where there's the suspicion of harm in those substances--then that process kicks in, including that there's a requirement for industry to provide more information on that substance, so the user-producer responsibility would be engaged.
So I think this committee has the opportunity, since the act is up for review, to decide on a specific process for these substances that takes the best and the most rigorous characteristics of both the existing substances and the new substances and really design a process that perhaps also could be an example to the rest of the world.
As usual, I'm pleased to take your questions. Thank you.
On behalf of Canada's salt industry, I'd like to thank the committee for giving us the opportunity to tell our story and to make some recommendations that we feel would make CEPA more efficient and effective.
The salt industry experience with CEPA really started in 1995, when we were put on PSL2. At the time, we in the industry were quite surprised, and we were on a fairly steep learning curve for a period of time. However, by 1999 we thought we had identified some problems with the statute. I went before the Senate environment committee that year and made some recommendations--similar to the recommendations we're making today, actually.
At that time we really asked three questions. First, does it make sense to structure a statute where all substances in commerce must pass one test, which is toxic or non-toxic? Second, isn't there a very real perceptual difference between substances like salt and substances like arsenic? And third, if so, how could you label them to make it more clear for everyone?
At that time we came to the conclusion that we did think there was a real difference between substances like salt and substances that meet the normal definition of toxic. We put forward a recommendation that there be a third category created, called the public good category, in which we could place beneficial substances that need to be managed in the public interest.
Since 1999 we've been through a great deal. We understand the statute better. I think the recommendations we're making today are more refined. However, they echo the same theme, really, that we believe there needs to be more than just a toxic/non-toxic categorization in the statute.
Through the PSL process the salt industry fought the toxic listing, but not because we didn't think road salt shouldn't be managed properly in the environment. As a matter of fact, the salt industry has run a program called Sensible Salting for the last 40 years, and that was really the precursor to the code of practice developed by Environment Canada. We fought the listing because we didn't think road salts belonged on the same list as other things that meet the traditional definition of toxic.
We are deeply concerned about the legal and trade implications of a toxic listing. Because salt is an approved food, we find it very inappropriate that it would be put on the same list, particularly when the salt you eat is almost exactly the same as the salt we put on the roads.
Another important point of concern in the current statute centres around the emphasis on the need to list whole classes of substances rather than zeroing in on the real environmental problems. The perception seems to be that the whole class of substance needs to be listed in case there's a need to regulate at a later date. I think a good example of that is ammonia, which was brought up earlier. Again, I don't think there was much debate about releases from waste water treatment plants. However, instead of zeroing in on that problem, the debate became much larger and took a lot of resources that could have been spent dealing with the issue rather than with the broader classification.
In our view, the current black and white decision over toxic and non-toxic and the broad-brush approach taken, particularly when the precautionary principle is drawn in, seriously conflicts with regulatory policy. It's based on continued regulation, which we think is wrong.
I know from my own experience that we in the salt industry, Environment Canada officials, and members of Parliament and their staff have spent countless hours debating this toxic/non-toxic designation. So a tremendous amount of resources could have been spent more productively elsewhere, tackling the real issues. In our case, I think most people involved agreed on the practical steps needed to manage road salts properly, as was evidenced by the work done by the working committee on road salts.
Given that our industry and others were determined to fight the toxic label and stigma, we took the opportunity to meet with many politicians and key decision-makers. It was apparent to us that the politicians in particular saw the issue the same way we did. It just doesn't make sense to legally list road salts as toxic, particularly since other levels of government are using road salts to keep roads safe, to prevent injuries, to prevent people from being killed, to keep commerce moving in the winter.
I recall a meeting with a cabinet minister right here in Ottawa on a cold and icy day. He and a group of colleagues had just come in from outside, after question period, and one of his colleagues had been commenting about the lack of de-icer on the roads and sidewalks that day. The minister asked the group what they thought about the toxic label, and at that point they all agreed that it was contradictory to the product's purpose and to its beneficial intent.
Since that time there have been many developments in this area, including a budgetary proposal to remove the word “toxic” from the statute. We didn't oppose this proposal, but we didn't support it either. We still believe that substances like road salts should not be on the same list as substances that are clearly understood to be toxic in the ordinary sense. I think it's also germane to this debate to note that if there is not an intent to regulate, a substance really doesn't need to be on any list.
Just to give you my own perspective on the issue of the stigma attached to the toxic listing, during the CEPA process I was the English spokesperson for the salt industry. In 2000, the draft risk assessment was issued by Environment Canada. I had many calls from reporters and the press, and everyone zeroed in on the toxic listing.
There were a lot of reports about salt being poison, and at the time many Environment Canada people and others tried to explain that “CEPA toxic” is not the same as the dictionary definition of “toxic.” However, it seems that it's very difficult for people to grasp that concept. At the time there was even a geography professor from western Canada who tried to link road salts to cancer. Again Environment Canada and Health Canada had to try to dispel that rumour, because obviously it was false. So a lot of resources were tied up.
In 2001 when the final assessment report came out, Environment Canada went to great lengths not to use the word “toxic” in the press release. But again, most of the calls I got were from reporters who wanted to talk about a toxic listing, and the word “poison” found its way into several articles. So a large amount of time was tied up dealing with this issue when we could have been doing things that were more productive to manage road salts.
The recommendation we're making today is for another list or schedule in CEPA that could be used for substances that are not toxic in the ordinary sense. In our brief we make three suggestions.
First we propose the addition of a new schedule for substances to be voluntarily managed--that is really our recommendation.
Our second suggestion is for a more descriptive contextual use of the CEPA registry, where substances that require management are on the registry and would only migrate to schedule 1 if regulation became required.
Third, we suggest that the current situation that road salts are in could be used for other substances; that is, there's been a recommendation to list, but no listing. Again, it's confusing to people, and we don't think that's the best answer.
With all our proposed solutions, we ask that you zero in on the actual problems rather than using the broad-brush approach, because with the current system and 23,000 substances to evaluate, it's going to be very difficult to fit them in. It will just take too much time.
At this point we'd like to highlight one other recommendation that we put in our submission. We find the PSL scientific risk assessment process to be far too directed and controlled by Environment Canada researchers. We think there should be more independent review, because some bias can slip into the existing system.
The reality today is that the head assessor is involved with making the recommendation and directing all the science and decision-making processes. All the comments made during the 60-day comment period go back to the same group that made the initial recommendation. We really believe that sound science requires outside influences and outside peer review. For these reasons, we recommend the statute be amended to require a formal third party peer review of the science or risk assessment conclusions.
Today the only avenue of assured appeal is to go to cabinet or a cabinet committee. When industry and others avail themselves of the cabinet appeal process, it ties up a lot of high-level resources and is expensive and time-consuming. So we recommend a peer review for the science, and more stringent application or regulatory policy for all regulatory and statutory decisions, perhaps enforced by an independent body responsible for regulatory policy.
I thank you for the opportunity to speak to you. I'll be pleased to answer any questions.
Thank you, Mr. Chair and members of the committee.
Before I begin my own comments today, I want to flag for you that I understand the committee will be receiving a letter from former Justice of the Supreme Court of Canada Gérard La Forest, in which Justice La Forest expresses his concern regarding the risks involved with removing the term “toxic” from CEPA.
I would suggest to you that Justice La Forest is perhaps the most distinguished jurist of environmental law in Canadian history. I hope you'll give very close consideration to his letter when you get it.
To summarize my comments today, the basic opinion I want to put forth is that removing some or all references to the term “toxic” in CEPA would constitute a radical conceptual restructuring of this act. It would destabilize this area of the law, provoke litigation, and almost certainly invite a challenge to federal constitutional jurisdiction.
The concept of toxicity is in fact a keystone concept in CEPA. As Justice La Forest made clear in his majority judgment in the Hydro-Québec decision, the concept is obviously the central concern of what is now part 5, but it's not limited to that part. In fact, it's an overarching organizing principle of the statute as a whole. Thus, for example, four paragraphs of the preamble refer to the word “toxic”. Section 2, which sets out the overall statutory agenda, also relies on the concept of toxicity in delineating the Government of Canada's responsibilities under CEPA.
The concept of toxicity is central in CEPA, and the administration, the regulated community, and the courts have had a chance to at least grapple with elucidating, clarifying, and understanding this concept.
The Supreme Court of Canada, for example, provided detailed guidance on the meaning of the term “toxic” in CEPA in Hydro-Québec. Several lower court judgments from across the country have also considered CEPA provisions that include this terms.
Why am I telling you this? It's because we now have a body of case law that interprets this term “toxic” in CEPA. If you remove this term, you remove the clarification and certainty in the law, and what we've seen over and over again is that as soon as you create uncertainty in environmental statutes you have litigation.
I think it's important for us all to remember that the structure of corporate law and economics in Canada creates very strong incentives to litigate against environmental legislation if there seems to be any opening there. Recall that corporate directors have a legal duty to act in the best interests of the corporation and to maximize shareholder profit. Obviously, if there's a chance to avoid or even delay compliance with potentially costly environmental provisions, corporate directors have to give serious consideration to this.
And the history of environmental legislation in Canada has been a history of litigation. We've seen it over and over again, with Ontario's Environmental Protection Act, with the pesticide bylaws that are now across the country, with “polluter pays” provisions in the Imperial Oil case This is a highly litigious area.
Obviously, responsible counsel only litigate where there's at least a colorable argument to be made. What I'm saying here is that if you remove toxicity as a keystone concept from CEPA, there's an excellent reason to litigate, because courts won't know what this new term means.
I think this issue of uncertainty is perhaps most serious in the area of constitutional jurisdiction. I know you've already heard about this, so I'll try to be brief.
Hydro-Québec is the seminal case on federal constitutional jurisdiction over CEPA. You'll see it referred to over and over again in the scholarship and in the case law: that Hydro-Québec settled this question. The difficulty is that Hydro-Québec interpreted and upheld an act that was founded in the concept of toxicity. Indeed, the term “toxic” occurs no fewer than 205 times in that judgment. The holding itself, or the ratio decidendi, as we call it, was based on the use of the term “toxic” in Hydro-Québec. La Forest himself said that, above all, Hydro-Québec was concerned with the term “toxic”, and in upholding the act, he held that the limitation of federal regulation to substances that have been assessed to be toxic meant it didn't impinge too far into provincial powers.
Now, I want to be very clear that I believe it's quite clear the federal government has constitutional jurisdiction to regulate the kinds of substances that are dealt with under CEPA. Unfortunately, my opinion doesn't govern; my opinion is immaterial in that respect.
What I'm trying to say is that by removing this concept, in my opinion, you're going to provoke constitutional litigation. I think that would be a profound waste of money, energy, and resources in an area where we urgently need to get on with the business of implementation.
Those are my comments. Thank you.