ENVI Committee Report

2.    THE NEED FOR NEW LEGISLATION

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An Outdated Statute

2.1    The current Pest Control Products Act was passed by Parliament in 1969. Although the Act has been amended on several occasions since then, it has never been systematically revised. The Act's structure remains fundamentally unchanged from what it was 30 years ago: it is "framework" legislation that relegates to the regulations the important task of defining in greater detail the federal pesticide management regime in this country.

2.2    The need to update the Act has been recognized and advocated for years. In 1987, the Law Reform Commission of Canada,³ as part of its "Protection of Life Series," issued a study paper on federal pesticide law and policy, which contained 23 detailed recommendations for change.⁴ Shortly after, in 1989, the Honourable Don Mazankowski, Minister of Agriculture, created a multidisciplinary task force to make recommendations to improve the system. After close to two years of extensive negotiations and public consultations, this task force -- the Pesticide Registration Review Team -- issued a report in 1990. Known as the " Blue Book," this report recommended a complete overhaul of the system, notably, through the creation of the PMRA and the transfer of legislative authority from the Minister of Agriculture to the Minister of Health.⁵

2.3    As part of the Liberal Party of Canada's campaign promises, the Right Honourable Jean Chrétien, then Leader of the Official Opposition, pledged in 1993 to act on the Review Team's recommendations and introduce new federal pesticide legislation.⁶ In a document released in October 1994, entitled Government Proposal for the Pest Management Regulatory System (known as the Purple Book), the newly-elected Liberal government outlined how it would implement the Pesticide Registration Review Team's recommendations. Several months later, on February 9, 1995, it officially announced the creation of the PMRA and the transfer of administrative responsibilities for the Act to the Minister of Health. It also pledged to introduce new legislation, following consultations with interested parties.⁷

2.4    Pursuant to this announcement, the PMRA was created in April 1995, and the Minister of Health was given administrative responsibility for the Act. It should be noted that these important changes came about through executive action. The PMRA was established "administratively" as a branch within Health Canada, whereas the transfer of legislative responsibility from the Minister of Agriculture and Agri-Food to the Minister of Health was effected by Order in Council issued on March 28, 1995.⁸ The Pest Control Products Act was not itself amended to reflect these changes. Indeed, because an Order in Council rather than a legislative amendment was used to transfer legislative responsibility to the Minister of Health, the Pest Control Products Act continues to define "Minister" as the "Minister of Agriculture and Agri-Food."

2.5    The Committee is concerned that such fundamental changes to the federal pesticide management regime were effected without Parliament's input or approval. In the Committee's opinion, it would have been preferable had these changes been made through legislative action, following full and public debate.

2.6    The fact that the current Pest Control Products Act continues to refer to the "Minister of Agriculture and Agri-Food" rather than the "Minister of Health" underscores the need to bring forth a replacement bill at the earliest opportunity. More importantly, the Act must be upgraded to reflect the scientific advances and the fundamental shift in values and public policy that have taken place over the years.

2.7    Noteworthy in this regard is the emergence of the concept of "sustainable development" which gained international prominence when adopted by the United Nations World Commission on Environment and Development in 1987 (better known as the Brundtland Commission).⁹ The Brundtland Commission defined "sustainable development" to mean development that meets the needs of the present without compromising the ability of future generations to meet their own needs. The Commission also made the all important connection between environmental quality and human health.

2.8    The "precautionary principle" has also gained international recognition and is considered by many to be a key policy lever for promoting sustainable development. This principle has been enshrined in a number of international agreements, many of which have been ratified by Canada.¹⁰ It essentially calls for precautionary action to be taken to avert harm, or potential harm, to the environment or human health, even in the face of scientific uncertainty. There is, however, no universally accepted definition for this principle and it has been defined differently under the various agreements.

2.9    Pollution prevention is a further principle that is viewed as an essential tool in achieving sustainable development. This principle focuses on avoiding the creation of pollutants in the first place, rather than trying to manage them after the fact. In 1995, the federal government expressly endorsed pollution prevention as the strategy of choice to protect human health and the environment.¹¹

2.10    During her appearance before the Committee on November 2, 1999, Dr. Claire Franklin, Executive Director of the PMRA, stated that work was underway on the development of new legislation. She subsequently provided the Committee with a document entitled Proposed Amendments to the Pest Control Products Act. Prepared in January 1999, this document sets forth the amendments that the PMRA recommends be made to the Act.

2.11    The Minister of Health informed the Committee that he had no specific timeline for introducing new pesticide legislation in Parliament. He stated that before taking such action, he wanted to consult his caucus on the various issues and consider the recommendations of this Committee.¹²

2.12    The Committee is thankful to the Minister for postponing the introduction of a new bill until he has had the opportunity to consider our recommendations. There is little question, however, that legislative reform is long overdue and that time is of the essence. The current Act is 30 years old. It does little more than set out general prohibitions and provide broad regulatory authority. In the Committee's opinion, the current regulatory approach to pest management in Canada is no longer acceptable. It is essential that Parliament be involved in defining the elements of the new federal pest management regime.

2.13    Many witnesses urged that the Act be modernized. The Committee agrees and recommends that new pesticide legislation be introduced at the earliest opportunity.

Guiding Principles for the New Legislation

2.14    The Committee has examined the package of amendments proposed by the PMRA in its January 1999 document.¹³ As discussed in greater detail in this report, these proposed amendments are deficient in a number of material respects. In the Committee's opinion, the new legislation must clearly set out the guiding principles underpinning the revised regime. It must also provide a detailed framework for action that incorporates modern concepts of risk assessment and risk management. In particular, it must ensure that our most vulnerable populations, most notably children, are adequately protected.

2.15    Having regard to the evidence presented by the witnesses, the Committee believes the new legislation should be based on the following principles:

• the need to give absolute priority to the protection of human health and the environment in regard to pest management decisions;
• the need to ensure that a precautionary approach is taken in decision-making;
• the need to promote and increase reliance on pollution prevention strategies to eliminate or minimize the use of pesticides; and
• the need to foster public confidence by actively informing and involving Canadians.

2.16    When the PMRA was created in 1995, it was given a number of goals. One goal was to protect human health and the environment; another was to support the competitiveness of the agricultural, forestry and manufacturing sectors. In the Committee's opinion, the PMRA should not be in the business of supporting industry competitiveness. There are more appropriate departments within the federal government to carry out this task, including the Departments of Industry, Foreign Affairs and International Trade, Finance, Natural Resources and Agriculture and Agri-Food.

2.17    The Committee places great stock in the fact that the PMRA was created within Health Canada, rather than somewhere else. If this decision is to have any meaning, the protection of human health and the environment must become the Agency's central priority. As discussed in some detail in Chapters 5 to 7, pesticides are known to cause, or are suspected of causing, a wide range of illnesses and abnormalities in humans and wildlife. By definition, pesticides are toxic. It is thus essential that the protection of human health and the environment drive all pest management decisions, and this must be made clear in the new legislation, both in the preamble and the operative sections.

2.18    New generations of pesticides are constantly being introduced on the market to replace older pesticides. As science progresses, it is found that the newer pesticides, that we thought were less toxic, could be equally harmful to human health. Experience tells us that there is no such thing as a "harm-free" pesticide. In order to provide that margin of safety to compensate for lack of scientific certainty, it is critical that a precautionary approach be taken in all aspects of the decision-making process. The Committee, therefore, recommends that the new legislation enshrine the precautionary principle as one of its guiding principles.

2.19    Although there are many definitions of the precautionary principle, the Committee endorses the definition contained in the 1996 Protocol developed under the London Convention of 1972 respecting the disposal of substances at sea.¹⁴ This definition provides a broader scope for action than many of the other definitions examined. If adjusted slightly to reflect a pesticide regulation context, the definition would provide that:

2.20    As stated earlier in this Chapter, pollution prevention is considered an essential tool in achieving sustainable development. In the Committee's opinion, it is the option of choice in terms of protecting human health and the environment since it seeks to avoid or minimize the generation and use of pesticides and other pollutants, rather than managing the risks attendant upon their use. In the pesticide context, pollution prevention is achieved through the implementation of pesticide use reduction plans and integrated pest management strategies, which seek to either reduce or eliminate the use of pesticides. These approaches are discussed in Chapters 11 and 12.

2.21    In its 1995 pollution prevention strategy, the federal government called for a shift in emphasis from managing pollution to preventing it.¹⁵ The Committee agrees with this new approach and recommends that the new Act also have, as a guiding principle, the promotion and increased reliance on pollution prevention strategies.

2.22    A further key principle, in the Committee's opinion, is the need to have an open and transparent process in order to foster public confidence in the pesticide regulatory regime. Canadians must be informed about the risks associated with pesticide use. They must also be provided with an opportunity to participate in the decision-making process. The more educated Canadians are about pesticide use, the greater the likelihood they will support, and call for the development and implementation of, alternative strategies. It is thus important that the new legislation emphasize the need to inform and involve Canadians.

2.23    The Committee wishes to stress that these principles must be enshrined not only in the preamble, but in the legislation's operative sections as well. This report makes a number of recommendations to "operationalize" these principles in specific areas. To ensure that these principles are given broad application, the Committee further recommends that they be codified in an administrative clause similar to the one contained in section 2 of the new Canadian Environmental Protection Act, 1999.

2.24    The title of the current Act -- the Pest Control Products Act -- suggests that pesticide "products" are needed to control pests. This message, in the Committee's opinion, is erroneous and must be corrected. Because of their potential for harm, pesticides must be regarded as the measure of last resort, rather than the option of choice. This is the message that must be conveyed to Canadians. This report advocates a more comprehensive approach to pest management that is based on the principle of pollution prevention. It is important that this new direction be reflected in, rather than undermined by, the title of the new legislation. The reference to "products" must be deleted in the new legislation, for there are other, equally effective ways of controlling pests than through the use of pesticide "products."

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³ The Law Reform Commission of Canada was officially disbanded in 1993 as part of the budget cuts announced in 1992.

⁴ J.F. Castrilli, and T. Vigod, Pesticides in Canada: An Examination of Federal Law and Policy, Protection of Life Series, prepared for the Law Reform Commission of Canada, the Law Reform Commission of Canada, 1987.

⁵ Pesticide Registration Review Team, Recommendations for a Revised Federal Pest Management Regulatory System, Final Report, December 1990.

⁶ Office of the Leader of the Opposition, "Liberals Announce Agriculture Policies," May 10, 1993.

⁷ Government of Canada, "Government Reforms Pesticide Regulatory System," February 9, 1995.

⁸ The Order in Council was issued under the authority of the federal Public Service Rearrangement and Transfer of Duties Act.

⁹ World Commission on Environment and Development, Our Common Future, Oxford University Press, 1987.

¹⁰ International agreements that refer to the precautionary principle include: Principle 15 of the 1992 Rio Declaration on Environment and Development; the 1992 Convention on Biological Diversity; the 1992 United Nations Framework Convention on Climate Change; the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (as amended in 1990); and the 1996 Protocol developed under the London (Dumping) Convention.

¹¹ Environment Canada, Pollution Prevention, A Federal Strategy for Action, 1995.

¹² Evidence, Meeting No. 23, February 17, 2000.

¹³ Pest Management Regulatory Agency, Proposed Amendments to the Pest Control Products Act, January 1999.

¹⁴ The 1996 Protocol under the London Convention was adopted on November 7, 1996. This Protocol is not yet in force. In order to come into force, it must be ratified by 26 countires, 15 of which must be Contracting Parties to the 1972 Convention. Four countries have signed, but not ratified the Protocol.

¹⁵ Environment Canada, Pollution Prevention, A Federal Strategy for Action, 1995.