ENVI Committee Report
If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.
15. INSTITUTIONAL CHANGES
15.1 In its 1990 report (the Blue Book), the Pesticide Registration Review Team recommended that the PMRA be created under the revised legislation as a self-contained, arms-length agency that would report directly to the Minister of Health.257 While the federal government agreed to create the PMRA, it rejected the recommendation that it be an arms-length agency. Asserting the need to ensure ministerial accountability, the government indicated that the PMRA would be established within the Department of Health, but that the characteristics of the Agency would be largely the same as those of an arms-length agency.258
15.2 Acting on this promise, the federal government created the PMRA within Health Canada in April 1995. Akin to a branch within the Department, the Agency reports directly to the Deputy Minister of Health and, through this official, to the Minister of Health.
15.3 Witnesses did not question the PMRA's lack of independent status. In the circumstances, the Committee does not propose to pursue the matter. The Committee firmly maintains, however, that regardless of whether it is an independent agency or simply a part of Health Canada, the PMRA must be given a statutory base.
15.4 The PMRA comes under the authority of the Minister of Health, but there is little question that the Agency is the real decision-maker with respect to daily operations. In the Committee's opinion it is important that this reality be reflected in the legislation. The fact that the PMRA is part of Health Canada, rather than a separate entity, should not be a barrier to providing the Agency with a statutory base. There are precedents from which to draw. One example is the Patent Office.
15.5 The Patent Office was set up within Industry Canada under the authority of section 3 of the Patent Act. Section 4(1) of this Act calls for the appointment of a Commissioner of Patents "who shall, under the direction of the Minister, exercise the powers and perform the duties conferred and imposed on that officer by or pursuant to this Act," whereas section 4(2) sets out the duties of the Commissioner, including the receipt of applications for patents and the issuance of patents.
15.6 There are considerable similarities between the Patent Office and the PMRA. The Patent Office is responsible for assessing patent applications and granting patents in appropriate cases. The PMRA is responsible for assessing pesticide applications and granting certificates of registration in appropriate cases. Both agencies are subject to the overall authority and direction of the Minister. The Patent Office, however, has a statutory base but the PMRA does not.
15.7 Providing the PMRA with a statutory base is not among the amendments the Agency recommended in its January 1999 document. This oversight should be corrected. As the government indicated in the 1994 Purple Book the PMRA, although not an arms-length agency, has most of the attributes of one. It is appropriate that this Agency, like the Patent Office, be acknowledged in the legislation. In the previous chapters, we emphasized the need to make the process more open and transparent. In the Committee's opinion, an important step in achieving this goal is to clearly identity the de facto decision-maker and set out its role and responsibilities in the new Act.
| The Committee recommends that a statutory base be provided to the Pest Management Regulatory Agency in the new Pest Control Act and that its role and responsibilities be clearly defined. |
A Strengthened Mandate for the PMRA
15.8 When the PMRA was created in 1995, it was given the following mandate:
| To protect human health and the environment by minimizing the risks associated with pest control products, while enabling access to pest management tools, namely these products and sustainable pest management strategies. |
15.9 This is the mandate that the Pesticide Registration Review Team recommended for the PMRA in the 1990 Blue Book. It is also the mandate the federal government indicated would be given to the Agency in the 1994 Purple Book.
15.10 In the opinion of the Committee, this mandate is unacceptably weak. It essentially states that, in protecting human health and the environment, the PMRA need go no further than to "minimize" the risks associated with pesticides. It seems to the Committee that, at a minimum, the PMRA should be directed to "eliminate the risks associated with pesticides to the greatest extent possible." Furthermore, at the same time that the PMRA is directed to protect human health and the environment by minimizing the risks associated with pesticides, it is also directed to "enable access" to pesticides as opposed to, for example, "enable access to safer pesticides." Given that the PMRA is directed both to protect human health and the environment and to make pesticides available, it is small wonder that concerns have been raised about its "dual" mandate, particularly when no clear priority is given to minimizing risks to human health and the environment over access to pesticides. Both interests appear to be placed on an equal footing and require a delicate balancing. This is essentially what the Minister of Health said in the House of Commons when responding to a question raised by a Member of Parliament:
| As the Member knows, the PMRA has to balance public safety and environmental concerns against the needs of producers and growers.259 |
15.11 In the opinion of the Committee, the PMRA's dual mandate sends out decidedly "mixed" signals. These signals are even more mixed in light of the goals the federal government has set for the Agency. The PMRA is directed not only to promote health, safety and the environment and support the integration of pest management with the broader goals of environmental sustainability -- goals with which the Committee wholeheartedly agrees -- it is also directed to support the competitiveness of agriculture, forestry, other resource sectors and manufacturing, and to regulate cost-effectively in an open and transparent manner.260
15.12 The Committee is seriously concerned about the divergent goals of the PMRA. Industry competitiveness and cost-effectiveness should not be given such prominence. In our experience, these goals compete too often with the goals of protecting human health and the environment; when decisions are made, the latter goals too often fail to come out on top.
15.13 To a certain extent, the PMRA is already a captive of the pesticide industry. The Agency must rely on the data supplied by pesticide manufacturers in assessing whether or not to register their products since it has no independent, in-house testing capacity. The Agency must also rely on the registration fees provided by pesticide manufacturers under its cost recovery program (discussed in greater detail in the Chapter entitled "The Funding Dilemma"). The cost recovery fees collected by the PMRA represent approximately 30% of the Agency's operating budget. The PMRA's heavy reliance on registration fees to carry out its functions has of course given rise to concerns that its priorities might be skewed in favour of its revenue-generating activities (e.g. registering pesticides) over those that do not generate revenue (e.g. promoting alternatives to pesticides, re-evaluating older pesticides and educating the public about the risks of pesticide use). This point was aptly made by Julia Langer of the World Wildlife Fund, who stated:
| [I]t is really more a matter of their priorities, their legislative abilities, their will, the direction they've been given and who really are their clients and what are their priorities...They also have an inherent problem, however, with how they're financed. Nobody likes cost recovery, not the industry and not the folks on our side of the table, because cost recovery is a recipe for continuing use. If your budget is tied to registering pesticides and having pesticides on the market, there's not that much incentive to actually reduce them, because then your budget disappears.261 |
15.14 The Canadian Labour Congress (CLC) was even more critical of the PMRA. In terms of overall performance, the CLC gave the Agency a D minus, remarking that the PMRA "utterly fails in the one device it has within its power to avoid the creation of chemical pollution, pollution that would be regarded and classified as extremely hazardous toxic waste were it produced and disseminated in any other context but its legal use under the PCPA."262 The Sierra Club of Canada further observed that one of the major problems with the PMRA was that when administrative responsibility for the Act was transferred from Agriculture Canada to Health Canada in 1995, there was no concomitant culture change since the staff remained largely the same:
| We had pretty high hopes when the responsibility for the Pest Control Products Act was moved out of Agriculture Canada and into Health Canada, thinking we were shifting the focus from promoting agricultural products to protecting health. Largely it was just a change of name. A lot of the staff remained the same, and the culture tended to remain the same.263 |
15.15 Based on the evidence before us, the Committee cannot quarrel with this assessment. The fact that responsibility for the Act was transferred to Health Canada should make a difference; it should, in fact, make a big difference. Otherwise, what is the point? We agree with Dr. Kelly Martin of the Canadian Association of Physicians for the Environment that what is needed is some clearly imposed action on the PMRA to protect Canadians on a health basis. She stated:
| They are now under the auspices of the Health Protection Branch. They don't know it, but they are. That's their role. Yes, they want to keep Canadians competitive, but they're there to protect Canadian's health interests. When we have the evidence we have, they have to be forced to act in a responsible way.264 |
15.16 In the opinion of the Committee, one of the root problems with the PMRA is its weak and equivocal mandate. Protecting human health and the environment must be given priority over all else. The Committee notes the mission of the Office of Pesticide Programs (OPP). The OPP is the body within the US Environmental Protection Agency that is responsible for registering and regulating pesticides in that country. Its mission statement is:
| To protect public health and the environment from the risks posed by pesticides and to promote safer means of pest control.265 |
15.17 The Committee proposes a similar, strengthened mandate for the PMRA, which gives top priority to the protection of human health and the environment and which promotes the use of safer systems of pest management. In addition, we believe that the PMRA should be mandated to heighten public awareness about the risks of pesticide use. Throughout this report, we have emphasized the importance of educating and informing the public about pesticides, the risks they pose or might pose, and the desirability of developing and using safer alternatives. Education is key to changing the public's attitude about pesticides and we foresee a major role for the PMRA in this respect.
15.18 In Chapter 2, the Committee set out four principles that should form the basis of the new pesticides Act. These principles, in our opinion, should also form part of the mandate that should be enacted in relation to the PMRA.
| The Committee recommends that the Pest Management Regulatory Agency be given the following priorities in its mandate under the new Pest Control Act: |
| (a) give absolute priority to the protection of human health and the environment when considering whether to approve a pesticide for use in Canada or allow its continued use; |
| (b) promote the use of sustainable pest management strategies that seek to reduce use, risk and reliance on pesticides; |
| (c) emphasize the development of safer pest control products; and |
| (d) inform and educate the public about pesticides and the risks associated with their use. |
15.19 Three separate bodies -- the Federal/Provincial/Territorial Committee on Pest Management and Pesticides, the Pest Management Advisory Council and the Economic Management Advisory Committee -- are involved in providing advice on pest management issues to the PMRA or the Minister. Their mandates are as follows:
- The Federal/Provincial/Territorial Committee on Pest Management and Pesticides was established in 1997 to strengthen federal/provincial/territorial relationships in the area of pest management and pesticides, promote the exchange of information in these areas, and provide advice and direction to the federal, provincial and territorial governments on programs, policies and issues for pesticides with the aim of enhancing sustainable pest control practices and to seek harmonization where applicable in programs and policies. The Committee currently consists of two officials from the PMRA, two officials from each province and one official from each territory.266 The Federal/Provincial/Territorial Committee on Pest Management and Pesticides replaced two former federal/provincial/territorial bodies, namely the Canadian Association of Pesticide Control Officials (CAPCO) and the Federal-Provincial-Territorial Standing Committee on Pest Management.
- The Pest Management Advisory Council (PMAC) is a multi-disciplinary body established in November 1998 to foster communication and dialogue between stakeholders and the PMRA and to provide advice to the Minister of Health on policies and issues relating to the federal pest management regulatory system. It consists of approximately 25 members, including representatives from the health, environmental, labour, consumer, academic, horticultural, agricultural and pesticide-manufacturing sectors.
- The Economic Management Advisory Committee (EMAC) was established in April 1997 to advise the PMRA on specific ways to improve efficiency and cost effectiveness without compromising health or environmental protection while maintaining industry competitiveness. This 13-member committee is comprised primarily of representatives from the agricultural and pesticide-manufacturing sectors.
15.20 Given that each level of government plays a role in the management of pest control products in Canada, the Committee takes note of the mandate of the Federal/Provincial/Territorial Committee, which is intended to promote and facilitate co-operative action. The Committee also welcomes the formation of the Pest Management Advisory Council. The broad-based membership of the Council as well as its general terms of reference should ensure that a more comprehensive and balanced approach is taken in pest management decisions. On the other hand, the Committee has deep concerns about the Economic Management Advisory Committee. The sole purpose of this body is to advise the PMRA on specific ways to improve efficiency and cost effectiveness. Although the Economic Management Advisory Committee is directed to do this "without compromising health or environmental protection and while maintaining industry competitiveness," the overall thrust of its mandate is undeniably an economic one.
15.21 The Committee is aware that economic considerations play an important role in the decision-making process. The problem is that, too often, they play the predominant role. In the Committee's opinion, the separate existence of the Economic Management Advisory Committee to advise the PMRA on efficiency, cost-effectiveness and competitiveness unduly tilts the balance in favour of trade and economics. As we stated earlier, the protection of human health and the environment must be given pre-eminence, particularly in view of the fact that the PMRA is now part of the Department of Health, rather than Agriculture and Agri-Food Canada.
15.22 It should be noted that many of the associations represented on the Economic Management Advisory Committee are also represented on the Pest Management Advisory Council. Representatives of the Crop Protection Institute, the Canadian Manufacturers of Chemical Specialities and the Canadian Federation of Agriculture sit on both advisory bodies. In addition, a representative from the Canadian Horticultural Council, who is an alternate member on the Economic Management Advisory Committee, sits as a full member on the Pest Management Advisory Council. The Economic Management Advisory Committee, on the other hand, has no representation whatsoever from the health, environmental and consumer sectors.
15.23 Given the existence of these two advisory bodies and the one-sided membership of the Economic Management Advisory Committee, the Committee is concerned that inconsistent and possibly conflicting advice might be given to the decision-makers although, technically speaking, the Economic Management Advisory Committee reports to the PMRA while the Pest Management Advisory Council reports to the Minister. In order to ensure consistency in the advice that is provided, the Committee believes the Economic Management Advisory Committee should be dissolved and its functions added to the mandate of the Pest Management Advisory Council. The farming and industry sectors are already represented on this Council; their specific interests are thus already heard and considered. To maintain the Economic Management Advisory Committee is unnecessary under the circumstances. In the opinion of the Committee, the Pest Management Advisory Council with its broad-based membership currently has the capacity to address economic issues and should be able to provide a more comprehensive approach to policy direction.
15.24 The Committee was very encouraged by the statement of the Minister of Health who indicated to us that he "did not feel strongly" about folding the Economic Management Advisory Committee into the Pest Management Advisory Council. We fully agree with the Minister's statement that "what we should have is a good vigorous advisory committee where all the interests are at the table".267
| The Committee recommends a restructuring of the advisory bodies, specifically that: |
| (a) the Economic Management Advisory Committee be dissolved and its functions be taken over by the Pest Management Advisory Council; |
| (b) the Federal/Provincial/Territorial Committee on Pest Management and Pesticides and the Pest Management Advisory Council be officially recognized in the new Pest Control Act and their mandates be defined; |
| (c) the mandate of the Pest Management Advisory Council explicitly provide that absolute priority be given to the protection of human health and the environment; and |
| (d) the broad-based membership of the Pest Management Advisory Council be explicitly retained in the new Pest Control Act. |
15.25 When the PMRA was created in 1995 it was given sole regulatory authority over pest control products, while the other federal departments which had previously been involved in the pesticide registration processes were left with important research and monitoring functions. The input of these departments into the current system, however, has been largely thwarted by the PMRA's unresponsiveness and lack of co-operation. This problem was first brought to the attention of the Committee by the Commissioner of the Environment and Sustainable Development who observed in his 1999 report that the PMRA had gained the reputation of being a "closed shop" and was perceived not to welcome the input from other federal departments:
| Overall, we have significant concerns about the lack of co-operation between the PMRA and the departments that undertake scientific research activities. There is little evidence that the departments and the PMRA, on a routine and regular basis, discuss their work or share their findings and set priorities for subsequent work. The PMRA has gained a reputation as a "closed shop" and is perceived not to welcome input from other federal departments.268 |
15.26 The PMRA's "closed shop" mentality was reiterated by many witnesses, including Dr. Pierre Mineau, a research scientist with Environment Canada. Noting that the PMRA was set up as an independent body, Dr. Mineau observed that the Agency "has taken its role very seriously, to the point of shutting out others."269 He described to the Committee some of the practical problems encountered with the PMRA over the years in terms of information sharing and consultation on policies and actions, not the least of which was the ten year struggle with the Agency (and its predecessor) to have the granular formulation of carbofuran banned because of its undeniable, lethal effect on birds.
15.27 Dr. Bernard Hill, environmental chemist with Agriculture and Agri-Food Canada testified in turn that when the PMRA took over, all contact ceased with registration officials at the PMRA. He stated that the policy seemed to become one of "no communication" except perhaps when a problem arose; only then would the PMRA seek input. He added that there was no obvious mechanism for submitting data directly to the Agency and that explanations on individual registration decisions had become difficult to obtain.270 Although these witnesses pointed out that some improvements had been made recently to re-establish the lines of communication with the PMRA, the Committee is not satisfied that this is occurring quickly enough.
15.28 The Commissioner of the Environment and Sustainable Development identified the PMRA's lack of information-sharing on pesticides with other federal departments as one of the major obstacles to interdepartmental co-operation. He described the inability of Environment Canada to obtain basic information on the composition of pesticides from the PMRA to properly target research on the environmental effects of these products.271 The Committee heard first hand from officials at Environment Canada, as well as from other federal departments, about the PMRA's refusal to share information with them. For example, officials from the Department of Indian and Northern Affairs informed us that their department had been denied information on the pesticide "lindane" which was being sought to assist that department in international negotiations regarding a POPs (persistent organic pollutants) treaty.272
15.29 The problem of information sharing is not limited to federal departments. Provincial and territorial governments have also been unable to obtain required information from the PMRA. This point was made forcefully to the Committee by senior officials from Prince Edward Island's Department of Technology and Environment, who appeared before the Committee on December 8, 1999. These officials described the problems encountered by their department in trying to obtain pesticide information from the PMRA to investigate the various fish kills that had occurred in PEI. They indicated that some information, like post-mortem diagnostic data, was simply not available. Conversely, some information was provided, but not always in a timely fashion; it took them about one month to obtain a report that had been recently completed on a specific pesticide pursuant to a special review. Moreover, they were unable to obtain information that the PMRA had in hand on the grounds that it was confidential business information. Mr. Bill Drost, Deputy Minister of Technology and Environment, stated in this regard:
| [The] most frustrating and disturbing aspect was being told that the information we requested exists, but that the PMRA was unable to provide the information because of confidentiality agreements with the pesticide manufacturers. We were told we would have to request this information from the pesticide manufacturers themselves. In this case, the company was in California. There is a problem when we must rely on the willingness of the company that manufacturers the product that we are investigating, to disclose information that could potentially be detrimental to the company and the image of its product. Mr. Chairman, with all due respect to the confidentiality issue, there must be a way found to allow investigative authorities like ourselves access to such critical information such as toxicity information on these products.273 |
15.30 The PMRA informed the Committee that by virtue of the confidentiality provisions of the Access to Information Act, it is unable to share with other federal departments the confidential business information it receives in relation to pesticides.274 Given the testimony of the PEI officials, the PMRA's policy of non-disclosure obviously extends to provincial and territorial governments as well.
15.31 The Committee is aware of restrictions regarding confidential business information under the Access to Information Act, which were outlined in Chapter 13. Based on the legal opinion that we obtained, it is clear that these statutory restrictions do not apply to the governments and government departments within Canada. They apply exclusively to individual Canadians and Canadian corporations.275 The legal opinion indicated, however, that there are some impediments at common law.276 We were advised in this regard, that there is a duty at common law for the recipient of information provided in confidence to protect the confidentiality of the information. Failure to do so could result in an action for breach of confidence, particularly if the confidential information is used for a purpose other than that for which it was provided. For example, if the PMRA receives confidential business information in support of a registration application and subsequently releases the information to environmental officials investigating a suspicious fish kill, the disclosure, in such a case, would serve a different purpose (i.e. investigation) from that for which the information was intended (i.e. registration). By providing confidential business information for an unauthorized purpose, the PMRA would be open to a breach of confidence action at common law. The common law, however, also recognizes a "public interest" defence. Unfortunately, there is very little Canadian jurisprudence on when the public interest defence might be successfully invoked. A compelling case could nonetheless be made that the PMRA, by providing environmental officials with confidential information to assist them in an investigation, was acting in the public interest and consequently should not be held liable for breach of confidence.
15.32 Whether the PMRA would be successful in invoking the public interest defence is speculative. It has never been necessary to put this issue to the test, given that the PMRA was apparently under the mistaken impression that the restrictions under the Access to Information Act precluded exchanges of confidential business information with other government agencies.
15.33 During her appearance before the Committee on June 1, 1999, Dr. Franklin of the PMRA suggested that the current constraints regarding information sharing with other departments would be obviated in the forthcoming legislation. She stated, "We certainly are anticipating being in a different position with amendments to the legislation so that in the future we would not be constrained in the way in which we currently are."277 As the Committee noted in Chapter 13, among the amendments recommended by the PMRA is a proposal to modify the Act to allow the disclosure of confidential business information to other government departments to respond to situations endangering health or the environment and to other regulatory authorities with whom an agreement has been signed regarding the exchange of information about pest control products.278
15.34 In the Committee's opinion, there should be a policy of complete information-sharing with other federal, provincial and territorial departments and agencies. Provided confidentiality is maintained and the information is relevant to the work of these departments and agencies, the Committee sees no reason why access should be denied to them. The greater the input into the decision-making process, the more informed the decisions of government are likely to be.
15.35 The Committee recommended earlier in this report that legislation to replace the current Pest Control Products Act be introduced in Parliament as a matter of top priority, but it may take some time before the new legislation is actually passed and proclaimed in force. Corrective action, however, is needed now. The exchange of information is a major component of the memoranda of understanding signed by the PMRA and the sectoral departments (discussed next). As the Commissioner pointed out, the lack of information sharing has been a major stumbling block to interdepartmental co-operation. In the Committee's opinion, this problem must be fixed immediately; it need not await a legislated solution.
| The Committee recommends that: |
| (a) the new Pest Control Act expressly authorize the disclosure by the Pest Management Regulatory Agency of confidential information, including confidential business information, to other federal, provincial and territorial departments and agencies that require the information in the course of their duties, subject to their maintaining the confidentiality of the information; |
| (b) as an interim measure, the Pest Management Regulatory Agency develop forthwith the broadest possible policy permitted at common law on the disclosure of confidential information, including confidential business information, to other federal, provincial and territorial departments and agencies that require the information in the course of their duties, subject to their maintaining the confidentiality of the information; and |
| (c) the Minister of Health ensure that the Pest Management Regulatory Agency implements such a policy no later than 60 days from the tabling of this report in the House of Commons. |
Inter-Departmental Memoranda of Understanding
15.36 In recognition of their interrelated roles, the PMRA and selected sectoral departments signed memoranda of understanding (MOU) in relation to pest management issues. These MOUs are intended to foster a strong working relationship between the parties by delineating their respective responsibilities and identifying areas of mutual interest. A common thread in the agreements is the exchange of information and advice and the promotion of sustainable development through the development of alternative pest management practices and risk reduction strategies. The PMRA signed an MOU with the Department of Agriculture and Agri-Food, the Department of Natural Resources and the Department of Health (Health Protection Branch) in 1996. A further memorandum was signed with Environment Canada in 1998.
15.37 The Committee supports these agreements in principle since they are designed to promote and facilitate inter-departmental cooperation. We are convinced that had the MOUs been implemented, both in spirit as well as the letter, many of the concerns brought to our attention would not have arisen in the first place.
15.38 Although the content of the MOUs might be praiseworthy in some cases, the Committee deplores the process under which these administrative agreements are negotiated and signed. We note that the MOUs in question were signed not by the responsible Ministers, but by senior bureaucrats, namely the PMRA's Executive Director and the relevant Assistant Deputy Ministers. They were also negotiated behind closed doors. The public was not given an opportunity for input before the agreements were finalized. The public was not even made aware of their existence. In addition, there is no requirement under the agreements to monitor compliance or gauge effectiveness. The MOUs signed with Natural Resources Canada and Agriculture and Agri-Food Canada simply require that the parties -- usually the bureaucrats who signed the MOU -- get together once a year "during the normal planning process." An annual meeting is not even required under the MOU concluded with the Health Protection Branch at Health Canada; this agreement simply calls on the parties to meet annually to review the agreement "if required." The MOU with Environment Canada is the only one of the four that specifically requires the parties to review the agreement 24 months after signing to "determine its adequacy."
15.39 In the opinion of the Committee, these MOUs completely fail to satisfy the dual principles of transparency and public accountability. In previous chapters, we discussed the importance of having an open and transparent process to foster public confidence in the system. Given that these MOUs are an important component of the overall pesticide regime in this country, it is essential that they be subject to public scrutiny and input before they are finalized. In Chapter 13, we recommended the establishment of an electronic public registry of information. Such a registry, in our opinion, would be the ideal vehicle for informing the public about proposed MOUs. If these agreements were disseminated by such means, the public would have notice of them and would have the opportunity to comment on their content. For greater transparency, comments made by the public could also be posted on the registry.
15.40 By recommending the publication of draft MOUs, the Committee recognizes that it is probably breaking new ground. As a rule, the public is not informed that MOUs have been signed, since these agreements are considered "internal" government business. To require the publication of MOUs, even in final form, would be precedent-setting. We believe, however, that it is important that the public be informed about what is being proposed and that it be given a reasonable opportunity to suggest improvements at the draft stage. Transparency of process demands that the public be involved at the earliest opportunity. In making this recommendation, the Committee is essentially following the recommendations of the Deputy Minister Task Force report of December 1996, entitled Managing Horizontal Policy Issues. This report sets out a check list of key practices for initiating work on horizontal and strategic issues within federal departments. Two of the practices on the checklist are of particular relevance to this discussion, namely, establishing clear accountability of both lead and partner departments, and developing partnerships with the broader community:
- establishing clear accountability of both lead and partner departments. Particularly when the lead for a horizontal initiative is a line department, definition of clear accountabilities allows the lead department to play a corporate role and exert leadership, while ensuring that partner departments collaborate and develop a sense of ownership for the initiative; and
- developing partnerships with the broader community. External consultation has become an important part of policy development for many departments, and needs to be integrated efficiently and effectively into the policy development process. Partnerships with the broader community (other governments, aboriginal peoples, non-government organizations) should be pursued as a means of drawing on a wider range of expertise and resources during the policy development process.279
15.41 Given this authority, the Committee is reassured that its recommendation to publish draft MOUs falls well within the government guidelines. To ensure full accountability, it is also critical that the MOUs contain an effective review mechanism and that the responsible Ministers, rather than the bureaucrats, take full responsibility for the MOUs by approving their content and signing them personally.
| The Committee, deploring the use of memoranda of understanding unless they are developed through a clear and transparent process, recommends that: |
| (a) before being finalized and signed, all inter-departmental memoranda of understanding negotiated by the Pest Management Regulatory Agency and other departments in relation to pest management issues be published on the electronic public registry and that the public be afforded a thirty-day period for comments; |
| (b) these memoranda of understanding be revised to ensure that they contain an effective review mechanism; and |
| (c) the relevant Ministers take full responsibility by approving and signing the agreements. |
15.42 A memorandum of understanding was also developed with the Department of Fisheries and Oceans (DFO) but, in contrast to the MOUs negotiated with the other departments, the agreement with the DFO was never concluded because of ongoing disagreements between this department and the PMRA on the use of pesticides in aquaculture and the interface between pesticide use and section 36(3) of the Fisheries Act. This section prohibits the deposit of deleterious substances in waters frequented by fish unless specifically allowed under regulations promulgated to that end.
15.43 As the Commissioner of the Environment and Sustainable Development observed in his 1999 report, the Fisheries Act is based on a policy of "zero tolerance" whereas the Pest Control Products Act allows some level of acceptable risk associated with the use of pesticides. Thus, even though a pesticide may be legally registered for use in Canada, if it enters waters frequented by fish it could run counter to the prohibition under the Fisheries Act.280
15.44 The testimony of officials from the PMRA regarding the use of the herbicide Acrolein highlighted the important divergence of opinion and approach between the PMRA and the DFO.281 The PMRA sanctions the use of Acrolein to control weeds in irrigation canals. The DFO has warned the PMRA against using Acrolein in these canals because the herbicide is known to harm or kill fish. The PMRA has taken the position that irrigation canals are not fish habitat. The DFO, on the other hand, maintains that the very fact that the fish are harmed or killed as a result of this usage triggers the application of section 36(3) of the Fisheries Act and should therefore preclude the use of Acrolein in irrigation canals.
15.45 In the Committee's view, environmental and health protection must always take precedence over other interests, especially when relevant provisions of federal statutes apply. The precautionary principle should always rule in cases of divergence between federal departments and agencies.
| The Committee recommends that in the event of a disagreement between federal agencies and departments regarding the use of a pesticide, the new Pest Control Act explicitly require the application of the precautionary principle to give priority to the protection of human health and the environment. |
15.46 During her appearance before the Committee on June 1, 1999, Dr. Franklin indicated that the PMRA and the DFO were hard at work to resolve their differences. She expressed the hope that a MOU would be signed by the fall of 1999. This did not occur, however, and the matter is still under discussion. The Committee is concerned that the PMRA and the DFO have been at an impasse for so long. The Commissioner of the Environment and Sustainable Development also expressed concern about their continued disagreement and recommended in his 1999 report that the parties proceed forthwith to resolve their differences and take co-operative action.282 The Committee joins the Commissioner in making this recommendation. In our opinion, the PMRA and the DFO should be partners and not foes in the quest for sustainable pest management strategy. They should forthwith conclude their MOU and redirect their energies to ensuring its effective implementation. Furthermore, the PMRA and the other sectoral departments should turn a new page and ensure that their MOUs are being effectively implemented.
| The Committee, reiterating the concerns expressed by the Commissioner of the Environment and Sustainable Development regarding the failure of the Pest Management Regulatory Agency and Fisheries and Oceans Canada to resolve their differences and take co-operative action, recommends that the Pest Management Regulatory Agency and Fisheries and Oceans Canada proceed forthwith to conclude a Memorandum of Understanding in relation to pest management issues in fisheries and aquaculture and that the agreement negotiated by them be approved and signed by their respective Minister. |
| The Committee recommends that the Pest Management Regulatory Agency and the sectoral departments take immediate steps to implement the provisions of their respective Memoranda of Understanding. |
257 Pesticide Registration Review Team, Recommendations for a Revised Federal Pest Management Regulatory System, Final Report, December 1990.
258 Government Proposal for the Pest Management Regulatory System, October 1994.
259 House of Commons, Hansard, No. 233, May 28, 1999.
260 Government Proposal for the Pest Management Regulatory System, October 1994.
261 Evidence, Meeting No. 129, June 10, 1999.
262 Evidence, Meeting No. 7, November 23, 1999.
263 Evidence , Meeting No. 5, November 17, 1999.
264 Evidence, Meeting No. 11, December 1,1999.
265 United States Environmental Protection Agency, Web site, Office of Pesticide Programs, Major Activity Areas of the Office of Pesticide Programs, January 2000.
266 Pest Management Regulatory Agency, Web site. Although the three territories currently have only one representative on the Committee, they are entitled to send two officials. The American Association of American Pesticide Control Officials may also send a representative, January 2000.
267 Evidence, Meeting No. 23, February 17, 2000.
268 Report of the Commissioner of the Environment and Sustainable Development, Chapter 3, 1999.
269 Evidence, Meeting No. 12, December 2, 1999.
270 Evidence, Meeting No. 12, December 2, 1999.
271 Report of the Commissioner of the Environment and Sustainable Development, Federal House, Chapter 3, 1999.
272 Evidence, Meeting No. 16, December 14, 1999.
273 Evidence, Meeting No. 14, December 8, 1999.
274 Evidence, Meeting No. 126, June 1, 1999; Report of the Commissioner of the Environment and Sustainable Development, Chapter 3, 1999.
275 J. Craig, Questions regarding Access to Information Held by the Pest Management Regulatory Agency : The Federal Access to Information Act and the Common Law Duty of Confidentiality, Parliamentary Research Branch, Library of Parliament, January 26, 2000.
276 The term "common law" essentially refers to the ancient rules of English law embodied in judicial decisions. The common law is the opposite of "statute law," which refers to the legislation enacted by Parliament.
277 Evidence, Meeting No. 126, June 1, 1999.
278 Pest Management Regulatory Agency, Proposed Amendments to the Pest Control Products Act, January 1999.
279 Canadian Centre for Management Development, Web site, Deputy Minister Task Forces, Managing Horizontal Policy Issues, December 1996.
280 Report of the Commissioner of the Environment and Sustainable Development, Chapter 3, 1999.
281 Evidence, Meeting No. 126, June 1, 1999; Evidence, Meeting No. 2, November 2, 1999.
282 Report of the Commissioner of the Environment and Sustainable Development, Chapter 3, 1999.