ENVI Committee Report

Opposition Report

Study Overview:

On March 8, 2016 during a ‘scoping exercise’ on the design of the Canadian Environmental Protection Act 1999 (CEPA or "the Act"), the Standing Committee on Environment and Sustainable Development (the "Committee") commenced a review of CEPA.  Over the course of 28 meetings in the last 15 months, Members of the Committee devoted approximately 28.3 hours hearing witness testimony and 21.8 hours on drafting and approving Healthy Environment, Healthy Canadians, Healthy Economy: Strengthening the Canadian Environmental Protection Act, 1999 (“the Report”).

It is the overall view of the Official Opposition that the Report itself is neither comprehensive nor credible. It is our hope that the Government of Canada recognizes this review of CEPA as a failed process, one which was inconsistent with good governance practices or credible evidence-based policy development.   

It is the opinion of the Official Opposition that if the Committee had devoted more of its time to hearing from witnesses, the final result would have been a more focused, complete and credible report.  For example, despite multiple requests to extend the study and elicit additional critical evidence, the Liberal Members of the Committee declined such requests.  It is likely that concerns over an early prorogation, a re-constitution of committee members before the fall session of Parliament, and the Liberals' self-imposed timeline (passed in March, 2016) to review the Act may have all contributed to a less than optimal conclusion to our deliberations.

As a result of the study being rushed and poorly managed, it failed to include critical testimony and evidence from provincial, territorial and municipal governments or from officials in enforcement, chemicals management and regulatory affairs.  It also neglected to include sufficient evidence from important witnesses such as scientists and Indigenous representatives. 

What is also notable in this Report is the dearth of evidence supporting many of the Liberal Members' far-reaching recommendations. This flaw in the Report is best illustrated by the broad-sweeping recommendations regarding the National Pollutant Release Inventory (NPRI) and binding national water and air standards, which include no comments or feedback from departmental officials or provincial and territorial representatives.  

A key test of any comprehensive report would include multiple perspectives and opportunities for additional feedback to properly weigh the value of testimony. It is the viewpoint of the Official Opposition that the Committee failed to adhere to this basic principle.

The purpose of this Opposition Report is to outline areas of greatest concern for the Conservative Members of the Committee.

Below is a breakdown of the time spent drafting the Report and hearing from witnesses.  

Witnesses (# of Meetings)	Witnesses (# of Hours)	Drafting (# of Meetings)	Drafting (# of Hours)	Total Meetings	Total Hours
14	28.3	14	21.8	28	50.1

Committee Witnesses and Recommendations:

Over the course of the study, the Committee heard from 56 different witnesses and received 68 separate briefs, yet the majority of recommendations are derived from four principle sources: 1) Environment and Climate Change Canada; 2) Professor Dayna Scott; 3) Professor David Boyd; and 4) Professor Mark Winfield. With the departmental recommendations removed, the recommendations from the three other principle sources represent more than half of all recommendations. The obvious question that arises from this information is: Why would such a small number of witnesses have such out-sized influence on an Act that is as far-reaching and consequential as CEPA? And why would so few of the recommendations made by the remaining 53 witnesses find favour with the Members of the Committee?

The Official Opposition found that the information and recommendations provided to the Committee by the departmental officials from Environment and Climate Change Canada were critical to understanding the complexity of the issues which require attention within the Act. It is for this reason that we support the following recommendations in the Report, which came from Environment and Climate Change Canada per their comprehensive Discussion Paper: 1, 11, 12, 13, 55, 65, 66, 70, 72, 73, 74, 77, 83, 84 (without third party oversight and public notice), 85, and 87.

The Conservative Members also support the following Departmental advice that was rejected by the Liberal Members:

• Administrative Agreements under section 9;
• Formally allowing regulations or instruments under other Acts to fulfill risk management obligations;
• Consistency with the Motor Vehicle Safety Act;
• Reasonable exemptions for certain classes of new substances;
• Improvements to the role for the Minister of Health for section 83 assessments;
• Downstream notification provisions  for substances on the Domestic Substance List;
• Section 91 (1) notifications to develop instruments or regulations related to substances on  Schedule 1;
• Designating another Minister under CEPA to assess and manage biotechnology provisions such as living organisms;
• Third party field research provisions; and 
• Incorporation by reference of provincial environmental regimes on a jurisdiction by jurisdiction basis.

Controlling Toxic Substances:

The large majority of the 28.3 hrs of witness testimony focused on Canada’s chemicals management plan and controlling toxic substances. Many of the additional written briefings received by the Standing Committee also focused on this Part of the Act.  Of the 24 recommendations on controlling toxic substances, the majority came from three witnesses with no evident scientific or practical experience in the field of toxicology.

As the Committee recommendations reveal, some of the key objectives of the Liberal Members of the Committee appear to have been:

• Moving towards a hazard based approach by amending sections 64 and 68 of CEPA (recommendation 40);
• Adopting a reverse burden approach to emulate the REACH model which is prevalent in the EU member states (recommendation 41);
• Dramatically expanding the duty of the Crown by including a definition of vulnerable populations within the Act (recommendation 42 and 56);
• Adopting specific regulations for certain substances such as endocrine disruptors and changing the definition of toxicity (recommendations  39, 43, 44, 45, and 49); and 
• Mandating re-assessments and the substitution principle into the chemicals management system (recommendations 50, 57, 58, and 59).

Conservative Members believe that the recommendations concerning the above were too prescriptive, did not receive adequate testimony and were designed to mimic the Registration, Evaluation Authorization and Restriction of Chemicals (REACH) program of the European Union – a program on which the Committee surprisingly received no formal briefing.  

The Conservative Members believe that the Liberal recommendations were designed to effectively replace Canada's well-established Chemicals Management Plan by shifting towards a hazard based and reverse burden approach to chemicals management. Such a shift would undermine the common approaches historically adopted by Canada and the United States when it comes to the management of chemicals. Effectively, the Liberal recommendations would turn Canada's current system of chemicals management on its head without appropriate consultations with industry, government and non-governmental stakeholders and risk undermining the common approaches adopted by our US neighbours and the economic competitiveness that such a common approach secures for Canadian businesses.

The Conservative Members, based on the limited evidence received, do not support moving towards a hazard based approach to chemicals management.

The Conservative Members believe that the Chemicals Management Plan (CMP) must be allowed to complete the assessment and management of the original 23,000 substances it set out to review. The Conservative Members also believe that sound science must continue to be the driver for risk assessments under the CMP, and that precaution should continue to be used only in the absence of scientific information where a hazard has been identified.  

Professor Boyd, the inspiration behind many Liberal recommendations, explained why he supports the European model to chemicals management:

"It's really reversing the burden of proof for those substances. What that has enabled the European Union to do is to move more expeditiously in getting these toxic substances out of our economy, out of our society, out of our environment, and out of our bodies".[1]

His testimony, however, contradicts Environment and Climate Change Canada which explained that REACH is not an effective tool for protecting the environment and the health of Canadians:

"REACH is an extremely time-consuming process that requires extensive work on the part of users and producers, but that actually has achieved a lot fewer decisions than we've achieved under the chemicals management plan".[2]

With such contrasting viewpoints and a lack of adequate evidence, the Conservative Members recommend the government reject the Report's proposal to move to a reverse-burden approach and the related suite of recommendations that could undermine Cananda's current risk assessment process through onerous and unnecessary regulations. Reversing the onus onto proponents of a certain chemical would represent a fundamental change to the underpinning philosophy of CEPA and its risk-based approach.

On the future of the CMP, the Conservative Members encourage further collaboration between the public and private sector to improve chemical assessments in Canada. The Conservative Members believe in the sentiment expressed by the Industry Coordinating Group for CEPA:

"The public credibility of CMP actions is enhanced by placing the responsibility for risk-assessment and risk management where necessary with government and yet also imposing important responsibilities on industry". [3]

Furthermore, the Conservative Members believe that maintaining a level of flexibility in Part 5 of CEPA is integral to the wellbeing of Canadians and the environment. Professor Diamond explained her perspective:

"In the case of chemical assessment under Part 5, I believe that promoting a principle of using the best available science will allow government scientists and policy-makers to employ best-available and vetted methods. Not over-prescribing methods and allowing government personnel flexibility was a sentiment expressed in the June 2015 report of the Canadian Chemicals Management Plan Science Committee. It was evident that government scientists, as a matter of common practice, were using the latest science to conduct chemical assessments".

As per Professor Diamond, the Conservative Members do not support recommendations that are overly prescriptive and that could compromise scientific assessments.

 A global leader in toxicology, Professor Dan Krewski also indicated the need for the Minister to have flexibility when considering alternative indicators for toxicity:

"The key cornerstones are the new toxicological approaches, advanced risk assessment methodologies, and some ideas from population health, looking at multiple determinants of health simultaneously, gene environment interactions and social environment interactions included".

Mr. Krewski also alluded to the major advancements in the field of toxicology:

"The science by which we conduct environmental health risk assessment is undergoing a revolution and there are plenty of opportunities to exploit these new techniques".

Mr. Krewski appears to have premised his views on the assumption that Canada’s current chemicals management plan is equipped to meet these new tests and challenges.

Despite fundamental disagreements on the utility of a hazard based system within the Committee, there was general agreement on a series of principles reflecting technological advancements and scientific practices that should be reflected in the chemicals management system.

Regarding recommendation 46, there was general agreement that the Minister should be using multiple points of exposure and measuring the cumulative effect of a toxin during risk assessments. Therefore, the Conservative Members support recommendation 46 so long as assessors maintain the required flexibility to conduct their work.

There was general consensus from Dr. Diamond, Jessop and Ariya that a life-cycle approach to assessing and managing substances under CEPA be adopted as a principle for risk assessments. Therefore, the Conservative Party supports recommendation 47.

Regarding persistence, bioaccumulation and inherently toxic (PBiT) criteria, there was general agreement from industry, the Department of Environment and Climate Change and academia that these regulations should be updated. Therefore, the Conservative Members support recommendation 48.

Controlling Toxic Substances: Vulnerable Populations

Many recommendations suggest that vulnerable populations should be included in the text of the Act. The Conservative Members do not support this addition based on the testimony provided by Environment and Climate Change Canada:

"I think it's important to note that we do consider vulnerable populations in this. We take a look at things from a human health perspective with children and pregnant women. We do take a look at exposures and routes of exposures associated with those most vulnerable populations."[4]

The opposition recommends that the Minister follow the advice of her officials and include a reference to vulnerable populations in the preamble of the Act and that chemical assessments continue to account for vulnerable populations in risk-assessments and management protocols as indicated by departmental officials.  

Controlling Toxic Substances: Changing the Definition of Toxicity

On changing the definition of toxicity, Environment and Climate Change Canada explained that toxicity under section 64 is determined based upon whether it has a harmful effect on the environment, is a danger to the environment on which life depends, or is a danger to human life or health. [5]

Dr. Jessop from Queens University explained that there isn’t “such a thing as a toxic chemical versus a non-toxic chemical. All chemicals are toxic, even water”. He stressed the need to evaluate chemicals through life-cycle analyses to assess environmental impacts. [6] Therefore, without stronger evidence supporting such a change, the Conservative Members do not recommend changing the scientific meaning of ‘toxic’ contained within the Act.

Controlling Toxic Substances: Mandatory Assessments, Re-Assessments, Substitutions

On mandatory assessment or re-assessments according to data from other OECD nations, the Conservative Members feel there is no need to change the current system based on the testimony provided by Environment and Climate Change Canada:

"Internationally, we work very closely with the partners at the OECD and the U.S. EPA, so there's always a sharing of information there, so data from either domestic or international organizations and review of decisions in other jurisdictions. Sometimes we see trends through the new chemicals program. We see certain classes of substances being notified and we see if there are any linkages that could be made to substances already on the DSL. That helps them inform the science as we move forward with that".[7]

The Conservative Members, therefore, recommend that Environment and Climate Change Canada and Health Canada continue collaborating with the US Environmental Protection Agency and other OECD nations to align chemical regulatory processes, specifically through the development of common approaches to address emerging risk issues.

The Conservative Members also reject the recommendations on alternative assessments and mandatory substitutions for safer alternatives. The Chemistry Industry Association of Canada also strongly opposes this change:

CIAC would discourage legislative changes to ‘safe alternatives’ or ‘mandatory alternatives assessment.’ The condition precedent to requiring the alternative assessment is the unproven assumption that the primary chemical in question is toxic before an assessment has been finalized. If nothing else, there are some substances which are on the toxic substances list which cannot be substituted – like carbon dioxide. An available alternative should NOT influence a risk assessment.[8]

The Conservatives members believe that the current rules for triggering a re-assessment are adequate.  They include additions to the Domestic Substance List inventory or other surveys, new science, research and monitoring findings, information submitted under section 70, data from domestic and international organizations, review of decisions in other jurisdictions (i.e.// OECD), issues flagged via the New Substances Program, results from previous assessments and information submitted on a substance subject to significant new activity provisions within the legislation.

Dr. Jessop warned against risk migration, a process under which one chemical is banned, only to have it replaced by a worse one. Professor Smol also cautioned against substitutions without conducting sufficient studies before substances are released into the environment.  For these reasons, the Conservatives Members support life cycle analyses in chemical assessments.

Controlling Toxic Substances: Recognizing the need for tailored approaches

Based on the evidence received from scientists, Environment and Climate Change Canada and industry groups, the chemicals management plan allows for tailored approaches to risk-assessments which account for multiple variables:

"Importantly, CEPA also allows important discretion to tailor CMP program elements to suit the need of the task at hand. Some examples are the consideration of vulnerable populations when doing certain assessments, which has been built into some assessments".[9]

Based on the limited testimony provided, the Conservative Members reiterate the position of industry and Environment and Climate Change Canada that a degree of regulatory flexibility be maintained to support risk-based chemical assessments.  Based on the limited evidence provided, the Conservative Members have no assurance that the legalistic provisions put forward by the Liberal Members of the Committee will actually improve the health and wellbeing of Canadians.

Controlling Toxic Substances: Trade Implications

The Conservative Members recommend that the Government explicitly consider the impact which recommendations emanating from this Report may have on the ongoing work of the Regulatory Cooperation Council and on Canada's efforts to coordinate and/or align its regulatory processes with those of the United States in order to improve Canada's trade competitiveness. This would especially apply to recommendations 15, 16, 17, and 18.   

We also encourage the Minister to consider amendments to CEPA to ensure consistency with the United states Lautenburg Chemical Safety Act for the 21st Century, as amended in June of 2016 and signed into law by former President Barrack Obama. Like CEPA, it applies a risk-based approach to the management of chemicals.

Confidential Business Information:

Recommendations 25, 26, 27, and 29 touch upon disclosing information which could impact commercial interests and whether a corporation undertakes research and development in Canada. Confidential Business Information provisions exist to ensure Canada can develop new technologies, grow business and create employment. Adopting these recommendations would likely prevent the best science from coming to Canada and jeopardizes the development of new and green technologies within the private sector in Canada.

The Committee recommends that, before any changes to confidential business information provisions are made, industry be thoroughly consulted. Again, these recommendations were subject to little debate and attention by the Committee.

On Environmental Protection Actions:

Conservative Members were not given an opportunity to elicit additional testimony from relevant officials at Environment and Climate Change Canada and Justice Canada over the possible impacts a change from “significant harm” to “harm” would have on the Crown's liabilities under CEPA (see recommendation 30).

Regarding changes to the environmental registry and circumstances when an individual may bring an action against the Government, the Conservative Members recommend that the Minister seek additional legal advice and undertake thorough stakeholder consultation before proceeding with any changes to the environmental protection action provisions within the Act.  Again, the recommendations put forward, especially numbers 31-34, relied on the testimony of a very small number of witnesses and the biases of the Liberal members.

On a Right to a Healthy Environment:

The Conservative Party believes that a right to a healthy environment should be included in the preamble to the Act. That said, proposed recommendations that enshrine within the Act as yet to be defined environmental rights will expose the Crown to a host of liabilities that were not in any way adequately addressed by the testimony and evidence before the committee (see recommendations 4 and 5).

Animate Products of Biotechnology:

With little information to work from apart from the submission from the Ecology Action Centre, the Conservative Members suggest the Committee undertake a thorough study on this subject at a later time when scientific and legal opinions can be properly reviewed and assessed to provide evidence-based recommendations on the role of animate products of biotechnology, such as genetically modified salmon, within Canada (see recommendation 63 and 64).

National Pollutant Release Inventory:

There was little to no study on the National Pollutant Release Inventory. The Conservative Members, therefore, feel that it would be irresponsible to recommend the scope of changes put forward by the Liberal Members. Indeed, the unreasonably short timeframe of this study prevented a full and proper consideration of the NPRI, including a review of its financial costs, current management of the program, appropriate threshold levels, data management, relationship to the Fisheries Act, and its relationship to provincial and municipal programs.

The Conservatives recommend that the Minister disregard recommendations 19 and 20 and seek a proper review of the NPRI.

National Air and Water Standards:

The Conservative Members believe that recommending binding national air and water standards based on the scant evidence before the Committee would undermine years of negotiations between the provinces, territories and federal government, especially with respect to the Air Quality Management System. Recommendations 36 and 37 disrespect the critical role which the provinces and territories play in implementing policies that improve the quality of the air that Canadians breathe and the quality of the water that we drink. We recommend that, prior to the federal government considering imposing binding national air and water standards, it embark on national consultations that include all relevant stakeholders, including the provinces and territories.

Official Languages:

Over the course of the study, the use of both official languages was raised on multiple occasions. One pertinent example included Professor A. Ariya, a francophone scientist from Quebec.  Professor Ariya was not permitted to submit her English-only presentation deck to Committee Members out of respect for the use of both official languages.

In response to a question on whether the Committee should allow the submission of written materials in only one or the official languages, the Liberal MP for Kingston-Thousand Islands stated the following:

"A couple of weeks ago, when it happened, the member who was substituting was a francophone. It's with no disrespect to you that I'm not personally in favour of this. We're a country that supports and advocates the use of both official languages. When we have a presentation, it has to be in both official languages so that we don't put somebody on the spot if they happen to show up and want to participate and their first language is French".[10]

Notwithstanding the intervention by the Member for Kingston-Thousand Islands, we were not pleased that in subsequent committee proceedings the Liberal Members authorized the distribution of Committee-related material that was solely in English, notwithstanding that at least one Member of the Committee was only proficient in the French language and was prevented from engaging on this English-only material.

Conclusion:

The Conservative Members believe that, had this study been more focused and more time been allocated to receiving critical testimony, this Report could have represented another step forward in improving the rigour of Canada's environmental protection regime. Sadly, the majority's recommendations are in many cases not adequately borne out by supporting testimony and evidence before the Committee.  They appear to reflect an ideological bias in favour of a wholesale re-make of Canada's environmental protection regime that could have a profoundly chilling effect on Canada's economic competitiveness.