Good morning, Madam Chair and members of Parliament.
My name is Nalaine Morin. I am a member of the Tahltan nation and principal of ArrowBlade Consulting Services. I am pleased to make this presentation to you today summarizing my views relating the review of the Canadian Environmental Protection Act, 1999. The views I present here today are on my own behalf, based on my experience as an indigenous person who believes strongly in the natural laws of environmental stewardship and protection of the land for future generations.
The Tahltan traditional territory is in northwest British Columbia and southern Yukon Territory in Canada. Our territory includes the headwaters of three major salmon-bearing rivers, the Stikine, Nass and Skeena, and supports an abundance of wild game. The lands, waters, and resources of our territory have nourished our people culturally, economically, and spiritually for countless generations. According to Tahltan laws and traditions, we are responsible for taking care of the land, water, and resources so that our territory will continue to support our people for generations to come.
ArrowBlade Consulting Services has been providing professional services to our clients in the areas of natural resource management, industrial project development, regulatory review, and consultation. We hold in high regard the value of traditional knowledge, as well as western science and science-based tools such as risk assessment and risk management. I myself come from a background of both working for mining companies, with experience in the NPRI, and working directly for government, like the Canadian Environmental Assessment Agency, participating in panel reviews of mining projects.
The Canadian Environmental Protection Act is a significant piece of legislation for Canadians as it is directed at pollution prevention and protecting the environmental and human health. Within those general principles, I certainly see some synergies in the interests of first nations in continuing sustainable development as well as protecting mother earth.
Another important aspect of this act is meant to contribute to sustainable development through identifying and managing pollution sources that may have a negative impact on the environment and human health. There are a number of areas within the act that speak specifically to the inclusion and consideration of public interests, including the interests of the indigenous people in Canada. With my review I spent my time focusing specifically on those aspects.
When asked to participate in the review, I spent a great deal of time contemplating the purpose of CEPA and the importance of pollution prevention as it relates to the protection of the environment and human health. In the last 10 years, the Tahltan traditional territory has been opened up by resource development activities, including new mine developments and hydro projects—run of river, hydro lines—which have had a significant effect on the traditional landscape. I have also witnessed in that time period increases in significant health issues, including rates of cancer and rates of dementia, within our the communities in the Tahltan nation. I have to ask myself whether we are doing a good job implementing our laws, like CEPA, that are meant to manage pollution and wastes, understanding and controlling toxic substances, and ensuring the long-term health and viability of our lands and our people, if we are seeing these kinds of adverse effects.
As part of my review, I also reviewed a number of submissions that were provided to you, and I can relate to some of the specific matters like whether we are effectively implementing these regulations, which is one of the reasons why I raise that in my submission today.
My concerns are not unique. One just has to pick up a paper or turn on the news to understand that many other areas and remote regions in Canada are experiencing similar increases in health risks.
If we have legislation that is designed to identify, isolate, and manage potential contaminants in the interests of protecting human health and the environment, why are we continuing to see increases in human health issues? Are we, as government and members of Canada, understanding our abilities under CEPA and implementing the tools developed to manage the risks? I think there are opportunities to further explore and address these points, and my recommendations include the following.
We need to improve the awareness of and understanding of CEPA within indigenous communities and with indigenous governments. The definition of aboriginal government seems somewhat restricted to a smaller number of types of indigenous government organizations, so we are really limiting our ability to fully implement CEPA and the objectives outlined under it.
We should adopt the recommendations issued in the discussion paper of May 2016 regarding the identification and inclusion of vulnerable populations in risk assessment to ensure increased awareness and consideration of these populations.
Furthermore, we should also adopt the recommendations identified in the Canadian Environmental Project Act toolkit published by the Assembly of First Nations recommending the development of specific objectives, guidelines, and codes of practice on aboriginal lands.
We need to increase the participation of indigenous peoples represented on the national advisory council by changing the definition of aboriginal governments as published by the Assembly of First Nations.
Further to that, we should provide further definition and clarification regarding consultation to ensure that processes are meaningful. I would say the same for the definition of traditional knowledge. Within CEPA there is recognition and inclusion of the term, but it requires further definition to fully realize the potential and the fact that traditional knowledge is different depending on the region and the nation you're speaking to.
Most recently, Canada has become a signatory to the UN Declaration of the Rights of Indigenous Peoples, which includes some of the following: recognizing the rights of indigenous peoples to maintain and strengthen their spiritual relationship with their territories; to own, use, develop, and control their traditional territories; and to provide free, prior, and informed consent regarding developments affecting their traditional territories.
I recommend that consideration be given to these rights and to how they may further strengthen the abilities of Canadians to fully realize CEPA's potential as well as improve the rights of indigenous peoples.
Overall, I am in support of recommendations identified in the AFN submission as well as the discussion paper of May 2016.
Good morning and thank you very much for the opportunity to be here.
My name is Dayna Scott. I am an associate professor at Osgoode Hall Law School and the Faculty of Environmental Studies at York University.
I have been conducting legal research into chemicals management regimes for well over a decade. My expertise is related primarily to part 5 of the act dealing with toxic substances, to the principles of environmental justice, and to the design of regulatory regimes to protect vulnerable populations.
I believe there are a number of simple, feasible reforms to the act that can be made that would strengthen its operation, prevent pollution, and better protect all Canadians from the risks posed by toxic substances.
To be clear, these are significant risks encountered every day through ambient pollution from releases to air and water from industrial sources, but also increasingly from exposures as a result of our everyday use of consumer products containing toxic substances added to plastics, furniture, carpets, electronics, and more.
The amendments I recommend in my brief derive from four basic principles.
First, CEPA should better protect vulnerable populations and communities. In other words, the act should advance environmental justice. Canadians now expect that environmental laws will be not only effective but equitable. For CEPA, this requires concrete changes to address the disproportionate pollution burdens on vulnerable people and marginalized populations.
Second, regarding the precautionary principle, this means that, in the face of scientific uncertainty, we should err on the side of protecting public health and the environment.
Third, the assessment and regulation of toxic substances should be evidence-based. A precautionary approach embraces the emerging and the best scientific evidence.
Finally, relating to the safe substitution principle, this holds that regulators should be required to consider alternatives to the use of toxic substances in designing their control measures and to require the use of a safer substitute where one is available.
Currently, part 5 fails to prevent regrettable substitutions, creating what we often call the game of regulatory whack-a-mole. The government is forced to continually react, as industry changes its formulations, by replacing listed substances with other similar but under-examined chemicals. In this respect, I agree with the previous witnesses who have called for alternatives assessment or a safe substitution principle.
Overall, my submission is that CEPA part 5 is outdated and ineffective compared to chemical regulation in other jurisdictions, specifically the European Union. In order to achieve environmental justice, it requires significant amendment.
The most critical shortcoming of CEPA that I would like to draw to the committee's attention is one that, frankly, surprises ordinary Canadians and my students once it's explained to them. It is that a finding, through a rigorous risk assessment, that a substance is toxic under the act does not lead automatically to an obligation on the part of the government to actually ensure that exposures are reduced over time. The most obvious example of this failing is in relation to a class of flame-retardant chemicals known as the PBDEs.
Specifically, I'm going to speak about decaBDE. This substance is linked to thyroid, liver, and neurological problems. A full decade after this substance was found to be CEPA-toxic, it is still all around us. It is in this room. It's in your home. It's in your children's computers.
The law we have now appears to allow the government to select a meaningless regulatory option, such as prohibiting something that never happened in Canada in the first place, namely the manufacture of PBDEs, instead of a meaningful regulatory response that would protect Canadians from the exposures that actually threaten us, i.e., the import of consumer products that contain decaBDE. Indeed, the current law not only allows the government's regulatory response to be meaningless with respect to PBDEs, it also expressly allows the government to do nothing, to take no regulatory action at all in response to listing this substance as toxic.
Thus, I submit that the committee should seriously consider amending CEPA to implement a requirement for mandatory precautionary action, so that Canadians do not continue to be regularly exposed to substances that have been deemed toxic under the act, like the flame retardant decaBDE.
Next, I urge the committee to consider making changes to the definition of toxic under the act. In CEPA 1999, toxic is defined as a substance that's entering or may enter the environment in a quantity or concentration, or under conditions, that may cause harm to the environment or human health.
This definition relies on risk assessment practices that systematically underestimate real world exposures. This is for a number of reasons. First, the risk assessments proceed one substance at a time, even though in reality we're exposed to a complex toxic soup. Second, many of the chemicals in that toxic soup act cumulatively or synergistically in the body in ways that we don't fully understand. Third, some sources of exposures are not being routinely included in the risk assessments, such as occupational exposures.
Further, the exposure assessment built into section 64 relies on the idea of a threshold. It assumes that there will be some level of exposure to toxic substances, below which people will not experience adverse health effects. This toxicological paradigm, known as the “dose makes the poison”, is outdated and has for several years been breaking down under the weight of emerging science. This is most obvious in relation to endocrine disruption.
For these hormone-mimicking chemicals, it's now clear that low dose exposures are extremely significant and can cause a wide variety of health harms related to growth, metabolism, and reproduction, and a number of chronic diseases like diabetes and obesity. The extent of the harm depends more on the person's sex and the timing of exposure than it does on the so-called dose. Scientists have identified several windows of vulnerability in which people are susceptible to being impacted by exposures at very low levels. In utero exposures are a particular concern.
Our current definition of CEPA-toxic is unable to prevent these modern, low-dose pollution harms from endocrine disruption.
I'd like to offer another quick example of how the act is failing.
I published an op-ed in The Globe and Mail in 2012, shortly after the endocrine disrupting substance BPA was listed as toxic and the government took action to prohibit its use in baby bottles. In it, I pointed out that even though environmentalists had applauded this action, fetuses and infants were still being exposed to BPA because pregnant and breast-feeding women were still being exposed to it from the lining of tin cans, and at work, etc. I indicated that young children drinking from water bottles that were labelled BPA-free were still being exposed through their alphagetti and their tomato soup.
This incensed mothers. I received more mail after publishing this piece than I ever could have imagined. People told me they had gone out and spent their good money and valuable time getting the right bottles because their government had led them to believe that be doing so they could keep their family safe from this chemical, and they felt betrayed.
The current reality is that four years after BPA was listed as toxic, most of us continue to be exposed to it everyday from a variety of sources.
Finally, the committee has expressed interest in learning how we can make the act more equitable.
One way to do this is to consider the people disproportionately affected by toxic exposures. They include women working long hours as cashiers handling receipts containing BPA; single parents shopping at the discount store for kids' lunch containers; infants in neo-natal ICUs where toxic plasticizers have been found in medical equipment; people living in communities on bus routes or near cement plants; indigenous teenagers growing up on-reserve in Aamjiwnaang, downstream of Sarnia's petrochemical cluster, or in Akwesasne; auto workers in plastics manufacturing plants; recent immigrant women working at nail salons; and all of us, any of us, who happen to encounter an exposure during a biological window of vulnerability.
From an environmental justice perspective, I submit that it's unacceptable to have a regulatory approach that relies on Canadians reducing their own exposures to under-regulated substances via their consumption choices. This approach cannot account for the varied abilities and capacities of differently situated people. In reality, all of us would choose not to be exposed to toxic substances if we had full control, and equal political power and purchasing power.
An equitable approach is to require precautionary regulatory action that works toward reducing toxic exposures across the board, so that disparities of geography, income, gender, education, race, and indigenous status are not further entrenched by our environmental laws.
To conclude, my recommendations seek to achieve a more equitable and precautionary outcome. I urge the committee to consider these recommendations carefully.
I thank you very much for your time today.
I'm delighted to be here. I'm a little surprised that I'm invited. I see a lot of expertise at the table already. I'm presuming that I've been invited because I was the first person to table an environmental bill of rights at the federal level. I also have a copy of my Bill here, which could be distributed later. It is in both official languages. I apologize that my brief was not already translated, but I think that will be provided to you.
I was also a member of the first team of citizens who worked with the in the early 1980s in the drafting of the original CEPA. I want to share a little about how it came about that some environmental rights were included in that bill and why it's important to continue to strengthen those rights and opportunities in that legislation.
What do we mean by environmental rights? First, these rights involve the enshrining of the rights of Canadians to a healthy and ecologically balanced environment through amendments to federal laws and the Canadian Bill of Rights. Many have proposed that Canada mirror the precedent set by many other nations who have entrenched these rights in their constitutions.
Second, these rights are considered important in order to enshrine the Government of Canada's public trust duty to protect the environment to the extent of its jurisdiction, including legislating and enforcing environmental protection laws.
Third, specific environmental rights are generally considered to include the right of Canadians to hold their governments accountable by accessing environmental information to become better informed on the potential environment or health impacts of projects, activities, or decisions; having the right to participate in decisions impacting their health and environment; and gaining standing before courts and tribunals to seek intervention where those rights are denied, including requiring effective enforcement of environmental protection laws.
Why is it important to enshrine environmental rights? Directly informing and engaging the public eases suspicions and builds trust in the decisions by regulators. It's important that the process be constructive, and I'll speak to that a bit later and give some examples of some processes that have been more constructive.
Canada committed in 1993, under the North American Agreement on Environmental Cooperation, to the importance of public participation in conserving, protecting, and enhancing the environment; to promote transparency and participation in the development of environmental laws, regulations, and policies; to publish in advance any proposed measures and provide interested persons reasonable opportunity to comment; to extend the right to demand investigation of environmental violations; to provide access to administrative, quasi-judicial, or judicial proceedings for the enforcement of environmental laws, or to file suit for damages or injunctions; and to ensure that all administrative, quasi-judicial, and judicial proceedings are fair, equitable, and open to the public. Canada has already committed since 1993 that it will extend those rights in federal law.
What are the alternative means available to extend environmental rights?
One way is through constitutional reform, which would override all federal environmental laws, but many believe it's also important to extend those rights more specifically in statutes.
A number of jurisdictions have already incorporated or have issued stand-alone environmental bills of rights. The Government of Ontario did, and I think Manitoba was in the process, at least before the last election. Nova Scotia is proceeding. On my part, I have tabled a proposed federal environmental bill of rights several times.
The rights could be incorporated in individual statutes. The statue you're reviewing now is one of the first to incorporate some of those rights. The Canadian Environmental Assessment Act also has, or had, a good number of rights, which were emasculated by the former government. That is why there's been a lot of opposition to resource projects. Alberta, Northwest Territories, and Yukon all have included a variety of environmental rights in their environmental laws.
Rights can also be extended to citizens by petitions to stand-alone bodies. The commissioner for environment and sustainable development already has that power, and citizens are extended the right to petition the commissioner. The North American Commission for Environmental Cooperation has, within its agreement, the provision that anyone in North America can petition when they are concerned that the environmental law is not being enforced. As I mentioned previously, Canada has committed to put in place very many specific environmental rights.
When CEPA was first enacted in 1984, Environment Canada led an intensive public consultation process, including with industry and non-government organizations. An important addition to this consolidation statute was the entrenching of environmental rights and related obligations, now contained in part 2, including the registry of decisions, the right to request the addition of a substance on a priority substance list, the right to make voluntary, confidential reports of violations, the right to seek an investigation of an offence and the duty of the government to respond, the right to bring an environmental protection action, and the right to seek an injunction where a person suffers loss or damage due to contraventions.
An equally important parallel action taken by the then environment minister when CEPA was first enacted was to table an enforcement and compliance policy, thereby disclosing publicly what the responses would be when there is a violation under CEPA. This, again, was a public confidence-building gesture to the public. In doing so, the minister said, “A good law, however, is not enough. It must be enforced—ruthlessly if need be.”
This was a very important aspect of the original tabling of CEPA, and I think it should be given careful consideration by this committee. The public is concerned not only about what is in the law, but also about the law being effectively enforced.
As for constructive public engagement processes, it is not sufficient merely to enact these rights. It is incumbent upon the government to put in place constructive processes to engage the public in implementing the law, which is all the more important where there are concerns about toxic substances entering the environment, as you have heard from other witnesses.
Several good models exist that I encourage the committee to consider and recommend to the department. One is under the Canadian Environmental Assessment Act. My understanding is that the Liberal government is going to re-enact the Regulatory Advisory Committee, wherein all concerned parties—industry, public, and so forth—will have a say in federal environmental assessment legislation and regulations.
Another really good model is the Clean Air Strategic Alliance in Alberta. That was initiated way back under the government of Ralph Klein. It is a tripartite committee, with somebody from the environmental community, somebody from industry, and senior people from government. They can come up with their own reviews, or the government can refer to them matters on air emissions that it wants them to review. As a result of this committee, Alberta now, I think, has the lowest flaring emissions in Canada. As a result of this committee, Alberta is the only jurisdiction in Canada that requires the capture of mercury from coal-fired power. Through that committee, they have issued standards on NOx, sulphur dioxide in particular. I think it is a really good model for the federal government to look at.
Third, the government could consider re-funding the Canadian Environmental Network, which was very effective in bringing together citizens from across the country to effectively and constructively provide comments on everything from pesticides and the Fisheries Act to toxins. There was a very active toxic substances caucus, which regularly met and provided constructive, informed advice to the government. There was also an aboriginal caucus, which provided advice to the government specifically in these matters.
Another one was MERS, the Mercury Emissions Regulatory.... I can't remember what it stood for, but it was a federal body that was looking at the control of mercury. I'm sad to say that it was not effective. It simply issued what was called a Canada-wide standard. I strongly recommend that the committee say that we no longer do a Canada-wide standard. When is a standard not a standard? It's when it is a Canada-wide standard and simply a guideline. It doesn't mean anything. The federal government has never issued any standard for mercury from coal-fired.
A final one is COSEWIC—the SARA advisory committee and the independent aboriginal advisory body.