ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, February 18, 1999

• 0913

[Translation]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Good morning, ladies and gentlemen. We resume the clause-by-clause consideration of Bill C-32. I would like to make a few brief announcements.

[English]

Number one, so as not to bring it forward when we resume the first week in March, the clerk is distributing a little amendment of the chair on aquaculture. While it is long in words, the substance and purpose is very simple: it is intended to fill certain gaps we have discovered through our hearings. While I will not vest time in the details of the amendment, I can only say that there is a situation developing in the aquaculture activities that requires very serious attention. Since it would appear that the fishery department is not paying attention to it the way it could, it seems only reasonable that CEPA focus on it to determine to what extent this legislation can help in protecting the resource for the long term.

The second announcement has to do with one of those rare opportunities that comes when waking up earlier than usual, and that has resulted in a comparative approach to the schedules. Of all the exciting readings in the early hours of the day, I couldn't think of a better one.

• 0915

The approach in schedule 3 I find to be very impressive and desirable, because it has a method, it has simplicity, and in its lack of additional words it is effective. I welcome that approach.

I would like to be able to say the same for schedule 6, but I cannot. Instead, in schedule 6 you find the use of the word “should”. That word “should” pops up on a number of occasions, more than a dozen, in sections 1, 2, 3, 4, 6, 12, 13, 14, 15, 17, and 18. I would like to understand why the term “should” is used instead of the term “shall”. I think the committee would also be interested in that.

There is also the use of the term “can” in section 9 of schedule 6. There may be others, but I have discovered only one. In the last sentence it states, “An Action List can also be used....” One wonders if the word “may” would not be more appropriate, rather than “can”.

“Shoulds” and “cans” of course weaken the effectiveness and impact of the purpose of schedule 6. I would be very grateful—and I am sure my colleagues would be too—to the officials if they could, when we resume, give us an explanation on whether or not, in light of the wording of the legislation, clauses 127, 128, and 129, for instance, in the case of schedule 6, these “shoulds” shouldn't be transformed, as they should be, into “shalls”.

Finally, drawing from the beauty of schedule 3 in its simplicity and directness, I begin to wonder—and others too, I suppose—why schedule 1 is not written in the same manner as schedule 3. Why is there all that verbiage? Why not simplify it so that you have the items as they are indicated now in bold, and drop all the rest? You would no longer have the distinction between “except for certain uses”, “quantities that may be manufactured”, and so on, the (a)s and (b)s. You know what the distinction is all about from the text before you. Thus we would make schedule 1 a serious schedule, something that will be taken for what it was intended in the first place.

I'm not a schedule specialist, and I doubt very much—except for Mr. Lerer—there is any schedule specialist in this room. But it seems to me that schedules ought to be simple and straightforward, with the use of verbs that indicate a clear purpose and none of these grey areas that emerge in schedule 1, and in the case of schedule 6, the replacement of “shoulds” and “cans” with “shalls” and “mays”.

I have another announcement to make, but can we perhaps hear from the officials on this? Mr. Lerer.

Mr. Harvey Lerer (Director General, CEPA Office, Environment Canada): We have taken note of your questions, Mr. Chairman, and we find your suggestions very positive. We will respond by the time the committee resumes.

The Chairman: Thank you. That's a very helpful intervention, Mr. Lerer.

We will be approaching again the question of import and export. We went through that quite extensively and so on. But in discussion with colleagues yesterday the point was made, and I would like to relate it, that they feel, and I do too, that when it comes to restricted substances and their import and export, they should be given the same treatment as hazardous waste. For obvious reasons, of course, if they are restricted in Canada, there are good reasons for that.

• 0920

The committee in 1995 spent a lot of time on that subject of import and export, and their report was quite explicit on that subject. I'm working from memory now. I think it would be desirable, for a better understanding on the part of the committee members, to see why there should be a different treatment and whether or not the same regime could be applied to both categories when it comes to import and export.

We have international obligations, and when we go abroad we make some pretty beautiful statements, which we should live up to. That falls into that category.

We have now barely a quorum. We're short one member in order to take votes, I'm informed. So perhaps we can activate some help, because we'll be voting very soon.

I therefore invite you to turn to an amendment that is before us to start with on page 110. It is in the name of the member for Lac-Saint-Louis.

The parliamentary secretary.

Ms. Paddy Torsney (Parliamentary Secretary to Minister of the Environment): I think you'll see that clause 54 is part of the mays and shalls clauses that we have stood and would like to continue to stand.

(Clause 54 allowed to stand)

The Chairman: The same then would apply to the mirror amendment of the NDP on page 111. Therefore we would go to page 123, please.

[Translation]

Ms. Paddy Torsney: It's the same.

[English]

The Chairman: Same category. Can you refresh my memory why we are standing this?

Ms. Paddy Torsney: I think there was some concern.... We had a series in the bill of “shall offer to consult”. We have one party that wants to change it to “shall consult” and we have another party that wants to change it to “may consult” and “may offer to consult”. So there's a package around each of them, and we were waiting to get some kind of indication of what would be a good idea.

The Chairman: Thank you, Ms. Torsney.

Then we will go to the small package, page 12. Mr. Laliberte.

Mr. Rick Laliberte (Churchill River, NDP): Who are we waiting for? Are we waiting for us to highlight you on why we are maying and shalling, or are you waiting for...?

Ms. Paddy Torsney: We decided to take them as a group later.

Mr. Rick Laliberte: Are we waiting for somebody specific? Is it for time, eclipse, equinox?

The Chairman: The full moon, Mr. Laliberte.

Mr. Rick Laliberte: The full moon, okay.

The Chairman: On page 122, here comes Madame Girard-Bujold with perfect timing.

Madame Torsney, please.

Ms. Paddy Torsney: If you're looking in the big book under 122, I have it recorded as defeated.

The Chairman: Yes, you're quite right.

• 0925

Mr. Rick Laliberte: Thank you, and 123 is on clause 62, which we decided to stand again.

The Chairman: You're quite right. Fine, then page 123 is stood. We now go to which page?

Ms. Paddy Torsney: Clause 65, the first set of amendments, page 12 in the small package.

(On clause 65—Toxic substances)

The Chairman: May I draw your attention to the small package, page 12. There is an amendment by the member for York North.

Mrs. Karen Kraft Sloan (York North, Lib.): Mr. Chair, I'm trying to see why these amendments are different because I have an amendment in the large package on page 133. It's a renumbering of the clause. Is that the only difference?

The Chairman: I'm advised that the answer is yes.

Mrs. Karen Kraft Sloan: Thank you. I move amendment L-13.10.

The effect of this amendment would be to change the definition of toxicity, CEPA toxic, so that it would be based on inherent toxicity. Also, “harmful” is deleted from the amendment; “including biological diversity or human health” is added in part (a); and in (b) “human” is deleted.

One of the problems we had in the previous act, in CEPA 88, is that the process of identifying substances as CEPA toxic has been a rather cumbersome process because of the need to show that it has entered into the environment in a concentration. This is a risk assessment process, and if we refer back to the committee's document It's About Our Health!, we had recommended an inherent toxicity or hazard assessment approach.

There were 44 substances on the priority substances list and 13 were not assessed because there was insufficient data. There are a number of substances that are known to be intrinsically toxic, but they aren't toxic for the purposes of CEPA, so we have to wait until harm has been shown to the environment or human health before preventive measures can be taken, Mr. Chair, which seems to be against the idea of a precautionary principle, which is a principle that is supported by this government as well as a principle that is supported within this legislation.

So it is very difficult to enshrine the precautionary principle when we have this kind of hurdle to jump with regard to the definition of toxicity. The approach required for determining a substance to be CEPA toxic is very resource intensive and it causes a lot of delays.

What I would also suggest is that the committee members be aware of the fact that we are involved in international negotiations through the POPs process, the persistent organic pollutants process, and CEPA, as a Canadian statute, will certainly be guiding the Canadian position in many respects. So what we do here in committee will certainly affect what goes on in the international arena. I think it has been quite clear that over the past ten years CEPA 88 has failed us in properly addressing substances that are toxic.

• 0930

The Chairman: The parliamentary secretary and then Mr. Jordan.

Ms. Paddy Torsney: Thank you, Mr. Chairman. First of all, I have to disagree with the mover of this motion, since in fact you do not have to have harm already occurring. It says in fact that it may have an immediate or long-term impact, it may constitute a danger to the environment, and it may constitute a danger to Canadian human life or health. In fact, the government response to the committee's report focused on risk assessment, so quantity and concentration are important components of any risk assessment. I think the clause as it was written is sufficient.

The Chairman: Thank you.

Mr. Jordan please.

Mr. Joe Jordan (Leeds—Grenville, Lib.): Thank you, Mr. Chairman.

In keeping with the chair's dissertation on the schedules and need for clarity, can I get a definition? With regard to the words “in a quantity or concentration”, I can't imagine something entered in the environment that isn't in a quantity or concentration. So what exactly does that mean, or what could that mean, and what's the other side of that coin?

Mr. Harvey Lerer: Mr. Chairman, the answer to the question is that in a risk assessment model you consider the inherent hazard of the chemical and the exposure. So the terms you are referring to are the exposure part of that equation. The formulation for risk assessment is the inherent toxicity of the compound and its potential for exposure to the environment and to human beings. That is the phrase that deals with the exposure part of the definition of toxic.

The Chairman: Mr. Jordan's question, if I understand him correctly, is an attempt to understand whether this qualifier, “in a quantity or concentration”, would permit the entering of a substance like arsenic into the environment as long as it is in such small quantities that it does not pose a risk. Is that the correct interpretation, Mr. Lerer?

Mr. Harvey Lerer: Yes, that is, sir.

The Chairman: At what point would arsenic, let's say, become a risk? Would it be when it comes in in kilograms rather than in grams?

Mr. Harvey Lerer: With respect to a specific concentration, I can't answer that. It would be a scientific determination, though.

The Chairman: In the case of mining, for instance, it would depend on the amount of water in which the arsenic is supposed to be diluted?

Mr. Harvey Lerer: I'm not sure we're particular believers in dilution as the solution, sir, if that's what you're getting at. In fact, we moved away from that model quite some time ago.

The Chairman: But then why is it difficult to accept the amendment, which would drop this phrase that Mr. Jordan addressed?

Mr. Harvey Lerer: If I may—

Ms. Karen Lloyd (Manager, CEPA Office, Environment Canada): May I speak to that?

Mr. Harvey Lerer: Sure.

Ms. Karen Lloyd: I think if you go back to the concerns that Mrs. Kraft Sloan pointed out, and if you look at CEPA 88 and the length of time it took to do PSL assessments, she's very correct in that it took an inordinately long amount of time. But I think the problem with that was not because of the definition of toxic. I don't believe it sets a ladder so high that it can't be met and that's therefore why it has to take a long time.

If you look at CEPA 99, the changes you've made have largely addressed the concerns of trying to make decisions faster and on less information. We've already put in that we must look at all of the substances on the DSL for inherent toxicity. So all of the existing substances in Canada will be looked at within the seven-year deadline you've put in for inherent toxicity, which is what this motion to change the definition of “toxic” would essentially require. It would change the definition of toxic to be “inherently toxic”, and we will already be doing that.

• 0935

In addition, in order to make faster decisions, we'll also be required to look at the risk assessments of other countries and try to determine whether that's a problem in Canada.

The Chairman: Thank you.

Mr. Lincoln, followed by Mr. Jordan.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): What I would like to ask is this. We all agree that in the government response—and I agree, Mr. Lerer—the government decided we should continue to have a risk-based approach. The government decided this was going to be so and confirmed through the toxic substances management policy that the risk approach will hold. We also decided we would legislate in CEPA the virtual elimination of all track 1 substances.

What I would like to ask is this. How does the wording proposed by Mrs. Kraft Sloan, which would exclude the word “harmful” and include “biological diversity or human health”, and under (b) take out the word “human” so it would refer to all living species, affect the government's position regarding a risk-based approach? In what way does it detract? In what way does it change the thrust of what we're trying to do?

In other words, I can see you might oppose it on the basis that it's going to make your work harder to do. But, in effect, shouldn't it strengthen your hand in dealing with toxic substances? And what is contradictory to a risk-based approach with this wording that Mrs. Kraft Sloan has suggested?

Ms. Karen Lloyd: A risk-based approach means you're looking at the levels in the environment to determine whether you think they cause a problem.

I'd like to just explain how we do a risk assessment, because I think there's a lot of misunderstanding here about how we do it.

Mr. Clifford Lincoln: Just before you do, maybe you could answer—

Ms. Karen Lloyd: Sure.

Mr. Clifford Lincoln: Under virtual elimination, as we have amended it, we are looking at quantity and levels, and the toxicity. We are looking at the quantification and levels. Then we look at the substance and hard toxicities and we assess it.

What I'm trying to see is what is the contradiction between what these words say and a risk-based approach if you take out “harmful”? We're still talking about an immediate or long-term effect, which means you have to assess. Where does this make it impossible or difficult for you to work?

Ms. Karen Lloyd: I think the notion of harmful is there so that we are concerned specifically about the bad things going on. There may be things that could have beneficial effects, and if they do, why would we want to call those toxic? So put in a qualifier of going after the guys who cause the problems.

The Chairman: Mr. Jordan.

Mr. Clifford Lincoln: Excuse me, Ms. Lloyd. I don't agree with that, because it says under (b) “constitute or may constitute a danger to the environment on which human life depends”. So we're not talking about anything that is beneficial. Surely there are three criteria there.

Ms. Karen Lloyd: There are three, and you only have to meet one of them. That's why you have the “or”s. And for part (b), “constitute or may constitute a danger to the environment”, the things we consider in that are things like stratospheric ozone depletion and ground level ozone formation. So that's where we link those very different types of effects. Most decisions outside of those types of substances are made under (a), if it's causing an effect on the environment, and (b), a harmful effect on human health.

The Chairman: If one of the three criteria needs to be met, and only one, would you not need the word “or” after (a), before you go into (b), as you have it between (b) and (c)? It's one of the three?

Ms. Karen Lloyd: One of the three. It's the way it's always been applied, as one of the three, and this is the same wording we've always used.

• 0940

Mr. Duncan Cameron: As a matter of drafting convention, when you have a list of items and the “or” is at the end of the second-last one, the “or” applies to the whole list.

The Chairman: All right, thank you.

Monsieur Charbonneau, followed by Mr. Jordan, followed by the parliamentary secretary.

[Translation]

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): Mr. Chairman, my reason for speaking concerns the presence or absence of the word "nocif" in paragraph 65(a) of the bill:

(a) avoir, immédiatement ou à long terme, un effet nocif sur l'environnement;

In the French version of Ms. Kraft Sloan's amendment, the word “nocif” is maintained. I hear people say that the word “nocif” should be deleted, that it should not appear. I think it should appear and that it's very good the way it is. The English version should be adjusted to be consistent with the French version and there would be no problem. It's merely a question of adding “harmful” to the English version.

[English]

The Chairman: That's a very helpful observation, Mr. Charbonneau.

[Translation]

Mr. Yvon Charbonneau: We often tend to adjust the French to the English, but this time I suggest adjusting the English to the French. There will be fewer problems that way.

[English]

The Chairman: Would you like to move a subamendment to that effect, Mr. Charbonneau?

Mr. Yvon Charbonneau: Yes.

The Chairman: We have a subamendment by Mr. Charbonneau to ensure that the term nocif, which is probably “harmful” in English, be inserted before the word “effect”. The clerk will ask Mr. Charbonneau whether that is his intent. Mr. Charbonneau, the clerk will read to you the English version of your subamendment.

The Clerk of the Committee: I'll read paragraph 65(1)(a), Mr. Chair. It says:

(a) is having or may have an immediate or long-term harmful effect on the environment, including biological diversity or human health;

Is that the intent?

The Chairman: Thank you.

Madame Kraft-Sloan.

Mrs. Karen Kraft Sloan: The intent is to remove the word “harmful”, so we should be removing it from the French to bring it in line.

The Chairman: We're trying to ride two horses running in opposite directions here.

Mrs. Karen Kraft Sloan: I'm sorry, my French is very bad and I would not have caught that in the French. If I did, I would have removed it, because the intent of this amendment is to remove the word “harmful” from the clause.

• 0945

The Chairman: Madame Kraft Sloan, the floor is yours.

Mrs. Karen Kraft Sloan: The intent of this amendment is to restore the definition of CEPA toxic to inherent toxicity. If we have the word “harmful” in here, we will have to wait until harm has been shown.

The issue is that we know that substances are inherently toxic. For example, there are certain endocrine disrupting substances that you cannot show will have a harmful effect; you cannot identify exposure as a component. Part of the problem of why 13 substances on the PSL were not assessed as being toxic was because they did not have exposure data. So it's not the changes we have made in this bill; it's the fact they were unable to demonstrate exposure data, even though they knew the substances were toxic.

The Chairman: Thank you.

Mr. Lincoln.

Mr. Clifford Lincoln: To come back to what Mrs. Lloyd said, if we talk about long-term effects, surely there can be good long-term effects, although that's pretty questionable. I suppose we could use chlorine as an example, but there are very few.

Admitting that we don't accept inherent toxicity—I wish we did; then it would solve the whole question. We talk about a risk-based approach, and even then we have enshrined the precautionary principle in the legislation. Surely if we have enshrined the precautionary principle and accept that weight of evidence is a guiding factor...if there's weight of evidence that the long-term effects are there and are bad for the environment and human health, it enables us much more flexibility to move. If you have to prove they are harmful, then you have to go back to cause and effect. That's extremely hard to prove in certain circumstances. You almost have to wait until it's too late to move.

Surely, if you accept the precautionary principle and have the wording that is there, it gives you far more latitude to be able to move against a potentially toxic substance.

Ms. Karen Lloyd: I disagree with the statements Mr. Lincoln has made. If your concern is that we're not moving fast enough, changing the definition of toxic will not make an improvement in that. You will merely switch the burden from the assessment phase to the risk management phase.

A voice: What's wrong with that? We don't do any risk management.

Mr. Karen Lloyd: What's wrong is it will still take you a long time to do it. Part of the risk assessment should show where we think the problems are and where they aren't, so the risk management can take place immediately at the end of the determination of toxic. I think the problem with PSL-1 was that it didn't, and we're trying to address that in PSL-2.

In PSL-1 it took a long time to do it. People felt they had to have lots of information, because in reality we have very little information to base decisions on. We're now moving into developing predicative types of tools so that when we don't have information, we can use computerized models and make our decisions faster. There's no doubt, by having to do the categorization of the DSL, especially putting the seven-year time limit on it, that those tools will have to be developed very quickly, and they'll be used in the risk assessment phase.

If you change this and take away from that whole risk assessment approach where it's toxic if it causes an effect greater than a microgram per litre, then the control side has to figure out who in Canada uses that, where the problems are that they have to control, and what's a safe level they have to get down to. If a risk assessment is done properly, it should point all that out. So when you say it's toxic, the risk manager should be able to deal with it immediately.

We didn't do that in PSL-1. We've started to do that in PSL-2. Your concerns are very valid. In terms of using the precautionary approach, we have so little data on which to make decisions.

• 0950

In the case of arsenic that Mr. Caccia was talking about, we would have some lab studies—and they're almost always lab studies; we never have field studies. If we had field studies that showed us harm, our job would be incredibly easy.

If you have a scientific paper that says this substance caused harm in the Bay of Fundy, we could take that scientific paper and say, there's my risk assessment; it's toxic. We don't have that often, and I hope when we have it we'll use it more frequently than we do, because we should. You could certainly do that within the context of the definition of toxic because it's showing there's harm out there.

But we don't have that. It's very rare. We have a bunch of studies—sometimes only a few—done on a fish species that doesn't often occur in Canada, or an invertebrate species that doesn't occur in Canada. We try to find the most sensitive of all the studies we have. Then we take that number, and depending on whether there are a lot of studies or a couple of studies, we divide it by 10, 100, or 1,000 and say, this is what we predict would be the safe concentration. That's how we do a risk assessment.

It's like trying to solve a puzzle when you don't have any pieces to put together. That's a weight-of-evidence approach. If you don't have all the pieces, but the few you have point in the same direction, we say, that's good enough. That's our story; it's toxic.

So we do apply a weight of evidence. Perhaps we could do it better and perhaps we could apply the precautionary principle better. But I think you should understand that that's how we do a risk assessment, and we usually don't have a lot to work with. I don't think changing the definition of toxic will improve the situation.

Mr. Clifford Lincoln: It would seem to me that in one case, when you have a lack of data—you almost seem to prove my point that it's so hard to get that data about some toxicity in the Bay of Fundy—if you remove the legal word that forces you to get data when you don't have it but you have all sorts of information from all over the place that—

Ms. Karen Lloyd: But that is how we do it. We use information from elsewhere. We don't use data based on Canadian studies very often because there aren't a lot to go from. If we have one, of course, that's the first thing we use, and then we don't have to go any further in our guessing.

Mr. Clifford Lincoln: But then you really have to pinpoint cause and effect.

Ms. Karen Lloyd: We don't pinpoint it; we guess, by and large. We have some idea of how it's used in Canada. We use computerized models to predict what levels we think would be in the environment. We often don't have levels in the environment, or measured ones. Then we have some lab studies on species that don't often appear here and we compare the two.

Mr. Clifford Lincoln: I don't want to belabour the point, but I would like to ask Mr. Cameron or you, if somebody challenged a decision you made on the basis that there were not enough studies to prove it was harmful, and challenged that in court, for instance, if the word “harmful” were in there, surely the onus on you would be heavier than if it wasn't there.

The Chairman: In other words, can you comment on the inclusion of the word “harmful” in the English text?

Mr. Harvey Lerer: On the declaration of toxicity on the listing of toxic substances, there have been many notices of objection, and they have been dismissed by the minister. Have we ever accepted one?

Ms. Karen Lloyd: No.

Mr. Harvey Lerer: Those happen all the time. The minister is satisfied that the scientific studies are valid and she has come to the correct conclusion. The notices of objection go no further.

With respect to the courts—and I stand to be corrected by my colleague, Mr. Cameron—the question before the courts is whether the minister has acted within her head of power and has acted reasonably. If she has considered the notice of objection and dismissed it for valid reasons, the courts have no say in this; it is a scientific review.

The Chairman: Mr. Cameron.

Mr. Duncan Cameron (Legal Counsel, Legal Services, Environment Canada): If I may elaborate, the question was—

The Chairman: Before you do that, let me bring you up to speed on where I am in examining this as a chair, trying to move on with this amendment.

The text of subclause 65(1) begins with the words:

For the purposes of this Part and Part 6, a substance is toxic

This is the premise of the entire clause.

• 0955

Then we go to paragraph (a), and it reads:

(a) is having or may have an immediate or long term effect

Obviously if a substance is toxic, as it is indicated in the premise of this clause, there is no need to introduce the term “harmful”, because it is already indicated in the second line of subclause 65(1), where it says “a substance is toxic if”.

Could you comment as to what purpose would be served by inserting “harmful” between “term” and “effect”, as it is in the French text?

Mr. Duncan Cameron: Mr. Chairman, clause 65 is essentially a definition clause. What it purports to do is define the circumstances under which a substance will be toxic for the purposes of parts 5 and 6. So what we're doing in paragraphs (a), (b), and (c) is essentially describing the conditions under which a substance will be toxic.

The Chairman: Can you address the subamendment, please?

Mr. Duncan Cameron: Yes, I can. We believe the inclusion of the term “harm” is essential to the constitutional validity of CEPA.

The Chairman: Why didn't you have it in the first place?

Mr. Duncan Cameron: It is, sir. This amendment would remove the word “harm” from the definition

Mr. Yvon Charbonneau: Only in English.

Mr. Duncan Cameron: In English, exactly.

A voice: [Editor's Note: Inaudible]

Mr. Duncan Cameron: Assuming that the word would be removed in English and French, I would have grave concerns that it would very seriously undermine the constitutional validity of this part of CEPA. Perhaps I could explain why.

In the Supreme Court decision in Hydro-Québec, the court was examining the constitutional basis for what is part 2 of the existing CEPA Act, which is the toxics part of the legislation. The majority, a slim majority—it was a five to four split decision—of five justices upheld part 2 of CEPA on the basis of the criminal law power.

You have to understand that the criminal law power does not give the federal government entrée into any area the federal government wishes to go. The federal government is only able to exercise criminal law power in those areas where there is some evil that is being addressed. The court, in its deliberations in Hydro-Québec, found that pollution was a sufficient evil to uphold part 2 of CEPA and therefore we won the case.

If you remove the concept of harm, I believe you seriously erode that concept of evil. In fact, one would question whether or not you would be left with enough of an evil to justify using the criminal law power, because what you would be left with in effect is a definition of “toxic”, which would say a substance is toxic if it's entering the environment in a way that would have an immediate or long-term effect. As my colleague pointed out earlier, one could imagine that you could have a long-term beneficial effect, or you could have a long-term effect that was neither beneficial nor harmful. If that is the case, I would question under what basis we could exercise the criminal law power to regulate that substance. I would suggest that on my reading of Hydro-Québec we would not be able to do so because we would not be addressing a harm sufficient to warrant the use of that power.

In conclusion, I would add that with respect to paragraph 65(1)(a), what is now paragraph 64(1)(a) under the renumbering, the inclusion of the term “harm” is essential for our ability to justify this definition on the basis of the criminal law power.

The Chairman: Thank you, Mr. Cameron.

[Translation]

Mr. Charbonneau.

Mr. Yvon Charbonneau: Mr. Chairman, when I noticed this difference between the two versions of the bill, I figured it was a translation problem. I thought, as you have always said, that there were different teams drafting the two versions and that, without looking at the translation, they considered the bill as a whole. Maintaining the word “harmful” must be based on some kind of logic. Contrary to what you said, it is not enough to say that it is toxic and to conclude that we need not use the word “harmful”. Many substances may be inherently toxic, but, once added to water in certain concentrations, they have positive effects. I'm thinking of chlorine and fluoride. So it's not enough to stay toxic. We must be concerned as to whether the substance is harmful.

• 1000

Since I cannot know in advance whether Ms. Kraft Sloan's amendment will be agreed to, I feel we should at least take the precaution of adding the word "harmful" so that research focuses on harmful effects, not just on effects. There may be people who find her amendment good enough to agree to it as it stands, but let's at least add the word “harmful” so that no one conducts random research, open research, and so on. Let's look for the harmful effects. I thought we should at least put that in.

Furthermore, we still have to judge her amendment as a whole. I believe Mr. Cameron sides with me. He's speaking in favour of my amendment, based on the principle of taking precautions. If Ms. Kraft Sloan's amendment is agreed to, we should at least add the word “harmful”.

The Chairman: Thank you, Mr. Charbonneau.

Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): Mr. Chairman, Mr. Cameron's remarks are really the remarks of a lawyer. There are lots of lawyers in my family and they have all kinds of versions of things.

As Mr. Lincoln said, environmental damage may be caused by elements that are not considered toxic today, but which may be in future. We're talking about toxic substances. In my opinion, toxic substances have an impact on the environment. I don't think the word “harmful” is important when I talk about toxic substances. As far as I can see, if it has a harmful effect on the environment, it must be taken into consideration. I don't need to clarify anything using the word “harmful”.

The Chairman: Thank you.

[English]

Madame Kraft Sloan, Mr. Jordan, Mr. Laliberte.

Mrs. Karen Kraft Sloan: Mr. Chair, I would certainly be open to adding “harmful” to that clause.

The Chairman: Mr. Jordan.

Mr. Joe Jordan: I just wanted to throw something in here because this is an interesting discussion. I'm a little nervous when we are making the assumption that we can do things that have an effect on the environment and they're not harmful. I think if history shows us anything it is that we have failed miserably. Every time we intervene in some way that changes things, it has to do with the fact that in the short term we may not see harmful effects, but in the long term there are hundreds of examples where we've tried to do something or we've changed something and then we end up trying to change it all.

I've been on both sides of this issue in the last ten minutes, but I think I can live with “harmful”. I think there's an assumption there that I'm a little bit uncomfortable with, and it has to do with the timeframe in which we analyse whether or not there's been harm or not.

The Chairman: Thank you.

Mr. Laliberte and then the parliamentary secretary.

Mr. Rick Laliberte: This amendment is kind of an omnibus amendment because it deals with so many different aspects of this definition.

I have two concerns I want to raise, but to stay on the track of “harmful” or “effect”, if harmful stays here, how does the effect on the environment or biodiversity in terms of mutations that may not be deemed...or, as Karen Lloyd said, we may not have evidence now. The issue of endocrine disrupters has come into play through this whole dialogue we've had. How does this come into play?

My major concern is with the line above it.

Well, can I ask that one first and then come back? If “harmful” is there, does that deal with changes in our ecosystem, or biodiversity, or species, or human genes that would be covered?

Ms. Karen Lloyd: Yes, it would—any effect, and that really is anything.

• 1005

The types of information we have to base decisions on is not great; they tend to be effects on reproduction. But if you have genetic effects, mutation rights, even if it doesn't cause obvious effects in the population, we would still interpret that to be toxic, because in the long term, if another stress comes that's not there now, then that change in genetic makeup could be enough to cause the population to have problems.

So all of those things are considered. Certainly endocrine disruption is considered. In that case, we may decide that is a sensitive enough endpoint that where we might divide the safe level by 10, we would divide by 1,000 to ensure we're taking that very sensitive risk into consideration. We adapt it on a case-by-case basis, depending on the types of knowledge we have about the substance.

Mr. Harvey Lerer: Mr. Chairman, if you would indulge me, I would draw the attention of Mr. Laliberte to the word “may” that appears just before paragraph 65(1)(a)—“may enter the environment”. So demonstrated effect is not a requirement for a declaration of toxicity.

The Chairman: I've seen the hands that are raised.

Mr. Laliberte, please ask your second question.

Mr. Rick Laliberte: I want to follow up on and echo the concern the honourable member Mr. Jordan raised about timing.

I think part of this equation is time, and at some point in time somebody in the lab or somebody in your department is going to make a decision. But here we are dealing with legislation giving you the tools and clarifying these tools to make this decision.

So I go back to my second question, which would be in the line that says “the environment in a quantity or concentration or under the conditions”. Where does the policy and administrative or laboratory ability of your department come into the terminology of toxicity?

It seems you have measurability in virtual elimination, but why would you want it in toxic substances? Couldn't a substance be toxic and defined so without measuring the ability of your department to run the tests?

Ms. Karen Lloyd: What this means is that to be toxic, a substance has to be in Canada. To show how important that is, there were substances on PSL-1 that are not in Canada. So we tried to make sure that at least on PSL-2 we had some evidence that the substance was in Canada.

It then has to be released to the environment so that you're exposed to it or the environment is exposed to it, and then we have to believe that at that level, whatever we predict that might be—and a lot of time we don't have the data, so we do predict—it's causing or may cause a harmful effect.

Our department does certainly measure, as do other organizations in Canada and in the provinces.

The Chairman: Mr. Laliberte, this bill is predicated on substances entering, not on substances being used. This is where the gap is between where you stand and where Ms. Lloyd is answering.

Mr. Lerer.

Mr. Harvey Lerer: To add to my colleague, because the issue of timing has come up a number of times, this committee has already inserted a number of time clocks and the government has proposed a number of time clocks to make sure that following the scientific review, the management phase of this is under close time constraint and close scrutiny.

The Chairman: The parliamentary secretary will speak next, followed by Mrs. Kraft Sloan.

Ms. Paddy Torsney: Thank you.

Of course, I think we were all applauding when the Minister of Finance awarded some new money to the Department of the Environment to get the toxic substances analysed and a list prepared.

But I want to clarify. There are some other concepts that are raised by the amendment that is before us. Those include “biological diversity” and “human health”, which would be discussed in paragraph 65(1)(a); and secondly, a concept in paragraph 65(1)(b), where “human” life is dropped.

I wonder if Ms. Lloyd would go through and identify—we've already identified that it's (a) or (b) or (c)—where the concepts that are raised by Mrs. Kraft Sloan's amendment either are dealt with or are different. If I flip back in my book to the definition of “environment” on page 6, it seems like animals and organisms are included. I'm not sure if the concept of biodiversity is or not.

The Chairman: Thank you.

Mrs. Kraft Sloan.

Ms. Paddy Torsney: It was a question.

The Chairman: Sorry, it was a question.

• 1010

Ms. Karen Lloyd: You are correct in that the definition of the environment is very broad, and we consider any harmful effect that we believe is there, that the data show us. It includes biological diversity. It includes anything—effects on reproduction, effects on the genetic makeup, effects on growth, effects on development, effects on immunology.

In terms of putting human health in (a), the way the definition has been applied for 10 years is that paragraph (a) dealt with the environment, and that was the role of Environment Canada. Paragraph (b) dealt with the environment on which human life depends. There's no doubt that we had a bit of a problem when we started doing PSL assessments to understand really what was meant by that. That's why we slotted ozone-depleting substances and ground level ozone formation there.

Paragraph (c) has always been the part that Health Canada has dealt with, which was the effects on human health. I would think a motion putting human health in (a) is just being redundant because of what's already in (c). Certainly constituting a danger to human life or health is already in (c) and it doesn't need to be given again in (a).

The Chairman: Thank you, Ms. Lloyd.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I would recommend that we stand the clause down, because, first of all, I think it would be helpful having Mr. Moffet here. As well, Mr. Herron has a similar amendment and Mr. Herron is not present. So I would recommend that we stand this clause down, because, as I said, Mr. Herron has a similar amendment and he's not here today.

The Chairman: It will require unanimous consent to withdraw it or to proceed along as planned.

Mrs. Karen Kraft Sloan: Mr. Chair, I never moved the amendment.

The Chairman: Well, we even have a subamendment by Mr. Charbonneau.

Mrs. Karen Kraft Sloan: But I haven't moved the amendment.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: I just wanted to bring to light to the committee that I know Mr. Herron is very committed to this bill and the environment as a whole, but he was drawn to a funeral today so that's why he's absent.

(Clause 65 allowed to stand)

(On clause 68—Research, investigation and evaluation)

The Chairman: The next item is on page 17 of the small package, a new amendment L-13.13.

The parliamentary secretary.

Ms. Paddy Torsney: I would like to point out that there are several other amendments to clause 68, two of which would be Mr. Herron's and two of which would be.... They decided not to move it, but I don't know if they didn't move it because they weren't going to move it or they didn't move it because we stood the clause down. It's hard to tell.

The Chairman: This is page 18.

• 1015

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, if Mr. Herron has amendments on this clause, we may want to consider standing it down, because my amendment has received some friendly amendments from the government and I'm not sure if it has been translated into French. So I think it would be useful to stand this clause down for those two reasons.

The Chairman: In light of the fact that there is also an amendment by Mr. Herron, which is identical, we might as well stand this.

(Clause 68 allowed to stand)

(On clause 69—Formulation of guidelines by the Ministers)

The Chairman: I invite you to turn to page 154. There is an amendment by Mr. Lincoln that is identical to an amendment by Mr. Laliberte.

Mr. Clifford Lincoln: All these amendments are in exactly the same group of amendments that have been stood because of “may” and “shall”. So if it's all right with the members, I think we should stand them.

The Chairman: We can stand them.

(Clause 69 allowed to stand)

(On clause 75—Definition of “jurisdiction”)

The Chairman: I invite you to turn to page 165. There is an amendment in the name of Mr. Laliberte, NDP-35.1.

Mr. Rick Laliberte: Excuse me, Mr. Chair, I'm just catching up to everybody here.

Mr. Chair, this is a deletion of the last part, from lines 42 to 46. It deals with other acts and the regulations. This is similar to the residual question we've had before. Would the committee be in favour of standing this one down until the residual question comes into play?

Ms. Paddy Torsney: Mr. Chair, could I just point out to Mr. Laliberte that this isn't exactly the same as some of the other residuals. If you actually look at line 43 of the bill, as it's currently worded, it says “the only use of which in Canada is regulated under another Act”. So it's not about where there's an overlap. This is when whatever it is, is already under somebody's control. The effect of Mr. Laliberte's motion, were it to pass, would be to cause the environment department to go and do the work that some other department is very clearly already doing, and there is no other reason to do it. They've already got it under control. So it's not like other residuals or other things that some people think are residual.

The Chairman: That's a point, Mr. Laliberte, that needs to be addressed.

• 1020

Mr. Rick Laliberte: I think the recent issue of other branches or other departments that may hold exclusive jurisdiction to certain substances is of major concern, since CEPA is the overall protector of the environment and human health. I would just like to highlight that as of just recently, the Health Protection Branch has an exclusive right with rBST. Why would we not want to see the toxicity or the substance that's harmful to our environment or our health in that way?

The Chairman: Madame Kraft Sloan, followed by the parliamentary secretary.

Mrs. Karen Kraft Sloan: Mr. Chair, I believe this is part of the residualization package we are examining, so I think we should stand it down.

The Chairman: Thank you.

The parliamentary secretary.

Ms. Paddy Torsney: Once again, Mr. Chair, I don't believe it is part of any package that would consider anything that might become or might be viewed as residual, since again, lines 42 to 46 talk about a substance whose “only” use, in line 43, is already governed by another act. It's not like there's an overlap. It's not like one department's using something or governing something and another one's doing something else. The only use in Canada is under another act. So it's not overlap. If Mr. Laliberte's amendment were to pass, it would create an overlap.

The Chairman: Well, it could go either way, but....

Mr. Rick Laliberte: Mr. Chair?

The Chairman: This needs a Solomonic skill here.

Mr. Laliberte, followed by Madame Kraft Sloan.

Mr. Rick Laliberte: With regard to the residual aspect, as I raised in my suggestion to stand this, the headline on the side says “Review of decisions of other jurisdictions”. If that doesn't mean residual, I don't know what is. It may not do us any harm to consider it at a later point.

The Chairman: Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: I have to agree with the member opposite. It clearly is part of the residualization issue we are looking at.

The Chairman: Parliamentary secretary.

Ms. Paddy Torsney: Once again we seem to be having a debate about a motion that is not on the table. I would suggest we not have the motion on the table, stand down the clause, and move on to the next issue so that we don't have a debate about something that's not actually on the table.

The Chairman: Thank you. I will follow your advice very quickly.

(Clause 75 allowed to stand)

(On clause 76—Priority Substances List)

The Chairman: We now move, I believe, to page 169.

Ms. Paddy Torsney: [Editor's Note: Inaudible]...and we'd have to stand down clause 76. Shall we stand?

The Chairman: We will stand it as suggested.

(Clause 76 allowed to stand)

The Chairman: Would you please turn to page 19 in the small book. We have a motion in the name of Mrs. Kraft Sloan.

Ms. Paddy Torsney: Mr. Chair, I think when we were looking at page 169, which affected clause 76, my suggestion wasn't to stand down just the motion, but to stand down clause 76, since it would only be appropriate to look at all of them at the same time.

The Chairman: That's the intent. Thank you.

Could you please turn now to page 19 in the small book.

Mrs. Karen Kraft Sloan: Just as a point of clarification, Mr. Chair, we're standing down clause 76, but we're looking...oh, okay.

The Chairman: We are now moving into a new area.

• 1025

Mrs. Karen Kraft Sloan: It's a new clause. Okay, fine.

Mr. Chairman, the intent of this amendment is that when the ministers are conducting and interpreting the results of the following sorts of things, they shall apply a weight-of-evidence approach and a precautionary principle. In my discussions with the departmental officials on an amendment similar to this in another section of the bill, it was decided that this perhaps might be a more appropriate part of the bill to have this amendment. So I would like to move this particular amendment.

The Chairman: You have heard the motion. Any questions? Yes, the parliamentary secretary.

Ms. Paddy Torsney: I wonder if we could ask the officials for further clarification on what the effect of the amendment would be if it were to pass.

The Chairman: Who is volunteering? Ms. Lloyd, please.

Ms. Karen Lloyd: I think it would put in the legislation what we hope we are already doing—applying the weight-of-evidence approach and the precautionary principles—so I think it's a good idea to put it in the legislation and make sure we do.

Mrs. Karen Kraft Sloan: We're all very happy about that.

Ms. Karen Lloyd: You can buy the coffee afterwards.

Mrs. Karen Kraft Sloan: I will. This is one we're very happy about. If Mr. Herron were here, I'd even buy some decaf lattés. Mr. Casson, this is what separates his section of the united alternative. He's a decaffeinated latté drinker.

The Chairman: You've heard the amendment and you've heard the comments. Are there any further questions?

(Amendment agreed to—[See Minutes of Proceedings])

(On clause 81—Manufacture or import of substances)

The Chairman: Thank you. Would you please turn to page 185, an amendment proposed by the member for Lac-Saint-Louis on clause 81.

Mr. Clifford Lincoln: Mr. Chairman, I suggest that this be stood.

The Chairman: That will not be moved for the time being. Thank you.

The next amendment is G-7.1. You will find it on page 20-21 of the small book.

Ms. Paddy Torsney: Mr. Chairman, I would be happy to move amendment G-7.1, which affects clause 81 on line 21 on page 50. The effect of this amendment is just to correct a drafting error. It should have said “prescribed information” when it was written. In French it already says “prescribed information”. It's the English that was written incorrectly.

The Chairman: Thank you. Any questions?

(Amendment agreed to—[See Minutes of Proceedings])

• 1030

The Chairman: Would you please turn to page 21, G-7.2.

Ms. Paddy Torsney: Mr. Chairman, I will move this amendment, which is very similar to the last one. Again, in the English, for some reason “prescribed” was left out of the description of information, and it is there in French.

The Chairman: Thank you.

(Amendment agreed to—[See Minutes of Proceedings])

The Chairman: Thank you.

Ms. Paddy Torsney: Mr. Chair, are you going to call the question on clause 81? No? Because there are amendments still outstanding.

The Chairman: We are now moving to page 186, to an NDP motion.

Please, Mr. Laliberte, we've been waiting in suspended animation.

Mr. Rick Laliberte: I thought you were standing 81. I move that the clause, as it reads, be significantly changed. It will now read:

(b) transient reaction intermediates that are not isolated and will not be released into the environment;

—as opposed to the uncertainty of “are not likely to be released”. It strengthens the terminology there, and I think that's what Canadians want to hear from a health and environmental protection act.

The Chairman: Thank you.

The parliamentary secretary.

[Translation]

Ms. Paddy Torsney: I must say that this amendment raises a big problem. In French, it states “qui seront”, “will be released”.

An Hon. Member: I see.

[English]

Ms. Paddy Torsney: Also, if you look at the current CEPA under paragraph 26(3)(b)...this wording is exactly from the old CEPA. If we talk about what I think Mr. Laliberte is trying to do in English rather than what he's trying to do in French, how would you ever determine that something will not be released versus something that will probably not be released or is not likely to be released? The test is simply too high.

The Chairman: Thank you.

Mr. Laliberte, would you like to comment?

Mr. Rick Laliberte: Yes. I just want to apologize to our francophone speakers here. We drafted the English one; we had no play in the French interpretation. That came from somewhere in the process. I think the intention is true on the English side; however, the French interpretation of “will not” will be the way it is presented here, and that's the motion—

The Chairman: For the benefit of Madame Girard-Bujold, would you mind reading the English version slowly so that she can hear the translation?

Mr. Rick Laliberte: Okay. The amendment reads:

(b) transient reaction intermediates that are not isolated and will not be released into the environment;

• 1035

The Chairman: Thank you. Could we now have some comments or questions? Are you ready for the question?

I take it that you are. Those in favour, please so indicate.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, in French, it reads: “non isolés et non susceptibles d'être rejetés dans l'environnement”.

[English]

The Chairman: We are in the midst of the vote.

[Translation]

That's true, but we're in the process of voting.

Ms. Jocelyne Girard-Bujold: Excuse me, Mr. Chairman. I hadn't understood.

The Chairman: Would you like to hear the translation once again?

Ms. Jocelyne Girard-Bujold: No. I want to tell you that the word “susceptibles” already appears in the French version.

Ms. Monique Hébert (Committee Research Attaché): Mr. Laliberte wanted words that had greater certainty. “Susceptibles” indicates that some elements may be released. He wanted more definite wording: “et qui ne seront pas”.

Ms. Jocelyne Girard-Bujold: Okay. Thank you, Mr. Chairman. Pardon me.

[English]

The Chairman: We'll resume the vote.

(Amendment negatived)

The Chairman: We'll now go to the next page, 187, a motion in the name of the member for Churchill River.

Mr. Rick Laliberte: I'd like to ask the government to clarify this because it deals with the whole process of application and this section deals with substances that would not apply under this application. So in dealing with substances and activities new to Canada, by deleting this, is that something you would be enthusiastically looking at, or, in light of the new resources you have, you may...?

Mr. Steve Mongrain (Representative, Canadian Environmental Protection Act Office, Environment Canada): Mr. Chairman, the effect of the amendment would delete paragraph 81(6)(c) in this section of the bill. This is a part of the bill that deals with the assessment of new substances. By deleting (c), we would subject impurities, contaminants, and partially unreacted materials to individual notification. That means that an impurity in the substance that was new to Canada would also have to be subject to notification.

The way we deal with new substances is we look at the substance as well as any impurity or contaminant. The assessment of these is an integral part of assessing new substances. It would essentially require notification on the substance as well as an additional notification on any impurities or contaminants, trace amounts, contained in the substance.

• 1040

We prefer to take a holistic approach, if you will, and look at the substance as a whole and, when assessing it, check the impurities and the contaminants.

The Chairman: Are there any other comments?

Mr. Rick Laliberte: So this is contrary to the precautionary principle, and if you know of impurities or contaminants that may be exported, notices would not be triggered here.

Mr. Harvey Lerer: Mr. Chairman, what the amendment under consideration would do would be to require formal notification of all impurities and contaminants under that formal notification process. The way we deal with contaminants is that when a substance is notified, we ask specifically for information on any contaminants that are with that substance, as opposed to requiring a formal notification. The classic example is dioxins and furans. We are clearly dealing with dioxins and furans. The objective is virtual elimination from the environment. It is stated government policy. We deal with that as a contaminant of a substance that is notified.

Mr. Rick Laliberte: Should we also be looking at the definition of impurities and contaminants in this bill then? Is that something that should be clarified? There are inert substances, and it's a broad range.

Mr. Duncan Cameron: Mr. Chairman, there's only a need to put a formal definition in legislation if one's intention is to have a definition that is different from the ordinary meaning of the word. My understanding is that the ordinary meaning of the words “impurity” and “contaminant” is sufficient for our purposes, and there's no need to take the extra step to have a formal stand-alone definition.

The Chairman: Thank you. Are you ready for the question?

Ms. Paddy Torsney: Was it moved?

The Chairman: Yes, it was moved, as far as I recall.

(Amendment negatived—[See Minutes of Proceedings])

The Chairman: Will you please move to page 188, an amendment in the name of Mr. Lincoln.

Mr. Clifford Lincoln: I would ask that this be stood, Mr. Chairman. It all has to do with residual powers.

The Chairman: We'll stand the motion.

Ms. Paddy Torsney: Mr. Chair, maybe this would be an appropriate time to stand clause 81.

The Chairman: The next amendment is on page 189 in the name of Mr. Laliberte.

Ms. Paddy Torsney: Since we're standing clause 81, wouldn't we stand everything related to clause 81?

The Chairman: Mr. Laliberte, would you like to stand it?

Ms. Paddy Torsney: The clause, not the amendment.

Mr. Rick Laliberte: Yes, I'll stand the amendment and the clause.

The Chairman: All right, so agreed.

(Clause 81 allowed to stand)

• 1045

The Chairman: The same applies to the next page, 190.

We are now moving to clause 92, which has no amendments. Parliamentary secretary.

Ms. Paddy Torsney: I have an amendment for the committee related to clause 85 that is consequential to another amendment we did the other day. It just includes a time.

The Chairman: On what page?

Ms. Paddy Torsney: I haven't distributed it because we have already passed clause 85, and I wanted to know if the committee could look at it. All it does is, in the same way we introduced 90 days in another part of the bill—

The Chairman: Would you like to distribute it?

Ms. Paddy Torsney: Sure. I have it in English.

The Chairman: Is there unanimous consent for the distribution of this amendment?

Some hon. members: Agreed.

The Chairman: Then we will revert to clause 85. So agreed?

Ms. Paddy Torsney: Mr. Chair, if the people are....

Mrs. Karen Kraft Sloan: Did you not move that clause?

The Chairman: We can ask that it be reopened if there is consent, but I was not aware that you wanted....

Ms. Paddy Torsney: Mr. Chair, maybe I could suggest that we do this another day. Why don't we just do this when we come back?

The Chairman: Yes, that would be wise, also because there is an intervention related to the clause preceding 85, which is being made at the moment, related to—

Mr. Clifford Lincoln: Amendment L-13.21.

The Chairman: This is a motion that has not been dealt with so far, on page 194. Could I ask you please to turn to page 194, where there is an amendment to clause 84 in the name of Mr. Lincoln, L-13.21. I had written “withdrawn”; I apologize.

• 1050

Ms. Paddy Torsney: Mr. Chair, we carried clause 84 as well.

The Chairman: Yes. I want to seek the consent of the committee to reopen clause 84 in order to allow Mr. Lincoln, or someone on his behalf, to move his amendment.

Ms. Paddy Torsney: Okay, but at the same time we carried clause 84 we also defeated NDP-44, which was the same amendment.

The Chairman: Oh, yes.

A voice: I'm not so sure.

Mrs. Karen Kraft Sloan: Mr. Chair, we've had three amendments that are exactly the same—

The Chairman: The clerk informs me that the NDP amendment that was defeated is not exactly the same. So it was defeated, but it is an amendment that is not exactly the same, and on a different place.

With your consent, then, I would reopen clause 84 so as to permit the proponent of this motion to introduce it or to have it moved and to discuss it.

Ms. Paddy Torsney: Can I just get some clarification here?

The Chairman: Yes.

Ms. Paddy Torsney: While I am more than happy that where there are exceptional circumstances or where there are consequential amendments to one clause that we might open up another clause that was related, I'm trying to get the precedent under which we are opening up a clause that has been closed. God knows, we could go back through a lot of things where people chose not to move an amendment and we've closed the clause and then we open them all again.

The Chairman: The precedent is that the chair made a mistake and wrote “withdrawn” on that page when it was not withdrawn, on page 194. So there are mistakes that can be made—

Ms. Paddy Torsney: Well, I'm not sure that was what happened. All I'm trying to say, Mr. Chair, is there are lots of other clauses where people chose not to move an amendment and we moved on and closed it. Sometimes those people are going to move them at the report stage, or for whatever reason they withdrew them.

The only reason I asked for clause 85 to be opened is because it is very similar to another thing we've done in another area, so it's a consequential amendment.

I'm asking for what the precedent is for opening something where we moved on because someone chose not to move an amendment.

The Chairman: There is no precedent. It is just a matter of courtesy in order to correct a mistake that was made by the chair and to permit someone who was at that time not in the room to propose that motion, which I thought had been withdrawn. The clerk since tells me that it was not moved on that occasion. So there may have been a couple of mistakes at the table.

Ms. Paddy Torsney: But Mr. Chair—

The Chairman: Look, I'm sorry. Are we going to argue this for the next—

Ms. Paddy Torsney: Then there's no consent to open clause 84.

Mrs. Karen Kraft Sloan: Can we take it to a vote, Mr. Chair?

Ms. Paddy Torsney: You have to have unanimous consent.

The Chairman: Sure.

Mrs. Karen Kraft Sloan: Could we just take it to a vote anyway?

Mr. Clifford Lincoln: Mr. Chair, I agree that we need unanimous consent, and I can see the parliamentary secretary won't give it, for some strange reason.

I never withdrew that clause. I wasn't here to move it. I thought it was going to be discussed today. I didn't realize clause 84 was carried. But I understand. I suppose if the parliamentary secretary has decided that she doesn't want to hear the reason for the amendment, it's just too bad. It's very unfortunate, because maybe there's a point there that should be made. I think I've got a legitimate point to make about this amendment. But I agree, there are rules, and if she won't give consent, well then she won't give consent. But the clause was never withdrawn. I wasn't there to move it. I never moved it. I thought I should be given a little time, and then they can defeat it if they don't like it. But at least the point could be made.

The Chairman: Madame Kraft-Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, because Mr. Lincoln is unable to vote on this committee, I have been moving his amendments. I can verify for the fact that this amendment has not been moved and it hasn't been discussed. I didn't do anything about this amendment, and I am the only one who has been moving his amendments. He is, as I said, unable to vote. While we have to follow the technical rules of this committee, I think a little bit of fairness is in order if there has been a mistake on the part of the chair.

• 1055

The Chairman: I can only confirm that there was a mistake on the part of the chair on December 2, and I wrote here “withdrawn”. Instead, it was not moved. Therefore, the sequence of mistakes started.

The parliamentary secretary.

Ms. Paddy Torsney: Mr. Chair, my point is that while I'm more than happy that we go back with our conseqential amendments, this bill has 356 clauses, and if you want me to do a tally on all the different clauses that got passed after people chose not to move amendments and there were no mistakes made.... I don't believe there was a mistake made. We passed the clause because someone chose not to move an amendment. There were probably 50 other examples. If we're going to go back and say “I chose not to move it at that time, but I think I'll go back now and move it, and I want unanimous consent to open the clause” when it's not consequential to another area, then we could be here for another three months.

It's not about a mistake, Mr. Chair.

The Chairman: I can appreciate the preoccupation of the parliamentary secretary. However, this particular kind of instance when a mistake was made is extremely limited. I can only indicate again that a mistake was made.

The parliamentary secretary.

Ms. Paddy Torsney: And let me also be clear that there are still other avenues open to the person who is a proponent of this, whoever those people might be. There is still report stage. In fact if we were to open it and defeat it, they wouldn't get to move it at report stage. So if they are adamant about it, they can go over it at report stage.

The Chairman: Now we are moving on another type of discussion. What is before us is whether we open it or not.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I would like to correct the record in terms of what the parliamentary secretary has said. No one chose not to move this amendment. As I said earlier, because Mr. Lincoln is not allowed to vote on this committee I move his amendments, and I did not choose not to move this amendment and neither did Mr. Lincoln. So there was a mistake.

The Chairman: Right. Madame Girard-Bujold and then the parliamentary secretary.

[Translation]

Ms. Jocelyne Girard-Bujold: I support Ms. Kraft Sloan. This clause was not presented. So there was a minor error. I don't see why the Parliamentary Secretary would not want to consent to our considering it. I don't understand.

The Chairman: It's the same problem, Ms. Girard-Bujold.

[English]

The parliamentary secretary.

Ms. Paddy Torsney: Mr. Chair, it's now 11 o'clock. I would suggest that we adjourn for the day.

The Chairman: If that is the wish of the parliamentary secretary, we are glad to comply.

This meeting is adjourned.