ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 16, 1999

• 0913

[Translation]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): We will resume our proceedings.

[English]

In plain English, prepare yourself today for a giant slalom. We will move back and forth through the bill in a way that will be reminiscent of a giant slalom. If we make progress, we will also take care of a number of amendments, perhaps in a surprising manner. If we don't, then we are in for quite a haul.

I'm saying that because if by tomorrow afternoon we see that we can finish on Thursday, of course we will have a meeting Thursday afternoon starting at three o'clock and ending a few minutes before five because some members have to take a plane at six. But if we don't see our way clear to finish this week, we will sit Thursday morning, definitely. The clerk hopes we can secure a room until noon. But we will continue and finish, hopefully, next week, depending on how much work there is left.

We have three new books of amendments. The first one is fairly large. It's dated March 16 and was prepared by the clerk for us. The second book is very thin and starts with PC-18.0.0.0. The third one being distributed by the clerk is also very thin. It starts with G-30.1.1. We will be moving ahead using these three documents.

[Translation]

I am giving you these details because you have to know where to find the different amendments. The big book is the same since it has not been changed.

• 0915

[English]

We will start on page 231, where we left off the last time, I believe, with a motion by Mr. Lincoln, L-15.3.

Yes, Madam Torsney.

Ms. Paddy Torsney (Parliamentary Secretary to Minister of the Environment): I refuse to believe it's a conspiracy, but there's no sound.

[Translation]

The Chairman: Are the English and French translation services working?

[English]

May we have some silence please? Maybe there's a problem at the end of the table.

Ms. Paddy Torsney: Now I'm getting something. Thank you.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): Mr. Chairman, could I ask somebody to move my amendment so I can speak to it?

The Chairman: It was already moved by Mr. Jordan, I believe. Is that correct, Mr. Jordan? Yes, it was already moved.

Mr. Clifford Lincoln: The gist of the amendment is to include under paragraph 106(6)(a), page 75, lines 31 to 33, the words

and for the regulation or control of any potential risks to the environment, including biodiversity and human health, identified by that assessment;

I see there's an amendment to clause 106 that has been produced today by Mr. Herron. I wonder whether we should have a discussion on the two alternatives at the same time, or just move one by one.

The Chairman: Mr. Lincoln, your amendment was introduced light-years before this amendment, if I remember correctly—

Mr. Clifford Lincoln: That's fine, I'll speak to my amendment.

The Chairman: Therefore you would take precedence.

Secondly, we could, as you suggest, allow for a broader discussion so we can discuss both amendments, if Mr. Herron will pay attention and can be distracted from other activities.

We apologize from distracting you to this table. We were just wondering whether we could discuss L-15.3 at the same time as the amendment in your name PC-18.0.0.1 because they cover the same ground. That would allow for a broader discussion, and if and when you decide to move it, we would take a vote first on Mr. Lincoln's motion and then on your motion, if that would be acceptable.

• 0920

Mr. John Herron (Fundy—Royal, PC): Yes, that would be acceptable.

The Chairman: We also have the amendments by the government on pages 22.a and 22.b, which would take precedence over Mr. Herron's at the same time. Let's see how we can handle this discussion in a manner that is efficient and yet satisfactory.

Mr. Lincoln, please.

Mr. Clifford Lincoln: In my case, if you look at subclause 106(6), it says

(6) Subsections (1) to (4) do not apply to

(a) a living organism that is manufactured or imported for a use that is regulated under any other Act of Parliament that provides for notice to be given before the manufacture, import or sale of the living organism and for an assessment of whether it is toxic or capable of becoming toxic.

I've added “and for the regulation or control of any potential risks”. In other words, I've added potential risks to the environment, including biodiversity and human health identified by that assessment.

Subclause 106(6) refers to an assessment of whether it is toxic or capable of becoming toxic, without specifying what happens if it is assessed and specified as being toxic. My amendment makes it quite clear that in that case the other act should regulate or control any potential risk to the environment, including biodiversity and human health identified by the assessment. In other words, in the assessment without this qualifier, I suggest we should add there is no mandate or compulsion for the other act to do anything with the assessment.

Then under subsection 106(6), CEPA would not be operative if there had been an assessment under the other act, but we don't know whether the assessment would be conducive to any action being taken.

I'm saying it is not just sufficient to assess; you have to regulate and control potential risks relating to the environment or human health that have been identified by that particular assessment. I think that is critical, because if we give the onus to the other act to simply assess, an assessment will be done without any knowledge on our part when we withdraw CEPA from an application, whether anything has been done following that assessment. That is the gist of my amendment.

The Chairman: Thank you.

I invite other interventions. The parliamentary secretary.

Ms. Paddy Torsney: Certainly it's my intention to move the government amendment on page 22.a that would deal with some of the issues Mr. Lincoln is addressing; that is, determining what would be done following an assessment and which acts of Parliament would be used. So I think some of those issues are addressed, and I would not be in favour of Mr. Lincoln's amendment.

The Chairman: The amendment referred to is on pages 22.a and 22.b in the new package distributed to you this morning. It is the amendment Ms. Torsney has just addressed for the guidance of the committee.

Mr. Herron.

Mr. John Herron: Thank you, Mr. Chair.

• 0925

If Mr. Lincoln's amendment were to pass, would that mean that PC-18.0.0.0 would not be eligible?

The Chairman: It would not be wiped out, I'm told.

Mr. John Herron: Okay.

Mr. Chair, this debate picks up from our debate that we had the other day. The question in play was essentially what is the role of the bill that we know as CEPA; is it to be a residual bill, where the other acts would have precedence, whether that be a potentially an agricultural issue...? Who has the final decision? I believe the government's amendment G-08/03 indicates that it be done by Governor in Council and the debates would be done in cabinet. Which law would have precedence?

We're advocating, from the perspective of PC-18.0.0.0, that the protection of the environment, the protection of human health, should have precedence over all others, that ultimately the Minister of the Environment and the Minister of Health are the co-sponsors of this bill and they should be the quarterbacks who would have to lead this in the cabinet. I'm fearful that other priorities may overwhelm the Minister of Health and the Minister of the Environment in a cabinet environment, and I think we should empower them to do their jobs. That's why I'm advocating that we proceed with PC-18.0.0.0, and I think the comment that Mr. Lincoln made dovetailed quite nicely with it.

The Chairman: Madam Torsney, followed by Mr. Lincoln.

Ms. Paddy Torsney: I have a point of clarification. The PC amendment that's under debate is PC-18.0.0.1.

The Chairman: Correct.

Mr. Clifford Lincoln: I think there's a confusion there. The parliamentary secretary referred to my amendment, that she would support hers and not mine. The two are complementary; they don't conflict. Mine refers to subclause 106(6) of the bill; these two amendments from Mr. Herron and the parliamentary secretary refer to subclause (7). So there's no reason why subclause (6) can't be brought in and subclause (7) as well. In other words, I don't see what the conflict is.

When I suggested that there be maybe a broad discussion...because of course the two are interlinked. I don't see any conflict in passing subclause (6) and then passing subclause (7) as well.

The Chairman: Thank you.

Madam Torsney.

Ms. Paddy Torsney: To clarify, I didn't suggest there was a conflict. I said I didn't support L-15.3 and that I think some of the issues the member is trying to address are addressed on page 22.a of the small book today.

Mr. Clifford Lincoln: That is a matter of opinion. I don't—

Ms. Paddy Torsney: That's mine, that's all I was saying. I didn't mean to put anything else in conflict.

Mr. Clifford Lincoln: Yes, okay. I'm just saying that the two are completely different subclauses.

The Chairman: All right, we have clarified that point, that it is a question of numbering but also substance. The question is now whether you are ready for the question.

Mr. Clifford Lincoln: I'd like to hear from Mr. Moffet about this.

The Chairman: Mr. Moffet, would you come in?

Mr. John Moffet (Committee Consultant): On the connection between subclauses (6) and (7), my reading of these two subclauses is essentially that subclause (6) is the test and subclause (7) is about who will apply the test. So I don't see that any change to subclause (7) directly addresses the issues that Mr. Lincoln is trying to address in subclause (6).

• 0930

What Mr. Lincoln is doing in subsection (6) is strengthening the test to determine whether CEPA will apply for assessment purposes or whether another act will apply for assessment purposes. Mr. Lincoln's amendment requires not only that the other act have notice and assessment powers, but also that it provide for regulation—not that it requires regulation, but that it has regulatory powers.

In other words, if the other act is going to have supremacy over CEPA with regard to assessment, we know that there is potential that the department will be able to act on whatever information it gains from its assessment.

This strikes me as being sensible. Again, it doesn't require the department to regulate, so it doesn't dictate the outcome, but what it says is that CEPA—in other words, Environment Canada and Health Canada—aren't going to forgo their information-gathering and assessment powers except in a situation where another department has those powers and has the ability to act on whatever information and conclusion it draws from the assessment.

The Chairman: Thank you.

Mr. Mongrain.

Mr. Steve Mongrain (Representative, Canadian Environmental Protection Act Office, Environment Canada): Mr. Chairman, I have a couple of points. The first is that this section is modelled on what's in the existing act, subsection 26(3), I believe.

The second point is if you look at the language that's proposed in the bill, it's “a living organism that is manufactured or imported for a use that is regulated”. That issue of regulation is already addressed, I would suggest, in paragraph 106(6)(a) between lines 25 and 30.

Mr. Lincoln has raised a point about whether there is protection of the environment and human health. There is a government amendment to section 115, which is the regulatory authority in the biotechnology part, which adds a sufficiency test, so that if there's another regulation under another act CEPA would not apply if, in the opinion of the Governor in Council, the other regulation provided sufficient protection for the environment and human health.

So I think we're addressing Mr. Lincoln's concerns already with a combination of what's proposed in the bill and the government amendment.

The Chairman: Thank you.

Any further comments? Mr. Lincoln.

Mr. Clifford Lincoln: Have you got a definition from Mr. Cameron or the Department of Justice as to what “sufficient protection” is? Is it the same level of protection? Is it adequate? Who judges what is sufficient? What is sufficient in your mind?

Mr. Duncan Cameron (Legal Counsel, Environment Canada): Mr. Chairman, perhaps I could address that question.

The question is what is sufficient in the collective mind of the Governor in Council. The way in which the test is established is that it's the Governor in Council's discretion to determine whether the protection under the other legislation is sufficient in its opinion to protect the environment and human health.

Having said that there is a discretion on the part of the Governor in Council, it's also worth pointing out that it's not an entirely boundless discretion. In exercising this power the Governor in Council must be satisfied in a reasonable way that the protection provided under the other legislation is in fact sufficient in its opinion, so there must be some evidence of that. It's not an opportunity for the Governor in Council to take a blind eye, so to speak, and simply ignore the issue of environmental and human health protection.

On the other hand, it is a discretion nonetheless. As I say, it's not limitless, but it's somewhat broad, and it would have to be ascertained on the basis of the facts of each case.

• 0935

Mr. Clifford Lincoln: Could you tell us why “sufficient” suddenly became the mantra, instead of “equivalent”?

Mr. Steve Mongrain: Sure. “Equivalent” implies that you're comparing two regulations.

Mr. Clifford Lincoln: What's wrong with that?

Mr. Steve Mongrain: The reality is that if Environment Canada has environmental concerns about a regulation under say the Pest Control Products Act, our first course of action is not to draft a regulation.

Mr. Chairman, Mr. Lincoln has been involved in regulations development. He knows it's a time-consuming, costly process. Our first point of attack would be to address the concerns in the other regulation by fixing that aspect of it, for lack of a better term, that's broken, that doesn't allow for sufficient protection of the environment and human health. So if you use the term “equivalent”, it means you're subjecting one regulation to a comparison, but it's impossiible to do so in a vacuum unless we want to go through the effort of developing a parallel regulation.

The Chairman: Thank you.

Mr. Laliberte.

Mr. Rick Laliberte (Churchill River, NDP): I was just looking at subclause 106(6) here, and I'm trying to figure out where “sufficient” and “equivalent” come in. Maybe you can bring me on track so I can—

The Chairman: It doesn't yet. It comes up later, but not in—

Mr. Rick Laliberte: Is it in subclause 106(7)?

The Chairman: No, it comes up later again.

Madame Hébert.

Ms. Monique Hébert (Committee Researcher): Mr. Laliberte, it would come up under clause 115. The government is proposing an amendment that basically states that you could not make a regulation under CEPA if the regulation made under the other act provided sufficient protection for the environment. But this is under clause 115, and it is a proposed amendment.

Mr. Rick Laliberte: Focusing on subclause (6), if the application of these bills and these acts falls into subclause 106(6), why are we not imposing these tests of assessment and of notice in the regulation and control of risks at this point? Why couldn't we do it now?

I'm putting a question to the government official here. You say that clause 115 will be “sufficient”, and the word is not in there yet, but aside from that, before we even get to there, subclauses (1) to (4) do not apply. So it's pretty specific here, that subclauses 106(1) and (4) will not apply if notice and assessment take place.

Mr. Lincoln is adding “regulation and control of risks”, which shouldn't raise alarm bells. I think it should comfort everybody that this portion has a test to meet, as Mr. Moffet has highlighted. I don't think it's contradicting both sections. I think it's complementing both sections.

The Chairman: Mr. Mongrain.

Mr. Steve Mongrain: Mr. Chairman, it's simply the structure of the bill. For biotechnology, as with toxics, there are sections that deal with new products, new substances. They're assessed. Further on in the bill there's a regulatory authority to deal with those substances or living organisms. So it's the way the bill is structured. We attempted to do so in a logical fashion, and the sequence of events exists in other parts.

Mr. Rick Laliberte: There's a dual text; there's French and English together on my line here.

• 0940

Ms. Paddy Torsney: It's the spirit of two official languages.

The Chairman: Are you sure you're not suffering from hallucinations, Mr. Laliberte? There is an echo, yes.

Regardless of difficulties in transmission, could we now wrap it up, please? Are there any further questions for Mr. Mongrain? Mr. Laliberte.

Mr. Rick Laliberte: In trying to interpret both languages at the same time, I may have missed it, but could the government explain why strengthening this section is contrary to what the minister would want in this bill?

Mr. Steve Mongrain: Mr. Chairman, as I explained before, there are certain clauses in the bill that deal with different aspects of controlling or managing products of biotechnology. Clause 106 deals with the new products, new living organisms. It's the clause that provides the authority for assessment. There is a test for other acts, and they have to meet the requirements that are set under CEPA. There are provisions elsewhere in the bill that deal with the regulation, the control. At the front end you have the assessment. At the back end you deal with management, such as regulation, and that's where the regulatory authority is.

As I mentioned before, there is a government amendment on page 22.c of one of the smaller packages that ensures or provides a sufficiency test so that the actions taken under the other acts provide sufficient protection for the environment and human health.

Mr. Rick Laliberte: Subclauses 106(1) and (4) deal with notification of significant new activity and notification of new activity in respect to living organisms on the list. There is no specific mention of regulations. The bill doesn't specifically say anything about the creation of regulations. But there is a four-step process when coming to new activities.

I can understand where clause 115 falls in. But in subclause (6), in order to skim off subclauses (1), (2), (3) and (4) for a living organism that is manufactured, if there is notice, if there is assessment, if there is regulation and control on the potential risk, I would be very comfortable to skim (1) and (4) off if those tests were met at this point in time.

I speak in favour of Mr. Lincoln's motion, and I would just like to shed light to the government members that this is a very worthwhile test at this point in time. It skims off a portion or an exercise on new activities, adding it to a list and providing notification, not necessarily drafting or making regulations of specific activities. It's a notification part.

The Chairman: Thank you, Mr. Laliberte.

Mr. Lincoln.

Mr. Clifford Lincoln: I agree with that 100%. Frankly, I don't see where it is superfluous or wrong to add something that will clarify the intention of what must happen after assessment in subclause (6), and I don't see why it would clash with anything else.

You keep referring to 22.c, with its sufficient protection. You gave the explanation, but maybe some other people don't agree. Humbly, I'm one of them. I see CELA, for instance, which talked about the sufficiency test. CELA said:

Unlike the present CEPA...Bill C-32 proposes to make the act applicable only where measures in other departments are not “sufficient” according to the Environment Minister and the Minister responsible for those other measures. The effect of this provision is to make CEPA apply only when nothing else does.

• 0945

In other words, CEPA would become a residual statute rather than the cornerstone of federal environmental law and policy. The sufficiency test is certainly so broad you could drive a truck through it. To say the collective voice of cabinet will judge tomorrow whether another act is sufficient or not is completely subjective. There's no basis for true comparison.

It seems to me that by adding these words into subclause 106(6) we don't deter from anything else in the bill or in clause 106; we give it a bit more clarity and explain it in so many words. The fact that it's not in CEPA 1988—that's fine, but we are trying to make CEPA 1988 bona fide. We are trying to make it clearer, if we can.

The Chairman: Thank you.

Mr. John Herron: Mr. Chair, I think Mr. Asselin will be joining us very shortly.

[Translation]

Perhaps I would like to have a word with my dear colleague.

Some hon. Members: Ah, ah!

[English]

(Amendment negatived)

The Chairman: We will go at this stage to the government amendment on pages 22.a and 22.b.

Would you like to introduce this amendment, Madam Torsney?

Ms. Paddy Torsney: Mr. Chair, I'd be happy to move the government amendment on pages 22.a and 22.b, which affects subclauses 106(7), 106(8), and 106(9).

• 0950

The effect of this amendment, should it pass, would be to delete the current subclauses 106(7), 106(8), and 106(9) and replace them with a new subclause 106(7) that has two parts. The use of the Governor in Council would reflect recommendation 69 of the committee's report It's About Our Health and would reflect the discussion that has taken place around both clause 106 and clause 81 over the course of this clause-by-clause process.

The Chairman: Are there any questions? Mr. Herron.

Mr. John Herron: If the government amendment on page 22.a were to pass, would that mean PC-18.0.0.1 and L-15.4 would be in jeopardy?

The Chairman: Yes.

Mr. John Herron: This is what I consider to be a very significant point with respect to the bill. I'm asking our colleagues to consider the issue of political accountability.

More often than not, time and time again people are concerned that our political leaders aren't necessarily accountable for their own laws. I believe the amendment the government has put forward is an improvement on the current bill, as it makes CEPA potentially not always residual in that regard.

My second point is it then goes into the cabinet room for them to determine which bill or act would actually take precedence. I'm advocating that we arm the Minister of Health and the Minister of the Environment, who are ultimately responsible for health in the environment, to be able to go into cabinet, as the leads on this, and have them make the call. They are probably put under some kind of cabinet pressure from time to time anyway, but at least they will be the quarterbacks.

If I were the Minister of the Environment or the Minister of Health, I would want to be able to determine what is harmful to human health or to the environment. Given that would be under my dossier, I'd want to be able to make that call. I just think it would be very wrong for us to make this into a political situation where cabinet could override, for other reasons, protecting human health and the environment.

I'm strongly advocating that we vote down the amendment on page 22.a in order to pass either L-15.4 or PC-18.0.0.0, which are slightly different but do some of the same things.

The Chairman: Are there any other interventions? Mr. Laliberte, followed by Ms. Torsney.

Mr. Rick Laliberte: Correct me if I'm wrong, Mr. Chairman, but there seem to be three options before us. The existing option is to leave it as it is, which would mean the minister responsible would be responsible for determining. The government's amendment would change that by making the Governor in Council responsible for determining. I believe Mr. Herron's amendment and the spirit and intent of L-15.4 would make the Minister of Environment and the Minister of Health responsible for determining. Those are the three options before us if we look at it in a bigger picture.

In a working sense, maybe I can ask our researchers what would be advisable, in light of previous reports and the workings of decisions of the Governor in Council. It seems as if the government's proposal is to bring it back into an inner circle of the Governor in Council. There seems to be some sense of transparency at the minister's level. Maybe I can ask the researchers to comment on that.

• 0955

The Chairman: All right, let's hear from Madam Hébert or Mr. Moffet.

Ms. Monique Hébert: The issue is whether CEPA would apply in any given case. The two aspects to that issue are whether it will apply or not and who makes the determination.

These amendments all deal with who will make the determination of whether CEPA applies or not. The government amendment would have that decision vest in cabinet. Mr. Herron's amendment and Mr. Lincoln's amendment would have that decision vest in the Minister of the Environment or the Minister of Health, where appropriate.

However, there is an interesting distinction between Mr. Herron's amendment and Mr. Lincoln's amendment. In making that determination, Mr. Lincoln's amendment would have the decision-maker look at the notice and assessment provisions of the other legislation that would apply over CEPA to see whether their notice and assessment provisions would be equivalent to those found in CEPA. Therefore there is this safeguard that one doesn't find in Mr. Herron's amendment.

A further distinction is that Mr. Herron's amendment would simply have the ministers decide, and they would actually list the other statute in the schedule, whereas Mr. Lincoln's amendment would have the Governor in Council list the other statute that would prevail over CEPA in the schedule. These are basically the distinctions.

It boils down to how the members feel about who should be making the determination. Is it cabinet or is it the Minister of the Environment and the Minister of Health, where appropriate? The bill itself proposes it be the other minister, but of course this is the existing bill, and these amendments would seek to change that.

The Chairman: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you very much, Mr. Chair.

The concern I have around the government amendment has already been articulated by other members. I think in many regards we're still dealing with the residualization of CEPA.

Certainly many of the attributes of Mr. Herron's amendment are reflected in Mr. Lincoln's amendment. I'd like to remind environment committee members, as Mr. Herron said, that it is really the Minister of the Environment and the Minister of Health who are making the decisions about the equivalency and what's important around environment and health. I would encourage members to defeat the government amendment and support Mr. Herron's amendment, because it reinforces this as a bill to protect human health and the environment.

The Chairman: Thank you.

Madam Torsney please.

Ms. Paddy Torsney: Thank you.

I think the point Mr. Laliberte made about the current bill has been clarified. In the current bill, another minister makes the decision.

In my book, Mr. Lincoln has two different amendments for clause 106. One is to delete subclauses 106(7), 106(8), and 106(9) completely, and the other is to make changes. I have no idea which one members are referring to.

The Governor in Council is referred to in recommendation 69 in this committee's report. I think there's a basic premise in Mr. Herron's and Mr. Laliberte's comments that somehow the Governor in Council would not care about the health and environment of Canadians. I'm not sure that's a fair representation.

The Chairman: Thank you.

Mr. Herron.

Mr. John Herron: Thank you.

• 1000

Mr. Chair, by no means did I mean to indicate to the parliamentary secretary that cabinet wouldn't care about human health or the environment. What I was advocating was responsibility, that these two ministers are the co-sponsors of the bill. It is the principal act or it should be the principal act for the control and use of toxins within our environment, and I think those two individuals should be empowered to do so because they have not the most at stake but they're most accountable to the people for those two issues. That's what I was advocating. By no means was I meaning to indicate that cabinet was not concerned about human health or the environment.

The Chairman: Thank you, Mr. Herron. We are reassured.

Mr. Lincoln.

Mr. Clifford Lincoln: Thank you, Mr. Chairman.

First of all, to clarify a point, I will not move L-15.5. We'll withdraw it.

The Chairman: It's not before us yet.

Mr. Clifford Lincoln: I know, but the parliamentary secretary referred to it to say that there was confusion.

The Chairman: All right, fine.

Mr. Clifford Lincoln: I'm just going to say that right now we're talking about L-15.4. If there's consensus on Mr. Herron's amendment 18.0.1, I'd be quite happy to leave mine aside for his.

The Chairman: All right. That is a clarification on future intentions.

I invite you to let me know whether you're ready for a vote on pages 22.a and 22.b.

Mr. Laliberte.

Mr. Rick Laliberte: This was drafted by the government, and we haven't heard their explanation as to why the Governor in Council is being given this exclusive responsibility. I think the words “exclusive responsibility” are a very strong indication of the desire to have cabinet make this decision. I certainly didn't implicate the cabinet in saying it does not care for the environment or human health. All I was saying was that in my short experience here in Parliament, I sense that the ministers would be more transparent in making this decision and would be more accountable to the House of Commons, this committee, and to the public in general. So I was just trying to figure out what triggered the government to draft this to ask that we consider the Governor in Council to have exclusive responsibility here.

The Chairman: Madam Torsney.

Ms. Paddy Torsney: First of all, I did provide that explanation. We had this discussion in this committee in the clause-by-clause process. Once again, in recommendation 69 in It's About Our Health, this committee recommended that the Governor in Council be the final determinant. So we're reflecting the spirit of what this committee has decided and is interested in.

The Chairman: Mr. Mongrain.

Mr. Steve Mongrain: Mr. Chairman, I'd just like to add very briefly that it is a transparent and open decision. Before the order is made, it goes out as a proposal for publication and public comment for a 60-day period. So it is a very transparent process.

The Chairman: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, in reading recommendation 69 of It's About Our Health, it says that CEPA should be amended to require the Governor in Council to publish a list of statutes to consider to be at least equivalent to CEPA. So the committee is recommending not that the Governor in Council make the determination but that the determination be made as an equivalent to CEPA. The committee also recommended that there be a new part to deal specifically with biotechnology. Certainly their recommendations deal with strengthening CEPA by ensuring that any other statute that deals with biotechnology is equivalent to CEPA, and this is not in the government's amendment.

The Chairman: Mr. Moffet.

Mr. John Moffet: Mr. Chairman, I want to comment on It's About Our Health and the committee's previous report.

• 1005

In addressing the issue of biotechnology, the committee was very concerned about the possible proliferation of bodies and regulatory standards for assessing and regulating products of biotechnology. The committee had a number of options before it: consolidate all of the bodies into one; consolidate all of the statutes into one; or leave the status quo.

As I understand it and as I reread it and refresh my memory, the option the committee was interested in was “a third option which effectively bridges the conflicting recommendations”. This option was put forward by CIELAP, which said:

If different laws continue to be applied to different biotechnology products, all biotechnology products released into the environment should be evaluated with the same criteria, same standards for public participation and available prevention options as in CEPA.

So my recollection and my reading of the document was that the committee wanted to establish CEPA as the baseline for assessing and regulating products of biotechnology. But the committee left open the possibility that another act would meet that baseline, and that assessments could be done under another act so long as they were done in a way that met the baseline.

So that's the first point. I just want to be clear that in this document the committee did contemplate precisely what's in the bill: that assessment could take place under another act.

Note that this document doesn't talk about equivalence. The more difficult question centres on who is going to make that decision. The original bill, C-74, had that decision being made by the minister, although I can't remember exactly what C-74 said. We are now faced again with three options: the other minister, the Minister of the Environment, or the Governor in Council. I'm not going to provide you with a recommendation on that. It is a policy decision that you have to make. I just wanted everybody to be clear about precisely the history and the issue. Is that decision going to be made by the Minister of the Environment solely, or is it going to be made by cabinet?

As the parliamentary secretary has pointed out, the issue has nothing to do with transparency. Both options on the table are fully transparent, requiring notice and publication of the decision. I would therefore suggest that the issue of transparency that Mr. Laliberte raised is not one you should take into account. The question is simply about who should make the decision.

The Chairman: Thank you.

Mr. Herron, followed by Ms. Torsney.

Mr. John Herron: I think we've heard a fair amount of debate on it, and I apologize for taking as much air time as I did. So the question right now is whether we vote for an order in council, meaning cabinet, or wait for PC-18. I'm ready for a vote.

The Chairman: Thank you for notifying us that you are ready.

Ms. Torsney would like to have the floor.

Ms. Paddy Torsney: Thank you.

The Governor in Council is being referred to in this. In fact, following on Mr. Moffet's comments, paragraph 106(7)(a) in our proposal is that the requirements referred to in paragraph 6(a) are met. That is in keeping with what he was referring to earlier, as I understand it.

The Chairman: Are there any further comments? No? Are you ready for the question?

Mrs. Karen Kraft Sloan: Can I ask for a recorded vote?

The Chairman: A recorded vote has been called.

• 1010

It is a tie vote, seven to seven. The chair votes with the nays.

(Amendment negatived) [See Minutes of Proceedings]

The Chairman: I invite you to go to page 232. It's amendment L-15.4 in the name of Mr. Lincoln. Would someone move the amendment?

Mrs. Karen Kraft Sloan: Mr. Chair, I'm just conferring with the maker of the amendment on what he wants to do.

The Chairman: Whether it is this motion or Mr. Herron's?

Mr. Clifford Lincoln: Yes.

Mr. Chairman, in light of Mrs. Hébert's remarks that my amendment goes a little further than Mr. Herron's, I'll ask someone to move it.

The Chairman: Could we have a mover please?

Mr. John Herron: I'd be pleased to move it.

The Chairman: Mr. Herron moves it. That's perfectly all right.

Could we please have an introduction to the amendment again, briefly?

Mr. Clifford Lincoln: I think the debate has been gone over so much.

The Chairman: It wouldn't harm.

Mr. Clifford Lincoln: Mr. Chairman, it gives the Minister of the Environment and the Minister of Health the right to determine whether the requirements under paragraph 106.(5)(a) are met so that the Minister of the Environment and the Minister of Health are the people who will determine whether the assessment provisions in any other act of Parliament are equivalent to the notice and assessment provisions of this bill.

In subclause 106.(9), once they have determined whether these requirements are met or no longer met in the other act, the ministers recommend to the Governor in Council to add the name of that other act or delete it, as the case may be. So the final deletion or adding is made by the Governor in Council on the recommendation of the two ministers.

The Chairman: Thank you.

Any comments? Madam Torsney.

• 1015

Ms. Paddy Torsney: I assume the mover refers on the fourth line in the amendment to paragraph 106.(6)(a).

The Chairman: It's just a consequential amendment.

Ms. Paddy Torsney: It's clearly a five. The question is, are they trying in French to refer to paragraph (6)(a), or in English to refer to paragraph (5)(a)? I think it should be clarified before we have the vote.

Mr. Clifford Lincoln: It should be paragraph 106.(6)(a) in the English version.

Ms. Paddy Torsney: And secondly, there's a schedule 2 referred to in subclause 106.(8). I can only assume that it's the intention to refer to schedule 4, but I wouldn't presume to know.

The Chairman: Is it schedule 2 or schedule 4?

It's schedule 4, I'm told by Madame Hébert.

Ms. Paddy Torsney: Then it would also be in subclause 106.(9).

The Chairman: Mr. Lincoln, do you concur?

Mr. Clifford Lincoln: Yes.

Ms. Paddy Torsney: And in subclause 106.(9), there is also a schedule 2 that's referred to. Again, I assume that it's schedule 4.

The Chairman: Is it schedule 4, Ms. Hébert?

The answer is yes. Thank you.

Ms. Paddy Torsney: And finally, I'm not in support of this amendment.

The Chairman: Okay. That's a small detail. Yes, we've heard that too.

Ms. Paddy Torsney: And I would be ready for the vote if Mr. Herron is.

The Chairman: Yes, but we have to go to Mr. Laliberté first.

Do you have any other comments?

Mr. Rick Laliberte: No, I was just going to agree to the same duty.

The Chairman: Are you ready for the question then? Will we have a recorded vote again?

Mrs. Karen Kraft Sloan: Yes.

(Amendment negatived: nays 8; yeas 6) [See Minutes of Proceedings]

Mrs. Karen Kraft Sloan: Mr. Chair, Mr. Herron has a similar amendment. I suggest that we just—

The Chairman: Yes, we can move to Mr. Herron's amendment PC-18.0.0.1.

Mr. John Herron: I am pleased to move amendment PC-18.0.0.1.

The Chairman: It's on page 2 in your thin set of papers.

• 1020

Mr. John Herron: I think we've had a debate on similar situations on two different occasions, so I'm ready to go ahead with a vote unless there's other debate, sir.

The Chairman: Are you ready for the question?

Mrs. Karen Kraft Sloan: Could I have a recorded vote please?

The Chairman: It will be a recorded vote. Boy, it's getting interesting.

(Amendment agreed to: yeas 9; nays 5) [See Minutes of Proceedings]

The Chairman: I'd like you to turn to page 234, an amendment by Mr. Laliberte.

Mr. Rick Laliberte: This is dealing with waiver of information requirements, and we're inserting “, by order,”. This triggers the public notification and common process. I believe it's clause 332 of the bill that would be triggered in this situation. With the relevance of dealing with waiving of the information requirements, I believe the public right to know would be very much intact in this section.

The Chairman: Madam Torsney.

Ms. Paddy Torsney: Thank you. Subclause (11) of clause 106 talks about publishing “in the Canada Gazette a notice stating the name of any person to whom a waiver is granted and the type of information to which it relates”. So there is transparency. What Mr. Laliberte's motion would in fact do would be to create potential delays. I'm not sure why he'd be in favour of that.

The Chairman: Thank you.

Are there any further comments? Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I'm not clear as to why this would create delays. Perhaps that can be explained by the officials, Madam Hébert or Mr. Moffet.

The Chairman: Madam Torsney.

• 1025

Ms. Paddy Torsney: When you publish, you allow a period for a right to object. So there would be a process in place that would in fact take at least sixty days, if not longer.

The Chairman: Thank you.

Are there any further comments?

Mrs. Karen Kraft Sloan: Can we have Mr. Laliberte's understanding of this amendment?

The Chairman: Mr. Laliberte, that's a question you can answer.

Mr. Rick Laliberte: The amendment is triggering the public notification and a comment process inserting “by order”.

I just want to question the officials, maybe, about the “by order” process. This notification could also deem for the minister to reconsider through that process, as opposed to subclause (11), which would be after-the-fact publishing of a waiver that has been made. In the first instance, through our amendment that makes it a “by order” process, the minister could have an opportunity to reconsider that waiver decision that is about to be made or is in the process of being made, based on newly found information or because of intervention by somebody from the public.

The Chairman: Ms. Hébert, would you care to comment?

Ms. Monique Hébert: I'd just like to point something out, Mr. Chairman.

I'm looking at subclause 106(11), on page 76 of the bill. When a waiver is granted, there is simply the obligation on the minister to publish that fact in the Canada Gazette. It's just by way of informing the public that the waiver has been granted.

I can't see here that there is any feedback or opportunity for feedback from the public regarding this waiver. If we retain Mr. Laliberte's amendment, the “by order” would trigger the publication in the Canada Gazette under clause 332. I believe that under that particular clause, it's just a proposal at that stage. There is the opportunity to comment on whatever is being proposed under the order, and therefore a possibility of swaying the minister's decision.

The Chairman: Thank you.

Madam Torsney, followed by Madam Kraft Sloan.

Ms. Paddy Torsney: And of course the effect of allowing that entire process would be that the minister would not be able to get down to writing the regulation until after at least sixty days had elapsed. So to go back to Mr. Laliberte's original point, this whole process of pre-publication and notification introduces a delay to the system.

Mrs. Karen Kraft Sloan: However, in just looking at this particular subclause, it would allow the public to comment on whether information was really needed or not. For example, paragraph (c) says:

...it is not, in the opinion of the Ministers, practicable or feasible to obtain the test data necessary to generate information.

It seems to me that in some situations there are members of the public who may have knowledge about how to acquire whatever information is out there in order to make it a better regulation. I think we can think of the situation with MMT. We were told there wasn't enough scientific information to act, yet we know there are others out there who are doing scientific research and who have that information.

I think it's important to allow the public to give comment and to suggest that there are sources of information, that there are ways of getting testing done. If that makes a better regulation, I think it's in the public interest.

The Chairman: Thank you.

Mr. Mongrain.

Mr. Steve Mongrain: Mr. Chairman, I think it's helpful to note that this is for the assessment of new living organisms. There are regulations in place already for the assessment of new living organisms, products of biotechnology, and toxics. These are daily operational decisions on whether to waive information requirements. We get on the order of a thousand notifications per year for toxics and products of biotechnology. We often waive information requirements for certain substances because we don't need that information to make a determination of whether it's safe or whether it's prohibited. If every time we grant one of these waivers we're slotted into the pre-publication and 60-day comment period, we will significantly slow down daily operational decisions of the department.

• 1030

In some cases an assessment is done in 30 days, where we have enough information to make a decision on the product or the product of biotechnology. We would become almost the department of publishing, given the number of waivers we grant.

The Chairman: Thank you.

Madam Hébert.

Ms. Monique Hébert: I appreciate that this applies to the information-gathering powers, but I'm just looking at subclause 106(10) on page 76. It would enable the living organism to be used if the minister were satisfied it could be satisfactorily contained.

So we're not just dealing with information-gathering for the purposes of an assessment. We're also dealing with uses under specified circumstances. I believe in the past there has been concern about these special applications that are authorized under waivers.

The Chairman: Thank you.

Mr. Mongrain.

Mr. Steve Mongrain: It's not a waiver of the assessment process. If you read further down the clauses, the minister has to make a decision on whether the product of biotechnology, the new living organism, will be allowed into commerce in Canada, whether it will be prohibited, whether to place conditions on it, or whether to gather more information.

The sections we're dealing with simply waive the information requirements. They don't absolve the minister of her decision to determine whether the substance or product of biotechnology is safe or not. We're just saying if you add a public comment period to this process you will significantly slow down daily operational decisions.

If we're dealing with hundreds of notifications every year, that's two or three per working day. If you add a publication requirement, which would be the effect of adding the “by order”, you will grind our decision-making process almost to a halt.

In the government response on pages 71 and 72 we looked at this, because it was one of the committee recommendations. The government response was quite clear that there is a need for rapid decision-making in certain instances, and we wouldn't want to inhibit that. It's transparent because it's published, but it doesn't absolve the minister of her responsibility to determine whether a product is safe.

(Amendment negatived) [See Minutes of Proceedings]

The Chairman: I would ask you to move to page 235, an amendment in the name of Mr. Laliberte.

Mr. Rick Laliberte: I move that clause 106 of bill C-32 be amended by deleting paragraph 106(10)(b), where the minister may waive any of the requirements to provide information if

(b) a living organism is to be used for a prescribed purpose or manufactured at a location where, in the opinion of the Ministers, the person requesting the waiver is able to contain the living organism so as to satisfactorily protect the environment and human health;

• 1035

The concern, of course, is spills and accidental release. There have been situations that have raised this concern in my home province. I would just like to address to the committee that this should not necessarily be covered in this waiver portion.

The Chairman: Mr. Laliberte, you addressed part (b) of your amendment and not part (a). Is there a reason for that?

Mr. Rick Laliberte: No. The amendment includes part (a) and part (b). Part (a) replaces lines 25 to 33 on page 76. Part (b) deletes lines 40 to 47 on page 76.

I don't want to complicate things, so I'll split my amendment. I was speaking on part (a) and I'll keep that. When you said part (b), I was looking at part (b) under part (a). I wasn't looking at part (b) at the bottom of my amendment.

I'll introduce amendment NDP-49.1(a) to delete paragraph 106(10)(b). That's the specific issue of the containment—that the minister is satisfied the living organism can be contained. I'd like to raise a caution about that, because there are spills and accidental releases that could be detrimental to our health and our environment. I would like to delete that portion.

The Chairman: So how would paragraph 106(10)(b) then read? Would you please take us through it?

Mr. Rick Laliberte: Paragraph 106(10)(c) would become paragraph 106(10)(b).

The Chairman: So paragraph 106(10)(b) would be deleted and paragraph 106(10)(c) would become paragraph 106(10)(b).

Mr. Rick Laliberte: I want to handle subclause 106(12) separately.

The Chairman: So you have moved item (a) only of NDP-49.1. Is that correct?

Mr. Rick Laliberte: That's correct.

The Chairman: Fine.

Madam Torsney.

Ms. Paddy Torsney: I have two points. If we are splitting this into two sections and voting on them separately, the context would change rather dramatically, because subclause 106(12) refers to the current paragraph 106(10)(b). It would need to be considered at the same time, unless it is the member's intention to have subclause 106(12) refer to the current paragraph 106(10)(c).

Furthermore, there's no point in considering them separately, because the next amendment to consider would be NDP-49.1(b), if it's going to be moved as a separate amendment. So either way, let's deal with them both at the same time and vote on them at the same time. Otherwise it will be completely screwy and totally unnecessary, since there is no amendment that would interfere between part (a) and part (b) that would be in our book.

The Chairman: Mr. Lincoln.

• 1040

Mr. Clifford Lincoln: Mr. Chairman, you cannot separate the two. By deleting the present paragraph 106(10)(b), you also have to delete subclause 106(12) because it refers to the present paragraph 106(10)(b). So you have to take them together.

The Chairman: Yes, we have also come to that conclusion.

Mr. Laliberte, would you please—

Mr. Rick Laliberte: I didn't mean to complicate—

The Chairman: —amplify your motion so as to encompass it in its fullness.

Mr. Rick Laliberte: I can certainly introduce both of them. It's just for the sake of looking at one paragraph, because that's where the complete context of the issue is: the minister would consider waiving if there were a containment of living organisms. If we deleted that, then it would be just a matter of administrative process that paragraph 106(10(b) could be voted on. But I'll introduce it together to satisfy....

The Chairman: All right. We're now on the right track. Thank you.

Are there any other comments or questions? If not, Madam Kraft Sloan.

Mrs. Kraft Sloan: I think that of all the aspects of subclause 106(10), this is the one that is most contentious, and it concerns me. I don't imagine this is something Environment Canada does on a daily basis and that it has hundreds and hundreds of waivers.

Is it something you're doing on a daily basis and you have hundreds and hundreds of...?

Mr. Harvey Lerer (Director General, Canadian Environmental Protection Act Office, Environment Canada): Not for living organisms, no, but for toxics. The example is that if you have a listing that requires acute and chronic toxicology data and you've already demonstrated that the acute toxicology data show there is a problem, you know what your decision is going to be. What you want to be able to do is waive the chronic data. You don't need it any more. You don't have to look at it.

Mrs. Karen Kraft Sloan: This is for living—

Mr. Harvey Lerer: This is for living organisms that contain.... I was just trying to make the differentiation on the toxics. This is not something we would get hundreds of, no.

Mrs. Karen Kraft Sloan: No, you wouldn't.

I think Mr. Laliberte's concern is the risk of a spill or accidental release. This is not something, as the environment official has pointed out, that happens on a daily basis. If there are waivers on information, I think the public has a right to know and a right to comment. So I would certainly support this amendment.

The Chairman: Thank you.

Mr. Lincoln, followed by Madam Torsney.

Mr. Clifford Lincoln: It seems to me that Mr. Lerer has kind of given us the guideline that paragraph 106(10)(a) is very important, but paragraph 106(10)(b) can go.

The Chairman: Madam Torsney.

Ms. Paddy Torsney: My point was simply to say that I was not in favour of this and to furthermore allow Mr. Lerer an opportunity to clarify why that would not be perhaps his stated opinion—attributed opinion, I should say.

The Chairman: Mr. Mongrain.

Mr. Steve Mongrain: Mr. Chair, if I could make just a brief intervention, the intent of these paragraphs is that where it can be shown that the living organism can be appropriately contained, the minister has to agree. Health Canada has published laboratory biosafety guidelines to mitigate any risk. Once again, it's a situation where the minister has to be satisfied. It doesn't absolve her of any of her responsibilities. In some instances where the living organism can be shown to be contained without any serious risk to the environment or human health, it provides the minister with the discretion to waive the incoming information to assess the living organism.

The Chairman: Thank you.

The parliamentary secretary.

Ms. Paddy Torsney: To clarify, subclause 106(11) would in fact ensure that there is publication, that information is available, and that ministers of the crown remain accountable to the public through the House and other mechanisms. So to suggest that without this paragraph somehow things are going to be done in obscurity is not accurate.

The Chairman: Thank you.

Madam Kraft Sloan.

• 1045

Mrs. Karen Kraft Sloan: I'm sorry, but in my reading of subclause 106(11), there's a paucity of information. It just identifies the name of the person and the type of information to which it relates. It certainly doesn't allow for public comment. So I may be reading this a little differently than the parliamentary secretary is, but....

The Chairman: Are there any further comments?

Ms. Paddy Torsney: We can hear from Mr. Moffet, but it does in fact specify exactly what kind of information request was waived.

The Chairman: Mr. Moffet, please.

Mr. John Moffet: Also, Mr. Laliberte's amendment would not require any publication. It just wouldn't allow the.... I thought there was some confusion about whether it would enable publication, or require publication. It doesn't speak to publication at all.

The Chairman: Are you ready for the question, or do you need further clarification?

Mr. Laliberte.

Mr. Rick Laliberte: This is threading through subclauses 106(1), (2), (3), and (4), and the weight of subclauses 106(1), (2), (3), and (4) is information. This would mean any containment.... That would mean probably laboratory or experimental use. Why would we not require information for the minister's satisfaction? Why not, if there's not an intense...? This subclause is waiving information. It does not diminish any containment of living organisms. Why the concern? Why the opposition to this?

Mr. Steve Mongrain: Simply put, Mr. Chairman, this allows the minister to waive the requirement for a company or a proponent of a living organism, a new living organism, to provide the information that is required under the regulations for an assessment. Either the minister determines it's not necessary because we already have sufficient information to make a decision, or it may be a situation specifically related to Mr. Laliberte's amendments, where it's been determined that the living organism can be contained in accordance with Health Canada's biosafety guidelines and our new substances notification regulations.

It doesn't absolve the minister from her decision whether the living organism is safe to enter Canadian commerce or not. What it says, simply, is I don't need that information to make a decision.

The Chairman: Thank you.

Mr. Rick Laliberte: What you're saying is the minister can say “I don't need that information if you're going to be containing it”.

Mr. Steve Mongrain: It's a little more complex than that. You have to provide the minister with the assurance that it's contained—and there are guidelines published by Health Canada on biosafety. It's not at the minister's whim. There are procedures and tests that have to be met. But essentially, if the minister doesn't need the information to make the decision, why would she require somebody to provide it?

It's a very simple clause when you get to the bare bones of it. If we don't need the information to make an assessment to allow a living organism into commerce, prohibit it, or put conditions on it, why would we ask for it?

Mr. Rick Laliberte: The way I read this waiver is “in the opinion of the Ministers...contain the living organism so as to satisfactorily protect the environment and human health”. So the decision is on the containment, not on the opinion on the protection of environment or human health. This organism could be very detrimental to environment and human health, but as long as it's contained, the minister can waive the information.

• 1050

Mr. Steve Mongrain: There are two key points there, Mr. Chairman. First, it's the minister's decision, it's not a blanket automatic waiver. And two, there's a very—

The Chairman: You're asking a very specific question, whether the weight is on containment or not. The weight is the issue.

Mr. Steve Mongrain: The decision, Mr. Chairman, is on the satisfactory protection of the environment and human health.

The Chairman: Because it reads, “the person requesting the waiver is able to contain the living organism”.

Mr. Steve Mongrain: Yes. The ultimate factor is satisfactory protection of the environment and human health, Mr. Chair.

The Chairman: So he may be able to contain, but it may not be satisfactory.

Mr. Steve Mongrain: The minister may make that determination, yes, sir.

The Chairman: Thank you.

Mr. Lincoln.

Mr. Clifford Lincoln: I'd like to ask a question of Mr. Lerer or Mr. Mongrain. It seemed to me Mr. Lerer said before that when you talk about the living organism and containment, the cases are very few and far between, if I understood him rightly.

Can you give me an idea of how many cases you're talking about? If the intention is to waive because there are so many of them we just can't cope and we've got to accelerate the process.... How many do you get in a month, in a year?

Mr. Harvey Lerer: I don't know the exact number. I know it is not unlimited, it's not in the same order of magnitude as the description for the chemical side. But the waiver is not only the coping mechanism that we described under toxics. This is a waiver of further information. If you already have the information you need to make the determination—because the ministers are not absolved from making a determination here—if you have the information that is sufficient, you can waive the further information. I think that would describe the intent in this. But it is not a matter of operational numbers, sir, no, not in this instance.

Mr. Clifford Lincoln: It doesn't seem to me to talk about additional information; it says “provide information”, which seems like basic information.

The Chairman: We have discussed this item at length. It is admittedly a very important one. Are you ready for the question?

Mr. Laliberte.

Mr. Rick Laliberte: Just linking back to clause 106, I have a technical question maybe to the government. If the prescribed information is waived, does that mean the accompanied prescribed fee will be waived as well? The fees seem to be linked to the assessment of information. Is that the user fee type of concept in this?

Mr. Steve Mongrain: Mr. Chairman, we'll have to get back to the committee on how the cost-recovery scheme works. I can only speculate, and I wouldn't want to do that for the committee.

(Amendment negatived) [See Minutes of Proceedings]

The Chairman: I invite you to move to page 236 and 237, government amendment G-12.

Ms. Paddy Torsney: I'm happy to move government amendment G-12. This is a technical change to subclause 106(15). There was a mistake made in subclause 106(15)—it should refer to subclause (14), as it does, but it should have also referred to subclause (13).

• 1055

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 106 as amended agreed to)

The Chairman: I'm going to move to page 243, NDP amendment 52.1.

Mr. Laliberte, would you like to move this amendment?

Mr. Rick Laliberte: We're in the infamous clause 115.

Okay, I will move amendment 52.1. This would strengthen the regulations. I don't know if this would link with any other subsequent amendments coming in, Mr. Chair, or if that has to be taken into consideration.

The Chairman: Not to my knowledge, Mr. Laliberte.

Mr. Rick Laliberte: Okay.

The Chairman: It does, however, touch on the same lines as the other amendments.

Mr. Rick Laliberte: I'm free and clear?

The Chairman: You're free and clear.

Mr. Rick Laliberte: Okay. Suclause 115(2) would now read:

(2) A regulation made under subsection (1) in respect of any living organism applies notwithstanding that the regulation regulates

The Chairman: “...an aspect of the living organism”, etc.

Mr. Rick Laliberte: That's right.

The Chairman: Would you like to explain it briefly, please?

Mr. Rick Laliberte: This removes “The Governor in Council shall not make a regulation”. This regulation made under subclause 115(1) is made on the recommendation of the minister implementing international agreements “respecting the effective and safe use of living organisms in pollution prevention”.

It's just a way of strengthening the whole aspect of regulation-making under living organisms.

The Chairman: Madam Torsney, please.

Ms. Paddy Torsney: Mr. Chair, it is my understanding, or it could be my understanding, that this is being moved to address an issue the committee raised to ensure that we had regulations under various acts that protected the health and environment of Canadians. So I think the government amendment on page 22.c does what the committee desired and that in fact this amendment not only does not do what the committee desires, but also could provide for conflicting regulations and for a lot of overlapping duplication that wouldn't necessarily achieve the goals. So I would not be in favour of this.

• 1100

The Chairman: Thank you.

Mr. Herron.

Mr. John Herron: Regarding the amendment on page 22.c, I'm a little concerned that we're on that same slippery slope again, where we're empowering the Governor in Council as opposed to the ministers, and the words “sufficient protection” are being utilized again. So I'll be supporting my colleague for the NDP's amendment, because I have an amendment coming very shortly after that addresses that very issue of the word “sufficient”, and of the Governor in Council versus the ministers, similar to the wisdom the committee chose a few moments ago.

The Chairman: Thank you.

Madam Torsney.

Ms. Paddy Torsney: Thank you.

First, I would point out the fact that the Governor in Council is referenced on page 22.c because the whole clause is referring to the Governor in Council, as is subclause 115(1). So it would be necessary to include that for the sake of clarity. The second part is that in terms of being on the same slippery slope, it is the same slippery slope because we were referring to clause 115 earlier when we were having the debate. So there's not a parallel slippery slope in his mind. It should be the same.

The Chairman: Thank you.

Mr. Laliberte.

Mr. Rick Laliberte: Maybe I can ask Mr. Moffet to comment on this, because the issue of equivalency, and the word over here is “sufficient”, which the government will be proposing in a very short while.... But “applies notwithstanding” would mean regardless. Is that the issue, in terms of interpreting that?

If the amendment were to be in place, what would Mr. Moffet's interpretation of subclause 115(2) be?

Mr. John Moffet: If NDP 52.1 passed, the effect would be what was described by the parliamentary secretary. We could see regulations addressing the same issue being promulgated under different acts, being administered by different departments, and in fact stipulating different requirements.

My opinion is that this is an overly broad measure to address the concern that's been articulated by the committee about the nature of the test that should be applied to determine whether a CEPA regulation or another regulation will apply. In fact what this says is let them both apply.

(Amendment negatived) [See Minutes of Proceedings]

The Chairman: I invite you to turn to the government amendment on page 22.c in the smaller book that was distributed this morning. This amendment touches on the same lines, I'm told, as L-15.6 in the name of Mr. Lincoln and amendment PC-18.002 in the name of Mr. Herron.

Madam Torsney, would you like to introduce your amendment?

Ms. Paddy Torsney: Thank you, Mr. Chair. I'd be happy to introduce this amendment. I think I spoke to it earlier. But at the same time, I wonder if we might have some clarity as to what time we're breaking.

The Chairman: I was hoping you wouldn't ask that question, because so long as I—

Ms. Paddy Torsney: No flies on me.

The Chairman: —am not asked that question, we can slide inadvertently into the third hour, until members indicate to me that they have another appointment. Are you in that situation?

Ms. Paddy Torsney: I will check my ability to slide.

The Chairman: Perhaps we can deal with this amendment and then adjourn, but let's see whether the discussion is going to be easy or complex.

• 1105

Ms. Paddy Torsney: Again, this amendment is intended to address the issues that have been raised by the committee throughout this process, and that is to achieve similar objectives and to make sure there is protection of the environment and human health no matter which act would be applying.

The Chairman: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I think it's important to consider the other amendments that are in front of us and that actually relate to other discussions we've had, because in this situation we're dealing with sufficient protection, whereas in the other amendments we're looking at equivalent protection. Certainly the other amendments are stronger and more in favour of the environment and human health. So when considering this amendment, I think we should consider the other ones that are possible.

The Chairman: Mr. Lincoln, please.

Mr. Clifford Lincoln: Mr. Chairman, I think if you look at a comparison between the amendments, mine is more specific. It calls for the other act to provide regulation or control of any potential risks to the environment, including biodiversity and human health, identified by an assessment, whereas the government notion of sufficiency, which we have already discussed, is extremely broad and flexible and subjective. Mr. Herron's amendment seems to go even further in specifying equivalency.

I wanted to know, if by any chance my amendment is defeated, I take it Mr. Herron's amendment is still valid because it's worded differently from mine. Is that correct?

The Chairman: It is correct, provided the government amendment is not carried.

Mr. Clifford Lincoln: I appreciate that.

The Chairman: Mr. Herron.

Mr. John Herron: On this amendment I think it would be more prudent for us to defeat the current government amendment at this point in time, because given the language Mr. Lincoln utilizes in L-15.6 we would not have the opportunity to be able to vote on it if it were to pass, I understand.

The Chairman: Correct.

Mr. John Herron: Also, I think of the comments I made previously this afternoon, and I think there is a little complexity here with the debate. Why wouldn't we want the Minister of Health or the Minister of Environment to make that choice, versus order in council?

I really have a problem with the word “sufficient”, which is used in the government amendment. Although I know it's difficult for us to determine a level of equivalency, I think it's even harder for us to determine any kind of definition for “sufficient”, because it's so subjective in that regard.

I would suggest to the committee that the language you may find in PC-18.0.0.2 addressing that issue of equivalent versus sufficient would be better. Also, in perspective is the comment made by Mrs. Kraft Sloan a little while ago, and in previous sessions, that if we request our provinces to have equivalent legislation we should at least be able to insist that various departments within our own government have a level of equivalency. So “sufficient” is a very spooky word.

Thank you.

The Chairman: Thank you, Mr. Herron. What you're raising is a key question as to the interpretation of the term “sufficient”. Perhaps Madam Torsney can cast some light on that.

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Ms. Paddy Torsney: Mr. Chair, I had a question related to the operational effect of 18.0.0.2. The clause would become rather awkward, and I'm wondering if it actually wouldn't be contradictory, in that “The Governor in Council shall not make a regulation...”. In the bill it keeps referring to the Governor in Council. At the end of that, if this were to pass, the effect of this would be to tack on having the minister making certain decisions and having the minister making determinations. The subclause itself really relates to the Governor in Council, and it's a subclause of a fuller clause that relates to the Governor in Council.

So it's a question about whether that would make any sense whatsoever operationally. Perhaps our constitutional and legal people at the head table could give us some....

The Chairman: Well, that is an added question to the one already raised by Mr. Herron, and we will see who can clarify things. When reading it at first, we thought Mr. Herron's amendment was flowing in a reasonable manner, that it was all right, but let's hear the comments at the table.

Madam Hébert.

Ms. Monique Hébert: Mr. Chairman, I wonder if it would be that difficult operationally. Basically, what this amendment would do is prevent the Governor in Council from developing regulations under CEPA if regulations existed elsewhere, had notice and assessment requirements, and in the opinion of the Minister of the Environment—and of Health, where appropriate—those other regulations protected the environment to the same extent that regulations developed under CEPA could be developed.

So it seems to me that operationally, cabinet would simply have to consult the Minister of the Environment and the Minister of Health to see what sort of level of protection was being afforded under those other regulations. If, on the basis of the ministers' response, it was determined that CEPA could provide a higher level of protection, cabinet could then proceed to enact regulations under CEPA.

I think it's just a question of consulting the ministers here to see if CEPA regulations were in order or not.

The Chairman: Thank you.

Mr. Moffet, Mr. Lincoln, and the parliamentary secretary again.

Mr. John Moffet: At the risk of confusing the committee, I'm not sure I agree with my colleague that applying Mr. Herron's amendment would be all that straightforward. Mr. Herron's amendment would require that a CEPA regulation not be developed where there was another regulation that satisfied three criteria. The first two criteria are pretty straightforward: first, does that regulation provide for notice; second, does it provide for an assessment.

For me, the third criteria is the difficult one: does that regulation provide to the environment and human health a level of protection that is equivalent to the level of protection that would otherwise be provided by or under CEPA? I don't know how you could apply this, because you don't know what level of protection would be applied under CEPA unless you had a regulation.

CEPA doesn't specify a particular level of protection. It says you may regulate to address this risk. You may regulate at a higher level, you may regulate at a middle level, or you may regulate further down. Where it's going to be is a policy decision that will be made when the regulation is articulated, but unless you have that regulation you don't know whether the other regulation is going to provide for equivalent levels of protection as compared to the CEPA regulation. I don't think this is “operationalizable”, if that's a word. Forgive my English.

The Chairman: Thank you.

Mr. Lincoln, Madam Torsney, and Mr. Herron.

Mr. Clifford Lincoln: I think this question of the opinion of the ministers could easily be fixed by Mr. Herron.

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I find that there is a contradiction in subclause (2). After all, in subclause (1) the Governor in Council acts on the recommendation of the ministers, and I think that's what Mr. Herron was trying to do. It would seem to me that you would have to delete the words “in the opinion of the Governor in Council” from subclause (2) and substitute “in the opinion of the Ministers”. That would make it much more logical.

The Chairman: Thank you, Mr. Lincoln.

Madam Torsney, please.

Ms. Paddy Torsney: Mr. Chair, I think there are some problems with PC-18.0.0.2. Since we're considering them both at the same time, and given the lateness of the hour, we should probably adjourn and come back to this this afternoon.

The Chairman: All right, that is a very wise suggestion. We thank you, and we adjourn.