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, May 28, 1998

• 0915

[English]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Welcome, everyone.

Most of you were not present yesterday, except for Mr. Bigras, when we launched the hearings with the Health and Environment department officials. Because of the content of the question and answer period in the House as registered in Hansard on Tuesday, when the minister indicated that the enforcement report has been carried out on her request, I did indicate pleasure in having our report elevated to a ministerial level, which puts on us a particular responsibility, namely to visit perhaps six months from now to find out what has happened to the recommendations. So when we complete Bill C-32, we will put aside perhaps a few days to revisit the enforcement report to make sure the ministerial report is being given the attention it deserves.

Having said that, we have with us this morning probably the only expert in the country on CEPA legislation, because he has had several experiences with it. I'm saying that with respect and based on experience. Those of you who have been on this committee since 1994 know John Moffet. He was extremely helpful when we went through the very difficult exercise of preparing the report entitled It's About Our Health. As you know, at the request of this committee, he prepared a study that was circulated to all members of the committee in March. He is here today to give us a verbal presentation.

On behalf of the members of the committee, I want to thank you for coming. I invite you to proceed, please.

Mr. John Moffet (Principal, Resource Futures International): Thank you, Mr. Caccia. It's a pleasure to be here today.

I'll just briefly explain my experience with CEPA and then tell you the perspective that I'm going to bring to my presentation.

I'm an environmental lawyer and policy analyst. I work with a private consulting firm here in Ottawa. We conducted the evaluation of CEPA for the Department of Health and the Department of the Environment in 1993. Then, as Mr. Caccia indicated, my partner, François Bregha, and I provided assistance to the committee in its review of CEPA and assisted with some of the drafting of the report It's About Our Health.

Since then, I've provided advice to Environment Canada about various issues related to CEPA, including enforcement, the development of non-regulatory measures and agreements, and legal advice about the incorporation of concepts, such as the precautionary principle and user-producer responsibility, into the legislation.

My presentation this morning is going to focus on the question of whether Bill C-32 achieves the objectives and guiding principles in the committee's report, It's About Our Health. So relative to the blueprint that was established in that report, in what areas is Bill C-32 better than CEPA 1988, and in what areas does it fall short of the expectations established in that report?

• 0920

As for my overall conclusion, I'll just briefly summarize it and then I'll walk you through the table that has been distributed already, which goes through the bill part by part.

My overall conclusion is that the bill does represent an improvement over the current CEPA and incorporates a large number of the committee's recommendations. However, in my opinion, the bill does not goes as far in the direction of the precautionary principle and the hazard-based approach—I'll explain what that means later—to preventing pollution from toxics and other substances as the committee had recommended.

Moreover, I'm concerned that the federal government's discretion to act is significantly constrained by numerous requirements in the bill to consult with the provinces. Overlaid on top of those legislative obligations, of course, one has to account for the potential implication of the CCME harmonization agreement.

Finally, I'll emphasize now and when concluding the presentation that the effectiveness of the bill will of course depend largely on political will and resources, which is a comment that the committee has already made to considerable effect this week with respect to enforcement. But I think this observation goes well beyond enforcement and applies to, for example, the number of resources dedicated to risk assessment and to the wide discretion that remains in the hands of government officials in terms of how they will conduct and evaluate risk assessments and when they will determine that federal intervention is appropriate under international air, international water, fuels, and so on and so forth. Many of the provisions would simply authorize the government to act, but don't require any action.

Those are my general conclusions. I'll provide you with more detailed ones at the end of the presentation. If it's okay now, I'll take you through the table.

I should have said at the beginning to please intervene at any point in my presentation if you have questions. If I'm confusing you, then please ask for an explanation. I have lived with this act for a long time, but not as intensely as some of the government officials who have worked on it. Some of the acronyms and concepts may seem familiar to me, but are unfamiliar to somebody new coming to the bill.

Let me first discuss the preamble and the administrative duties that are articulated in clause 2 of the bill. The preamble refers to all of the principles that were identified in It's About Our Health. I think the bill faithfully reflects those principles in the preamble. I have two comments, however.

I'm concerned that there in fact may be too many principles in the preamble for them to be useful. In other words, taken together, the preamble basically says that the government should do good things for the environment in a cooperative, science-based way. In my view, that doesn't really provide a whole lot of direction to officials when they are interpreting the various provisions of the bill. So I don't have anything substantive to say against any one of those principles, I'm just concerned that because there are so many of them, they don't provide very explicit guidance.

Similarly, the administrative duties outlined in clause 2 again refer to many of the principles, although not all of the principles, in It's About Our Health. I think it's particularly relevant to note that the clause 2 administrative duties do not explicitly refer to the precautionary principle. The administrative duties also emphasize the importance of the government taking cost-effective preventive measures and the importance of the government acting consistently with intergovernmental agreements and arrangements.

I think here, because of the absence of the precautionary principle and the explicit discussion of cost-effective preventive measures and consistency with intergovernmental arrangements, while one might not have anything against those concepts per se, the general tenor seems to be moving toward a potential watering down of the general pro-environmental tenor of the preamble.

• 0925

I explained that I'm a lawyer. I'm not here to provide you with legal opinion per se, but I think it's worth commenting briefly on the potential significance of the preamble and clause 2 in terms of the way the act will be interpreted. In other words, this means the way the substantive provisions of the act will be interpreted and applied by government officials.

As for the general jurisprudence in this area, as I understand it—I'm not an expert on statutory interpretation—the general rule of interpretation is that preambular statements and expressions of administrative duties will have legal significance primarily where the substantive provisions in the bill are ambiguous or allow for discretion.

That's why I explained when discussing the preamble that I'm concerned that the preamble doesn't in fact provide a whole lot of guidance, because it's also quite general when taken together. So if one has an ambiguous substantive provision, it will be difficult, in my view, to look to the preamble and say that this is how I'm supposed to interpret this substantive provision.

That being said, the real question is to what extent are the principles, like the precautionary principle, pollution prevention, and so on, incorporated into the substantive provisions of the bill? Again, I'm going to go through those in detail, but let me observe at this time that some of the principles are explicitly incorporated in a number of the provisions of the bill.

I draw your attention to the ecosystem approach, which is explicitly referred to in a number of provisions, such as the definition for air pollution, the focus of the nutrients provisions, the focus of the research and data collection provisions. They all make explicit reference, unlike CEPA 1988, to the need to account for an ecosystem perspective. Intergovernmental cooperation of course is explicitly referred to in numerous places in the bill.

On the other hand, one sees no explicit reference to the precautionary principle anywhere other than in the preamble. I certainly acknowledge that a number of the provisions do reflect the precautionary principle. I think particularly the most obvious example is the reverse listing approach that has been adopted for ocean dumping.

On the other hand, as I'll argue later, many of the other provisions do not reflect the precautionary principle in the manner and degree to which the committee had recommended in It's About Our Health. I'm speaking particularly about the risk assessment provisions, both for existing substances and new substances.

So let me turn now to the table, which provides in summary form a comparison of the existing CEPA bill, the committee's report, It's About Our Health, the toxic substances management policy, the government response, Bill C-74, and the current bill that's before the committee, Bill C-32. I'll just take you through each of the categories that I've established in this table. I'm not going to go through each section in detail, but I'm happy to answer more detailed questions if you have them.

Of course at the front end of the bill there are provisions related to the collection of data and the department's authority to conduct research. I think it's appropriate to say that these provisions do expand the authority of the department in the manner in which It's About Our Health had recommended. So here we have an incorporation of the committee's recommendations.

Similarly, the provisions with respect to objectives, guidelines, and codes have been expanded in scope and in focus. In particular, I'm thinking of pollution prevention and the ecosystem approach in much the way It's About Our Health had recommended.

Similarly, the act provides for much-improved public reporting. It provides for an environmental registry, precisely as It's About Our Health recommended. It explicitly mandates the NPRI, the pollutant registry, as It's About Our Health recommended.

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It's important to note, however, that the scope established for the NPRI in the bill is not as broad as It's About Our Health had recommended. And in particular It's About Our Health had recommended that the registry include not just data on emissions but data on pollution prevention progress made by companies that are reporting their emissions. The rationale was that somebody reading the inventory would be able to see not just the level of emissions but would be able to understand the efforts that were under way and the progress that had been made in reducing those emissions. As it is now, one will have to track trends in emissions by company.

On the whole, then, the front end of the bill incorporates the recommendations of It's About Our Health.

Let me turn now to toxic substances. You'll note in the table that I've divided up my description into the different components of the risk assessment and risk management process. This is a somewhat artificial division in the sense that this is quite a fluid process, but for the purposes of exposition I've divided it up.

Let me first take you to the flow chart I prepared. And as I noted on the table, it has not been reviewed or vetted or approved by the department. This is my reading of the bill and the way it works. I've provided this partly to help me understand it and hopefully in order to help you understand the way the process will work.

What I'll do is briefly describe the process and then I'll comment on the degree to which the process matches or does not match the recommendations made by the committee two years ago.

At the top of the flow chart we have the risk assessment process, which now, instead of just being initiated by the priority substances list on the right, has two other tracks. The first track is the screening of the domestic substances list, which is a list of all existing substances, and the second is a review of decisions made by other jurisdictions.

The screening of the domestic substances list requires officials to look at those substances on the DSL and products of biotechnology and identify those that may present the greatest potential for exposure or are persistent or bio-accumulative and inherently toxic.

The review by the jurisdictions requires officials to look at substances that aren't yet regulated for environmental or health reasons in Canada but that have been regulated for those reasons in either an OECD country or in another province. The process is then basically the same regardless of how the substance was first identified. The department conducts a risk assessment, publishes the scientific basis—in other words, the conclusions of the risk assessment—and a proposal of what the minister proposes to do. There's then a time period allowed for public consultation, and once the department has responded to comments the minister must then publish her final decision.

Her decision can essentially be to do nothing, or to add the substance to the priority substances list if it's not already on the priority substances list, or of course to declare that the substance is toxic. And if the substance is toxic then the minister may add the substance to the list of toxic substances.

There's one exception to that general authorization. If you look at the left-hand column, you'll see that if the minister concludes that a substance that has been taken from the domestic substances list, gone through a screening process because the initial understanding was that it was persistent or bio-accumulative and inherently toxic, and then if it is concluded that it may have a long-term harmful effect on the environment because it is inherently toxic, persistent, bio-accumulative and anthropogenic—in other words, produced by humans—then it must be added to the list of toxic substances.

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One then comes down to those substances that have been added to the list of toxic substances, and then again the question is asked, is the substance persistent, bio-accumulative and anthropogenic? If yes, then one goes to track one and the bill requires virtual elimination. If no—in other words, it's just CEPA-toxic and/or persistent or bio-accumulative—then the substance will be subjected to life cycle management. And essentially the minister is authorized to control the substance, not mandated to regulate but authorized to control, which includes, at her discretion, regulating the substance.

So that's a snapshot view of the way the risk assessment process works. Let me take you back to the table then and we'll start at the beginning.

With respect to the choice of substances to assess, It's About Our Health recommended that the department look at more than the PSL, and recommended that the department look at substances on the DSL that were persistent and bio-accumulative and that the department look at substances regulated elsewhere. And that's exactly what the new bill does. So the bill has expanded the tracks for risk assessment. In my view, this is an important improvement over CEPA 1988.

With respect to risk assessment itself, It's About Our Health recommended replacing risk assessment as it's defined in the act at present—in other words, which requires officials to look at inherent toxicity plus risk of exposure—with hazard assessment, which can be defined loosely to mean a review of the inherent toxicity of the substance without regard to the potential for exposure.

Bill C-32 goes part-way in that direction. Bill C-32 requires hazard assessment, in my view, in one situation only and otherwise retains the current risk-based approach and definition of CEPA-toxic.

Let me explain what I mean when I say that it does require a hazard assessment in one case. If we go back to the left side of the flow chart, you'll see that officials are required to screen substances on the domestic substances list—in other words, substances that are already in use in Canada—and look for those that they know are persistent or bio-accumulative and inherently toxic. There's no reference to exposure. They then must assess those substances. If they then conclude that the substance may have a long-term harmful effect on the environment because it is inherently toxic, persistent, bio-accumulative and produced by humans—again, no reference to exposure—then the minister must add the substance to the list of toxic substances. And once on the list of toxic substances, because the substance is persistent and bio-accumulative, it will be put on track one and the bill requires virtual elimination. So the bill does incorporate a hazard assessment approach, in my opinion.

The key issue here is what will be the regulatory definition of persistence and bio-accumulation? In other words, the bill says that if it's persistent and bio-accumulative you must do the following. But how will those terms be defined? And of course the bill doesn't define those terms, and I think that's perfectly appropriate. These will be complex scientific considerations, and our understanding of those considerations may evolve over time, so they're appropriately dealt with in regulation and the bill requires the government to promulgate regulations.

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I think this is an important issue, and it will be important for this committee to ensure that the criteria on which the government will rely will be precautionary. Of course, the toxic substances management policy articulates criteria, and those criteria may be the ones that will be incorporated into a regulation. I think you will probably hear from a number of people later who are more technically qualified than I and will argue that those criteria are very restrictive and will mean that only very few substances will be put on that hazard assessment track.

This is not an issue I'm qualified to comment on, but I urge you to keep it in mind when you meet with more scientifically qualified witnesses.

Let me move on to risk management. The existing CEPA essentially authorizes the minister to regulate any substance that is on the list of toxic substances. In other words, once the minister has concluded that the substance is toxic and has added it to the list of toxic substances, the minister has broad authority to regulate.

It's About Our Health said the bill should be a little more prescriptive. It said the act should presume a ban of any substance that is inherently toxic, persistent, and bio-accumulative, and there should be a presumed ban of any substance that has been banned in another jurisdiction. It also said there should be a presumption of a need to regulate a substance that has been regulated elsewhere or has been assessed to be toxic but hasn't been put on the banned track. It's About Our Health also said the act should require controls to be put in place within two years of a declaration of toxicity.

Bill C-32 again partially incorporates those recommendations. Bill C-32 establishes the so-called track one approach, which requires the minister to propose the virtual elimination of substances that are on schedule 1—in other words, those that have been declared toxic, that are persistent and bio-accumulative.

It's About Our Health also requires the minister to control substances on schedule 1, but not necessarily to regulate. The bill also requires the minister to publish proposed control measures within two years of completion of the risk assessment, as was recommended in the report.

The main issue here, in my view—and this I think is an important one—has to do with the definition of virtual elimination in the bill. The bill requires virtual elimination for substances that are persistent and bio-accumulative. Virtual elimination is defined to mean a reduction in the release below any measurable quantity or concentration that results or may result in a harmful effect on the environment or human life or health.

It's About Our Health said virtual elimination should mean a reduction in the release and the use of those substances. Bill C-32 will only require a reduction in the release of those substances. I think this is an important distinction and goes to the heart of the concept of pollution prevention. You will no doubt hear from many witnesses who have many different interpretations of pollution prevention.

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The definition of pollution prevention the committee endorsed two years ago held that the most effective way to prevent pollution from a substance is to prevent its use in the first place—not to construct walls, disposal facilities, or scrubbers in stacks, but to actually reduce the use of the substance and find another way to make your product or deliver your service without using this substance that, if released, even just accidentally, could pose harm to human life or the environment. That was the definition of pollution prevention that was adopted by the committee. In my view, that definition has not been fully embraced by Bill C-32, and I think this is an important limitation of the bill.

Let me turn now to the way the bill deals with new substances. It's About Our Health recommended a reverse-onus approach to new substances. In other words, if you want to introduce a substance into Canada that's not currently in use in Canada, you need to demonstrate to the government that it will not pose an unacceptable risk to human health or the environment.

Bill C-32 instead retains the approach in the current act, which essentially says you can't use your new substance until the government has assessed it. In other words, there is some restriction on the initial use of the substance, but the onus is on the government to assess the substance. Then, if the government assesses the substance as toxic, it has the authority to control the substance.

I've drawn the distinction between the two approaches quite starkly. The distinction is not quite that stark, in the sense that the current bill has significantly expanded the government's authority to require proponents of the use of a new substance to generate and provide a considerable range of information to enable the government to conduct its risk assessment.

While the bill doesn't explicitly place the onus of proof on the proponent, it does enable the government to require proponents to basically provide the information necessary for the government to make the determination. So I think the bill has gone quite some way toward incorporating the philosophical perspective of It's About Our Health, even if it hasn't quite gone all the way.

The other important point to raise, in my view, about the new substances provisions has to do with the provisions concerning significant new activities. It's About Our Health used the phrase “significant new use”. The bill uses the phrase “significant new activities”.

It's About Our Health recommended that the bill oblige people who are using a substance, regardless of whether it's already regulated, to report all significant new uses. The concept is that the substance may not be regulated at the present time because it's used in a particular way and its risk of exposure is minimal, or it's unlikely to come into contact with some other substance that will in turn create problems, but if it's going to be used in a completely new way, potentially new risks may arise, so that new use should be reported and the government should have the opportunity to re-evaluate the substance, based on that new information.

Bill C-32 partially incorporates that recommendation. It authorizes the minister to require reporting of significant new activities for substances that are on the domestic substances list. But it's not a general obligation because the way the bill is structured the minister must explicitly require the reporting of a significant new activity and must designate the kinds of activities that must be reported. So it is still conceivable that a substance could be placed on the domestic substances list and have no significant new use reporting requirement attached to it.

The next aspect of the toxic substances provisions I have addressed in the table has to do with information gathering. It's About Our Health recommended that the new bill should significantly expand the government's authority to collect information and require users and producers of substances that are under scrutiny to provide information. The bill, as I've already mentioned, incorporates these recommendations fully.

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Finally, the bill has a new part in it concerning pollution prevention planning. Pollution prevention planning was recommended by It's About Our Health The difference here is that It's About Our Health recommended that the bill require pollution prevention plans for all CEPA toxic substances, whereas Bill C-32 authorizes the minister to require pollution prevention plans for any substance that has been declared CEPA toxic. So again, the recommendation has been watered down a little bit but generally has been incorporated.

I wanted to make two additional observations about these pollution prevention planning provisions that I recommend you keep in mind and perhaps ask questions to government officials about.

First of all, it's worth noting that the wording of the provisions is somewhat ambiguous as to whether the minister will always require implementation of the plans. Clause 56 of the bill says the minister may require any person or class of persons to prepare or implement a pollution prevention plan, then clause 58 requires parties who have been required to prepare a plan to submit a declaration saying “Yes, I've prepared it”, and then subclause 58(2) says that every person who has been required to implement a plan must submit a declaration saying “Yes, I've implemented it.”

So it's somewhat ambiguous as to whether the minister will always require parties to both prepare and implement. It may be possible to interpret the bill so the minister can just say you must prepare a plan; you don't have to implement it. I'm not sure what the purpose of that would be. I know this is an issue at present within the department, and it's one worth addressing explicitly in your report and in questions to departmental officials.

It's also worth noting that there is no automatic requirement to submit pollution prevention plans, only to submit a declaration and to keep the plan at the place of work. This is a good idea. This is not entirely consistent with what It's About Our Health recommended, but the simple fact of the matter is that by no stretch of the imagination could the government have the resources or the expertise to evaluate every pollution prevention plan.

Indeed I think it would send the wrong message if the government were to say we want you to submit your plan so we can evaluate it. What the government needs to know is have you implemented a plan, what are your objectives, and what do you intend to achieve as a result of the plan? The government can then determine whether those objectives are consistent with the government's objectives. The government doesn't need to second-guess the technical decisions that have been made by any given company about the particular kind of technology or process it will utilize.

Let me briefly summarize my views about the degree to which these toxics provisions reflect the recommendations in It's About Our Health They represent a significant improvement over the existing act. On the other hand—and this will be a repeated theme in my presentation—they are not as precautionary in their approach as It's About Our Health. The main reasons for that conclusion are fourfold.

First, the bill, as I've already mentioned, defines “virtual elimination” to mean releases but not also uses.

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Secondly, I am concerned that although the bill articulates a hazard assessment approach for the virtual elimination of persistent bio-accumulative substances, that approach is entirely contingent on the criteria that will be articulated for inclusion in track one—in other words, the criteria for determining what is persistent and what is bio-accumulative. It will be important to ensure that the regulation that defines those criteria defines precautionary criteria. And as the committee noted two years ago, precautionary criteria have already been defined by the International Joint Commission, for example.

The third concern I would raise about the toxics provision is that although the new bill does expand the government's power to require users and producers of substances to submit information, the process nonetheless remains resource-intensive. So we've expanded the number of tracks for assessing substances and we've expanded the number of substances that are potentially going to be reviewed and brought down and added to the list of toxic substances, but we're going to have to be realistic. This all takes time, expertise, and money, and so long as the capacity of the government to regulate depends on some kind of risk assessment process, we are going to see a resource-intensive process and we're going to see one that will only be able to address a small number of the substances in use. I think that's inevitable, but it needs to be observed.

And finally—and again, this will be a repeated theme in my presentation—I recommend that you consider the potential degree to which the discretion of the government to act under these provisions will be fettered as a result of clause 2, which requires reference to intergovernmental agreements and to the existing harmonization agreement and the standards subagreement that's been developed under the harmonization agreement.

Let me move on now to the way the bill deals with wastes. The bill deals with wastes in two parts, but essentially, taken together, those two parts comply with the recommendations made in It's About Our Health. Bill C-32 now provides the authority to comply with international obligations, which CEPA in 1988 did not fully authorize. It authorizes the government to address shipments of solid wastes destined for final disposal, which is required by our agreement with the United States. And it authorizes the government to require waste reduction plans from waste exporters, which It's About Our Health recommended.

The bill also transfers the environmental aspects of the regulation of the transportation of hazardous wastes within Canada from Transport Canada's Transportation of Dangerous Goods Act to Environment Canada, as was recommended by It's About Our Health.

On biotechnology, the committee addressed biotechnology in It's About Our Health and I know held subsequent hearings, and in both cases the committee recommended that CEPA should set the minimum standard for biotechnology. As you know, part 6 of Bill C-32 establishes a safety net, and it also stipulates that the minister responsible for the other federal act—whatever other federal act may also address biotechnology substances—may decide whether CEPA applies. In other words, it's not the Minister of the Environment or the Minister of Health necessarily who will decide if CEPA applies. It will be the Minister of Agriculture or the minister responsible for whatever other act may be deemed to supersede CEPA.

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So in this case, although the bill has a number of provisions authorizing the government to regulate biotechnology, it has not complied—complied is too strong a word—it has not satisfied the recommendations made by the committee in It's About Our Health.

On nutrients, Bill C-32 incorporates an ecosystem approach, as was recommended by It's About Our Health.

On land-based pollution of the marine environment, It's About Our Health made very general recommendations urging the government to address the issue, and I think, quite appropriately, Bill C-32 authorizes the Minister of Environment to promulgate guidelines. This would not be the right bill to address this issue fully. Indeed, this issue is necessarily an inter-jurisdictional problem, and the way for the federal government to act is to show leadership by promulgating guidelines. So I think Bill C-32 fully reflects the spirit of the recommendations made by the committee.

On ocean dumping, the committee made a number of recommendations, and I believe the bill fully reflects those recommendations. The bill urged the committee to adopt a reverse-listing approach and to make reference to the international protocol to the London Dumping Convention, which articulates a waste assessment guideline that should be referred to by anybody applying for a permit to dump.

The committee also recommended that the government enhance its ability to recover its costs through payments for permits, and the committee recommended that the enforcement powers with respect to ocean dumping be expanded to be the same as the enforcement powers in the rest of the act. The bill reflects all of those recommendations.

With respect to fuels and fuel additives, the committee urged the government to revise the bill to allow the minister to regulate fuels, based on a weight-of-evidence approach, and to apply the same standards to fuel exports as are applied to fuel for domestic consumption. The bill does expand the authority of the government to regulate a wide number of aspects of fuel but still does not require the government to apply the same standards to fuel exports as those that are applied to fuel for domestic use, although it does authorize the government to develop a national fuels mark that would show that fuel meets domestic environmental standards where it crosses the borders or is imported. So the bill has gone part-way to reflecting the committee's recommendations.

With respect to vehicle emissions, the committee recommended that authority to regulate vehicle emissions be transferred from the Department of Transportation. Bill C-32 now contains those provisions, plus new provisions for a national emissions mark and an emissions credit scheme. So the bill has met and gone beyond the recommendation.

With respect to international air pollution, the bill contains a broader definition that refers to ecosystem concepts and provides new authority to the minister to issue interim orders and also allows the minister to take advantage of the reciprocal arrangement that is offered by American legislation. These provisions all reflect the recommendations that were made by the committee. However, the main recommendation the committee made with respect to this provision was not to do with the legal wording of the bill but had to do with the way the government uses the provisions.

In short, the government had never used the provisions and still hasn't used the provisions, and the committee urged the government to make use of the provisions. So this again will be a theme that I think will be repeated in my presentation, and it's one I made at the outset: that is, a lot of the effectiveness of the bill will depend not so much on the wording itself but on the way it's interpreted and applied.

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With respect to international water pollution, the committee urged the government to introduce a new section on international water pollution, based on the international air pollution provisions. Indeed, Bill C-32 incorporates just such a section.

The next section I'll talk about has to do with the ability to regulate the federal government under the bill, and I'll provide you with a bit of background on this issue. The issue addresses the so-called regulatory gap that arises because federal operations are not subject to provincial law. So for private operations, some of the environmental aspects of a private undertaking are regulated by the provinces and some are regulated by the federal government, as we all know.

However, if the undertaking is a federal government undertaking, a ministry or an agency or a crown corporation, then the provincial law may not apply to that undertaking. So those environmental aspects of the federal undertaking that would have been regulated by the province had the undertaking been a private undertaking will not be regulated unless the federal government also addresses those issues. That's the gap this part is supposed to address.

CEPA 1988 authorized the minister to issue guidelines. Bill C-32 now requires the government to issue objectives, guidelines, and codes of practice, and that is consistent with the recommendations of the committee. Bill C-32 also expands the minister's authority to regulate the federal house, as was recommended by It's About Our Health. Again, as was recommended by It's About Our Health, Bill C-32 drops the requirement that was in CEPA 1988 for the minister to seek the concurrence of any affected minister before she promulgates regulations. That was recommended by the committee, and that is in fact reflected in the new bill.

Again, let me emphasize that although the legislation has been improved significantly and although the government has made significant improvement in getting its own house in order, the issue remains an important one and remains one of implementation. Although the government has made a lot of progress in the area, there are no regulations under this part now, and there are very few objectives, guidelines, and codes of practice.

I want to remind you that the committee observed in It's About Our Health that the existing regulatory gap is important for two reasons. It's important, first, because the federal government is the largest business or undertaking in the country and employs more people and has more facilities and occupies more land than any other business in the country, so its direct environmental impact may be quite significant and it's important to address that environmental impact.

But it is also important to address the regulatory gap for another reason, a symbolic reason related to leadership: that is, a government must lead by example. It will be hard enough for the government to regulate the private sector when it is unwilling to regulate itself, but it will be even harder for the government to promote the use of voluntary non-regulatory or negotiated approaches that require the goodwill of the private sector when the government does not demonstrate that goodwill in its own behaviour.

So there are two important reasons to urge the government to close the existing regulatory gap.

Let me turn now to emergencies. In my view, Bill C-32 reflects the recommendations made in It's About Our Health and represents an important improvement over the existing CEPA.

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As for aboriginal issues, I think that Bill C-32 reflects almost all of the recommendations made in It's About Our Health. It authorizes the government to enter into equivalency and administrative agreements with aboriginal people. It requires the participation of aboriginal people on the national advisory committee, and in a number of places it requires consultations with aboriginal people.

The only area that is not directly reflected in the bill that was recommended in It's About Our Health has to do with traditional environmental knowledge. It's About Our Health recommended that the bill explicitly refer to traditional environmental knowledge and explicitly require the government to account for traditional environmental knowledge. This is knowledge that has been accumulated by aboriginal peoples, resides within their culture, and may be passed on through an oral tradition that has not been systematized in the way that western notions of science have evolved but that nonetheless has proved to be extremely beneficial in addressing ecological issues.

I think the fact that this is not incorporated in the bill is not a major problem. I think it's important to acknowledge that the government as a whole is sponsoring an increasing amount of work in this area.

The Canadian Environmental Assessment Agency has done a lot of work on the importance of this and on learning how to account for traditional environmental knowledge. The Canadian International Development Agency has an important traditional environmental knowledge program. The Arctic Council program is sponsoring work in this area and many of the environmental management programs that are now being administered pursuant to comprehensive self-government regimes north of 60° by aboriginal peoples do fully account for traditional environmental knowledge.

The next issue I'll address is economic instruments. It's About Our Health recommended that the new bill provide explicit authority for the use of economic instruments. Indeed, Bill C-32 authorizes the government to establish deposit and refund schemes and tradable units schemes. I think the bill reflects the recommendations in It's About Our Health.

It's About Our Health contained a lengthy chapter on enforcement and in my view the changes that are incorporated in the bill are good changes and by and large reflect the recommendations made in It's About Our Health. The new bill includes the recommendations made by the committee to expand the authority of inspectors, investigators and analysts and to provide sentencing guidelines, and it includes a number of other areas.

There are two important differences, I think. The first is that the bill does not incorporate an administrative monetary penalty scheme, as the committee had recommended. I know for a fact that the department spent a considerable amount of time reviewing that issue and concluded that it was simply not feasible. Instead, the bill incorporates what is called “an environmental protection alternative measure”, which is essentially a negotiated penalty scheme, so that parties that acknowledge they have violated the act can negotiate a penalty and a course of action to remedy the problem.

I think this is consistent with the tenor of the committee's recommendations two years ago to try to allow for non-criminal sanctions to be imposed on parties that have violated the act but are willing to express good faith in attempting to address the problem and come into compliance. It creates an incentive for companies to audit themselves, to identify the fact that they are out of compliance, and to enter into an arrangement with government that ensures that they will come into compliance as soon as possible.

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So although the bill does not fully reflect the committee's recommendations, I'm strongly in favour of these new provisions.

The second main area of difference, which I guess is fairly minor, has to do with the fact that the committee recommended that the bill require judges to require offenders who have been convicted of an offence to publish a record of their conviction.

Bill C-32 now simply authorizes—but does not require—a judge to order publication. This is a minor variation from the committee's recommendation, but I think it's important that this provision is now in the bill, because we've seen—both from some provincial experiences, particularly in British Columbia, and from some in the United States, where judges have made more liberal use of this kind of authority—the important deterrent effect that publication can have on future transgressions. Corporations of course rely heavily on goodwill, and a public record and a public apology can carry much more of a stigma than a fine.

Let me now turn to public involvement. I think that as with many areas, the government has incorporated many but not all of the committee's recommendations in this area.

As for notice and comment, the bill now does establish an environmental registry and now does require publication in the Canada Gazette of almost all proposed orders to be made under the bill. That is fully consistent with the committee's recommendations.

On the other hand, the committee recommended that CEPA establish a participant funding program and Bill C-32 makes no reference to participant funding.

As for boards of review, as was recommended by It's About Our Health, Bill C-32 retains the old provisions and adds authority to request a board of review for all proposed orders and regulations. I think this is an important step forward and enhances the overall accountability regime under the act.

For whistle-blowers, the bill reflects the recommendations made by the committee to expand whistle-blower protection for all infractions, not just those infractions related to toxic substances.

With respect to confidentiality, Bill C-32 does clarify the confidentiality provisions in the act, in other words, the provisions that allow a party who has been required to submit information to the department to claim confidentiality for some or all of that information.

On the other hand, I think the bill does not go quite as far as the committee had recommended in terms of restricting one's ability to use those provisions, in other words, restricting access to confidentiality.

One of the important and of course controversial aspects of the new bill has to do with the environmental protection action that is now in the bill. The committee, in It's About Our Health, had recommended adding a right-to-sue provision, and the bill now does incorporate it in the environmental protection act.

This provision is modelled almost entirely on the equivalent provision in Ontario's Environmental Bill of Rights, and it may be worth noting that particular provision in the Ontario Environmental Bill of Rights has never been used. There are varying explanations as to why it hasn't been used, but in the opinion of some environmental groups, those provisions have never been used because they're very cumbersome. So I think it's worth asking whether it's a good idea to replicate a similarly cumbersome provision in CEPA.

The final issue on participation had to do with the environmental fund that the committee recommended establishing, which would be funded from user fees and penalties and used for various environmental programs and initiatives. Bill C-32 does not establish such a fund.

• 1020

I also wanted to speak a little about federal-provincial cooperation. In chapter one of It's About our Health, the committee made strong recommendations that the federal government use CEPA to assert a strong environmental leadership role. I think it may be worthwhile to ask whether Bill C-32 restricts or enhances the federal government's power to act unilaterally—in other words, to take a leadership role.

There's no question that the bill enhances the government's regulatory authority. In a very few places, the bill actually requires the government to act, so in those cases there's no question the government's leadership role has been enhanced.

Where the government has been authorized but not required to act, I think it's important to look at some of the other provisions in the act that may influence the way in which the bill will be applied and interpreted. Of course, it will also be important to account for the context in which the bill will operate.

On the one hand, the national advisory committee, although it has broader representation than the existing CEPA's federal-provincial advisory committee, has essentially the same mandate and powers. So the national advisory committee does not have any more powers to restrict the minister's hand in acting. The minister is obliged in numerous cases to consult with the national advisory committee, but is perfectly free to ignore the committee's advice and act as she sees fit.

On the other hand, as I've already noted, and as I know that you have noted earlier in your meetings with government officials, paragraphs 2(1)(d) and 2(1)(l) of the bill require the government in administering the bill to “endeavour to act in cooperation with governments” and to “act in a manner that is consistent with the intent of intergovernmental agreements and arrangements”.

CEPA 1988 included the first provision, which required the minister to endeavour to act in cooperation, but made no reference to the requirement to act consistently with the intent of intergovernmental agreements and arrangements.

I think the CCME harmonization agreement could be said to be such an agreement or arrangement, and it and the subagreement on standards that have been negotiated under it could be interpreted as restricting the federal government's authority to act unilaterally. At the end of the day, of course, the government has the authority to act and the minister can act.

But I think what we're seeing in the bill and in the harmonization agreement is that overlaid on top of that authority to act are numerous procedural requirements to consult and to attempt to seek consensus, and a possible concern that can be articulated about those process overlays is that they may result in further delay in addressing the issue of toxic substances in Canada.

How's that for an ambiguous answer?

Let me summarize my presentation, and then of course, as I said, I'm quite willing to answer questions of clarification or to pursue issues around recommendations or issues related to the precautionary principle.

First of all, I think Bill C-32 contains many of the improvements over the existing CEPA that the committee recommended two years ago. It contains expanded and improved regulatory authority in numerous areas: research and data collection; the multi-track risk assessment process; pollution prevention; virtual elimination; waste reduction and emergency preparation plans; requirements to report significant new activities; more emphasis on an ecosystem approach; a reverse listing approach for ocean dumping; new provisions for international water, vehicle emissions, and economic instruments; an expanded authority to regulate nutrients; the federal house; emergencies, fuels, and the import and export of waste, including solid wastes. These all represent significant improvements over the existing act.

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The bill also, in my view, taken as a whole, establishes significantly improved accountability provisions. It provides clear legislative authority for the NPRI. It establishes the environmental registry. It requires that notice be given of meetings of the national advisory council. It requires that the minister allow for notice and comment with respect to most orders, regulations, guidelines, and codes of practice that the minister might want to issue under the bill.

It provides for expanded opportunities to request boards of review. It establishes a right to sue, however cumbersome it may be. It provides for an explicit timeframe within which the department must publish its proposal as to how it will control substances that have been assessed as toxic. And it provides enhanced whistle-blower protection.

So taken together, we have a much stronger package, both on the regulatory side and on the accountability side. However, of course, the bill does not go as far as It's About Our Health in several respects, and I'll mention six. It does not provide a reverse onus process for new substances. It provides for discretion in the way in which the criteria for persistence and bio-accumulation will be defined. It defines virtual elimination only by reference to releases and not uses. It is residual in nature, and I think this is particularly problematic with respect to biotechnology. Finally, I'll mention again the potential restrictions that are placed on the federal government's ability to assume a leadership role, both by the obligations to consult that are in the bill itself and, equally importantly, by the combination of clause 2 in the bill and the CCME harmonzation agreement.

Having said that, let me emphasize again that the ultimate effect of Bill C-32 will depend largely on the way in which it is implemented. Necessarily, it provides for a fair bit of discretion, for example, in the selection of the priority substances list and the way in which risk assessments are interpreted and determining what control measure is appropriate in any given case, how to enforce, and so on and so forth. Nonetheless, I want to re-emphasize that strong political will and adequate resources will be critical in ensuring that the improvements in the bill bear fruit in producing improved environmental and human health conditions in the future.

That concludes my assessment of the bill in terms of the comparison of the bill with the recommendations that were made by the committee. As I said, I would be glad to share with you further views about potential ways to revise the bill, to further incorporate the precautionary principle or to clarify any issues that you may wish to raise.

The Chairman: Thank you very much, Mr. Moffet. You've been very helpful to all of us in this room with your review.

Since it was a question on clarifying something that was said earlier, and with apologies to Madam Kraft Sloan, would you like to seek that clarification on page two? I didn't want to interrupt Mr. Moffet's train of thought.

Mrs. Karen Kraft Sloan (York North, Lib.): That's fine.

The Chairman: This will not be taken away from your regular time.

Mrs. Karen Kraft Sloan: That has been clarified.

The Chairman: Has it?

Mrs. Karen Kraft Sloan: Yes.

• 1030

The Chairman: All right. Thank you. Then we'll start in the usual manner.

[Translation]

Mr. Bigras, please.

Mr. Bernard Bigras (Rosemont, BQ): I wish to thank you for your very technical speech about a very technical bill, prepared no doubt by technocrats with highly developed minds.

I must tell you that I am left somewhat disappointed. It doesn't matter how highly developed a bill we have, what counts ultimately is the protection of the environment and public health. What you have just presented to us confirms what I already thought when the bill was tabled: it's complex.

I fear, however, that it is so complex that the resources available to the department and the present administrative structure will not be enough to achieve the objectives we are aiming at when we want to protect the environment. That's my fear.

Very, very, very honestly—because I'm convinced that you do want to protect the environment and are quite familiar with the bill for having studied it—do you think fundamentally that this bill is going to protect the environment? Does the complexity of the process you've just presented to us not make it possible to create holes that will compromise the protection of the environment? I don't know whether you understand what I'm trying to say, but I'm fearful in this regard. That's my first question.

[English]

The Chairman: Well, you are a technician dealing with a political question.

Mr. John Moffet: Exactly.

I apologize, I will respond in English.

The bill is complex. I think it's important to recognize that it is complex in two respects, however. One, it is complex because it addresses a large number of different issues. I think it's important, in that regard, to look at the way it addresses each of those issues separately. So it establishes a regime for nutrients; it establishes a regime for ocean dumping; it establishes a regime for export and import of hazardous wastes.

In the United States, every one of those issues is mandated by a separate piece of legislation. In Canada, at the federal level, those issues have all been brought together. In my view, that's not a problem. In my view, that is actually a good thing, because the preambular statements, the interpretive provisions, the research and data collection provisions at the front end of the bill can be applied consistently across all of the department's programs—across its nutrient programs, across its ocean-dumping programs—whereas in the United States those programs are all sort of run in isolation from one another. So in that sense, the complexity of the bill is not a problem at all.

The area in which the bill is complex has to do with the regime it establishes for assessing and managing toxic substances. There's no question that is complex. In one sense it is more complex than the existing act because it creates tracks for assessment in addition to the priority substances list and because it creates the two-track approach to risk management: virtual elimination on the one hand and life cycle management on the other hand.

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However, I see that as an improvement over the existing act. The existing act basically did not require the government to address enough substances quickly enough. Nor did it require the government to act in response to its assessment. It provided broad discretion.

The new bill will require the government to add certain substances to the list of toxic substances, if they meet specified criteria. It will require the government to virtually eliminate certain substances, and to publish control measures within two years of assessing the substance as toxic.

While it's complex to sort out this flow chart, I think those additional steps were necessary in order to both mandate the federal government to take on additional activity with respect to toxics, and to create some accountability so that I, as a member of the public, and you, as a member of Parliament, can ensure that the department is in fact doing what it says it should do and what the general preambular statements urge it to do.

On the other hand, there's no getting around the fact that regulating toxic substances is a complex issue. It's complex in no matter what jurisdiction you're in, and it's complex because it goes to the heart of many of the difficult issues related to sustainable development.

On the one hand, in some cases the science is very complicated. On the other hand, in some cases the potential economic consequences are very significant. We do need to establish a process that ensures that these issues are looked at systematically.

[Translation]

Mr. Bernard Bigras: I saw that you'd studied section 185, among others, which deals with the import and export of hazardous waste. I was in touch with Stablex in Blainville, which told me about its concerns regarding section 185, whereby the Department of the Environment plans to charge fees for processing traffic manifests and applications. If the business in question is worried about the costs this may give rise to... By the way, this is not a polluting business, but a business that processes industrial waste ecologically and which has received certificates for the quality of its work.

It is concerned about these regulatory charges and feels that this section may go against the free trade agreement, notably with the U.S. I'd like to know whether you've considered the matter of whether this section might run counter to the free trade agreement with the U.S.

[English]

Mr. John Moffet: I'm sorry, I don't think I can answer that question. I haven't thought about it, and I also know that it's an issue that's being addressed within the department. I apologize for ducking the question, but I'm not qualified to give an answer about the free trade agreement. It's not an issue I work with a lot.

[Translation]

The Chairman: Thank you, Mr. Bigras.

[English]

Mr. Herron, please.

Mr. John Herron (Fundy—Royal, PC): Any time a bill is reviewed, ultimately we're trying to augment it and make it a better bill. Regarding the comments you made with respect to potentially empowering the department to have better jurisdiction with respect to enforcement mechanisms, will this bill ultimately put more pressure on resources? In other words, will it be more difficult to enforce this bill from a human resources perspective than the previous CEPA of 1988?

• 1040

Mr. John Moffet: I think the implications for enforcement resulting from this bill will not arise from the enforcement sections per se. The enforcement sections enhance the ability of inspectors, investigators, and analysts to do their jobs, and they provide more guidance to prosecutors and judges.

The pressure on the enforcement resources within the department will come primarily from two sources. One is the number of regulations and control measures that are promulgated pursuant to other parts of the bill. If more substances are screened and assessed as toxic because of the multi-track risk assessment, it is conceivable that there will be more regulations and more control measures promulgated pursuant to the bill, and more regulations and more control measures make more work for enforcement officials.

In that sense, the bill, over time, will enhance the government's environmental presence and will require additional enforcement resources. How those are administered and whether they're in fact at the federal level or negotiated on a federal-provincial basis are things that remain to be seen. I think the second source of pressure for enhanced enforcement will come from public reviews like the one you just conducted.

Mr. John Herron: That sort of goes into my second question. I may even get a third, depending how long it takes the chair to get his coffee.

This seems to have a bit more of a seamless structure in terms of adding additional substances to the restricted list, for lack of a better word, in terms of what are considered to be toxic substances and substances that should be virtually eliminated.

Should we conclude that within a few years from now, the number of substances we have currently under jurisdiction under CEPA will be substantially increased? I think there are only about 30 right now. Will we see a number of other substances fast-tracked into the system?

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.):

[Editor's Note: Inaudible].

Mr. John Moffet: Sorry, I won't answer that question.

Yes, I think that's a fair assumption. I think that's the government's intention, and that's a fair reading of the bill—that the department will now have to screen many more substances than simply establishing the PSL and assessing the PSL substances.

Mr. John Herron: Just to summarize, given the fact that more substances are more apt to be actually brought into the system, the regulations that would correspond to that will put greater enforcement obligations on the department than we currently have.

Mr. John Moffet: Okay. I'm following your logic, but I just want to throw in a small caveat. I believe and I sincerely hope that many more substances will enter the system, as you put it, and that as a result, the federal government will be controlling many more substances. Whether the manner in which the federal government controls those substances is a regulation or not is not prescribed by the bill. We may see an increasing use of economic instruments, as is authorized by the bill, and negotiated agreements and voluntary approaches. Those are all perfectly conceivable control measures.

In addition, a conceivable control measure pursuant to the CCME harmonization agreement would be for the federal government to announce that it is satisfied that the provinces are going to address the issue, pursuant to some undertaking. Basically the federal government has to describe how it will control those measures. The bill doesn't prescribe a certain form that control must take.

Mr. John Herron: Okay. Thank you.

The Chairman: Mr. Laliberte, please.

Mr. Rick Laliberte (Churchill River, NDP): I have a lot of questions, but I'll see if I can....

The Chairman: Use your time, but not unlimited time.

Mr. Rick Laliberte: Okay. Thank you, Chair.

• 1045

I want to maybe start on traditional knowledge. Part of traditional knowledge is also interpretation, so to go right into what seems to be the meat and the focus, the pivotal point of this bill is the term “virtual elimination”. All the documents lead...and then it didn't show up until the minister responded, or the toxic management policy came out with this terminology.

Where did this terminology come from? Who dreamt it, found it, and made the mistake of bringing it out?

Mr. John Moffet: I don't know where the term first emerged. A wide range of related concepts has emerged in the environmental discourse over the past decade—“sunsetting”, for instance, is basically the same thing. Over time, it's reducing the release and use of a substance to negligible levels.

Mr. Rick Laliberte: Sunsetting is a natural phenomenon. You can relate to it. But “virtual”, in my language, is “phoney”. It's not real. You can go into virtual reality and it's not real.

So this is a “not real” elimination, where we're saying we're going to eliminate, we're going to prevent pollution: “Oh, no, we're just kidding, because it's not real”.

Mr. John Moffet: I think the notion or rationale behind the use of the descriptor “virtual” is because we know that our existing technology for detecting substances in the environment is limited. I'm not a scientist, but people who use the technology can't guarantee you, when even the meter says zero, that there's zero of that substance in the environment. There are detection levels or thresholds that are imposed by existing technology.

What “virtual” means, then, is that we'll eliminate it to the point where we can't detect it any more, but we won't guarantee you that there's none of it around.

Mr. Rick Laliberte: Okay.

You touched on exposure, and the greatest potential for exposure. You had some reservations about that, and I didn't really understand why you were walking softly through that one. What was that about?

Mr. John Moffet: I thought I was walking softly everywhere.

Mr. Rick Laliberte: I know, but that was my first experience there.

I ask this because what if there are accidental organisms out there that we don't know about? You talked about residual impacts, unregulated living organisms, biotechnology, but maybe a few generations down the road, all this biotechnology and the residual effects will create creepy crawlers that we don't know about. How does that come into play? That's my concern.

Mr. John Moffet: Let me try to address a couple of the things you said. I did not mean to express concern about the DSL screening, the box at the top left of the flow chart. I think that is an important improvement. What that requires the ministries of health and environment to do is to look at all the substances on the domestic substances list and at any living organism that is not yet regulated and ask whether it has significant potential for exposure or whether it is persistent or bio-accumulative. If the answer to either is yes, then it gets on a track. That's going to allow the departments to address more substances than they're addressing now. That's a good thing, in my view.

The other part of your question I think had to do with biotechnology. Basically, the way the bill is structured, it authorizes the minister to regulate products of biotechnology if they're not regulated for health and environment reasons elsewhere.

The theory is, we'll have a network of means for regulating biotechnology at the federal level. CEPA will be sort of a residual; it will be the catch-all. If it's not regulated elsewhere, it will fall into CEPA.

• 1050

Mr. Rick Laliberte: Okay.

When I go back to aboriginal and traditional knowledge, “aboriginal” meaning originally from this land, the connotation or the perspective from which CEPA or the government looks at it is of Indian lands.

This country is founded on treaties, on agreements between aboriginal people and a new-found nation. I think the original aboriginal responsibility to the land should be recognized, regardless of where it is, in downtown Toronto or in Inuvialuit. The aboriginal knowledge of this land should be recognized through this interpretation.

You mentioned the Arctic Council. Being north of 60 degrees, the majority of aboriginal people are in the institutions of governance and in corporations, so they're applying their knowledge. But in the southern democracy, we're not; we're a minority as aboriginal people. But I think it should be recognized that this knowledge is an integral part of sustainable development and pollution prevention.

So what I want to say is, as part of the bill of rights—and at the end, we skip a lot of the public's right to know—in terms of the harmonization and provincial and federal relations, the public right to know, the public right to sue, the public right to participate and the public right to blow the whistle should all be strengthened by this government or this bill, because we're allowing, in watering down some of our responsibilities to the provinces or to other agencies....

CEPA should be increasing the public's right to know, the public participation, and also asking for the aboriginal knowledge to come in. But it seems to have coined this “virtual” term and watered down the public participation. I want to see what your views are on that, overall.

The Chairman: Be brief, please, because the time is up.

Mr. John Moffet: Okay.

I apologize if that's the impression I gave you, because I think the bill does significantly enhance the opportunities for public participation and also significantly enhances the obligation on the part of the government to consult with and take into account the views of aboriginal peoples.

I'm not here to tell you that it's the be-all and end-all in that regard, but it does represent an improvement, both with respect to public participation, in general, and with respect to the role of aboriginal peoples, both in influencing policies under CEPA and in actually being authorized to take responsibility for environmental management of their own lands.

The Chairman: Thank you.

Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): How much time do I have?

The Chairman: Go ahead. You have time.

Mr. Gar Knutson: Thanks very much, Mr. Moffet.

I have a number of questions. I'll start with a general one.

Is there any significant setback, in terms of an environmentalist point of view, from Bill C-74? Does anything spring to mind?

Mr. John Moffet: There are two issues. One has to do with pollution-prevention planning.

Let me say, first all, I don't think this is significant, but it's a diminution in the government's ability to act. Bill C-74 authorized the minister to require pollution prevention plans of any substance that she had proposed to add to schedule 1. The new bill now basically says you can't require pollution prevention plans until the substance has been added to schedule 1—in other words, it has gone through the appeal process and the Governor in Council has said yes.

• 1055

The second area is the significant number of additional requirements to consult in the new bill. I guess I've spoken with some hesitation about those requirements because on their face there's little to be concerned about a requirement to consult. A requirement to consult the public and aboriginal peoples can enhance accountability and the quality of information. On the other hand, one can consult to death and process can effectively impede action. I'm concerned that taken as a whole and in the context of the prevailing mood and the harmonization agreement, that may undermine the ability of the minister and the whole tenor of the bill, in pressuring the minister to act and take a leadership role.

Mr. Gar Knutson: There are a number of references to the minister taking into account the social and economic consequences. Do you think that opens the door toward possible court challenges where someone could come forward and say a certain substance is pretty nasty and damages our health, but it's just too damn expensive to get out, and the department or the minister hasn't taken into account the economic consequences? Some people see this language as serious; some people see it as merely what the department does anyway.

Mr. John Moffet: This is not a legal opinion I'm going to give you, per se, but it's a general understanding of the way I think this will be interpreted.

All departments currently conduct regulatory impact assessment statements. They all are obliged by Treasury Board policy to conduct cost-benefit analyses of regulations, and those must be published in the Canada Gazette. That's already done. That's the first point.

The second point is could a company or a party who is subject to regulation challenge a regulation or a proposed regulation on the basis of that provision? I think that's highly unlikely. The government would only have to show that in good faith it did address the socio-economic considerations. It doesn't say those will be determinant of considerations. So the minister could say “Yes, my officials looked at it. They told me what the answer was and I decided to regulate anyway. But we went through the process in good faith.” I think that would be consistent with the general sort of administrative law jurisprudence that requires decision-makers to consider an issue.

The third point goes back to the point I made about consultation. What will be the influence of provisions like that on the overall thematic or symbolic impact of the act on the way the government administers the bill? Given this is Treasury Board policy anyway, why is it in the bill? It's not in every other piece of federal legislation. Is it there strictly for symbolic reasons? If it is, what will be the implications of that symbolism?

Mr. Gar Knutson: I take it you don't see any consequence if we take the language out.

Mr. John Moffet: I don't see any legal consequence. I'm sure it's there for a reason, having to do with the negotiations that went on in developing this bill, but I don't think it would impede the government's ability to address socio-economic considerations. I mean, the government would continue to address those considerations.

Mr. Gar Knutson: You mentioned that the Ontario bill of rights has never been used.

Mr. John Moffet: No, sorry, the particular right of civil action has never been used.

Mr. Gar Knutson: I haven't read it, but I'm familiar with the language under the proposed CESPA and I'm familiar with the language here. If it's similar, does that mean no one has gone to the provincial department or ministry and asked which is the first step of triggering that section?

• 1100

Mr. John Moffet: No. There have been plenty of requests for investigation.

Mr. Gar Knutson: Well, with this potential court action hanging over their head, if the department is treating those more seriously then to me that would mean that the section does have some impact and it does have some value.

Mr. John Moffet: I think that's a nice point. I'm afraid it's not something I've researched at length. I do think that's a nice point and it's worth asking. I think you'll hear from witnesses from Ontario who are much more knowledgeable about the workings of the EBR.

Mr. Gar Knutson: You mentioned in the penalty section that they were trying to make it non-criminal, and give lots of room for consultation and negotiating fines and whatever, which I guess as we move into the 21st century is a new way of doing things.

Are you familiar with the minority decision in the Hydro-Québec case? My understanding is the gist of the court's decision was the federal government has the power to act as an extension of the criminal law power, and environment is such a serious thing that a breach of environmental code is like breaking a criminal law. The minority decision said that while that may be true, that the government can act as an extension of its criminal law power, if it devises a bill and if its legislation really looks like it's regulatory and it's drafted in a way that it's more about property and civil rights and those kinds of things, then they're getting very close to being into provincial jurisdiction, and if they want to keep their legislation within the federal house, it has to at least have some elements of looking like criminal law. Is that fair?

Mr. John Moffet: I think that's fair. I think that's also one of the main reasons why the administrative monetary penalty scheme was disregarded by the government and not included, because that could have been construed as non-criminal.

The way I read this scheme is it's basically saying that before we prosecute you.... Let me start again. They're not establishing two tracks for offences; they're not saying that some offences are criminal and some are not criminal. They're saying all are criminal, but before we get to criminal court, we're open to negotiating. That's done every day in criminal court. So they're being more transparent, and they're trying to create incentives. I think the whole objective is to remain under the criminal head of power.

The Chairman: I must move on now to Mr. Lincoln, Madam Kraft Sloan, followed by the chair, and we will adjourn around 11.30. Mr. Lincoln.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): I'm really interested in the same line of questioning Mr. Knutson was alluding to—in other words, to see the progression from the government response to Bill C-74 to Bill C-32. It seems to me the government response is our benchmark. Where do we go from here? Perhaps you alluded to this in some of your answer to Mr. Knutson, when you talked for example about social, economic, and technical matters, which are now in Bill C-32, were not in Bill C-74, were not in the government response.

Surely if I were an industry lawyer defending myself in front of a court, I would say “Well look at the progression. Surely it means something very special, because it is in Bill C-32, specifically in the preamble—social, economic, and technical—but it's not found in the government response anywhere. It's not found in Bill C-74. So obviously there must be an intention there.”

It is the same with the new clause, which I don't think you referred to, under subclause 2.(2). In the previous act and Bill C-74, and also the government response, the act was purely a question of the Minister of the Environment and the Minister of Health. Now they've added another cute little clause there that says under subclause 2.(2):

...the environment or human health, the Minister, the Minister of Health where appropriate, and the minister responsible for the other Act will jointly determine...

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I'm wondering if this is a wrinkle also. Then you talk about paragraphs 2.(1)(l), (m), and (n), which are completely new to Bill C-74 and the government response.

Also, in regard to virtual elimination, if I recall—and I think you refer to it in your chart—we had suggested adding uses. In other words, it would be uses and releases. The government response didn't pick up completely on uses, except it did agree with our recommendation to report new uses and changes in exposure patterns, which was very significant, at least a part acceptance of our report, whereas the new uses are not in Bill C-32. Is that correct?

Mr. John Moffet: Well....

Mr. Clifford Lincoln: What I'm trying to get at is if you go from the government response to Bill C-32 on this, and you look at your six minuses you referred to—

The Chairman: Which page are you looking at?

Mr. Clifford Lincoln: No, no, I'm just referring to the summary that John gave, where he gave, for instance, the discretion on deciding on what is persistent bio-accumulative, no reverse onus for new substances, virtual elimination, release versus uses, federal-provincial, etc.

Apart from biotech, which was very weak in the government responses—we know it's just as bad here, so we leave out biotech—in the other areas, is it correct that Bill C-32 is significantly weaker in several areas from the government response, and also Bill C-74, introducing the social, economic, and technical, introducing the federal-provincial provisions, leaving out new uses and changes in exposure patterns?

Mr. John Moffet: I think the bill has changed and has introduced concepts of socio-economic considerations and has enhanced the obligation to consult federal-provincial. On the other hand, I don't think it's fair to say that those changes were not reflected in the government response. The government response did have wording around the importance of accounting for socio-economic considerations. It didn't explicitly say that would be in the preamble, but that is certainly in the text in the government response.

The government response also did state that it would define virtual elimination by reference to the toxic substances management policy, and the toxic management policy defines virtual elimination to be the prevention of measurable releases. So I think the problem is releases. But the government has been consistent since the TSMP and the response in saying this is how we're going to define it.

With respect to new uses, Bill C-32 does include a requirement to report new uses. They're called significant new activities instead of significant new uses, but it's essentially the same thing.

Mr. Clifford Lincoln: Your definition is activities and new uses are the same?

Mr. John Moffet: I think so, the way the.... But the issue here is that when the minister puts a substance on the DSL, he will be required to say the significant new activity reporting requirement applies to this substance and here are the kinds of new activities that need to be reported. So it's not a blanket obligation. But I think that has been the approach, consistently, since the government response.

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So I don't see a major watering down of the overall government position since the government response. I think there have been some nuances, particularly with respect to federal-provincial consultation, and some symbolic reference to accounting for socio-economic considerations. But the actual substantive provisions I don't believe have changed significantly.

Mr. Clifford Lincoln: I will stop here, because I think people need the room, Mr. Chairman.

The Chairman: Mrs. Kraft Sloan, do you want to make your intervention?

Mrs. Karen Kraft Sloan: I just wanted to let the committee members know that we have been invited to a lunch at 12:15 p.m. on June 2. It's a briefing regarding the NGO and aboriginal perspectives for the upcoming POPs negotiations, and it's sponsored by and will receive presentations by WWF, Greenpeace, Quebec Environmental Law Centre, CELA, CIELAP, and ICC. I just wanted to make the committee members aware of that.

The Chairman: Thank you for communicating that invitation, Madam Kraft Sloan. Do you have any questions to ask Mr. Moffet?

Mrs. Karen Kraft Sloan: No, I'm fine.

The Chairman: Mr. Moffet, picking up the questions that were already posed to you by Mr. Knutson and Mr. Lincoln, and also your earlier statements on the preamble, it is quite evident that the preamble needs to be cleaned up, in particular with reference to that portion in the preamble around lines 20 and 25, where it reads that “...making decisions relating to the protection of the environment and human health and that environmental or health risks and social, economic and technical matters are to be considered in that process”.

That particular passage introduces for a judge a very good reason to discuss whether or not environmental objectives can be in conflict with economic objectives. Depending on the inclination of the judge, economic objectives could be taken as being more important than the thrust of the bill. This particular clause, in other words, weakens the intent of the bill.

Perhaps the lawyer for the defendant, if you like, wants to refer to this particular facet or dimension in the preamble and argue that, yes, there may be some environmental consequences, but 29 people are going to lose their jobs, and the technology may be improved eventually, and this is taken account in the preamble and therefore whatever may follow. In other words, it retards, if not complicates, the implementation of this particular measure, of the intent of the entire legislation.

Would you care to comment?

Mr. John Moffet: I remain of the view that the implication of that section will be primarily symbolic. I think that its legal implication will be that the department will have to explicitly think about socio-economic considerations when making its decisions, but these considerations need not be determinative in influencing the minister's decision.

If I may offer a suggestion, rather than focusing on that section, I think it might be useful to try to move forward the reference to the precautionary principle that is already in the preamble into the administrative duties, or perhaps to create an interpretive provision in the act that would explicitly require the act to be interpreted in a precautionary manner.

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As I said, many of the principles in the preamble are repeated in the administrative duties, but the precautionary principle is not. And given the wide discretion in the way in which risk assessments will be determined and the way in which jurisdiction of fuels will be interpreted and so on and so forth, an explicit interpretive provision referencing the precautionary principle might overcome some of these concerns you're considering.

The Chairman: Thank you.

I apologize to Mr. Alcock and the clerk of the committee that is waiting for the room. We were taken by surprise by the fact that there was not enough time allocated for this committee to complete its work. We are in the midst of some very important findings related to this bill. However, we have to interrupt in deference and with respect to our colleagues, to whom I apologize.

Mr. Moffet, we will have to continue in another room at another place at a mutually agreeable time. I thank you very much on behalf of the members of the committee.

This meeting is adjourned.