ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Monday, June 8, 1998

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[English]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Good afternoon to everybody in this room, mesdames et messieurs.

Today, in resuming our study of the legislation before us—Bill C-32, which as you know is the bill amending the existing Canadian Environment Protection Act—we have the honour and the pleasure of having as a witness, perhaps in the broad sense, Mr. John Moffet. He is the author of a comparative study of the present and proposed legislation, past reports and government replies.

In view of the fact that this is very complex legislation, we thought we would have a reinforcing session with him to deepen our understanding of the complexity of the process, particularly in going over the chart that Mr. Moffet has kindly prepared for the committee, which deals with the way substances are examined before approval or rejection.

Mr. Moffet, welcome to the committee. There is not much I can say except that I am delighted you were able to come again, and to invite you to start, and to take us through the process the best way you can.

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

What I thought I would do is summarize briefly the presentation that I gave last week, which was a fairly detailed comparison of Bill C-32 with the existing CEPA, and the committee's report that it issued two years ago—It's About Our Health.

I can then take the committee, as you just requested, through the flow chart, which is my attempt to summarize the toxic substances provision of the act. Then I'm available for questions, and I'm at the committee's discretion in that regard.

Just as a preface, the perspective of my presentation is to comment on whether Bill C-32 achieves the objectives and guiding principles, and whether it reflects the specific recommendations that were contained in the committee's report, It's About Our Health. So it's a comparative analysis.

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My overall conclusion, as I mentioned last week, is that Bill C-32 represents a significant improvement over the existing CEPA, again with reference to the recommendations made in It's About Our Health. I say this because I think the bill incorporates many of the committee's recommendations.

However, my conclusion is prefaced by the observations that the bill does not go as far in the direction of the precautionary principle or in the direction of a hazard-based approach—and I'll explain what I mean by that later—to preventing pollution from toxics as the committee had recommended in its report.

I would also observe that the federal government's discretion to act is significantly constrained by the residual nature of the bill, by the numerous requirements to consult with the provinces, and by the effective incorporation of the CCME harmonization agreement by means of paragraph 2(1)(l). I believe that that constraint on the federal government's authority, and on Environment Canada's authority in particular, is contrary to the spirit of It's About Our Heath, and in particular, contrary to the spirit of chapter 1, which asserted that the federal government should adopt a strong leadership position with respect to environmental protection in Canada.

The final caveat I would note is that as with the existing CEPA, while the legal text is of course important, the ultimate effectiveness of the bill of course will depend largely on political will and resources.

I'll briefly summarize the part-by-part review that I presented last week. I will do this by first observing that as was recommended in It's About Our Health, the bill strengthens or expands the government's authority in quite a few areas. It does so with respect to data and research. It does so with respect to the authority of the government to promulgate objectives, guidelines and codes that are focused on pollution prevention. The new bill incorporates a multi-track risk assessment process, versus the old, primarily single-track process. It authorizes pollution prevention, virtual elimination, waste reduction and emergency preparation plans, as the committee had recommended.

It includes a requirement to report significant new activities. It places a significantly greater emphasis on an ecosystem approach, and I would draw your attention particularly to the nutrients provisions and to the guidelines sections.

The export, import and transit of waste provisions have been expanded, in order to allow Canada the full authority it needs to comply with its international obligations. It fully incorporates a reverse-listing approach for ocean dumping, as the committee had recommended, and as Canada in fact has undertaken to implement by virtue of its signature of the protocol to the London Dumping Convention.

It contains new or expanded provisions for addressing fuels, fuel additives, vehicle emissions, international water pollution, and emergency preparedness. It contains a new authority to issue interim orders with respect to international air pollution. It contains strengthened provisions regarding Environment Canada's power over the environmental aspects of federal operations. It explicitly authorizes the use of economic instruments as one of the possible measures the government can utilize to regulate or control the various substances addressed by the act.

Finally, it expands the enforcement powers contained in the act, and authorizes the department to enter into environmental protection administrative measures. In all these ways, the new bill directly responds to and incorporates the committee's recommendations.

In addition, as recommended by the committee, the bill contains quite a few stronger accountability mechanisms, and enhanced accountability was a major thrust of the committee's report, It's About Our Health. So the new bill explicitly requires public reporting by an electronic registry. And it explicitly requires the establishment of the MPRI, the pollutant release inventory. It establishes notice and comment provisions for almost all orders and regulations that could be promulgated under the act. It expands the rights of members of the public to request investigations in boards of review and applies those rights to almost all orders and regulations that can be made under the act.

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The bill imposes an explicit timeframe for the risk management of toxic substances, requiring that the government announce its proposed control measures within two years of its decision to declare the substances CEPA-toxic.

The bill also expands whistle-blower protection. In the old bill the protection applied only to complaints with respect to alleged illegal actions with respect to toxic substances. The new bill now applies whistle-blower protection to complaints respecting any act that may be contrary to any provision in the bill. It enhances the right of aboriginal participation and the obligation of the government to seek out aboriginal points of view with respect to many decisions under the act. Finally, as you know, of course, it contains a right to supervision, as the committee had recommended.

Again, I think it is fair to say that the new bill does directly respond to one of the main thrusts of the committee's report and it does so by explicitly adopting many of the specific recommendations made by the committee. However, Bill C-32 does not go as far as It's About Our Health in a number of important regards, and I will briefly discuss five.

First, although the preamble to the administrative duties in the bill reflects the principles articulated in It's About Our Health, in my opinion they are not articulated strongly enough and they are diluted by the fact that, again in my opinion, there are too many of them. The bill basically adopts every conceivable sentiment that one could envisage concerning good environmental performance and good regulatory practices and lumps them all together. It's my opinion that, as a result, the preamble and the administrative duties provide little guidance to government decision-makers when they are faced with implementing some of the discretionary provisions in the bill.

Second, I think the provisions in the bill concerning virtual elimination are not strong enough. The committee had recommended that the new bill require the virtual elimination of substances that were found to be persistent and bio-accumulative and inherently toxic. The bill goes some way in that direction, but it doesn't go as far as the committee had recommended.

The main failing of the bill is with respect to the way it defines virtual elimination. The committee reflected the definition that has been proposed by the International Joint Commission, which describes virtual elimination as applying both to the use of a substance and to the release of a substance. The rationale for applying the definition to use as well as release is that obviously if one can eliminate the use or reduce the use of a substance, then there is less likelihood that the substance will ever be released and there would be more incentive placed on the user of the substances to find an alternative, either an alternative process or an alternative substance. The bill, however, defines virtual elimination simply by reference to release. Therefore, in my opinion, it falls short of the recommendations made by the committee.

Last week I also emphasized that an important issue has been left to the discretion of the department. That has to do with the way in which the criteria for determining persistence in bio-accumulation will be defined. The bill requires that those criteria be promulgated by means of a regulation, and in my view that is perfectly appropriate, because these will inevitably be highly technical scientific criteria that may evolve over time as our scientific understanding improves.

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Nonetheless, I think it's worth observing that the efficacy or the ultimate impact of these provisions will in large part turn on the way in which those criteria are defined. Two years ago, the committee urged the government to adopt a very precautionary set of criteria, and there's no evidence at present that the department intends to do so.

The third important way in which the bill does not reflect It's About Our Health, in my opinion, lies in its overall residual nature. The bill is residual in general as a result of subclause 2(2), but in particular, it is explicitly residual with respect to biotechnology and new substances where, in my view, the bill represents a step backwards from the existing CEPA. I'll be glad to explain why in detail later if you want to ask any questions about that.

The fourth important drawback to the bill as compared to the committee's report has to do with the potential restrictions that the bill places on the federal government's ability to assume a leadership role.

I find these restrictions both in the many obligations in the bill to consult with provinces, territories and other parties and, equally importantly, in paragraph 2(1)l), which requires the government to refer to and to act consistently within intergovernmental agreements and arrangements, in combination with the existing CCME harmonization agreement. In my view, that obligation, together with the existing CCME harmonization agreement, may significantly fetter the federal government's discretion to act. It would certainly, in my view, undermine the federal government's ability to act quickly and strongly and assert a leadership role.

Finally, I think it's fair to point out that the committee had advocated the establishment of a fairly easy to use right-to-sue provision, whereas the right-to-sue provision that is incorporated in this bill is somewhat cumbersome in the sense that it places a number of hurdles in the face of a potential litigant. Personally, I don't think that is a significant drawback of the bill, but I know there are others—including probably some on the committee—who won't share that opinion.

In the same way that I closed my remarks last week, I'll close my introductory remarks now by emphasizing again the importance of implementation.

Necessarily, the bill provides for a fair bit of discretion. It provides the government officials with a fair bit of discretion in terms of the way in which it will be implemented. It provides for discretion, for example, in the way in which the government will identify and assemble the priority substances list, which will guide a large part of its assessment work. It provides for discretion in the way in which risk assessments will be interpreted. It provides for discretion in the determination of how to control whether to regulate, and if so, how to regulate, whether to use an economic instrument, whether to use a voluntary code, etc. And it provides for a significant discretion, of course, with respect to how to enforce, what the right strategy is, how we should establish our priorities, etc.

This is not a criticism. This is, I think, inevitable and appropriate with respect to a bill of this size and complexity. I think it's worth emphasizing, however—and I would urge the committee to emphasize this in its report—that strong political will and adequate resources will be required in order to make the bill as effective as it could be.

That concludes a brief summary of the comments that I made last week. As I said, I would be happy to discuss in more detail the comparison that I conducted on each of the parts of the bill. If you like, Mr. Chairman, at this point I can briefly describe the flow chart that I presented last week.

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The old bill addressed more than the CEPA toxic substances, and the new bill has been expanded even further than the old bill, to address international water, guidelines for land-based sources of marine pollution and so on. But at the heart of the bill are the provisions concerning the assessment and management of toxic substances. This flow chart that I prepared is my attempt to present, in schematic form, the process established by the new bill.

If we start at the top, you can see that the new bill contemplates three processes for identifying substances and for assessing substances, whereas the existing bill explicitly refers to the PSL and implicitly authorizes the government to declare as toxic any substance that it deems to be toxic. I would remind you that's the way the government regulated ozone-depleting substances. They weren't put on the PSL. They were simply declared toxic.

The new bill, however, explicitly establishes three tracks for risk assessment. As shown on the left side of this chart, it provides for a screening of the domestic substances list, which is a list of all substances in use within a prescribed period of time. Shown in the middle of my chart is the mandatory review of decisions made by other jurisdictions, both OECD jurisdictions and provinces and territories, decisions to prohibit or substantially restrict the use of a substance for environmental or human health reasons. Finally, as shown on the right-hand side, the bill retains the priority substances list process.

The bill now requires the government—and I think the word “requires” is an important word—to look at a broader set of substances.

The actual process is very similar in each case. The government must conduct a scientific risk assessment and then publish a summary of its assessment, the scientific considerations and its proposal as to what it intends to do. Does it intend to do nothing? Does it intend to declare the substance toxic? Or if the substance is not already on the PSL, does it intend to put the substance on the PSL?

There is then a built-in public consultation process for 60 days and then an obligation on the government to respond to the comments and to publish its final decision.

If the substance is declared toxic, the government may then add it to the list of toxic substances. And if the substance is persistent, bio-accumulative and anthroprogenic, the government must then require virtual elimination plans, otherwise the government will impose some form of life-cycle management. The government is provided with a wide range of discretion in terms of precisely what objectives it will articulate for those substances subject to life-cycle management and the precise means by which it will control those substances.

That's a brief overview. Let me take you in more detail through the process described on the left-hand side of my chart, which commences with the screening of the domestic substances list, because it is in this regard that the bill reflects the committee's recommendation for a hazard assessment process.

The government is required to screen all substances on the DSL that are persistent or bio-accumulative and inherently toxic. So in other words, there is no reference to potential exposure. The bill requires the department to take that subset of the domestic substances list that meets certain prescribed scientific criteria that have to do with the inherent characteristics of those substances and then conduct an assessment of those substances.

Halfway down the page shown, you'll see that if the department concludes that the substance may have a long-term harmful effect on the environment because it is inherently toxic, persistent, bio-accumulative and anthroprogenic—in other words, caused by human activities as opposed to naturally occurring—then the department must add that substance to the list of the toxic substances.

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And then, once it's on the list of toxic substances, if it is persistent and bio-accumulative, which of course it is because that's how it got on the list, then the department must require virtual elimination and the preparation of virtual elimination plans.

So for that subset of substances, the bill effectively requires a hazard assessment approach, which is consistent with the committee's recommendations.

As I read the bill, for all other substances the bill retains the existing risk assessment approach, which requires the department to look both at the inherent nature of the substance and the potential for its exposure to the Canadian environment or to humans in Canada.

That's my overview of the risk assessment and the management provisions in the bill. Let me stop here and turn the floor over to you for questions.

The Chairman: Thank you.

Mr. Gilmour, please.

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Thanks for coming before the committee again, John. We were away last week. Charles had pointed out that it was important for us to hear it, so I do appreciate your doing a second run.

In terms of virtual elimination, I have some concerns. I'll use dioxins and furans as an example. They're created through the process of bleaching of pulp, chlorine bleaching, and 15 years ago, it basically wasn't a problem. It was our testing. We were only able to do parts per million. Then we went to parts per billion, parts per trillion and so on. The concern I have with virtual elimination is that as our testing becomes better what we may have thought was gone will pop up again because we're able to go to the next factor.

Perhaps you can define your interpretation of virtual elimination, because I have some real discomfort with where we are.

Mr. John Moffet: I think there are two issues here which may be important to distinguish.

One issue has to do with the reference in the bill to the capacity of existing science to measure the quantity of a substance that has been released.

The other issue is the one that I raised in my presentation, and that is more of a conceptual issue, which is one that the committee addressed two years ago when the committee recommended that the definition, whatever the details of the definition, should refer to both use and release. In my view, it would be feasible to address that conceptual concern without necessarily determining the answer to your question concerning the scientific capacity to measure.

In other words, we could establish some limit. I'm not a scientist, so I'm treading on thin ice here, but it strikes me that this issue should be separated from the conceptual issue.

And I don't think I should go too far down the road of discussing the issues around scientific capacity to measure because that's not something that I'm well qualified to discuss. I apologize.

Mr. Bill Gilmour: Okay. I appreciate that.

I was interested in your comments on the right to sue, because I've asked most witnesses about it as they've come forward, and it would appear that we're going to have to strike a balance. The environmental groups feel it's not strong enough, the department feels it's relatively well balanced, and a number of the industrial groups feel it's a little bit too harsh and unworkable.

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I appreciate your comments, and I tend to share your opinion that there need to be some hurdles there. It needs to have a balance so that it can't be used as a vehicle for another means. I don't want to put words in your mouth, but do you feel comfortable? Do you feel the balance is there on the right-to-sue issue? I can't remember if you mentioned the Ontario example of being more workable. Where do you see this going?

Mr. John Moffet: The right-to-sue provisions in this bill are largely modelled on those of the Ontario Environmental Bill of Rights, which, as I think you heard last week, have not been utilized yet.

I believe that it's important to have in the bill a right-to-sue provision. I believe that if the government fails to act, then the bill needs to provide for the right of individual citizens to act with the full force of the law behind them.

However, I personally would want to discourage a regime that creates incentives or an easy mechanism for private litigants. There are examples in the United States of much looser right-to-sue provisions, and the academic literature reviewing that experience is quite mixed.

Some people argue that those provisions have been very important because they have basically enabled the public—by saying “the public” of course I'm largely speaking of the larger environmental organizations—to supplement the government's limited enforcement capacity, which is a good thing.

On the other hand, some of the literature suggests that this is not such a good thing, because what the public interest groups inevitably tend to do is seek out those cases they can win. That's where the focus of the litigation is, and that focus may not have any relevance to actual overall environmental priorities.

Then of course one has to account for the significant difference in the overall litigiousness of our two cultures. Again, however, that question cuts two ways, because given that our culture is not so litigious, maybe we shouldn't be so worried about putting in a right-to-sue provision. We're not going to get people rushing off to sue as we don't have that culture in place now.

As you can tell, I'm somewhat ambivalent about this issue, and as a result, my personal opinion is that it wouldn't be one of the things that I would urge this committee to take a stand on. Clearly, you can take a stand on a limited number of issues—you only have a certain capacity—and that wouldn't be one of them for me.

Mr. Bill Gilmour: Okay, thanks John.

The Chairman: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): John, in terms of what you were saying before in regard to the public's right to sue, you said the literature review in the United States has been mixed. From what I understood from what you were saying, on the one hand, it has been effective in helping the government do its work in dealing with environmental issues, but on the other hand, because environmental groups tend to go where they can actually win a case, which sometimes makes sense,—

Mr. John Moffet: Sure.

Mrs. Karen Kraft Sloan: —it doesn't necessarily reflect the priorities.

I guess what we have often heard as a committee is that if you have the right to sue in this country, then all of a sudden, everyone is going to be in the courts like they are in the United States, development is going to be held up, 60,000 loggers are going to lose their jobs, and 16,000 communities are going to disappear overnight in British Columbia, which is the kind of argument we heard when we were out there on endangered species.

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But that's not what you're saying. You're saying it's the mix. On the negative side, we haven't necessarily identified some of the key environmental priorities.

Mr. John Moffet: Right. I think that's right. I think the concern is that the ease of litigation can distort priorities. When I said that environmental groups tend to pick winners, in some cases, that's because there are egregious environmental problems about which any court would say yes, this is a problem.

But in other cases, the winners are chosen on the basis of legal issues, procedural issues, ease of getting into court, or the particular perspective of the judiciary in a region. So there are a variety of bases, of course, on which litigation priorities are determined by these organizations.

On the other hand, I think I share—I'm reading between the lines of your question—your sentiment that we're not likely to see a floodgate opening if we provided for a right-to-sue provision. But given that, we have to ask ourselves what function we want this provision to serve.

In my view, it should serve two functions. The first would be to create basically a threat that users and producers of toxic substances should be aware of so that even if a government inspector hasn't been around for a while, if they're doing something that is endangering the local community and that is contrary to the act, they should know that there is the potential that somebody will take them to court with the full force of the power of this legislation behind them, not just with the vagaries of civil law remedies. I think that's one function.

But in order to evaluate the degree to which this provision serves that function, you need to look at it in context, and that context includes the right to request an investigation, which is one of the hurdles that the bill puts in place. I would suggest to you that because a member of the public has the ability to sue, at the end of an investigation, that threat or potential for a lawsuit creates an incentive both for the government to conduct an effective investigation and for companies that are subject to investigation to behave and respond in a reasonable way. In my view, that's where most of the action should be. Most of the action should not be in court, it should be at that level.

The other function of a right-to-sue provision, in my view, is basically an accountability function. So if government isn't doing its job, the public should be able to do its job for it. In doing so, this will embarrass the government and hopefully induce the government to do a better job next time.

Mrs. Karen Kraft Sloan: But I guess it's really important to make it perfectly clear that we're not talking about an American form or American culture around litigation and the desire to be very litigious. We're talking about a Canadian context, which is very different. We're also talking about a piece of legislation that's different from what you would normally see in some of the American environmental legislation.

If you take a look at the record of the Government of Ontario with this kind of a provision, from what I understand, there are more safeguards in this provision than there are in the Ontario Environmental Bill of Rights. Even with the Ontario Environmental Bill of Rights, nothing has really gone through the court system.

Mr. John Moffet: Under this provision, that's right. I think they're virtually identical. But I agree with you that if we look at the provisions in that context, we shouldn't be worried. So I wouldn't scale back these provisions. That's not what I'm suggesting. I'm just suggesting that I wouldn't take a strong stance on beefing up these provisions. I'm certainly not recommending scaling them back.

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Mrs. Karen Kraft Sloan: I was wondering what your opinion is. We talked a little bit earlier about the differences between the definition for virtual elimination within CEPA C-32 and the one the IJC had. I'm just wondering, given the fact that the IJC uses the definition of virtual elimination within an international context between Canada and the United States, and now we have another definition, what kinds of problems do you foresee in having these two very different approaches for getting rid of some of the most hazardous toxic substances?

Mr. John Moffet: I guess my answer to that is that the... I may be getting onto thin ice here as well, but it's my understanding that essentially... I'm sorry, but I want to be clear.

The IJC performs a number of functions. In some cases, it's responsible for issuing orders and establishing boards that do things like monitor water quality, and control the level of different rivers and lakes. But on this policy issue, with respect to toxics, the IJC's main function is to provide a forum for scientific and policy discussions, and to make recommendations to the government.

The IJC has made a recommendation, a number of recommendations, repeated recommendations to the governments of the United States and Canada concerning the need to virtually eliminate the use and release of persistent bio-accumulative substances.

I don't think that we're running into a potential legal issue here. I guess the point that I'm bringing to your attention is that the IJC has addressed this issue and has made a recommendation. The bill is, to a certain degree, ignoring that recommendation.

Mrs. Karen Kraft Sloan: How long ago was it that the IJC made that recommendation? Ten years?

Mr. John Moffet: I don't know, but it's not ten years.

Mrs. Karen Kraft Sloan: It's not ten years. Was it eight years?

Mr. John Moffet: I'm sorry, I can get back to the committee on that. I don't know the precise timeframe. It has been a few years for sure. This recommendation has been a fixture in the IJC recommendations for some time.

Mrs. Karen Kraft Sloan: It's been quite a while. Primarily scientists would be involved in making those kinds of recommendations, as well as senior policy-makers or—

Mr. John Moffet: There are policy people, lawyers, and a whole range.

Mrs. Karen Kraft Sloan: But I know that a lot of people who come before our committee are concerned that this be based on sound science. Given the sort of—

Mr. John Moffet: Yes, the IJC has a staff of scientists and draws heavily on the scientific research community that's focused on Great Lakes water quality research.

Mrs. Karen Kraft Sloan: Can I ask a question about endocrine disrupters? In your opinion, do you feel—I apologize if this is something you've already covered—that endocrine disrupters can be adequately managed through Bill C-32 as it's currently written?

Mr. John Moffet: I'm not sure. I think it unlikely that endocrine disrupters are going to be put on the hazard assessment track, which I described to you. So in that regard, I think there's no guarantee under the current bill that endocrine disrupters will be addressed.

On the other hand, the act, in my view, provides ample authority and discretion for the government to regulate and control them if it decides that it ought to. So in other words, this is a discretionary matter for the department. I don't think the act will require the regulation of endocrine disrupters.

Mrs. Karen Kraft Sloan: There are enabling provisions within the act that would allow for regulations to be made, but there's no requirement that they be made in fact.

Mr. John Moffet: I think that's right.

Mrs. Karen Kraft Sloan: Okay, thank you.

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The Chairman: Are there any more questions on the first round, before we launch the second one? If not, I may ask a few questions briefly.

Does the critical path chart you use for this year apply to new toxic substances?

Mr. John Moffet: No.

The Chairman: What would happen with a new toxic substance? How would that be processed—in a similar manner?

Mr. John Moffet: Let me take you to the table. In the table, it summarizes the approach to new substances, which is essentially the same as the existing bill. I guess it's conceptually the same.

The committee had recommended basically a reverse onus provision. Anybody who wants to use a new substance has to prove that it will be safe before they can use it. The existing act and Bill C-32 say no, this is the government's responsibility. But the government can say no, you can't use the substance until we've assessed it and we can require various information from you in order to enable us to assess it.

The important changes that have been made in Bill C-32 blur that distinction between reverse onus and this approach a little bit, because Bill C-32 has added significant information-gathering powers to the government. So the government can now request basically all the information it needs in order to conduct an assessment from the proponent who wants to use the new substance. So while it doesn't place the onus of proof, it does allow the government to require the proponent to undertake the research and analysis and provide the information in order to enable the government to—

The Chairman: So will the process be faster or slower or the same? Because it's taken 10 years to get 42 substances on the list.

Mr. John Moffet: No, but those are existing substances.

The Chairman: Existing substances, yes.

Mr. John Moffet: For new substances—

The Chairman: The process would be quite different.

Mr. John Moffet: Quite different. Numerous new substances have been introduced in the last 10 years and numerous new substances have been assessed pursuant to the new substances process.

The Chairman: How many?

Mr. John Moffet: I don't know the precise numbers.

The Chairman: But within 40 and 50—

Mr. John Moffet: I'm sorry, I don't know those figures.

But this will allow the government to reduce the resource requirements in order to administer this section effectively. It will place the responsibility on industry.

The Chairman: Very quickly, then, when it comes to the preamble on the second page, the fourth “whereas”, would you say the second half of that “whereas” weakens or strengthens the bill in relation to the existing legislation?

Mr. John Moffet: Sorry, can you read the...?

The Chairman: The fourth “whereas”, the second half of it, when it brings in “social, economic and technical matters are to be considered in that process.”

Mr. John Moffet: I'm not reading the same provision as you.

The Chairman: It's page 2, line 25. In addition to human health and environmental or health risk, there is a reference to social, economic and technical matters. How will a judge be guided by these additional dimensions? Is it hard to say?

Mr. John Moffet: I think it's hard to say. But I think the point I would like to make here is the one I made at the outset: that I see too many of these guiding concepts.

The Chairman: Yes.

Mr. John Moffet: It is very hard to understand precisely what this paragraph means.

The Chairman: You're right. Fair enough.

If you move on to page 3, you have from (a) to (k) a number of “endeavours”.

Mr. John Moffet: Yes.

The Chairman: If they were to be eliminated, would it strengthen the bill?

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Mr. John Moffet: I believe it would. And I apologize, I didn't say it explicitly, but when I said the way in which the bill articulates these provisions is not strong enough, that's what I was referring to.

The Chairman: And on page 4—

Mr. John Moffet: I would delete “endeavour”.

The Chairman: —from line 18 to 28, this is a new part, a new element, that does not exist in the present legislation. Would you care to comment on what effect it might have once enacted?

Mr. John Moffet: Are we looking at subclause 2(2)?

The Chairman: Yes.

Mr. John Moffet: Yes, okay. I think this provision effectively makes CEPA subordinate to all other federal legislation. And I think that weakens Environment Canada's and Health Canada's ability to act and to assume a leadership role. That's not consistent with the committee's recommendation. In order to make the bill consistent with the committee's recommendations, I would delete this provision.

The Chairman: Would you consider this a minor or a major element?

Mr. John Moffet: In legal terms, I think it's probably not all that significant. In symbolic terms, I think it's very significant. I think it goes to the heart of the overall approach that's reflected in this bill of suggesting that action by Environment Canada to protect the environment will basically be invoked as a safety net. So I think this is tremendously important for its symbolic importance.

The Chairman: And then jumping to page 37 under “virtual elimination”, could you flesh out for us the importance in practical terms of subclause 64(2), lines 21 and 22, “any other relevant social, economic or technical matters”, when the bill will be operative. What would be the effect of that reference, lines 21 and 22, page 37? I will tell you how I would interpret it, but I'd better hear you first.

Mr. John Moffet: I'm sorry, we're looking at subsection (2)?

The Chairman: Yes.

Mr. John Moffet: And the cross-reference to section 91?

The Chairman: Yes.

Mr. John Moffet: The concept of “virtual elimination”, which the committee discussed in the It's About Our Health report, is analogous to the concept of sunsetting, which the committee also discussed. And the rationale for virtual elimination or sunsetting is the importance of drawing a distinction between an immediate ban and a sunsetting or a gradual phasing out of a substance over time. And the time period over which a substance ought to be phased out is one that should be determined in part by social and economic considerations. What period of time is required for a single-industry town to make a transition, if in fact phasing this substance out is going to put that single industry out of business? Over what period of time is it reasonable to require an industry to seek out an alternative substance?

So in my view it's perfectly reasonable to require the government to consider social and economic considerations with respect to the time period over which it intends to phase out a substance. It would not, however, be reasonable to require the consideration of social or economic considerations with respect to the basic decision of whether or not to phase the substance out.

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The Chairman: So in the case of the production of arsenic or cyanide, for instance, it would make sense to prolong the life of that particular industry in order to not kill the economy of that town. Is that your logic?

Mr. John Moffet: I'm suggesting that would be a legitimate consideration. Precisely how the balance is to be drawn I don't think is something one can prescribe clearly in legislation. That's why I emphasized in my answer to your previous question the symbolic importance of some of the language in this bill.

I think the committee recommended strongly—and I would agree with those recommendations—that the bill represent, symbolically as well as legally, a precautionary approach to protecting Canadians and their environment from toxic substances and other pollutants. That kind of precautionary approach should infuse these kinds of discretionary decisions that are made under the bill.

The Chairman: Thank you.

For the second round, Mr. Gilmour, please.

Mr. Bill Gilmour: We were talking about IJC and the Great Lakes. How does this bill compare to the Americans' legislation? Where I'm coming from is, as a rough comparison, are we on par with what the Americans are doing, are we ahead, or are we behind? Do we fit in with what the Americans are doing? We share the same water bodies. Do we have it like this, or are there a number of holes in this legislation? I would like to get an idea of where this fits in with the other side.

Mr. John Moffet: I'm embarrassed. I don't think I can answer that.

Mr. Bill Gilmour: I fully recognize that we have different cultures, as you said earlier. I didn't mean to put you on the spot. It was just sort of an idea of how we feel.

Mr. John Moffet: I should have looked at the current status under TSCA, which is the Toxic Substances Control Act, which is the U.S. federal government's primary vehicle for regulating toxic substances.

Although I said that's the main vehicle, that act has been, by most accounts, a failure. In fact most controls of toxic substances have come about by means of other kinds of legislation.

To take a step back, American environmental legislation is quite different from ours. They have air-specific legislation, water-specific legislation, hazard-waste-specific legislation, land-site-specific legislation, and so on and so forth. So toxic substances get addressed by a whole wide range of means. In some cases, those are very precautionary, if you will, and in other cases legislation hasn't been amended for quite some time and it's not so precautionary. So the way in which toxic substances are regulated and addressed in the United States depends in part on the medium in which the substance is being used or released.

In addition, there's a fairly significant degree of variety between the way in which the states regulate toxic and hazardous substances.

I'm not giving you a very clear answer, except to say that the approach to toxic substances in the United States is not as well coordinated as it could be in Canada under CEPA. The precise approaches vary quite differently from medium-specific legislation to medium-specific legislation, and from federal to state levels. Let me give you that data.

Mr. Bill Gilmour: Okay, thank you, John.

[Translation]

The Chairman: Mr. Bigras.

Mr. Bernard Bigras (Rosemont, BQ): I have a brief question. You said that some provisions in the bill would prevent the government from taking a leadership role on environmental issues. But when we read the bill, we find a variety of provisions establishing national standards, for example on fuel and other things. I could quickly quote three or four such provisions.

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So you were saying that this bill might prevent the federal government from fulfilling its role and exercising leadership. In your view, how can that be reconciled with the fact that the bill establishes national standards?

[English]

Mr. John Moffet: I apologize; I'll have to answer in English.

The bill authorizes the federal government to take a wide variety of actions and thus provides an enabling mechanism for the federal government to assume a leadership role. However, in very few cases does it require the federal government to assume such a role.

In most cases, the bill authorizes the federal government to promulgate a fuels mark, for example, or a regulation on a toxic substance, or to act with respect to an international air pollution concern, but it doesn't require the government to do so.

Consequently, the way in which those provisions are interpreted and applied will be very important. As a result, the guidance the bill provides in the early part in terms of how those discretionary elements should be applied is very important.

So the principles in the preamble and the duties in clause 2 will be very important in determining the degree to which the federal government exercises the authority it is given under the bill.

The Chairman: Any further questions? If not, I thank Mr. Moffet for appearing before us and for the good work he has done.

Before concluding, the clerk has a couple of requests I would like to submit to you for your approval.

First, on Thursday morning, because the witnesses who have requested to come forward are not ready to submit their briefs, we have an open slot. You may also recall that we had discussions a couple of times on the uranium contamination as it affects the Delenhe band in the Northwest Territories. They are in town, and they've asked whether they could appear before this committee. I would seek your concurrence and approval that we do so Thursday morning. It might be quite an interesting meeting, having to do with a health and environment issue of some significance.

Can I have your concurrence on this?

Some hon. members: Agreed.

The Chairman: Thank you.

The next item is payment of $72 to Canada Newswire and $710 for transmitting something when we did the release of the enforcement report. This was part of our media relations exercise. It saved a lot of paper and staff work. The clerk needs approval, or at least the concurrence of the committee, to make these payments.

Some hon. members: Agreed.

The Chairman: Thank you.

The clerk has circulated a budget, which I thought we should leave in your hands for approval tomorrow morning, but if you are ready to go through it now, we can do it now, considering the early time. What is your wish?

Mrs. Karen Kraft Sloan: Can we do it now?

The Chairman: We can go through it now. The floor is open for questions.

Mr. Gilmour, go ahead.

Mr. Bill Gilmour: How does this compare with where we've been?

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The Clerk of the Committee: It is pretty much the budget we adopted last fall to carry us through to the end of the fiscal year, in which we said we would have Bill C-32, and in which we would have two other major studies. The fact is, what we set out to budget for last fall didn't completely transpire, so it's kind of hard to say how this compares when you look at what we really had.

Mr. Bill Gilmour: I ask that because we're going to be fairly heavy into Bill C-32, and then I assume into endangered species. At least, that was in the estimates as coming forward. So we're liable to have a pretty solid slate of witnesses right through. Will this be...?

The Clerk: This might be light, then, on future witnesses, that's for sure, but nothing prevents us from putting in a supplementary budget in the fall. Again, it's a lot of by guess and by golly.

Mr. Bill Gilmour: Okay.

The Chairman: So it's the best possible guess under present knowledge. Is that what you're saying?

The Clerk: Yes, Mr. Chairman.

The Chairman: Are there any other questions?

Before seeking a motion for approval, I would like to bring to your attention—and particularly you, Monsieur Bigras—the fact that as a result of the meeting last week with the World Wildlife Fund people, there is an effort being made to obtain the unanimous consent of the House of Commons on the organic pollutants meeting that is going to take place at the end of the month in Montreal, with 100 nations, and to ensure that this conference produces a convention of substance for the protection of the health of people living in the north.

The text being circulated is ready now en français, and Monsieur Bigras has a copy. The Reform Party is presenting the text to their leader. We have presented it to the leader of the Liberal Party with a considerable degree of affirmative acceptance. As far as the governing party is concerned, then, we think we have concurrence, but as you know, nothing goes through the House unless there is unanimity.

If you, Monsieur Bigras, and you, Mr. Gilmour, are willing to present it to your respective leaders, I will take the same initiative with the Progressive Conservative and NDP party representatives on this committee so that we all proceed at the same speed, more or less.

Would you like to comment?

[Translation]

Mr. Bernard Bigras: Like my colleague from the Reform Party, I have just seen this resolution for the first time. If I may, I would like to consult our office. I would like to see what the timeframe is, so that we can all agree. Is there some kind of timeframe?

The Chairman: Yes, perhaps Wednesday.

[English]

Mr. Bernard Bigras: Okay.

The Chairman: Does someone wish to move the adoption of this budget, as proposed by our clerk?

Mr. David Pratt (Nepean—Carleton, Lib.): I so move.

(Motion agreed to—See Minutes of Proceedings)

The Chairman: Thank you very much.

This meeting stands adjourned until tomorrow at 9 a.m.