ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 8, 1998

• 0914

[English]

The Chairman (Mr. Charles Caccia (Davenport, Lib.)): Good morning. I have a couple of announcements to make.

• 0915

Yesterday a copy of the November-December Science and the Environment Bulletin arrived in my office, and it contains a page entitled “Endocrine Disruptors and Hog Manure”. I would ask the clerk to distribute this for your information. On one side you will see the cover of the bulletin and then on the other the article on the concentration of endocrine disrupting chemicals, including natural estrogens. I'm providing this in view of the debate we had last week and of the attempts being made in committee to fix the bill, so to say, because of its silence on endocrine disrupters. So that's just for your information.

The other item has to do with a couple of letters that have arrived in recent days from the west and east coasts that were written by the fish culture industry. You may recall that when we discussed fish culture, it was brought to our attention, actually, by the Conservative Council of New Brunswick, and that was that. The industry is now asking to be heard in light of a proposed amendment, which has been circulated. It seems to me—if there is concurrence, of course—that it would be fair to have a session with industry in order to hear what they have to say about a regulatory process. So I was wondering if there would be consent to have a meeting with industry in principle, and if on the first Monday or the first day we come back we would hold a hearing dedicated to that subject.

Mr. Gilmour.

Mr. Bill Gilmour (Nanaimo—Alberni, Ref.): Thank you, Mr. Chairman.

Mr. Chairman, both Mr. Herron and I have had representations, and we both have aquaculture in our ridings. I don't think it would be fair for us to consider legislation or amendments without hearing from the aquaculture industry, because we've only heard from one side. So I think that's a grand idea, and I'd entertain that.

The Chairman: Thank you.

Mr. Lincoln.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): I don't know how many, but some of us have also received representations from the Suzuki Foundation about this very subject and the bill. I would suggest that if we have the industry, we should also ask them to appear, because they seem to have done an extensive study of it.

The Chairman: All right. That has been duly noted by the clerk.

Mr. Herron, would you like to add your voice?

Mr. John Herron (Fundy—Royal, PC): I would concur with my colleague from the west coast. We had an opportunity to listen to an environmental NGO on aquaculture. I don't think that was necessarily the Conservation Council of New Brunswick's principal focus, but they cited that as an example where enforcement wasn't being carried out. I think the industry feels it didn't have the sense of balance of having its side of the story told, so I think it would be right for us to hear from them.

With regard to the Suzuki Foundation, I really don't have an opinion on that. We've already had one NGO appear, but if you want another one, it doesn't hurt.

• 0920

The Chairman: Thank you.

Madam Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Just to add my voice to those of Messrs. Gilmour and Herron, I think it's—

The Chairman: And Lincoln.

Ms. Aileen Carroll: —an excellent response on our time.

With regard to Mr. Lincoln's suggestion, maybe I'm behind on my mail and I just haven't read the letter from Suzuki, but by all means, if we're going to set up a forum to hear industry, I'm more than open to do that. But I definitely want to hear from the aquaculture industry from both coasts.

The Chairman: All right. I take it that we can instruct Santa Claus to deliver the good news to the industry that we will listen to them.

We can now move on to the motion in connection with clause 87 that was moved by Mr. Jordan and then amended by Mr. Lincoln. We learn now the government would recommend that it be an amendment to clause 73 instead of clause 87. To do that, I need the consent of the committee to reopen clause 73.

The clerk advises me that following that, we need the consent of the committee to withdraw the two motions that are before us, namely the motion by Mr. Jordan and the amendment by Mr. Lincoln. Is there consent?

Mr. Lincoln.

Mr. Clifford Lincoln: I want to ask a question. Before we withdraw them, could the clerk tell us if it would be possible to continue to deal with and settle clause 87 and then ask for unanimous consent to transfer the amended clause 87?

The Chairman: That's an interesting approach, and the clerk says—

The Clerk of the Committee: Mr. Chairman, perhaps it would be worth while if the committee just looked at the question in a general way before proceeding to make a decision on what it would like to withdraw and to where it would like to revert.

The Chairman: Mr. Lincoln is proposing something different.

Mr. Lincoln.

Mr. Clifford Lincoln: Yes, I was proposing something different. What I wanted to do is to make sure we all agree as to the sense of the amendment and the subamendment. In my subamendment I was going to ask for consent to change two years to seven years, in light of what we heard from the officials. I believe this would meet with general approval. It would be interesting to find out.

Once we get a sense that this would be acceptable and also that clause 73 would be the best way to go, which I think it is—I agree with the government that it's an improvement—in that case, then, we could move forward before we withdraw them. It would be good to have the sense that we all agreed.

The Chairman: Mr. Lincoln is proposing something that will require a brief confabulation here at the table with our drafting clerks so as to determine if we can package it under clause 87, if I understand you correctly, and then having done that, that we transfer the package to clause 73. Is that what you're proposing?

Mr. Clifford Lincoln: Yes, as a first option. The second option would be, if we have to withdraw it, to know that everybody has agreed in principle.

• 0925

The Chairman: We will first ask the parliamentary secretary whether she's willing to incorporate in the amendment she circulated this morning the substance and the purpose of the amendment by Mr. Jordan and the subamendment by Mr. Lincoln that would require seven years rather than two.

Ms. Paddy Torsney (Burlington, Lib.): Mr. Chairman, subclause 73(1) now reads that it's seven years. So since the process would be followed at the same time, the seven years would follow through. Absolutely, to incorporate the substance of what he desires, it would be most appropriate to create a new subclause 73(3). The language is taken exactly from the amendment as it was presented.

The Chairman: Thank you.

Mr. Lincoln, I wonder whether, with this assurance, you will be comfortable if we proceed by the withdrawal of the amendment and subamendment, and move to reopen clause 73 so that we have a—

Mr. Clifford Lincoln: Mr. Chairman, I would be agreeable on this basis. Before I withdraw, I want to make sure that when we ask for consent to reopen clause 73, not one member says “Oh no, I refuse consent”, then we're withdrawn and we're dead in the water. If we can have the assurance that when we ask for consent, everybody will agree, then I'll be very happy to withdraw.

An hon. member: And so continues the high level of trust.

Some hon. members: Oh, oh.

The Chairman: Mr. Jordan.

Mr. Joe Jordan (Leeds—Grenville, Lib.): Mr. Chairman, to the clerk through you, is this a situation where we could seek unanimous consent to withdraw the amendments, open clause 73, put it in clause 73, and close clause 73, all at once?

The Chairman: It could be done that way.

Ms. Paddy Torsney: An espresso for all.

Mr. Joe Jordan: Okay, can we do this?

The Chairman: Thank you for the suggestion. It's very helpful.

Now we'll go to Mr. Herron and Ms. Girard-Bujold.

Mr. John Herron: If we open clause 73, would the other amendments be allowed to be tabled on clause 73 at the same time?

The Chairman: Yes. Once it is open, it's open.

Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): I want to make sure that I've understood, Mr. Chairman. Does that mean that Mr. Lincoln is withdrawing his subamendment pertaining to the two years?

Mr. Clifford Lincoln: Mr. Chairman, after listening to the opinion given by the officials, the other day, we realized that if we did the classification within the two-year period, when in fact a seven-year period was already provided for under clause 73(1), and both operations were required, it was better to apply this subamendment to 73(1). It would be better to apply the subsection there.

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I thought that Mr. Lincoln's subamendment was justified because at one point we're going to have to take action. We're going to have to take a position and do something. I felt that it was very important to include the expression "two years" in the subamendment. I'm therefore very disappointed that Mr. Lincoln has decided to withdraw it.

Mr. Clifford Lincoln: At one point, we're going to have to— If there are 23,000—

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

[English]

The Chairman: All right. Merci.

Mr. Gilmour.

Mr. Bill Gilmour: I'm in favour of Mr. Jordan's motion. But I would add one caveat on the end. This caveat is that we get Mr. Lincoln's motion into clause 73, but when we do it, we close clause 73 so we don't open the whole thing. At the end of this motion, it means clause 73 is closed.

The Chairman: Then I would have to go back to Mr. Herron. I just gave him assurance that once it is open, it's open.

Mr. Herron, do you accept?

Mr. John Herron: I have this amendment that I don't know what to do with. I sort of put it in my pocket a long time ago. It is PC-3.1, which is a definition for part 5 for endocrine disrupters. I wondered if maybe over the course of the weekend and the press conference they had yesterday, they are becoming more interested in endocrine disrupters than they previously were at different times in the committee. So I could move this at that point in time if I so choose, couldn't I?

• 0930

The Chairman: This would be my interpretation, unless the committee wishes otherwise. But it could only be done after the other matter has been dealt with.

Mr. John Herron: My other comment on it is that I would not look to sacrifice Mr. Jordan's to Mr. Lincoln's amendment if this potential thing could hurt it.

The Chairman: These are very thoughtful observations.

All right. I sense there is consensus that we withdraw the amendment and the subamendment and that we reopen clause 73. It is so decided.

Let's now go to clause 73. I suppose there is a motion by Mr. Jordan. Please, would you like to read it?

Mr. Joe Jordan: It's the government-drafted amendment here, application of subclause 81(3). There's been a technical change, replacing in the English version line 1 on page 43 with the following information: “Where available”. Then the substance of the amendment is that in subsection 81(3), when categorizing substances under subsection (1), the minister shall examine the substances that are on the Domestic Substances List to determine whether an amendment should be made to the list to indicate that subsection 81(3) applies with respect to those substances.

It's the same amendment we had in clause 87, but I think it's more appropriate in clause 73.

The Chairman: All right. Thank you.

Are there any comments? Mr. Laliberte.

Mr. Rick Laliberte (Churchill River—NDP): I know Mr. Jordan referred to a technical change there, but “Despite subsection (1)” is what's being eliminated, I believe. Where did this originate? What was the original intent? And by removing it, what's the cause?

Mr. Joe Jordan: Yes. I found myself looking at a piece of paper that I didn't draw up, so I will defer to the parliamentary secretary on that.

Ms. Paddy Torsney: Sorry, Mr. Chairman.

The committee had decided, when we were dealing with clause 73, that those words were superfluous and they did not exist in French. You actually need a formal motion to delete those words, so we thought this would be the time to do it. They were unnecessary words and are incompatible with the French.

The Chairman: Thank you.

Mr. Laliberte, if you read subclause 73(1) up to the last line on page 42, you will find it necessary to conclude that the word “Despite” on the top line of page 43 is out of place. Secondly, as the parliamentary secretary indicated, there is no equivalent in the French version. So it is only for the purpose of improving the quality of the text.

Is this satisfactory?

Mr. Rick Laliberte: So instead of totally deleting it, maybe we could create a subclause (4), “Despite subclause (1)”, adding Mr. Herron's definition of hormone disrupters.

The Chairman: It's only a replacement for the word “Despite”. It would then read “Where available”.

Mr. Rick Laliberte: I'm just trying to include my honourable member here.

Ms. Paddy Torsney: I think we should vote.

The Chairman: No. We should also have clarity in what we're doing.

So is “Where available” replacing the word “Despite”?

Ms. Paddy Torsney: Yes. The effect is to delete “Despite subsection (1)”.

The Chairman: Right.

Ms. Paddy Torsney: It reflects what the committee had agreed at that point. You actually need a motion to do this. So we're trying to do it.

The Chairman: There is nothing to be worried about in subsection (1) to war on the word “Despite”, Mr. Laliberte.

Ms. Paddy Torsney: It's not worried in French.

The Chairman: That's the reason why.

Mr. Rick Laliberte: No. I just really like that connotation, “Despite subsection (1).”

• 0935

The Chairman: Yes, well that is a typical reaction when you are in the opposition, and I can sympathize with that. But despite this plight, you can just relax, because that “despite” is out of place, if you read it in the full context of clause 73.

Mr. Rick Laliberte: If you look at the word, before we exit part 5, it might be—

The Chairman: In addition, the clerk draws to my attention the fact that in your motion NDP-35 you also had dropped the word “despite”.

Mr. Rick Laliberte: The whole essence of this—

The Chairman: You were on the right track with your motion.

Mr. Rick Laliberte: We are on the right track, but you might have missed my gist.

The Chairman: It was too subtle then; it was too subtle for me to catch. Please go ahead.

Mr. Rick Laliberte: What I'm saying is that using “Despite subsection (1)”, that word “Despite” is nice before we exit part 5, if it's not possible in clause 73, to include Mr. Herron's definition of endocrine disrupters in this part, using “Despite” as a word to include it in.

Mr. John Herron: I'm not sure I follow.

The Chairman: This is becoming almost a metaphysical discussion, so I'm becoming a bit nervous.

Mr. Lincoln.

Mr. Clifford Lincoln: Could Mr. Laliberte explain these last remarks in plain English, for those of us who don't understand? I don't understand.

Mr. Rick Laliberte: Mr. Herron was tempted to bring in a definition of endocrine disrupters that he's had. The word “Despite” means it would be a good way of including this definition. Despite the debate we've had of not including it, it might be an option for us in part 5 to include his definition, precluding it with “despite”.

The Chairman: Are you ready for the question, despite all the discussion?

(Amendment agreed to)

Mr. John Herron: We could probably take a look at my amendment on page 36 of your big book, PC-3.1.

The Chairman: This belongs to clause 3, doesn't it?

Mr. John Herron: I elected at that time not to move that amendment. It was initially thought that we might use it back in part 3, but my honourable colleague from the NDP was successful in his motion. My definition in PC-3.1 is essentially synonymous with what he moved in part 3. I'd like to move at this time that we add in clause 73 a paragraph (c) to include this amendment PC-3.1.

Also, if we do proceed with this motion, Mr. Chair, I'd like to proceed with a recorded vote as well.

The Chairman: You're moving an insertion of a new paragraph in clause 73—

Mr. John Herron: Right.

The Chairman: —that would read as it is printed on page 36.

• 0940

In your motion, the French version is in the plural on the fourth line, and in the English version the verb is not in concordance with “hormones” in the plural. You may want to move a motion that reads on the fourth line “hormones in an organism that are responsible”.

Mr. John Herron: Yes, I would. We had a little trouble in grammar class.

The Chairman: Yes. It seems to be in order as far as the table is concerned.

Madame Torsney, please.

Ms. Paddy Torsney: On a point of order, unless there's some mistake in my book, PC-3.1 on page 36 is clearly an amendment to clause 3 on line 14. Since we are in clause 73 and we had unanimous consent to open a clause and close a clause after passing an amendment, I'm not sure why we're looking at clause 3 all of a sudden and why we are not proceeding to clause 87, where we in fact were before we opened and closed clause 73.

The Chairman: You're quite correct to say that it is in reference to clause 3, PC-3.1, but Mr. Herron indicated that this would be an amendment to clause 73 when he moved it.

Ms. Paddy Torsney: But it's not correctly worded. My understanding is that we have instructed people to rewrite their amendments if they are going to move them to another place, so I don't understand how this could possibly be.

The Chairman: No, he's moving this clause as an amendment to clause 73 in the motion as he put it, so I don't see any difficulty there. Where I do see difficulty is that when we discussed the reopening of clause 73, I did indicate that once we do reopen, Mr. Gilmour indicated that we should only reopen it for a specific purpose. But we did not clarify that item when we decided to proceed, so the chair was not conclusive on that item at all. Therefore I owe Mr. Herron this motion because I was not at all conclusive on that aspect.

Ms. Paddy Torsney: Mr. Chair—

The Chairman: I maintain that when the clause was reopened it was reopened for more than just that particular item. I'm sorry about that.

Ms. Paddy Torsney: Mr. Chair, I'd have to beg to differ. Mr. Jordan was the one who put the question, and in fact Mr. Jordan had included what Mr. Gilmour had said when he put the question. He said open clause 73, move the amendment, and close clause 73. Everyone around this table heard that discussion and heard Mr. Gilmour confirm that. So that was in fact what was agreed to by committee members, whether there was clarity by the chair or not.

Furthermore, this amendment is not worded correctly to be dealt with in clause 73. We have dealt with this on other amendments that needed to be rewritten. Unless someone's got a printer and is doing something now, I don't see that happening.

The Chairman: I have the assurance of the table that this motion is in order as a new subclause 73(3), as it reads.

Ms. Paddy Torsney: We have a new subclause 73(3).

The Chairman: Is it acceptable?

Ms. Paddy Torsney: No, we just passed a new subclause 73(3).

The Chairman: Then this would be subclause 73(4).

I'm sorry that I have to disagree on my interpretation of reopening the clause. I think that once we made that decision, it was not clear that the decision was limited only to one amendment.

Ms. Paddy Torsney: Maybe we could take a little poll.

The Chairman: Maybe the chair was not clear enough, but that was my understanding and I stand by that understanding. Therefore I accept the motion as being in order.

Mr. Gilmour.

Mr. Bill Gilmour: Mr. Chairman, I was just going to back up and say that when I put in the clarification, Mr. Jordan agreed that we were closing. That was the reason we gave unanimous consent to open the clause. It was open, put this in, and close it. That was the agreement we had and that was Mr. Jordan's motion.

The Chairman: I appreciate that fact, and evidently there are two interpretations as to what happened. Nevertheless, the chair has an interpretation of what we did that comes down in terms of allowing this amendment to be put because the clause was reopened.

• 0945

I regret that I was not as clear as I should have been in proceeding. Nevertheless, chairs are not infallible. The motion has been put and I consider it in order. The committee can decide on that motion by way of a vote. It is not unusual that we proceed by accommodating a colleague with a motion that was not moved in the first place when a colleague moves a particular motion that seems to fit in the body of the bill.

Madame Kraft Sloan, and then we'll take a vote.

Mrs. Karen Kraft Sloan (York North, Lib.): No, I'm fine.

The Chairman: Mr. Herron, you have the opportunity to conclude the discussion.

Mr. John Herron: Mr. Chair, I would like to move this particular motion at this time for clause 73. Given that this will likely be our last chance to include endocrine disrupters in part 5 of CEPA, I'd like to request a recorded vote.

I'd also like to refer to yesterday's press conference the government held and the third paragraph of the release dated yesterday, where they refer to the toxic substance research initiative funding research on specific health and environmental issues, endocrine disrupting chemicals, persistent organic pollutants, toxic forms of metals, and cumulative effects of toxic air pollutants. They also state that the initiative meets the government commitment in the renewed Canadian Environmental Protection Act currently before Parliament to conduct research on endocrine disrupting substances.

I'd also like to remind my government colleagues that if it hadn't been for the pressure of a number of the opposition parties, and with the very constructive contribution from the members from York North and Lac-Saint-Louis—I'm a little skeptical, and maybe I'm getting a little jaded in my young age—we probably wouldn't have had amendments related to endocrine disrupters tabled, even from information gathering in part 3. Given that the government's definition for endocrine disrupters wasn't accepted, because it was my honourable NDP colleague's that was, and given that it wasn't in the first packet of amendments, I don't think we would have seen it here.

Why do we want to collect information on something we're not empowering the government to act upon? Miss Lloyd testified earlier in the committee that there is a hit-and-run tendency of these kinds of substances, as there are for carcinogens as well. I would think it would be the right time for us to try one last time to get this through.

The Chairman: Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I'd also like to point out the Science and the Environment Bulletin our chair gave us a copy of this morning dated November-December 1998. On the back of it, it talks about endocrine disrupters in hog manure. It says here, Mr. Chair, that pig manure contains high concentrations of endocrine disrupting chemicals. It goes on to say that scientists from Environment Canada's National Water Research Institute and Agriculture and Agrifood Canada and Ontario have joined forces to determine the persistence of endocrine disrupting chemicals in soil after manure application, and to establish the identity, exposure, and effects of chemicals entering adjacent aquatic environments. These studies were completed this spring.

It seems to me that in the department's own bulletins they have already been doing work on identifying endocrine disrupters, exposure, and the effects of these chemicals. So it seems to me that the department is further down the road and closer to dealing with the management of endocrine disrupters.

Thank you.

The Chairman: Mr. Lincoln, briefly please.

Mr. Clifford Lincoln: Briefly, Mr. Chairman, in view of your ruling that clause 73 be reopened, I think this gives us an opportunity to bring endocrine disrupters into part 5. To have it in part 3 and not part 5 doesn't make any sense to me. If part 5 is a key part of the bill regarding toxic substances, and this gives us an ideal opportunity to bring them in.

• 0950

(Amendment negatived: yeas 4; nays 8)

(Clause 73 as amended agreed to)

(On clause 87—Amendment of Lists)

The Chairman: On page 199 there is a motion by Mr. Jordan.

Mr. Joe Jordan: I wonder if prior to my amendment here we could get some clarification, perhaps from Mr. Moffet, in terms of your opinion of what the government's definition of “toxic” includes. I wanted to get that on before the vote, but I was standing up and on my way to my seat.

Mr. John Moffet: As I understand it, you're asking me what the government's proposed definition of “toxic” would be. Just to be clear, there is a definition in Bill C-32 and the government is proposing to move that definition to clause 64 by means of government amendment 5.4 on page 126 of the large set of amendments. That definition is very broad and it indicates that

—a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that

(a) have or may have an immediate or long-term harmful effect on the environment;

(b) constitute or may constitute a danger to the environment on which human life depends; or

(c) constitute or may consitute a danger in Canada to human life or health.

• 0955

I assume you're asking me to expand on my understanding of that definition. My view, and I think it's been my view consistently for the past few years with this committee, is that definition is a very broad definition because of the three subsections, and because of the adjective “may”, which is included in each of the subsections.

Therefore, the key issue confronting the committee and with respect to the implementation of parts 5 and 6 is not actually with respect to that definition but with respect to other provisions within the bill that would give direction to the government in terms of how to interpret that definition and where to focus its activities within the extremely broad scope that is provided by the definition.

The Chairman: Mr. Jordan.

Mr. Joe Jordan: In your opinion, then, are endocrine disrupters adequately captured under the breadth of that definition?

Mr. John Moffet: I'm going to have trouble answering the question about adequately, but I believe that in my view this definition provides legal authority for the government to address endocrine disrupters, if it so chooses, within this definition. Because an endocrine disrupter can be addressed if it has or could have a long-term harmful effect on the environment, pose a danger to the environment on which human life depends, or constitute a danger to human life or health. In other words, if it poses a risk either to the environment or to human health, or may pose a risk, the government can address the issue by terming the substance “toxic”.

Again, it strikes me the question is not whether this is broad enough, but will the government address endocrine disrupters and will it give appropriate priority? And that appropriateness has to be determined by the committee. Will it give appropriate priority to assessing those substances, to turning their mind to whether those substances should be categorized as toxic, and then turning their mind to how appropriately to control those substances?

So the issue is one of establishing priorities and in effect forcing the government's hand, if you so choose.

Mr. Joe Jordan: Is the critical issue then not so much a mission but a screen? Is that what we need, a screen that allows the government to act?

Mr. John Moffet: Again, I don't think you need something that allows the government to act. If you want the government to act you need to motivate, or if you so choose, require the government to act. There is an immense scope of potential activity for the government in terms of addressing toxics under this extremely broad definition. If you so choose, you may decide that it's appropriate to give the government some priorities.

You've already done that by providing three categories of risk assessment, at least two of which focus explicitly on giving priority to taking action on persistent bioaccumulative and inherently toxic substances. That is one way in which you have given explicit direction to the government.

If you want to compel the government to address endocrine disrupters in some way, in my view you might need some additional legislative guidance. But in my view, once that guidance is given the government has adequate authority to take action under this section.

Mr. Joe Jordan: Thank you.

Does someone want to move L-14, which is on page 199 of the big book?

The Chairman: Would you like to explain it to the committee?

• 1000

Mr. Joe Jordan: Sure. I think it's fairly self-explanatory.

Here's what this amendment does. Under Bill C-32, in the way it's currently drafted, say a company is manufacturing or importing substances on the non-domestic substances list, which means they're listed in the States. If they're going to bring them into Canada, there are quantity triggers. There are some surrogate numbers listed in subparagraphs 87(1)(b)(i) and 87(1)(b)(ii):

(i) 1 000 kg in any calendar year,

(ii) an accumulated total of 5 000 kg,

So as the company tracks its usage, these quantity triggers then trigger the addition of the substance to the domestic substances list, which is a higher standard in terms of the research and data that would have to be provided on those substances.

This amendment gives the company the option of going directly to that higher standard. So it doesn't track its usage until they hit the quantity triggers. Although the company can do that, this particular amendment would give the company the option of going directly to putting the substance on the domestic substances list and meeting the test results and the additional information that would require.

The Chairman: Thank you.

Mr. Lincoln.

Mr. Clifford Lincoln: I'd like to sort of get an additional explanation from Mr. Moffet with regard to endocrine disrupters. If we decide that we need to have a definition under part 3 to put the accent on the fact that we are now dealing with a special class of substances that have particular effects, how do we put that kind of accent under part 5 so that, as you suggested, Mr. Moffet, the government has a special onus, beside the broad definition of toxic substances, to look at this particular class, which is an emerging class of substances that the government itself recognizes is very special? What do we have to do under part 5 beside having the general phraseology of it? This leaves tremendous latitude for looking at it and also not looking at it.

The Chairman: Mr. Moffet.

Mr. John Moffet: The provisions in part 5 that prescribe the way in which the government will conduct its risk assessments are essentially clauses 73, 74, 75, 76, and 77. These describe the way the government will conduct its risk assessments along three tracks. The categorization and screening of substances on the DSL to determine whether they are persistent or bioaccumulative and inherently toxic is track one. The review of decisions to address the substance for environmental or health reasons by another jurisdiction is what I'll call track two. The priority substances list is track three. Then there is, I would say—I stand to be corrected—an unwritten fourth track, which is implied in clause 90. This allows the Governor in Council to add a substance to the list of toxic substances if the Governor in Council is satisfied that it is toxic, and “satisfied” can be for any reason. It's under the equivalent provision that the government acted with respect to ozone-depleting substances in the past.

• 1005

I'm taking you through this to indicate that there are certain tracks that have been specified within the bill for risk assessment.

Again, let me repeat, it's my view that given the broad definition of toxic, it is open to the government to address endocrine disrupters in each and all of those tracks. However, there is no explicit requirement to give priority to or emphasize endocrine disrupters under those tracks. So if you want to give that sort of priority, you could include a mandate to address endocrine disrupters or hormone disrupters under one or each of those tracks, if you so choose. In my view, that would be the way to give emphasis, and I understand that was your question, how you could provide emphasis.

I don't think you need to change the definition of toxic. If you want to give emphasis, I think you need to provide that explicit clarification within the risk assessment provisions, clauses 73 to 77.

The Chairman: All right. Are there any further questions or comments? Mr. Laliberte?

Mr. Rick Laliberte: I believe this is to further emphasize that view. When categorizing and making decisions on priority lists, the act seems to favour biocumulative and persistent and inherently toxic, and endocrine disrupters is not in this context at all. That's what we've attempted to do. I think it's in support that part 5 should have some reference to endocrine disrupters, otherwise it's very limited to research and to the powers of the minister. As Mr. Moffet says, the “may” part of this puts a heavy load on the minister to make crucial decisions.

The Chairman: You put your finger on the issue, Mr. Laliberte, by describing the nature of the endocrine disrupters.

Are there any further comments? Madame Torsney.

Ms. Paddy Torsney: The “may” actually loosens it up; it “may” have an impact. Furthermore, we're not on clause 73, 74, 75 or 76, or even 77. We're on clause 87, and we have an amendment about the import and export of goods. I wonder if we could get to that.

The Chairman: That does not preclude members from looking at the totality of the bill, Madame Torsney.

Ms. Paddy Torsney: No, but we are on another clause at this point, and I think we have to go back.

The Chairman: It is perfectly legitimate to look at other aspects of the bill, as well. I would be very remiss if I were to preclude the members from doing that.

Ms. Paddy Torsney: Okay.

The Chairman: Are there any further comments?

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 87 as amended agreed to)

(Clause 88 agreed to)

On clause 89—Regulations

Ms. Paddy Torsney: Mr. Chair, I'd like to move an amendment. It's on page 200 of the large book; in French, on page 201. It's amendment G-10.

The effect is to delete paragraph 89(1)(a) as it currently exists in the piece of legislation at the bottom of page 57. Furthermore, on the next page, page 58, in paragraph 89(1)(c), which will now become 89(1)(b), instead of “prescribing”, the word will be “respecting”, and it will be much broader. It will be “respecting the information to be provided to the Minister”.

The Chairman: Could you briefly elaborate on the purpose of deleting lines 40 to 46 on page 57?

Ms. Paddy Torsney: Sure. Sorry about that.

Substances are already defined in clause 3 of bill, so it's unnecessary to redefine them.

The Chairman: Thank you.

Are there any comments or questions?

Ms. Paddy Torsney: There are a few other deletions.

The Chairman: Mr. Laliberte.

• 1010

Mr. Rick Laliberte: I just wanted to maybe ask the parliamentary secretary to explain this. If a definition exists in part 3 already, you are—

Ms. Paddy Torsney: You don't even have to ask the rest of the question. The definition is in clause 3 and that's for the whole act. Furthermore, in separate clauses of the parts of the bill, because parts are different from clauses, we have definitions for that part of the bill. In some cases we have a definition for another part of the bill as well, which is clearly set out in the description of how that definition applies. But clause 3 definitions are for the entire bill, so this amendment removes unnecessary language in paragraph 89(1)(a), and then in a couple of other places deletes the cross-reference to what no longer would exist in paragraphs 89(3)(a) and 89(4)(a).

Again, it's cleaning it up.

The Chairman: Could you please indicate to us where the proposed deletion of (a) and (b) on page 57 are re-emerging in the bill, so as to justify their deletion?

Ms. Paddy Torsney: Sure. This amendment is written in four parts, and the four parts of the amendment are (a), (b), (c), and (d). The first one, (a), deletes paragraph 89(1)(a). The part of the amendment marked (b)—

The Chairman: So paragraph 89(1)(a), not (b). And where does it emerge in the bill, that portion?

Ms. Paddy Torsney: Paragraph 89(1)(a) emerges on pages 58 and 59. On page 58 in English it's on lines 42 to 44, and on page 59, which would be the reference that's in the amendment item (c) and the amendment item (d), it would be in paragraph 89(4)(a).

Somebody should call “Bingo!”

The Chairman: The reference on page 58, line 43 and 44, is to (1)(a), which—

Ms. Paddy Torsney: We just deleted.

The Chairman: —is being proposed to be deleted.

Ms. Paddy Torsney: Right, so then you need to delete the reference to it in subclause 89(3).

The Chairman: Yes, but what happens to the defining substances or establishing groups of substances, etc., etc.? Where does that emerge in the bill?

Ms. Paddy Torsney: In the (c) part of the amendment, paragraph 89(1)(c), respecting the information to be provided to the minister, we have the ability to do that.

The Chairman: I don't want to be too meticulous, but subclause 89(1) refers to inanimate biotechnology products, polymers, research and development substances, etc., whereas those items are not to be found on page 58. Or am I wrong?

Ms. Paddy Torsney: No, but look on page 9 of the bill, in clause 3, under “substance”, which would be line 6.

The Chairman: Page 9 of the bill, which line?

Ms. Paddy Torsney: You've got substance being defined in line 6, and it goes all the way down to line 42.

The Chairman: Does that include polymers? Does that include biotechnology products?

Ms. Paddy Torsney: Yes.

The Chairman: On which line?

Ms. Paddy Torsney: In paragraph (e). And you'll see there are references in the second part, on lines 26 and 27, to other parts of the bill. Polymers would be in (e). They're mixtures or combinations, are they not?

• 1015

Our scientist, Ms. Lloyd, could perhaps further illuminate. No?

Ms. Karen Lloyd (Manager, Canadian Environmental Protection Act Office, Environment Canada): I don't think so.

The Chairman: Ms. Lloyd, you are more than welcome to clarify for us where one would find groups of inanimate biotechnology products, polymers, research and development substances, and substances manufactured only for export, which are going to be deleted from page 57 but are to be found on page 9.

Mr. Harvey Lerer (Director General, Canadian Environmental Protection Act Office, Environment Canada): Perhaps I could try, Mr. Chairman.

If you turn your attention to the definition of substance on page 9, in clause 3 substance means “any distinguishable kind of organic or inorganic matter, whether animate or inanimate—”. So that would include living organisms, biotechnology, as well as products of biotechnology that are not living. Then turn your attention as well to paragraphs (c) and (d) of the definition of substance, which state:

(c) any combination of elements of a particular molecular identity that occurs in nature or as a result of a chemical reaction, and—

Then (d) goes on to complex mixtures of those.

So it is my technical view that the elements that are captured within the amendment to clause 89 are indeed captured in the definition of substance as laid out in clause 3.

The Chairman: Would that also cover inanimate biotechnology products, in your opinion?

Mr. Harvey Lerer: Yes, sir. I would reference lines 6 through 8, where substance means “any distinguishable kind of organic or inorganic matter, whether animate or inanimate—”.

The Chairman: Thank you, Mr. Lerer.

Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Lerer, even if a substance on page 9 would include these items, there must have been a purpose for specifying in particular what they are under paragraph 89(1)(a). What is the harm in leaving them in? If there was no purpose in putting them there in the first place, why didn't we, in clause 89, just simply refer to the definition of substance on page 9? There must have been a reason.

Mr. Harvey Lerer: Is there particular harm?

What we were trying to do here was to get away from the word “defining”, because substances are already defined. If you take a look at paragraph 89(1)(a), substances are already defined in the bill. What we wanted to do was avoid introducing that confusion into the bill. While we were at it, we decided in the amendment to try to delete superfluous language. The essence of the problem we were trying to solve, though, was with respect to the word “defining”.

Mr. Clifford Lincoln: With due respect, it would seem to me if that's all you wanted to do, I would say you just change “defining” to “regarding” and that would solve it.

Mr. Harvey Lerer: Change it to “respecting”.

Mr. Clifford Lincoln: Respecting or regarding. Then you don't have to have “defining”. So what's wrong with that?

Mr. Duncan Cameron (Legal Counsel, Canadian Environmental Protection Act Office, Environment Canada): That's exactly what we've done, sir.

In paragraph (c) we can prescribe any of the information the minister requires, whether it's in regard to those classes of substances referred to in paragraph (a) or otherwise. I'd just like to point out the reason we're motivated to clean these provisions up is they are currently in the existing CEPA, and because the existing CEPA also has the unfortunate language of saying “defining substances”, the operational branch in Environment Canada responsible for new substances has had great difficulty trying to develop any regulations under this clause, because the Department of Justice has indicated that substances are already defined in the legislation, so you cannot pass other regulations to define substances. So the clause has essentially become meaningless.

• 1020

In order to correct that—

The Chairman: Mr. Cameron, it may be meaningless, and that is certainly a point you are quite qualified to make, but it means moving a definition of substances out of part 5 into the general definitions of the bill, while it is at the present time very handy to have it under the heading “Controlling Toxic Substances”. It is not a bad idea to have it where it is now. It is specific, it is wide in scope at the same time, and it fits under the heading “Controlling Toxic Substances”. That's why there is some unease about this particular transfer.

Ms. Torsney.

Ms. Paddy Torsney: Perhaps to achieve both goals your other option is to change the first word of paragraph 89(1)(a) to “respecting” instead of “defining”.

Mr. Clifford Lincoln: That's exactly what I was suggesting. You don't have to change anything else.

Ms. Paddy Torsney: We'd like “respecting” in paragraph 89(1)(c) as well.

The Chairman: Ms. Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: I would like to hear Mr. Moffet's opinion on amendment G-10, which would delete all of the definitions of substances and force us to refer to definitions provided on page 9. I don't understand. I'd like to hear what Mr. Moffet has to say about this.

[English]

Mr. John Moffet: As far as I can tell, the two definitions, although worded differently, are equally broad. So I agree with the government's position that the definition in clause 3 is adequately broad. I take it from what the parliamentary secretary has said, however, they're now considering not deleting this but simply changing the word “defining” to “respecting”. You would be retaining all this language and just softening the nature of the regulation.

I would also like to emphasize that the operative language of this clause is in the first line of clause 89, which is “The Governor in Council may— make regulations”. So there's no obligation to do anything under this clause. From what the government says, they haven't in the past so they don't see any purpose for it in the future.

I don't have any strong opinions on this. I don't think it adds anything right now. Whether it's in or out is immaterial to the way in which the bill will be implemented in the future.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, where do you see, under the word "substance", on page 9, the words we're talking about: "inanimate products of biotechnology" and "polymers"? Where do you see this in the definition? I don't see it anywhere, unless it's really subliminal. I have the bill here before me.

[English]

Ms. Paddy Torsney: It's on page eight in French.

[Translation]

"Any distinguishable kind of organic or inorganic matter, whether animate or inanimate."

Ms. Jocelyne Girard-Bujold: I'm saying that "inanimate biotechnology products" are not there. In French, what you read is correct, but I don't see any reference to inanimate biotechnology products and polymers. Those words aren't there. It isn't the same thing in French.

[English]

The Chairman: Mr. Lerer.

Mr. Harvey Lerer: I may be out of my element here, and I apologize if I am, but the suggestion has been made that if the language is worrisome, the intent of drafting this amendment was to change “defining” to “respecting”, if that is the wish of the committee.

• 1025

With respect to biotechnology, if we turn our attention to the definition of substance, again I will point out that the opening elements of that definition in English, lines 6 through 8, include “any distinguishable kind of organic or inorganic matter, whether animate or inanimate”. If they are animate they are clearly living organisms, and biotechnology products that are living organisms would be included, and products of biotechnology that are inanimate would be included as well.

[Translation]

The Chairman: Thank you, Mr. Lerer. Thank you, Ms. Girard- Bujold.

[English]

Mr. Laliberte, you have the floor.

Mr. Rick Laliberte: I just want to make everybody aware that this clause deals with substances and activities new to Canada. Under clause 80 there's also a definition of substance that precludes the one prior to it. It means a substance other than a living organism with the meaning of part 6.

When subclause 89(1) comes into effect, I'd like to ask the government, dealing with new substances and activities to Canada, where it says “the Governor in Council may, on the recommendations of the Ministers, make regulations (a) defining substances or establishing groups of substances—”, if a new substance comes into effect tomorrow that we're not aware of, why wouldn't you want the minister or this act to define that substance or categorize that substance?

Mr. Duncan Cameron: As I was trying to explain, and I guess I didn't do it very well, the purpose of paragraph 89(1)(a) is to define substances for purposes of provision of information under clause 81 or 82. By changing the opening words of paragraph 89(1)(c) to “respecting the information that shall be provided to the Minister under subsection 81(1), (2), (3), or (4) or section 82” you accomplish the same objective, you just do it in one subsection instead of two subsections. That was the intent.

The intent was in no way to limit our ability to require information; it was simply to make it clear what the enabling authority was. The way it was drafted in the original CEPA, because it had the word “defining substance”, we were simply unable to work with that language. It's not our intent to not pass regulations. It's because we were unable to do so in the past that we need to seek this clarification so we can pass regulations.

The Chairman: Would you clarify, Mr. Cameron? In reading paragraph 89(1)(c) you read “respecting”. Are we back to “respecting”, or are you reading “defining”?

Ms. Paddy Torsney: “Respecting” was for paragraph 89(1)(c), which is part (b) of G-10. We want “respecting” instead of “prescribing”. Your other option, instead of deleting paragraph 89(1)(a), is to change “defining” in paragraph 89(1)(a) on page 57 as it currently exists to “respecting”.

The Chairman: We have this motion before us, and that's what we are discussing right now—the changes to paragraphs 89(1)(a), (b), (c) and (d). Are we ready for the question?

Mr. Lincoln.

Mr. Clifford Lincoln: I just want to clarify that in paragraph 89(1)(a) the amendment was to delete. I take it we are now going to leave it in there and put in “respecting” instead.

The Chairman: That was my earlier understanding. Apparently there is a reluctant shrugging of shoulders in the affirmative.

Mrs. Karen Kraft Sloan: Are we deleting paragraph 89(1)(a)?

The Chairman: Instead of “defining” it would read “respecting” and everything else would be kept.

Madam Torsney, please.

Ms. Paddy Torsney: Just so everyone is clear, what we would be voting on in a new G-10 would be replacing line 40 to read, “(a) respecting substances or establishing—”. All the rest would stay the same as in G-10, which is presently before you.

• 1030

The Chairman: Thank you.

Ms. Paddy Torsney: Sorry.

If you're going to do that, you don't need in the current G-10—now it's a new G-10—(c) or (d), because paragraph 89(1)(a) would continue to exist, so the cross-references in subclauses 89(3) and 89(4) would still be appropriate.

The Chairman: Would you please repeat the amendment as you are proposing it?

Ms. Paddy Torsney: The new G-10 would be that Bill C-32 in clause 89 be amended by replacing line 40 on page 57 with

(a) respecting substances or establishing

and replacing lines 1 to 5 on page 58 with the following:

(c) respecting the information to be provided to the Minister under subsection 81(1), (2), (3) or (4) or section 82;

That's all.

The Chairman: So paragraphs 89(1)(c) and 89(1)(d) are deleted from the amendment, paragraph 89(1)(a) starts with the word “respecting”, and it remains as it is in the text of the bill—

Ms. Paddy Torsney: Other than that, yes. On page 58, paragraph 89(1)(c) would begin with “respecting” and “that shall” would be replaced by “to”.

The Chairman: Are you ready for the question?

Mr. Laliberte.

Mr. Rick Laliberte: I just want to ask the government representatives here something.

When you're dealing with new substances that in the minister's opinion are significantly greater in quantity or concentration than before, or are significantly different from the manner and circumstances in which the substances were previously entered, when we're dealing with these clauses under those contexts, why would we not want the minister or the Governor in Council to have the ability to define those? The minister might make regulations defining them. I think it's a very important aspect here if there's a new substance or a new activity taking place and we're satisfied that those substances are non-toxic or non-prohibitive right now. If this new activity needs a definition, where else in this bill is there authority to define?

Mr. Harvey Lerer: The definition section in clause 3 defines substances very broadly. In the absence of other definitions respecting specific clauses, that is the definition that would carry throughout the act.

(Amendment agreed to)

The Chairman: We need the consent of the committee to move your motion L-15, Mr. Jordan, because it covers the same area that has been covered, I'm told, by the present—

Mr. Joe Jordan: It's a companion amendment.

A voice: It's fine with me.

Ms. Paddy Torsney: Okay, he has our consent.

The Chairman: It's inserted between lines, all right?

Mr. Joe Jordan: Okay.

The Chairman: Do we have consent to do that? Agreed?

Mr. Jordan.

Mr. Joe Jordan: I'd like to move it as a companion amendment to L-14.

The Chairman: Would you like to present it and explain it?

Ms. Paddy Torsney: It's quite self-explanatory.

Mr. Joe Jordan: Sure.

L-14 inserted a section in clause 87 in terms of the options and process. L-15 just refers to and recognizes subclause 87(5).

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 89 as amended agreed to)

• 1035

(On clause 90—Addition to List of Toxic Substances)

The Chairman: Now we move to NDP-46 on page 203.

Mr. Rick Laliberte: Okay, I'll move the amendment. You're dealing with lines 15 to 20 on page 59. The present terminology is as follows:

90.(1) Subject to subsection (3), the Governor in Council may, if satisfied that a substance is toxic, on the recommendation of the Ministers, make an order adding the substance to the List of Toxic Substances in Schedule 1.

We're changing that to read a little more clearly and more distinctly by saying:

90.(1) Subject to subsection (3), where a substance is determined by the Ministers to be toxic, the substance shall, by order of the Governor in Council, be added to the List of Toxic Substances in Schedule 1.

The Chairman: Madam Torsney, please.

Ms. Paddy Torsney: I question the orders that are being given to the Governor in Council. It's my understanding that when referring to the Governor in Council in legislation you use discretionary language like “may”. So I would not be in favour of this amendment. The GIC has the power to do what the GIC wants to do.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: I've never been involved at the Governor-in-Council level, but if a substance is toxic, shouldn't the powers of this bill preclude that they be included in a list of toxic substances?

Ms. Paddy Torsney: Mr. Chair, your ability to “shall” somebody is toward the minister and not toward the Governor in Council. So it's not about the toxic substance; it's about what your instructions are to the Governor in Council and the appropriate language in legislation.

Mr. Rick Laliberte: The language that we chose does not preclude that the powers of the Governor in Council are in question here. It says it shall be added to the list of toxic substances but by order of Governor in Council. That's the assenting power. That's what's being questioned here. It doesn't order the Governor in Council to do it, but it shall be added to the list by the Governor in Council.

Ms. Paddy Torsney: I don't have much more to say.

Mr. Rick Laliberte: Perhaps the legal eagles over there can oversee the whole situation and—

The Chairman: The Governor in Council requires, by definition, “may” rather than “shall”.

Ms. Monique Hébert (Committee Researcher): Mr. Caccia, perhaps I could provide a tentative answer to this. First, in the bill itself we do have one example where the Governor in Council is directed to not do something, and here, obviously, is a situation where the Governor in Council is being dictated to do something.

I happened to talk to a number of lawyers about this tradition where the Governor in Council is not directed specifically to do anything. However, it is within the realm of Parliament to change those traditions if it sees fit to do so. One can curtail crown prerogatives. One can do anything if one is Parliament. I will leave you with that.

The Chairman: And you're quoting a passage where the Governor in Council is directed not to act? Where, please?

Ms. Monique Hébert: I direct you to page 64 of the bill. It's subclause 93.(6). It states: “The Governor in Council shall not make a regulation—”.

The Chairman: Madame Torsney.

Ms. Paddy Torsney: However, to complete the sentence, there is a fair bit of discretion there when it suggests in line 19 that the Governor in Council is “in the opinion”.

Ms. Monique Hébert: Be that as it may, I still contend that it's up to Parliament to change traditions if it sees fit to do so.

The Chairman: Mr. Lincoln.

• 1040

Mr. Clifford Lincoln: Could I ask Ms. Hébert a question? Disregarding this particular bill, do you know of any other acts, like the gun control legislation, where the difference occurs?

Does anybody here on the legal side know of any provision where there's no discretion?

Ms. Monique Hébert: Mr. Chairman, I personally don't know of any such provisions, and the lawyers I talked to couldn't provide me with an example either.

The Chairman: Mr. Cameron.

Mr. Duncan Cameron: After looking at the issue, we could not find any example where legislation was binding on the Governor in Council in the form being proposed here.

The Chairman: Parliament reigns supreme, and in the end the committee has to make a decision whether it wants to go with permissive or mandatory approaches to the Governor in Council.

(Amendment negatived)

The Chairman: The next amendment is L-15.0. It's in your small package. It's in the name of—

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, this is the package of amendments that was actually put forward in Mr. Jordan's name.

The Chairman: Mr. Jordan.

Mr. Joe Jordan: I would defer to Mr. Moffet for an explanation on this.

Ms. Paddy Torsney: You might have to move it first.

An hon. member: A fine idea.

Mr. Joe Jordan: We've discussed motions before moving them before, haven't we?

The Chairman: It's not moved yet.

Mr. Moffet.

Mr. John Moffet (Committee Consultant): The rationale behind this amendment would be to provide some clear direction to the government around the types of control measures it would be required to develop with respect to toxic substances. Up until now the clauses we've been reviewing in the bill have to do with the types of risk assessments the government will conduct. We're now moving into a group of clauses that deal with the control of toxic substances, and the minister is obliged under clause 91 to propose regulations or instruments respecting preventive or control actions.

This amendment would say that when the minister is developing those proposed regulations or instruments they shall give priority to pollution prevention measures.

The rationale here is that the minister, without this amendment, has complete discretion in terms of whether to pursue pollution prevention measures or traditional pollution control measures. It would be inappropriate to require the minister to always develop pollution prevention measures, because in some cases they would not be appropriate for technical, economic, or even environmental reasons.

However, as I understand it, this was the intention of the committee when it wrote It's about our Health! Towards Pollution Prevention. And it was the explicit indication provided in the government response and indeed in the title of this bill that emphasis will be given to pollution prevention.

What this amendment does, in legislative language, is confirm that the minister shall give priority to pollution prevention measures when they're thinking about what kinds of control measures will be developed.

The Chairman: Thank you.

Mr. Jordan, would you like to move your motion?

Mr. Joe Jordan: Yes. I'll move motion L-15.0.

The Chairman: Are there any comments? Madam Torsney.

• 1045

Ms. Paddy Torsney: I was just hoping that we might have a friendly little amendment to the last word, and that would be switching “measures” to “approaches”.

The Chairman: Ms. Carroll.

Ms. Aileen Carroll: There's a substantial difference. I'll ask the PS to explain. “Measures” indicates an action, whereas I find the word “approaches” is a potential for action, which substantially changes, possibly, the amendment.

The Chairman: Ms. Torsney.

Ms. Paddy Torsney: “Measures” is already being used in this part, which is part 5. If you look on page 45 at subclause 77.(2), we talk about measures, so “measures” has taken on some language here that might not be consistent. “Approaches” is about making sure we're having a pollution prevention bill and incorporating the philosophy. So “approaches” works, I would think, just as well as “measures”.

The Chairman: We will go to Madam Kraft Sloan, then Mr. Lincoln.

Mrs. Karen Kraft Sloan: The problem with philosophy is sometimes it's nice to dwell on it and think about it and to have lovely discussions about it, but we really need action. If the difference here is philosophy versus action, then I would be concerned about this friendly amendment.

Mr. Clifford Lincoln: If we look at the definition of “pollution prevention” on page 8, it says:

“pollution prevention” means the use of processes, practices, materials, products or energy that avoid or minimize the creation of pollutants and waste and reduce the overall risk to the environment or human health.

So obviously “the use of processes, practices,” refers to actions. I would say that “measures” expresses the definition much more closely than “approaches”. They are far more than approaches; when we talk about pollution prevention here, we're talking about actions.

The Chairman: Mr. Jordan.

Mr. Joe Jordan: Could I propose, then, that we use the words “pollution prevention actions”, or “pollution prevention”, period. Perhaps Mr. Moffet could comment on that.

Ms. Paddy Torsney: Or “priority given to pollution prevention”, period—

The Chairman: Mr. Moffet.

Mr. John Moffet: There were two options—

Mr. Joe Jordan: First, there was the use of the words “pollution prevention actions”—and if not that, perhaps we'd just say “the Ministers shall give priority to pollution prevention”, period.

Ms. Paddy Torsney: Which is defined in the bill.

Mr. John Moffet: I'm not a legislative draftsperson, so I can't comment on the problem with respect to “measures”. I take it that it's been previously used in the bill, so there's some concern it may cause confusion there. I'll take that point.

It strikes me that if you use the word “actions” that might be a useful change, because it would refer back to the word “actions” in the second line of the amendment. So “In developing— actions— the Ministers shall give priority to pollution prevention actions”. So basically you're saying let's have pollution prevention actions where you're developing actions. It strikes me that's what you're trying to get at.

The Chairman: Thank you.

Madam Torsney.

Ms. Paddy Torsney: While it's fine, I suppose, in your re-reading of how it would read, you've clearly identified that there's no need for either, or for any word after “pollution prevention”.

Mr. John Moffet: No, my point was exactly the opposite. In the first two lines, we say:

In developing proposed regulations or instruments respecting preventive or control actions

• 1050

So one way to read this is that when developing a certain type of action, you shall give priority to pollution prevention actions.

Ms. Paddy Torsney: It will go toward pollution prevention actions.

Mr. John Moffet: So it's very clear and explicit. When you're developing actions, we want you to give priority to a certain type of those actions, namely pollution prevention actions.

The Chairman: Mr. Jordan.

Mr. Joe Jordan: With your indulgence, Mr. Chair, I would then like to move the amendment with the word “actions” replacing the word “measures”.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 90 as amended agreed to)

(On clause 91—Publication of proposed regulation or instrument)

The Chairman: We'll go to clause 91. There's a government amendment on page 204 and one in French on page 205.

Ms. Paddy Torsney: Actually, Mr. Chair, we're not moving this. I'll be moving a new G-10.2, but I'm not moving G-10.1.

The Chairman: So you're not moving it.

Ms. Paddy Torsney: I'm not moving G-10.1.

(Clause 91 agreed to)

(On clause 92—Publication of preventive or control actions)

The Chairman: All right, we'll move to clause 92. Amendment G-10.2 is on page 206.

Ms. Paddy Torsney: Actually, in a previous small package, it was on pages 19 and 20. I don't have today's small package. It's circled as 19 and 20. It would create a new clause 92.1, should this pass. That clause would be on page 61. The clause is before you. It's also important that the ministers are the ones who may make regulations, which is why it's different from—

The Chairman: You're referring to page 206 in the binder.

Ms. Paddy Torsney: Sort of. I'm referring to the new G-10.2.

The Chairman: Yes.

Ms. Paddy Torsney: The old G-10.2 did not have an “s” on “Minister”. It's on page 206 and 207. So it might just be easier if you look in the small package on pages 19 and 20.

The Chairman: All right. The clerk is advising us to look it up in the small package on page 19. G-10.2 has “Ministers” in the plural form.

Mr. Laliberte.

Mr. Rick Laliberte: I'm just trying to look at the amendment. It deals with “subsection 65(3)”. I don't have it referenced in my bill that this now exists. Was that amended or stood?

Ms. Paddy Torsney: There are two things. First, we already amended clauses 64 and 65, the effect of which was to flip them in the opposite direction. This turned, I believe, old subclause 64(2) into new subclause 65(3). So if you're trying to follow it along, yes, old subclause 64(2) is now subclause 65(3).

Some hon. members: No.

Ms. Paddy Torsney: I'm sorry. There's a new definition. It was supposed to be renumbered.

If you want to help yourself out, it's G-5.5, I think. It was in the small book on page 14.

• 1055

Mr. Rick Laliberte: It's page 131.

Ms. Paddy Torsney: If you look in the big book, we think it's page 131 or it's similar to page 131. It's not identical, with an “s”.

Mr. Rick Laliberte: Did we adopt this, or did we stand this?

Ms. Paddy Torsney: We adopted it.

[Translation]

Yes, it was carried.

Ms. Jocelyne Girard-Bujold: On page 132?

Ms. Paddy Torsney: Yes, it's almost the same text. It was on another page; we added an s to the word "minister".

Ms. Jocelyne Girard-Bujold: On page 132?

Ms. Paddy Torsney: Yes, 132.

Ms. Jocelyne Girard-Bujold: But that one wasn't carried.

Ms. Paddy Torsney: Yes, we adopted almost the same thing on another page, with the new amendment G-5.5. The difference was that a s was added to the word "minister".

Ms. Jocelyne Girard-Bujold: At any rate, all I can tell you is that you are intentionally trying to get us all mixed up.

Ms. Paddy Torsney: Perhaps there is some confusion because we didn't finish the discussion on clause 65. We did, however, adopt the motion.

Ms. Jocelyne Girard-Bujold: Mr. Chairman—

[English]

The Chairman: Subclause 65(3) as amended was passed, as already indicated.

You now have this motion giving ministers permissive powers to make regulations.

Ms. Paddy Torsney: This goes along with the level of quantification discussion we had before.

[Translation]

The Chairman: Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I consulted my colleagues and, in our opinion, clause 65 was never adopted. I don't know when it would have been adopted. In my opinion, the amendment on page 132 was never adopted.

The Chairman: It was adopted on November 25. The text that was adopted in English is as follows:

[English]

“achieve the virtual elimination”.

[Translation]

Ms. Paddy Torsney: Yes, but perhaps the problem arises from the fact that we had adopted this motion without completing the clause.

Ms. Jocelyne Girard-Bujold: So it was never adopted?

Ms. Paddy Torsney: The clause is now contained in the bill, but it has not been finalized. At any rate, it's almost final. It now exists in the current bill.

Ms. Jocelyne Girard-Bujold: Yes, but it has not been adopted all the same.

Ms. Paddy Torsney: No, no, no. Yes, the motion was adopted. He already told you the date.

Ms. Jocelyne Girard-Bujold: We weren't there.

Ms. Paddy Torsney: Let's hear what the clerk has to say.

Ms. Jocelyne Girard-Bujold: I trust the clerk more than I do you. It is clear, however, that none of us knew that it had been adopted. No one here knows this. We aren't aware of this.

[English]

The Chairman: So subclause 65(3) as adopted reads as follows— Go ahead.

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The Clerk: It reads as follows:

65(3) When taking steps to achieve the virtual elimination of a substance, the Ministers shall prescribe the quantity or concentration of the substance that may be released into the environment either alone or in combination with any other substance from any source or type of source, and, in doing so, shall take into account any factor or information provided for in section 91, including, but not limited to, environmental or health risks and any other relevant social, economic or technical matters.

The Chairman: So the role of ministers in prescribing the quantity of concentration is mandatory in clause 65. The amendment before you that relates to the making of regulations prescribing quantity is permissive. I hope you are clear as to the way we are proceeding with the powers that are being assigned under clause 65 and now under clause 92.

Mrs. Kraft Sloan and then Mr. Lincoln.

Mrs. Karen Kraft Sloan: You had identified the fact that the ministers must prescribe the quantity, and in this amendment the ministers may make regulations. This is in reference to subclause 65(3). I would have concern that a lawyer may find a contradiction in these two clauses of the bill.

The Chairman: One is prescribing the regulation and the other one is assigning quantities.

Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, I think there is a correlation. One prescribes regulation and gives the discretion for regulations to be prescribed. At the same time, subclause 65(3) puts the onus on the minister and doesn't give any leeway to prescribe. It seems to me that there's a contradiction. In one case you almost compel the minister to prescribe, and to prescribe a regulation is necessary, but then you leave leeway for a regulation to be made or not. I would like to ask Ms. Hébert if she feels they are in conflict.

Ms. Monique Hébert: Mr. Chairman, just looking at them very quickly, it seems to me that they are talking precisely about the same thing. Therefore, they would seem to be contradictory. One says you may prescribe by regulation, and the other says you shall prescribe. I might note that the term “prescribe” is defined in clause 3 to mean prescribed by regulation. I don't understand, therefore, Mr. Cameron's reasoning on this.

The Chairman: Mr. Cameron.

Mr. Duncan Cameron: Thank you.

We really don't believe there's any contradiction. Subclause 65(3) creates the obligation that the minister shall prescribe the quantity of concentration in the release when taking steps to implement virtual elimination. I would read this as an obligation. This is a substantive obligation that when implementing virtual elimination this is how the minister shall proceed.

What subclause 92(1) does is simply provide the regulatory authority to enact regulations for purposes of doing what is obligated by subclause 65(3). Since subclause 65(3) is already an obligation using the word “shall”, it struck us that it would be normal drafting convention to use the discretionary “may” in the enabling authority. The use of “may” in subclause 92(1) in no way diminishes the obligation created in the substantive part, which is subclause 65(3).

The Chairman: It would be very helpful, Mr. Cameron, if you could explain why the obligation in the first place is not also carried out as an obligation for the ministers to write regulations—in other words, why “shall” does not follow “ministers” so as to be consistent both in the prescription and in the writing of regulation.

Mr. Duncan Cameron: That was exactly the point I was just speaking to. If you have an obligation to do something—

The Chairman: I understand.

Mr. Duncan Cameron: —but you need another authority to carry that out, because the obligation is there in the substantive provision, you don't have to put mandatory language in the enabling authority that's being used. As clause 92.1 states in the opening words, it's for the purposes of subclause 65(3), and it's in subclause 65(3) that we find that obligation.

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The Chairman: And it's still “may”.

Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Cameron, I just don't get you, because if you have an obligation— We all agree that there's an obligation in subclause 65(3), but that obligation has to be regulated. We agree with that.

Mr. Duncan Cameron: Through regulations.

Mr. Clifford Lincoln: Yes, I know. It has to be carried out through regulations. But then you give an option under the regulation. In that case, you don't have an obligation any more under subclause 65(3), because if the obligation in subclause 65(3) has to be expressed through a regulation, surely the two should be an obligation or both should be an option.

Mr. Duncan Cameron: With respect, it is definitely not an option. If the minister is taking steps to implement virtual elimination under subclause 65(3), which uses the mandatory language “shall”, clause 92.1 simply creates the vehicle by which those regulations are made, and it is not necessary to use the word “shall” in clause 92.1 since it is already there in subclause 65(3).

It is not an option. It is not a back door escape route, so to speak, that allows the ministers to not pass the regulations.

The Chairman: Mr. Cameron, what problem would be created if it were to read “the Ministers shall make regulations”? Would that cause you a problem?

Mr. Duncan Cameron: I don't believe it would cause a problem, but because it's an enabling clause, it would strike me as odd.

The Chairman: We have a friendly amendment. Mr. Jordan.

Mr. Joe Jordan: I would suggest that we change the word to “shall”.

The Chairman: We have a friendly amendment. Is that acceptable to Ms. Torsney?

Ms. Paddy Torsney: Mr. Chair, I think we would be best to come back to this, because I think a number of people around the table need to check about the appropriateness of a “may” or a “shall” in terms of proper writing of legislation. I think some people might benefit from research on both sides of the debate.

The Chairman: That's very non-friendly, particularly in this case where subclause 65(3) raises the issue in such a sharp manner. So we will stand this particular amendment and move to amendment NDP-47, where there is a road map, isn't there?

Before calling amendment NDP-47, clause 92 has no amendments, so shall clause 92 carry?

Ms. Paddy Torsney: No, wait a second— not if we're going to have maybe an amendment.

The Chairman: Sorry, no, we are standing this amendment; we are standing the clause.

Ms. Paddy Torsney: Yes, technically it's a new clause, but I think it would be better to stand it.

The Chairman: We're standing that, and we're calling now the next clause, clause 93, amendment NDP-47 on page 208 in your binder.

(Clause 92 allowed to stand)

(On clause 93—Regulations)

Mr. Rick Laliberte: In light of the issue dealing with regulations and if the minister or Governor in Council can make regulations or make recommendations on regulations that the ministers can consider here, I would like to move that we stand this motion until I better understand the context of the debate we've had previously. I think it may come into effect.

The Chairman: So it's not moved.

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Ms. Paddy Torsney: Mr. Chair, is the request that's before us to stand down clause 93, or is it to go through the rest of the amendments? Before you move on to the next amendment, I'll remind members that you can't stand down a clause unless you do it before amendments occur.

Mr. Rick Laliberte: But I could stand my motion, right?

Ms. Paddy Torsney: Sure.

The Chairman: It's not moved. My understanding is that it is not moved.

Ms. Paddy Torsney: If you don't move it, you could stand down all of clause 93 and move on to clause 94 without unanimous consent. If you move it, then we have a motion before us.

The Chairman: It is not moved.

Ms. Paddy Torsney: Right.

The Chairman: That's my understanding.

There is a motion following this in the name of Mr. Lincoln on page 209. Would someone move it?

Ms. Paddy Torsney: Mr. Chair.

The Chairman: Yes, Ms. Torsney.

Ms. Paddy Torsney: If Mr. Laliberte won't do it, I will be happy to request that we stand down clause 93 and move on to clause 94.

The Chairman: All right, we'll stand clause 93.

(Clause 93 allowed to stand)

Ms. Paddy Torsney: On clause 94, I have an amendment.

The Chairman: All right, and that will be the last amendment for this morning.

Ms. Paddy Torsney: Actually, Mr. Chairman, since it would be consequential to a couple of them, as would 10.5, might I suggest that we all move on to 10.6, which we already carried, and we move on to clause 96. There are no amendments to clause 96, all the way to clause 101, so why don't we call the question on clauses 96 through 100? We could actually make real progress.

The Chairman: We are standing clause 94 and we are standing clause 95 and we are adjourning until tomorrow.

Ms. Paddy Torsney: I'm not sure, but I think if I asked that we call the question—

The Chairman: I am not inclined to jump ahead in a vacuum like this and to proceed by leaving clauses 94 and 95 unresolved.

Ms. Paddy Torsney: Mr. Chair, I just wanted to remind everybody that there are no proposed amendments on clauses 96 through 101.

The Chairman: That's very true. Yes, that's very correct. But we'll do them in proper order.

Mrs. Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, a couple of weeks ago I asked Mr. Moffet to prepare a research paper on dealing with the issue of whistle-blower protection. I'm just wondering if Mr. Moffet has completed that paper.

The Chairman: That is something that can be—

Mrs. Karen Kraft Sloan: Just so the other committee members are aware of this.

Mr. John Moffet: I don't have the paper ready for distribution today. I can have it ready for the committee by the Thursday meeting.

The Chairman: It has to be translated.

Ms. Paddy Torsney: I think our meeting has been moved to eleven o'clock on Thursday.

Mrs. Karen Kraft Sloan: So will you have an opportunity to have it translated by Thursday, Mr. Moffet?

The Chairman: It's a question of translation, over which Mr. Moffet has no control.

Mr. John Moffet: I can have it by the end of the day, so would it be ready by Thursday?

The Chairman: We'll attempt to do that.

Mrs. Karen Kraft Sloan: Thank you.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: Just before you adjourn, maybe I'd just clarify the schedule of meetings this week.

The Chairman: You have received the notice. We'll meet again tomorrow afternoon at the usual hour and then on Thursday at eleven o'clock, from eleven until one.

This meeting stands adjourned.