Bill S-5

Strengthening Environmental Protection for a Healthier Canada Act

An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act

This enactment amends the Canadian Environmental Protection Act, 1999 to, among other things,
(a) recognize that every individual in Canada has a right to a healthy environment as provided under that Act;
(b) provide that the Government of Canada must protect that right as provided under that Act, and, in doing so, may balance that right with relevant factors;
(c) require the development of an implementation framework that sets out how that right will be considered in the administration of that Act, and require that research, studies or monitoring activities be conducted to support the Government of Canada in protecting that right;
(d) authorize the Minister of the Environment to add to the Domestic Substances List certain substances that were in commerce in Canada and subject to the Food and Drugs Act between January 1, 1987 and September 13, 2001, and provide that any substance may be deleted from the List when it is no longer in commerce in Canada;
(e) require that the Minister of the Environment and the Minister of Health develop a plan that specifies the substances to which those Ministers are satisfied priority should be given in assessing whether they are toxic or capable of becoming toxic;
(f) provide that any person may request that those Ministers assess a substance;
(g) require the Minister of the Environment to compile a list of substances that that Minister and the Minister of Health have reason to suspect are capable of becoming toxic or that have been determined to be capable of becoming toxic;
(h) require that, when those Ministers conduct or interpret the results of certain assessments — or conduct or interpret the results of a review of decisions of certain governments — in order to determine whether a substance is toxic or capable of becoming toxic, they consider available information on whether there is a vulnerable population in relation to the substance and on the cumulative effects that may result from exposure to the substance in combination with exposure to other substances;
(i) provide that certain substances be classified as substances that pose the highest risk based on, among other things, their properties or characteristics;
(j) require that those Ministers give priority to the total, partial or conditional prohibition of activities in relation to toxic substances that are specified in Part 1 of Schedule 1 of the Canadian Environmental Protection Act, 1999 , or to the total, partial or conditional prohibition of releases of those substances into the environment, when regulations or instruments respecting preventive or control actions in relation to those substances are developed;
(k) expand certain regulation-making, information-gathering and pollution prevention powers under that Act, including by adding a reference to products that may release substances into the environment;
(l) allow the risks associated with certain toxic substances to be managed by preventive or control actions taken under any other Act of Parliament, and the obligations under sections 91 and 92 of the Canadian Environmental Protection Act, 1999 to be the responsibility of whoever of the Minister of the Environment or the Minister of Health is best placed to fulfil them;
(m) expand the powers of the Minister of the Environment to vary either the contents of a significant new activity notice with respect to a substance not on the Domestic Substances List or the contents of the List itself with respect to a substance on the List that is subject to the significant new activities provisions of that Act;
(n) extend the requirement, to notify persons of the obligation to comply with the significant new activity provisions of that Act when a substance that is subject to those provisions is transferred to them, so that it applies with respect to substances on the Domestic Substances List, and authorize that Minister to limit by class the persons who are required to be notified of the obligation when a substance that is subject to those provisions is transferred to them; and
(o) require that confidentiality requests made under section 313 of the Act be accompanied by reasons, and to allow the Minister of the Environment to disclose the explicit chemical or biological name of a substance or the explicit biological name of a living organism in certain circumstances.
The enactment also makes related amendments to the Food and Drugs Act to enable the assessment and management of risks to the environment associated with foods, drugs, cosmetics and devices by, among other things,
(a) prohibiting persons from conducting certain activities in respect of a drug unless the Minister of Health has conducted an assessment of the risks to the environment presented by certain substances contained in that drug;
(b) enabling the Minister of Health to take measures in respect of the risks to the environment that a drug may present throughout its life cycle; and
(c) providing the Governor in Council with supporting regulation-making authorities.
Finally, the enactment repeals the Perfluorooctane Sulfonate Virtual Elimination Act .

Strengthening Environmental Protection for a Healthier Canada Act

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I have worked on the Canadian Environment Protection Act since before its first reading in the late 1980s. I was in the office of the minister of environment, so I know the bill quite well. It is with the greatest and most profound sense of sadness that I see what we have before us, because so many opportunities to modernize and do what needs to be done are lost.

I fervently hope that this bill, which comes to us from the Senate, will be significantly improved at committee. Many members have spoken to areas that need improvement, and I want to emphasize the ones I can in my time.

I would like to preface my remarks by saying that a lot of what we have discussed today on Bill S-5 has been about the climate crisis. I want to identify that I think the Environmental Protection Act has tools we can use to address the climate crisis, tools the current government is not using.

I want to make a point that is not made very often in this place, and that is that, when we talk about the climate crisis, we are incorrect when we classify it as an environmental issue. The U.S. Biden administration has correctly classified the climate crisis as a security threat. There is much that we need to protect in our environment, and this bill speaks to a number of areas that are not specifically about climate, but that create tools we could use. We should use those tools in part four, and I will speak to that later, but we should stop assuming that, when we talk about the climate crisis, that we are talking about an environmental threat. We are talking about a threat to the survival of human civilization.

Looking at what we have before us in Bill S-5, on protecting the environment, I want to approach it in three categories. The first is what is missing. The second is what is wrong in the act, and the third is what is better because of some amendments that were recently made.

What is missing is a long list. This is a big act. When it was bought together, as I mentioned, back in the 1980s, it took a number of bits of different legislation on ocean dumping, clean air and commercial chemicals and lumped them together. We called it the Canadian Environmental Protection Act.

It has served us well. It has survived a Supreme Court challenge. I want to return to that, but one of the things that is missing in this act is that not all sections of the act are being reviewed or amended, which means that if we, as parliamentarians, see an opportunity to improve something that is in the existing Canadian Environmental Protection Act, we cannot touch it in committee. It would be outside the scope of the act.

For instance, we can look at part six, which deals with ocean dumping and genetically modified organisms. Here we are, the only country on earth that has regulated and approved genetically modified animals for human consumption, and we are not modernizing that section of the act.

We have, in fact, approved something called AquaBounty Atlantic salmon, which is genetically engineered. We should be looking at the genetically modified organisms part of part six, but we are not.

Another part that is missing is the right to a healthy environment. It is mentioned, yes, and we have talked about it. A number of members have mentioned the gaps there, including, very recently in this debate, the hon. member for Cariboo—Prince George.

Here is the problem: The government says that it is going to create a right to a healthy environment, but it will not be enforceable. A right that is not enforceable is no right at all.

This point has been made by many who have looked at the act, including the very important observation note that came to this place, attached as a note from the other place, where they studied the bill and made amendments. They said that we cannot have a right to a healthy environment if we leave in place all of the barriers to enforcement that exist in section 22 of the act.

We have to get to that. We cannot have that ruled outside the scope of what a committee gets to look at.

What is wrong? My gosh, I never thought that, in 2022, we would have a climb down from the advances in environmental protection brought about by the Mulroney government. In 1988, the act was better at listing toxic chemicals than what we have in front of us right now.

If members think I am angry, I am. I am appalled.

Schedule 1 in the current act, as it has been since 1988 when it got royal assent, says that it is the list of toxic substances. The title is “List of Toxic Substances” in schedule 1. Here we have this proposal from the current government to take that away and not use the term “List of Toxic Substances”. The climbdown to a two-list category is absolutely wrong-headed and baffling. It also undermines the constitutional underpinnings of this act.

We should look at the fact that in 1997 the Supreme Court of Canada, in the case of R. v. Hydro-Québec, found that the Canadian Environmental Protection Act was within federal jurisdiction specifically because it used the criminal law head of power in dealing with toxic substances.

If we take out the word “toxic”, we are going to get constitutional challenges. We have already seen some industry coalition folks start talking about it last year, when we saw the first version of this act. I am going to quote from a blog from a very important group. The expert NGO on this is the Canadian Environmental Law Association, and its lead counsel, Joe Castrilli, said this: “[L]egislative drafting should always try to avoid playing with constitutional fire.” This is a big mistake. This is very wrong.

Another problem we have is that since the year 2000, of the substances listed for pollution-prevention planning, only 25 out of 150 have seen pollution-prevention plans. Therefore, we are failing to meet the expectations of Canadians. We are listing something as a toxic substance and telling Canadians, “This is a threat to your health and we want to see pollution-prevention planning, only we are not going to make it mandatory. Oh no, it is something you can do if you feel like it and you are in an industry that is producing toxic substances.”

That is so far from good enough. The need for pollution-prevention planning on chemicals that are dangerous to our health, that cause cancer and that cause birth defects does not bear repeating. We have to fix this, please. We have to make pollution prevention mandatory. We also have to create the opportunity for governments to do the research that needs to be done, not as an opportunity that the minister has, but as a requirement: The minister must do this research.

We have looked at a number of areas in this bill where much more needs to be done. We have to make sure we delete the section that would create a two-list system and make sure the list is defined, as it has been since 1988, as a list of toxic substances. Let us not undermine that, and let us strengthen pollution-prevention planning.

Let me just close on what is better. I have covered what is missing and what is wrong. What is better, thanks to the other place, is the strengthening around issues of vulnerable populations. Additional language is very much appreciated.

I have a private member's bill, and I have had the honour to see it supported in this place. It has now passed second reading. It is going to the environment committee, and many of the specific amendments that were just made in the Senate really helped put us on the road. The bill I am speaking of is Bill C-226, to confront environmental racism and create programs in environmental justice.

Much of what we have before us now gets us ahead on how we create programs that are forward-looking to promote environmental justice. One of them, of course, will be to join the 150 countries around the world that already have legislation that requires a right to a healthy environment. We are not inventing something here. We should know how to do it, and we should not wait two years.

We also have very specific guidance here in what we have before us in Bill S-5. It is better. It has good definitions and good sections on how we protect individuals in vulnerable groups from toxic substances.

We can do better than what we have before us in Bill S-5. We have waited 20 years to look at this bill again. It was always good legislation. It always could have been better. We cannot let it get worse. We cannot allow it to be weakened in this place in the year 2022. Let us improve this bill in committee.

[Mark Gerretsen, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate)]

Madam Speaker, much has been said in this debate about the Progressive Conservatives of the seventies, eighties and early nineties, and the incredible work they did to protect our environment. As I listened to the member speak, I could not help but reflect on the fact that she was actually a senior policy adviser to the then minister of environment back in the mid-eighties, when Brian Mulroney tackled huge challenges like the ozone layer and acid rain.

Can she take this opportunity to reflect on those years of Progressive Conservatives and expand on whether she thinks the Conservative Party today is coming from the same place the Progressives, like Flora MacDonald and Brian Mulroney, came from in the eighties?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, it was one of the greatest privileges of my life as a non-party member. I was never a Conservative, but that government did great work.

I have to say that I am not sure any of the parties are as good on the environment now as they were in the eighties. I do not want to make this comment partisan, but there is no question in my mind that the Liberals in the 1980s, whether it was the Liberal environment minister in Ontario, Jim Bradley, who pushed so hard on acid rain, or the Liberal environment minister from the province of Quebec, the honourable Clifford Lincoln. All these individuals who were leaders in the movement, whether New Democrats, Liberals or Conservatives, were stronger then than now.

I would say that what has intervened is the rise of corporate rule and the fact that many people in politics defer to corporations and polluters in ways that our leaders then, like the Right Hon. Brian Mulroney, would never have done. We should reflect on that too.

[Colin Carrie, Conservative, Oshawa, ON]

Madam Speaker, I want to thank my colleague from the Green Party for her speech. I want to get her input on the idea of competitiveness.

She knows I come from a community that does a lot of manufacturing with plastics. We try to make cars lighter and integrate it into the manufacturing. My concern is the way plastics are being treated in this bill. Inadvertently, we may be driving the pollution to other parts of the world.

For example, I brought up that 93% of the plastic going into the oceans is from 10 rivers, and none of them is in Canada. There is the Yangtze River in China, for example.

The carbon footprint for the lifetime of a plastic straw is about 1.5 grams, whereas for a paper straw it is 4.1 grams. We are putting in these policies that may affect our competitiveness here in North America.

What is the member's advice to make sure we do not have that pollution leakage to other parts of the world, like China, because of our policies being too strong or different here?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I would like to reassure the hon. member for Oshawa that there is no way in this world that we could accuse the Liberal government of being too strong with its actions on single-use plastics.

We have an appallingly weak set of regulations. Nothing in any government announcement or in this act will reduce the use of lightweight plastics in the manufacturing of durable goods. Nothing.

We do know that if we change the way this act is worded, we undermine its constitutionality. I can tell the member that none of those 10 major rivers has anything to do with the plastic contamination that we find on our shorelines in Canada. We need to take action under CEPA. We need to list and regulate the use of substances like polystyrenes for uses like floats and wharfs. They should be banned. They are contaminating our waterways and our wildlife, and, ultimately, they are poisoning us.

[Mike Morrice, Green, Kitchener Centre, ON]

Madam Speaker, the member spoke a bit about the right to a healthy environment.

Can she share more about the implications of that right being only in the preamble of the bill, as well as these words about it being balanced with other factors, including economic ones?

What are the implications of this so-called right being balanced against other factors?

Lastly, would she share more about how this could be improved in future stages of the legislation?

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I love the hon. member for Kitchener Centre. We are each half of our caucus.

The Senate did improve this by removing the balancing. It said it can be limited by factors that would normally be used to limit any extended right, but the bill has improved in that area. The right to a healthy environment is no right at all if it cannot be enforced. We have to take the barriers out of section 22. We have our work cut out for us as parliamentarians, regardless of political stripe—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Alexandra Mendes]

I apologize, but we need to resume debate.

The hon. member for North Island—Powell River.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Madam Speaker, I am very pleased to be here speaking to Bill S-5. Although I have some major concerns about it, it is an important step that we are taking and I look forward to seeing the next steps that are completed.

I live in a rainforest. One thing we are very sure of in my area of the world is that things in our area are usually wet, even when it is very, very hot. We have now lived through several months of having hardly any rain, so we are now in a situation in my area where we are in a drought. We cannot do any kind of burning, because the risk of forest fire is too big. That is because there is a change in the environment that is having such a meaningful impact that all Canadians should be very concerned.

I know the people in my riding are very concerned. I remember one day it rained here in Ottawa. Because I am from an area with a rainforest, I really enjoy rain and was happy to see it. I had so many constituents reach out to me and say they would really appreciate it if I could bring the rain home with me. It is something we can laugh about, but it is also something my area is very concerned about.

As we move forward on any bill that says we need to recognize the right to a healthy environment, I am all in. I want to be part of that, and we need to do better. We know that across this planet over 150 countries have made this commitment. They have legal obligations they are accountable for. Canada still has not taken that step, so we need to see that action. A lot of Canadians are watching what is happening and want to see action that means something.

Quite honestly, we keep seeing something in this place that is not taking the next step. I will be talking about the Canadian Environmental Protection Act today, which I will keep calling CEPA. This bill would amend CEPA to recognize the right to a healthy environment, confirm the government's commitment to implementing UNDRIP under the act and strengthen the chemicals management plan, including the need to take into consideration vulnerable populations and cumulative events.

It has been more than 20 years since this has been done, and modernization in this day and age could not be more important. It could not be more of a priority. These last few years, in my riding, we have had some challenging times. I talked about one earlier, but I also want to talk about the fact that not too long ago we saw the ZIM Kingston incident in our area, where there was a significant spill of about 109 containers. Of those containers, about four washed up on shore in my riding.

Just in case people do not understand, my riding is very remote. A lot of those beautiful beaches along the coastline are hard to get to, and people do not see them often. When one starts receiving images from constituents showing a beach full of plastic toys and refrigerators, one feels very concerned about it. When we look at this, we know contamination is not only having an impact on our bodies, and I will talk about that in a bit, but also having a significant impact on the oceans around my area.

In the last few months, in the late spring, I was over in Savary Island, which is one of many communities in my riding, picking up waste. It was huge. The community came out and people were cleaning up the beaches and pulling things out of the ocean. I had an opportunity to talk to Catherine and Paul, and we had chats about nurdles.

For those who do not know, nurdles are tiny little pieces of styrofoam. I am going to use that word, because most people are familiar with it. They get everywhere. If one has ever had the experience of trying to clean them off the beach, one realizes how hard it is. What is even more concerning, of course, is that it continues to contaminate the ocean atmosphere for fish and other wildlife, and that really concerns me.

I think of the work the community has done on having petitions sent to the House, which I have been happy to read for this place, to talk about how we are going to start to address that and make sure there is not that waste in the marine environment and in some of the industries out on the water. I thank Angela from Fishing for Plastic, who has also been a big part of that.

One of the things that concerns me about this bill is what we have seen in the Senate. We saw a letter that went to the Senate from some of Canada's biggest polluters, and they are trying to block amendments. They are trying to say do not go that far. At some point we have to decide. Are we going to continue to hope and wait to see if some sort of miracle will happen and we will not be in this environmental crisis that we are in right now, or are we actually going to take action?

I know there is a lot of push. There are a lot of industries telling us that we cannot take that next step, but I think it is absolutely important that we do.

We know that CEPA is Canada's main law to regulate toxic substances. We know that we are seeing more and more indicators that there are toxic substances in a lot of things, and there is not a lot of accountability around what they are. That means in our communities we are using things that may cause harm and we just do not know about it.

Those are some of the things we need to address. We know that the Senate did make some positive amendments. I really appreciated their removing some of the troubling language around the right to a healthy environment. It should be balanced with relevant factors.

Again, it seems like a simple choice for me. I know that not all of my friends in this place agree, but at some point either we are going to choose a healthy environment and put investment and support into moving in that direction or we are going to continue down the same path that we are on. It is not a safe path.

There are some things that I am very concerned about in this bill, some troubling weaknesses and loopholes that we would like to see amended. I talked earlier about strengthening the right to a healthy environment and not seeing limiting factors, and how that right is applied is really important. We also need to see some work done ensuring that toxic substances' assessments are kept up to date as the scientific understanding of risks evolves and exposure increases.

Why I think this is so important is that businesses are really good at knowing the rules. I appreciate that. That is their job, to know the rules, but they can often find ways to move around them. We need to make sure, as we move forward with CEPA, that there are assessments happening rigorously through time so that we can always keep up to date with that scientific understanding so that we are mitigating those risks. I think everybody in this country understands how important that is.

We also need to improve public accountability and require clear guidelines and timelines for the management of toxic substances. This is just about accountability. I talk to everyday Canadians. I have talked to, in my riding, some people who are very environmentally aware and have very specific notions of where they want to go. I have also talked to people who just want it to get better and they do not know what to do with that information. One of the things I hear from them is that they do not feel like the systems are clear enough for them to be able to understand it as an everyday Canadian. They are busy. They have a lot of things happening. I think it is important that we have that public accountability, and it should be not only public but accessible.

I will talk about this forever. I have served a lot of people with different challenges, whether it be in their ability to speak a language because they have come from another country, a lack of education or a developmental issue. Accountability and accessible information has always been one of the biggest challenges, so I hope to see that as well.

I also think it is important that there is mandatory labelling of hazardous substances in consumer products. We are still seeing a lack of formal understanding here. This is something that is not in the bill that I think needs to be amended. We need to make sure that we are transparent with people.

Of course, we need to address pollution hot spots in this country. We have to acknowledge as a country that they are often in indigenous, racialized and low-income communities. This is something that all of us should take into serious account. This bill, at this point, does not deal with this in a way that I think is as powerful and meaningful as it could be. We need to address this issue. We need to take accountability for the fact that environmental distress and indigenous justice, racialized justice and low-income justice are totally intersectional. They are a place that we need to take accountability and start addressing this in a more meaningful way.

As I said, I am going to support this to be sent to committee. I certainly hope to see all parties work together to get some of this important work done, because it needs to be accessible. Everyday Canadians need to understand the rules so that they can hold to account the corporations that will be working within those rules.

[Mark Gerretsen, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate)]

Madam Speaker, the member was speaking about plastics and the need to curb our usage of those plastics. The reality of the situation is that the very first piece of plastic that was ever made is still in existence today, and it will likely be hundreds if not thousands of years before it is no longer around.

We continually hear the narrative from the Conservatives that we need specialized plastics in certain types of aircraft; therefore, we cannot get rid of plastics and we should abandon all hope of even trying to pick the low-hanging fruit. The reality is that, although with some types of aircraft there are specialized plastics that we still need right now, we do know that other things like straws could be replaced with other options.

Would the member not agree that, even though we cannot move forward with some of these specialized plastics that we need, there are other areas we could look to curb plastic use and plastic consumption?

[Rachel Blaney, NDP, North Island—Powell River, BC]

Madam Speaker, I do agree, but I also think that part of this is understanding there is innovation in this country. When we look at what is happening in our environment, it seems that it is often a discussion of right now change or no change at all. I think there is a progression that needs to happen, but that needs to be really invested in and the rules need to be in place.

I agree. I think we need to do our work. I have heard from some folks from the disability community who have said to me really clearly that there are some uses of plastic that are really important to them, and we need to listen to those voices. However, there is so much innovation that needs to be invested in. Quite frankly, we need rules put in place in this country so that it pushes innovation. Things do not get done if there is not a rule that they have to meet, so let us make sure those rules are in place so that we can get to that innovation.

I believe it is possible, because a long time ago none of us thought we would be flying in a plane but we are. Let us see what innovation can happen in the next while.

[Dan Albas, Conservative, Central Okanagan—Similkameen—Nicola, BC]

Madam Speaker, the member mentioned the right to a healthy environment. I know she talked about some of the changes that the Senate made. However, I find it really important. The member mentioned that it should be clear what the rules are. When we use the term “right” in this place, we could open up the Constitution Act, 1982, and see the Charter of Rights and Freedoms, where they are very clear and they are laid out.

I would just like to find out if the NDP member would agree that what the government has put in Bill S-5 and is billing as a “right to a healthy environment” is a fraud. Again, a right is something that is enforceable. This is something that, through the CEPA process, a bureaucrat would determine, through other socio-economic factors, this so-called “right to a healthy environment.” A right is either a right or it is something else.

Would the member stand in her place and tell us whether she agrees it is an actual right or an outright fraud?

[Rachel Blaney, NDP, North Island—Powell River, BC]

Madam Speaker, I just want to remind the House. I know it has been a long time, but back in 2016, I put forward a private member's bill that was on the right to housing, which I wanted added to the bill of rights in Canada. What we are looking at right now, of course, is so many people unhoused across this country and no accountability on a federal level. There is no mechanism for people to step up and say that this is not being done.

Do I think the Liberals could do better on this language? Absolutely, I do. Will our party amend that? Absolutely, we will. Do I think that Canadians deserve a right to a healthy environment? I absolutely do, and I am willing to stand in the House and vote for that any day of the week.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Madam Speaker, I thank my colleague for her speech and I appreciate how much environmental issues matter to her.

One thing I want to know is why the agreement between the NDP and the Liberals is based on issues that fall under provincial jurisdiction. Also, since they were so focused on provincial issues, why not include the environment too?

Now that the blank cheque is signed and the agreement is in place, my colleague will have to support the many gag orders that the Liberal Party will impose under the guise of strengthening environmental protection for a healthier Canada.

What are my colleague's thoughts on the Liberals' decision to resume oil exploration by approving Bay du Nord and on the fact that they seem to be doing anything but protecting the environment for a healthier Canada?

[Rachel Blaney, NDP, North Island—Powell River, BC]

Madam Speaker, I agree. As a very proud Canadian, even with the many challenges that this country faces, I am willing to face them with the people of my country. It is important that we work well with the provinces and territories, but we also have to make sure that there is a set of standards. New Democrats are continuing to push the government, forcing it, quite frankly, into doing things that we feel will make a significant difference in Canadians' lives, and I will continue to do that. The environment is really struggling, but we need to stand up and do it right, collectively as a country.