Environment Committee on Sept. 21st, 2006

[The Chair, Conservative, Bob Mills]

Thank you.

Mr. Bigras.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Thank you, Mr. Chairman. I want to welcome the witnesses before this committee.

Before talking about the substance of the Canadian Environmental Protection Act, I would like to remind you that this legislation was passed on September 14, 1999. At the time, the government had a limited period of time to categorize existing substances. The government was supposed to complete its inventory of the 23 000 available substances by September 14, 2006, a week ago. We were supposed to have a detailed inventory. We have learned through the media that the government has completed that assessment and we have even learned that the list would include close to 4000 bad substances, of which about 400 are toxic.

My question to Mr. Moffett is simple: can you make a commitment to table before the committee, in the next few days, the list of products that are considered toxic?

[The Chair, Conservative, Bob Mills]

Who did you place your question to?

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

My question is for Mr. Moffett.

[John Moffet, Acting Director General, Systems and Priorities, Department of the Environment]

Indeed, Monsieur Bigras, the government has completed the categorization exercise. The strict legal requirement was to complete the categorization, and the government has completed the categorization.

The results of categorization have been shared publicly for some time now. We've been publishing and disseminating the results. They're extremely detailed, and they've been distributed via CD-ROM to various stakeholders. For the past year, we've provided sort of iterative updates.

In terms of the implications of categorization--I can't remember who suggested we're at a crossroads, I think it was Mr. Benevides--the government is taking the results seriously. The results have provided the government with a considerable amount of information that will allow the government to make some very important decisions and set some important paths.

It's my understanding that the two ministers intend to announce their path forward in the next couple of weeks. I believe they have indicated publicly that they will be making that announcement in the next couple of weeks.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Will it be at least possible to obtain that inventory? Several parliamentary researchers have tried to obtain that list, that inventory. You have just confirmed that the list exists and that it has been distributed to certain people. So, will it be possible for us to get the list?

Furthermore, considering the results now available, when do you intend to table a plan aimed at reducing the presence of those pollutants in Canada? How long will we have to wait before seeing an action plan on this issue?

[John Moffet]

The results of categorization are available, and we can provide committee members and the researchers with the data that have been made public. I'll make that commitment.

The path forward is something the ministers are still discussing, and it's my understanding that they plan to make an announcement within two or three weeks. I can't give you a firm date, but we're not talking about a lengthy delay. This is a significant issue that the ministers need to resolve with their colleagues.

[The Chair, Conservative, Bob Mills]

Mr. Benevides, you had a comment.

[Hugh Benevides]

Mr. Moffet is of course correct that the strict legal requirement of the legislation is to conduct the exercise and complete it. However, this has been a seven-year exercise. There's been no shortage of notice that this was to be completed. These substances are twenty and more years old. They've been on that list...or at least that's the definition of the list.

It's interesting to note that it was this committee that amended the requirement in the legislation to put a timeline on it. So we would not have had this seven-year deadline had this committee not placed one. That reinforces the need for mandatory statutory language so these things are met.

On the fact that it's available and being distributed, clearly there have been some difficulties getting it, but in some ways this is extremely complex information. In addition to the regulatory obligations and some action that we're pushing for, we need to see the government take on its role of education and public awareness on these substances and the effects they may have. The prevailing approach is some version of public choice, which I think is unacceptable because people don't have even the basic tools to know what the risks might be.

Finally, we can only cheer and reinforce Mr. Bigras' request for an action plan.

[The Chair, Conservative, Bob Mills]

Mr. Bigras.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

I would like to ask another brief question to Mr. Freeman. The representatives of the Canadian chemicals industry have suggested this morning that the term « toxic » be replaced by a reference to substances meeting the criteria of section 64. According to them, government advisers would even have stated that this would not lead to any constitutional challenge of the legislation. I know that, this morning, you provided us with your analysis of the Hydro-Quebec judgment, which had a significant impact in Quebec, as you know. I would like to know if you agree with that advice from the government which may be contrary to your own analysis.

[Aaron Freeman]

I think it's very much an open question. It's my view and our organization's view that the constitutional authority in CEPA is sound. That said, I certainly don't feel comfortable carrying forward a definitive opinion on whether, if you watered down the term “toxic” in CEPA, it would render the legislation unconstitutional. I don't think that's the case.

Particularly given the jurisprudence, it would create enough of an opening for further litigation. Given the history of this and other statutes on environmental law in this country and elsewhere, we can bet quite safely that there will be litigation if we create those kinds of openings.

Just to give you some of the reasons why I think it creates that opening, Hydro-Quebec was a split judgment--a five-to-four judgment. The lower courts went the other way. Considerable weight throughout both the dissent and the majority judgment was accorded to the term “toxic”. They said at various points during the case, “This is about substances that are toxic.” They didn't dwell on what they would be deciding if there were some other term, but you certainly got a very strong sense from both judgments that the justices accorded significant weight to determine that was part of their reasoning.

Maybe you'd keep four of those judges on side, but maybe you'd lose one. It's very difficult to know what motivated each of those judges in their judgment. So I certainly wouldn't offer a definitive opinion on it. I'd be very skeptical of anyone else offering that kind of opinion on such a tight judgment.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

My next question is for Mr. Graham or Mr. Lloyd.

What do you think of Mr. Freeman's rather strong argument that the change you are suggesting would create a gap between our regulations and international standards? Is that not convincing? Don't you think that your suggestion would be a dangerous precedent?

[Clyde Graham]

I wonder if Gordon, who is actually a lawyer, could respond to that, as my constitutional knowledge is not great.

[Gordon Lloyd]

I'm glad to be able to comment on that, because one of the things I was a bit concerned about was Mr. Freeman's characterization of international treaties and approaches in other countries as being consistent with Canada's. In my view, that's just incorrect. We have a very unique approach in Canada in terms of how we use the term “toxic” and the specific meaning that it's being given by section 64. We always have to explain ourselves and what we mean when we are in other international forums. The Stockholm Convention, which I was very much involved in--and I don't have my computer to do a word search through it--is not founded on the term “toxic”. That's just not true. The same is the case for the Rio declaration. If you take the language that I read to you out of my submission, which is before you--it was in the Dubai declaration and was also in the summit that came out of Johannesburg in 2000--similarly, the term isn't used there.

So we have a uniquely Canadian term. I think if we change things, contrary to Mr. Freeman's view, we will actually be more consistent with what others are doing globally. The domestic point is a good one. Are we putting our CEPA legislation in jeopardy? Industry has provided a number of examples here before of how there is stigma, and there are problems attached to the current term, and we put that in the balance. CCPA has said that's a problem, and we don't want to lose the constitutional validity of the federal legislation. We're relying on the federal lawyers who came to that conclusion when they proposed the language I suggested in the budget bill in the last government. The committee might want to ask some of those federal lawyers for their view. I've read the PCB decision as well.

My view--and I think I'm consistent with Mr. Freeman there--is that I do not think that this kind of change would result in the constitutional validity of the federal powers being lost. But, like him, I would not want to say that's absolutely true. I can't give you an unequivocal opinion. I do think you should possibly look at getting some of the federal lawyers who would have gone through that in some detail to come and talk to you on it.

[The Chair, Conservative, Bob Mills]

Mr. Cullen, go ahead, please.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Thank you, Mr. Chair.

I'd like to pick up just on that point right there. Throughout these hearings, I'm trying to assess the evidence from the perspective of the common person, who might be able to read our transcripts and understand exactly what we're talking about and how their lives might be made better or worse by the decisions this government makes, one would hope, on the basis of this committee's recommendations.

As there is some uncertainty over the removal of a word like “toxic”, then applying the precautionary principle in a legal format, why would we take the risk? Why open up the possibility of a much-delayed act, a much-delayed application of an act that is intended to make our environment, our ecosystem, a healthier place to be, all for the sake of removing a word and putting in its place a series or words with a little bit more vagueness to them? These will then be applied to a series of chemicals, some of which we would intuitively, inherently call “toxic” and dangerous. I understand the frustrations of the fertilizer companies and others, but why go down that path and why take the risk when all of our intentions around this table are to remove dangerous substances from our environment?

[Clyde Graham]

I'll take that, because I think that's a political question.

I think that members of Parliament come to bring common sense to the development of laws. Otherwise you would have to be a lawyer to be a member of Parliament, and you don't. If people wanted to send only lawyers to Parliament, they would send only lawyers to Parliament. You are all here, from different backgrounds, to apply common sense. I think the vagueness is in the word “toxic” itself, because it applies to such a broad range of products, products that are very inherently toxic, but only in certain contexts. In some cases it's to the environment; in some cases it's to human health; in some cases it's with exposure over a long period of time in small amounts. In other cases the substances are acutely toxic. I think the vagueness is in the word “toxic” itself.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

Those three or four categories you just listed, are those all not important categories? If a substance falls into the category of bioaccumulation, if it will meet some sort of toxicity in humans, if it is damaging in a serious way to the environment...all those categories you just listed, under my common person's approach, seem to me to meet some condition of toxicity and of concern.

[Clyde Graham]

But isn't the true value the ability of the federal government and the provincial governments to work together to manage those issues for the betterment of the public, instead of trying to apply one word, five letters, to this whole broad range of substances that are used and in the environment? That lacks common sense, to me. I think the job of parliamentarians is to say, “What makes sense?” Then the lawyers need to draft what makes sense.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I'll ask for your opinion on this, and I'll ask Mr. Moffet as well.

Now that we've gone through this triage exercise that has taken seven years and up to the eleventh hour to do--and I don't begrudge Mr. Moffet and Mr. Glover's work, because I'm sure they didn't have the resources that they would have liked to complete it more quickly--do you think there's a legislative requirement in order for the actual application of what's to be done with these things?

A lot of Canadians would look at this process and say, “My goodness, seven years just to figure out which ones you're worried about,” and now I don't believe we have a legislative requirement to actually force the government to come up with action plans to deal with them.

[Clyde Graham]

I share the frustration of the environmental movement in this area in terms of the time this process has taken, but I think it's very difficult for parliamentarians to solve administrative issues, and it's the administrative application of the legislation that is at issue here. Does the government have the resources and the ability to go through that huge process that is required by law?

You can pass all the laws you want, but you have to also have the capacity in the government and the departments and the public to handle that. So there are limits to laws. Just passing legislation does not mean that governments can deliver the results.

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I think this is a good opportunity for Mr. Moffet or Mr. Glover. I'm just looking through our departmental guidelines here for officials. I know you can't simply say the government has not offered you enough resources to do your job. That would be inappropriate. But if I were to put to you that the government has not offered you the resources in order to do your job in a timely manner--I notice under number two here--is that a factually incorrect statement?

[A voice]

Mr. Cullen, did you say you're not a lawyer?

[Nathan Cullen, NDP, Skeena—Bulkley Valley, BC]

I'm not a lawyer. I campaigned on not being a lawyer, actually.