Environment Committee on Sept. 21st, 2006

[The Chair, Conservative, Bob Mills]

Mr. Lloyd and Mr. Freeman would like to comment very briefly, and then we'll go to Mr. Moffet.

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

But I had such a good question here. That was one of my better ones.

[The Chair, Conservative, Bob Mills]

Can they comment, and then we'll go to Mr. Moffet?

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

Okay. Remember how humourous it was, and you folks will be ready for it.

[Gordon Lloyd]

Maybe this will give Mr. Moffet time to think of a good answer.

I have just a couple of quick comments.

On the point about vagueness, I agree with what Mr. Graham said. “Toxic” is vague. What does it mean? What it means is the language we've promoted, which the federal lawyers came up with. It meets the criteria of section 64. I think that's really quite a simple and elegant solution to this issue.

Industry struggled for some time to figure out what label we should have instead of “toxic,” and various people had different views. This wasn't our idea, it was a federal lawyer's idea, and it seems to cut through the vagueness quite well. It's accurate. It's descriptive. They are the things that meet the criteria of section 64, and those are spelled out in terms of danger to humans or danger to the environment. I think you're adding clarity in that context.

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

It feels like this debate, and I worry about it occupying so much of our time, when again the intention remains. But the risk that has been expressed by both you and Mr. Freeman about opening up even the potential of delaying further action is worrisome to me and, I would hope, to other committee members.

I've been waiting eagerly for--

[The Chair, Conservative, Bob Mills]

Mr. Freeman would like to say a brief word too.

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

We'll get to Mr. Moffet.

[Aaron Freeman]

I wouldn't want to steal some of the member's time without his permission.

[The Chair, Conservative, Bob Mills]

Speak quickly.

[Aaron Freeman]

I want to address the suggestion that there's something vague or overly broad about the term “toxic”, something that wasn't even argued in the Hydro-Quebec case, certainly not successfully. I'd actually like to refer to comments about CEPA that a colleague of mine has made, Amir Attaran, who's the Canada research chair in law, population health, and global development policy at the University of Ottawa. He says:

The scientific definition of toxicity focuses simply on the substance's ability to cause mortality or morbidity on any species at any concentration, quite apart from its ability to do so in the course of ordinary or foreseeable exposure.

He goes on to say that CEPA's definition of toxic is actually narrowed from this definition by the likelihood that the substance will enter the environment, and it's further narrowed by the likelihood that the substance will then cause harmful effects.

So I think we actually have a very specific definition that is actually quite appropriate for the application of CEPA. I don't think this is a word that is broad or vague in terms of how it's applied in CEPA. It's true, as Mr. Lloyd said earlier, that the definition is not exactly the same as other definitions of toxic in international regimes. I'd be happy to provide the committee with a list of some of those regimes, some of which I mentioned in my remarks.

[The Chair, Conservative, Bob Mills]

Now, Mr. Cullen, your very good question, for which we'll give you an extra minute, you can now ask Mr. Moffet.

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

Well, the question's been posed. It was the resources and the application...it's triage, I guess, we've gone through.

[John Moffet]

Actually, I think I heard three questions. I'll try to answer all three.

The first question had to do with the resources, the reason for and the resources available to complete categorization in seven years. Seven years does seem like a long time. I don't think it's actually worth commenting on whether there were adequate resources; the fact is it was done.

I think the fact is it was a remarkable accomplishment--not something I had anything to do with, but there are a lot of people in both departments who deserve a lot of credit. The reason I say that is because no other country in the world has accomplished this. It took us seven years, but countries with vastly greater resources than we have still haven't done it. It was a monumental undertaking that inevitably would have required a lot of time.

In terms of what we are going to do next, I think there were two questions that were posed. I think you suggested, Mr. Cullen, that there doesn't appear to be any legislative requirement about what to do next. In fact, there is in CEPA. In fact, there is a requirement in the act that the two government departments conduct a screening assessment of every substance that has been identified as having met the criteria identified in the categorization process. So the plans that the ministers will announce must respond to that legal obligation at a minimum.

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

Just to be clear, my question was more focused on the length of time for such a screening process to go through. With 4,000 chemicals, what is the average length of time that we've gone through to this point to develop a comprehensive plan that works with industry and all other stakeholders?

[John Moffet]

That's fair enough. The statute does not impose any timeline on the assessment process itself.

As to your question of resources, notwithstanding the very specific guidance, I don't think it's my place to comment on the adequacy of resources. I will reiterate a point that both Mr. Glover and I have made in previous testimony, and that is that the speed at which we can work--we, meaning the departments collectively--and the speed at which we can address the volume of activity required to address these 4,000 substances will depend in part on the resources made available to us. It will also depend on what lessons we've learned from the categorization exercise, what strategies we adopt, the kind of collaboration we are able to attain from industry and, as Mr. Lloyd emphasized, from other countries.

The resources made available will have an impact on the speed at which we're able to work.

[The Chair, Conservative, Bob Mills]

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Mr. Chair.

I think we've all found this round of appearances by the witnesses very helpful, the way it's been set up, and hearing opposing views has been enlightening.

Mr. Moffet, I want you to make a comment. We've heard from Mr. Freeman and Mr. Lloyd regarding the risk of a constitutional challenge on CEPA if the term toxic were to be changed. Could you make a comment on that, or does the department have an opinion on it?

[John Moffet]

Is the question what the constitutional implications of changing the term in the act would be?

[Mark Warawa, Conservative, Langley, BC]

What's the risk? Mr. Freeman and Mr. Lloyd assured us that there is the possibility, but they both felt it would be unlikely of success, if there were a challenge. What's the department's opinion?

[John Moffet]

I think it's fair to say and valid to note that the previous government brought forward a proposal to amend the legislation. The department was comfortable with that proposal.

That's not to say there's no risk associated with changing the legislation. I think we know, as a couple of the witnesses have testified, that the specific regime established in CEPA for identifying, assessing, and managing substances has been subjected to review by the Supreme Court of Canada. That regime, as a whole, has been upheld as being constitutional. If we tamper with that regime, we're exposing ourselves to some risk, I guess.

It's our view that the risk associated with changing that particular term is not significant, but it's very hard to be precise about exactly what the outcome of this would be, given that we have tested this regime and haven't tested individual elements of the regime in the courts to date.

[Mark Warawa, Conservative, Langley, BC]

So you're agreeing with the other presenters that there is a risk?

[John Moffet]

Let me emphasize that I'm not speaking on behalf of the Department of Justice here, and I appreciate this is sounding a little bit technical, but legal advice to the government is provided by the Department of Justice. I'm trying to reflect advice we've been given—and, I think, the department's position—that inevitably there will be some risk associated with changing any element in the regime.

That being said, I think our position in this review is that there are changes that could be contemplated to various parts of the regime to improve it and that if done carefully we can minimize the risk of a challenge to the regime.

[Mark Warawa, Conservative, Langley, BC]

Okay.

[The Chair, Conservative, Bob Mills]

Mr. Benevides has a quick comment.