Environment Committee on Nov. 27th, 2006

[The Chair, Conservative, Bob Mills]

I would like to inform members that on Thursday at our Festival of Trees, we managed to raise $660,000 for the hospital that night and, after that, over $1 million for the hospitals in our local area. I got to be the emcee, so was I ever lucky.

Anyway, I'd like to welcome our guests. I think most of you know the format. We ask you to keep your comments to about 10 minutes or less, if possible, and then the members will have questions. The first round will be 10 minutes, the second round will be five minutes, and we'll try to get through as many questions as we can in the two-hour timeframe.

Perhaps we could begin with the Salt Institute, Richard Hanneman, please.

[Richard Hanneman, President, Salt Institute]

Thank you, Mr. Chairman and members of the committee. It's an honour to be with you.

I would remind you that we not only submitted extensive written testimony back in June, but we had two earlier opportunities to provide oral testimony. So we will confine our remarks today to enforcement, public participation, and appropriate tools, which we understand to be your particular concern today.

Most of our remarks will deal with public participation. Generally speaking, we've had a very positive experience with the CEPA public participation process with regard to the implementation, the risk management phase, and a relatively negative experience with public participation with regard to the risk assessment process. Unlike the risk management phase with stakeholder involvement, which invaluably improved the end product and facilitated implementation, the insularity of the assessment process and the agency's refusal to impose rigour on its scientific exercise impaired the result and set back the implementation. It was a distinct misstep.

For example, we were quite disturbed when Environment Canada publicized its findings before they went to the public participation process. They scheduled a news conference we were unable to effectively respond to at the last second and rebut some of the misinformation that was given out. The headlines across the country were all about the warnings that road salts were toxic; and this being a food, it was very unclear and confusing to the public. We think Environment Canada played on that as opposed to trying to understand that's what was going to happen.

The assessors proceeded to ignore that public outcry and went to the second phase, and at that point they understood they were in trouble with their communication with the public. When they announced the second phase they did not use the word “toxic”; they very studiously avoided it. They even counselled the media that they intended not to use it, and yet the headlines were that salt is toxic. Again, the press had been sold this, so they couldn't back off.

At about this time, Environment Canada was trying to tell the world that road salts were toxic, but at the same time they were rolling out the implementation process. So unlike the rather obscure public participation process of gazetting for the assessment, the implementation for the risk management phase was very public, very inclusive. A stakeholders group was set up, and a lot of constructive things were said. So instead of having the situation that under the assessment it was the largest public participation process under CEPA--I believe that's still the case--most of the comments came back negative to what Environment Canada had proposed. Instead of being able to condition the groups that were going to have to comply, which are the provincial and local government agencies that were the target of the assessment, it set us back in terms of mobilizing those people in a constructive way to solve the problem.

It bears mention that the risk management phase involved an entirely new team. The people who did the assessment were in one branch and the people who did the risk management were in another branch. There was no carry-over, and so a whole new set of people were getting up to speed. We're very pleased to report that in contrast to the public participation and risk assessment phase, our experience with public participation on the risk management process and in implementing an excellent code of practice for road salts management has been very positive. It was like night and day to us. Frankly, we'd give Environment Canada failing grades for public participation in the assessment process, but tell them to go to the head of the class in terms of the way they ran the risk management phase.

As is the case with most environmental initiatives, once people understand how to do things better and once they make necessary investments to achieve better environmental management, momentum is achieved by these incentives. In the case of road salts, the agencies now understand that proper management not only can protect the environment but can be accomplished consistent—

[The Chair, Conservative, Bob Mills]

Would you mind slowing down just a little bit? Our interpreters are having a little bit of trouble keeping up with you. Thank you.

[Richard Hanneman]

All right. My two-hour statement in 10 minutes, by the look of it.

In the case of road salts, the agencies understand that proper management not only conveys environmental benefits and can be done consistent with accomplishing the mission of keeping the roads safe, but it can also even save tax dollars by being able to put down road salts a little more conscientiously.

Designing a solution that allows society to derive the benefits of CEPA-managed materials is fundamental. We can't compromise the safety of the roads. We can't trade dead motorists for pine trees, we can't sacrifice workers' jobs for a park ranger's opinion that salt intoxicates birds, and we can't immunize governments against civil suits if they don't do their job of keeping the roads safe.

The bottom line is that we think the involvement of the stakeholders has achieved the momentum for implementation of the code of practice, which is getting the job done, which would not have been expected given the tenor of the assessment process.

Turning then, in my remaining time, to the issues of enforcement, why would we have enforcement? What we want really is the environmental result, so we want people to be encouraged, induced, to adopt the correct practices.

The Salt Institute has been engaged in teaching our customers sensible salting for about 40 years. We have sent out people to train the operators, because it's the operator in the cab who actually decides how much salt's going to go down. It's not the road agency itself, and it certainly isn't the salt company that, months before, sold them the salt. We really need to get training down to the operator level, and that's what we've been doing, in partnership with TAC and with the OGRA. And I think we have been quite successful, because we've been able to work cooperatively during the risk management phase with Environment Canada.

In terms of what we want to do, we don't really want to regulate something that is going to be so variable, because the weather, the topography, the service demands are set by locally elected officials. Those are all going to vary storm by storm, not only region by region. We need to give enough flexibility so that a regulation that is written can be applied in a real life situation, which is a life and death situation on the highways in the middle of a winter storm.

We do think that promoting compliance is going to be best done with a voluntary arrangement, such as a code of practice.

That moves us into the final point of appropriate tools. Right now, we have a code of practice, of course. Also, we have tools of the pollution prevention plans, where there's a regulatory arrangement. And we are engaged with Environment Canada in negotiating an environmental performance agreement for the salt industry to do its part in terms of producing the product and storing the product properly. But we don't see any need to move into a regulatory environment if you can get the voluntary situation to work, because, in our case anyway, there's a great deal of local variability in terms of what proper management is.

We believe the statutory process should encourage Environment Canada to promote risk management much sooner and focus resources earlier on doing a better job with environmental management. Where regulations may be required, the focus of the debate should be on the context of the substance that's creating the problem in the first place, as opposed to the name of the substance, which creates the stigma that we've testified about earlier.

Once again, with this approach we'll achieve a better environmental outcome. We thank you for your attention.

[The Chair, Conservative, Bob Mills]

Thank you very much.

Mr. Wright, you might want to comment at the end on a couple of the statements that were made there. We'll give you first crack at that at the end.

Perhaps we could go on to the chemical producers, and Mr. Lloyd.

[Gordon Lloyd, Vice-President, Technical Affairs, Canadian Chemical Producers' Association]

Thank you, Mr. Chairman, and thank you to the committee. I'd like to thank you for the opportunity to participate in this round table.

In my presentation I will be focusing on one topic, the question of tools for CEPA, and I'll really only be talking about one tool, industry responsibility programs. This is something that I think isn't used as much as it deserves to be used.

Last May when I appeared before you and discussed our CEPA review submission, we suggested that CEPA should explore differentiating between good and poor environmental performers more than it does, and using the act to support the use of what we called industry responsibility programs in order to recognize and encourage good-performing companies. We think those companies should be treated differently and more favourably than poorer performers. Guidelines and, in particular, pollution prevention planning requirements in the legislation could provide a means to do that, but that isn't being done nearly as much as it should be today. There may be other means as well, but those are the ones we'd like to focus on.

Criteria for using what we're going to call industry responsibility programs and the principles governing their design have already been well established, with broad acceptance by industry and NGOs. In the late 1990s, the New Directions Group put together a paper, “Criteria and Principles for the Use of Voluntary or Non-regulatory Initiatives (VNRI) to Achieve Environmental Policy Objectives”, which addressed and, I think, very successfully resolved a lot of these issues.

There's very broad consensus about going ahead on this approach between industry, government, and environmental groups. In fact, the federal government essentially adopted the New Directions Group principles in its Policy Framework for Environmental Performance Agreements, which it put out in 2001. In CCPA's view, that was a very good framework, but unfortunately we don't feel it's been applied as broadly or as often as it deserves to be.

There has been a number of successful examples of industry responsibility programs. From a chemical industry perspective, our Responsible Care initiative that I have previously described to committee members, I think quite a bit, we believe is a leading example. It applies to the chemical industry, and not broadly, but other sectors also have similar programs that they try to model after it.

Our Responsible Care program has also been the underpinnings of a memorandum of understanding or agreement the CCPA has had for about 10 years that involves the federal government, British Columbia, Alberta, Ontario, Quebec, and there are also public interest group representatives on it as well. The performance results of Responsible Care and what we look at through our memorandum of understanding are set out in the attachment that I've provided to the committee. I think it's been given to you.

I'll not go through this in any kind of detail. I'll leave that to you.

The first chart is an overview of our performance, both for the listed air pollutants in Bill C-30 and greenhouse gases. Looking at the percentage changes, both since we started tracking in 1992 and more recently last year, I'm sure you'll agree our performance is good. Similarly, I've talked about our climate change performance before this committee in the past and I think it's also good. There's more detail provided in the accompanying charts that back up those figures, and it also shows that generally our record is that we exceed our projections.

As I said, industry responsibility programs have also been used beyond the chemical industry. Probably the best broad example of a successful program is ARET, the accelerated reduction/elimination of toxics initiative, which concluded in the late 1990s. More recently, Ontario and Alberta have tried to develop programs along these lines: in Ontario, the environmental leaders program; and in Alberta, their EnviroVista program.

Problems with these types of programs to date have arisen when, in an effort to ensure that only the true leaders participate, sometimes overly restrictive and burdensome bureaucratic entry criteria are imposed by government. That makes it unattractive for companies to participate, and it would actually penalize and certainly not reward high-performing companies.

It might be worth paying some of this extra price if there were true benefits from these programs, but often there's only very vague recognition rather than any real benefit, such as a better permitting procedure or something like that. Ontario and Alberta are currently struggling in trying to address these issues in their respective programs, trying to create meaningful differentiation and real rewards for high-performing companies.

I think the federal government had the lead in this about five or six years ago, but I think it has been overtaken by the provinces now.

Encouraging industry responsibility programs through CEPA would, I think, also be very consistent with the 2004 Smart Regulation report. The report stated:

The federal government should develop a framework to guide the design and use of instruments and ensure that instrument decisions are appropriately challenged throughout the policy development cycle. The government should accelerate efforts to make the regulatory community more aware of the various instruments. Legislative constraints in creating mixes of policy instruments and using performance-based regulations should be eliminated.

I think we have an example of the legislative constraint in CEPA that I'll talk about later.

The Smart Regulation report described the challenge the federal government faces in being innovative in the use of instruments related to regulation. They noted the many benefits of choosing the most efficient instrument to accomplish legislative objectives, and they also noted the federal government has a strong tendency to choose only traditional instruments such as regulation, as opposed to a combination of instruments that would involve regulation, but also involve other approaches such as economic incentives, information, and challenge programs--the types of things we're referring to as industry responsibility programs.

A few of the more interesting recommendations in the Smart Regulation report were recommendations 22 and 23. These outline a need for the federal government to develop guidance and a framework on the use of various instruments and when they might be most effective, and the need to develop better understanding in the public service of the range of instruments available to respond to policy issues.

Over the years, we've had many discussions at CCPA about our success in Responsible Care. The question often emerges, why doesn't government do more to recognize this type of good initiative? That's a question that I think MPs and this committee should address in your CEPA review report. We would be very interested in the answer.

CCPA believes the reason that government doesn't recognize programs like Responsible Care, and its record is that often agencies like to simplify the world into what we would see as the false dichotomy of so-called voluntary versus regulatory programs. They dismiss anything that is not a standard regulatory approach because it is only voluntary: do it if you like. But Responsible Care is far from that. It's a program that goes beyond what is required. Our actions under Responsible Care are mandatory among our members. They involve reporting and verification, including independent verifiers. We think Responsible Care is the kind of initiative that can be considered in developing regulatory frameworks and linked to CEPA in various ways, such as pollution prevention planning.

Since the Smart Regulation report, has anything changed? We don't think so. We see no improvement in the administration of CEPA towards the kind of innovation the report recommended. The Clean Air Act and the notice of intent are probably the most recent examples. These do not look for innovative approaches beyond traditional regulation, and miss opportunities to use different tools that might be more effective. They do not provide in any way for recognizing high performers.

The government is proceeding to work with sectors like ours as if Responsible Care were irrelevant. This type of approach undermines the ability of our association to expand the application of Responsible Care to other companies. This is an example of the government missing an opportunity to reinforce high performers.

With CEPA under review, it would be useful, I think, to determine if the act has built in appropriate guidance and flexibility for the government to work with the full range of instruments, including industry responsibility programs.

In terms of guidance, we think the act could be improved here. We would urge the committee to recommend that the government consider adding some specific sections to the act that promote considering the use of industry responsibility programs but within the overall regulatory context of CEPA.

In terms of flexibility in the legislation, we think that is actually there but it's not being used. Pollution prevention planning is a tool in CEPA that could be used more, and more effectively, to support and promote industry responsibility programs. Environmental objectives could be set for our sector as factors to be considered in developing pollution prevention plans. What companies are already doing, such as under Responsible Care and our MOU and under provincial regimes, could be recognized under the pollution prevention plans.

We believe that for sectors like ours this would work very well. If the approach fails to work, or sectors don't have the kind of infrastructure and performance record that Responsible Care has given ours, perhaps regulatory approaches would also be warranted where necessary. But the government has not used its pollution prevention powers in the fashion that I've described. We're not sure if the powers in the act are the problem--we don't think so, because we think they're there to be used as I've described--or if it's a question of political will. I think that's where the real problem lies, and I think that's also what the Smart Regulation report was reporting to.

To conclude, CCPA urges that the committee recommend that CEPA be used to differentiate between good and poor environmental performers, and use the act to support the use of industry responsibility programs, such as Responsible Care, to recognize and encourage good-performing companies.

This approach would assist industry to be partners with the government when companies show leadership and high performance. From CCPA's perspective, our member companies, with their commitment to Responsible Care and their performance record, provide an example of the type of companies where such recognition would have been earned. Such an example would also encourage more companies and sectors to adopt initiatives similar to Responsible Care. We think that would be a significant environmental improvement in itself.

Thank you. I look forward to the discussions.

[The Chair, Conservative, Bob Mills]

Thank you very much.

We'll go on to the Sierra Legal Defence Fund.

Mr. Wright, please.

[Robert Wright, Counsel, Sierra Legal Defence Fund - Toronto]

Good afternoon, Mr. Chairman and committee members. Thank you for the opportunity to address you this afternoon on these issues of public participation and enforcement.

I will be dealing with two matters that no one else, as far as I know, has dealt with in these hearings. The first is the environmental protection action that is found in part 2 of the act; and the second is the offences and penalties section, and in particular, I'll be recommending a provision like the Fisheries Act fine splitting provision.

Our interest at Sierra is that we are considered a watchdog on the environment. We deal only with legal matters. We have offices in Toronto and in Vancouver, and soon to be in Ottawa. We look at the legal aspects to these environmental issues.

My background is 20 years of commercial litigation in private practice in Toronto, so I've seen both sides of the fence. I've spent in the last six years in public interest litigation.

There has been a lot of talk, as there should be, about voluntary programs. Mr. Lloyd talked about them. We think those are great, but we also think you have to balance that with enforcement.

I submitted a written brief, which I understand some or most of you have. In that, I highlighted these two issues of public participation.

The public participation section of the act really deals with five things. It has an environmental registry; an application for investigation; the environmental protection provision, which is the action I've been talking about; an injunction you can bring if harm is going to occur; and last, the civil action in section 20. So it talks about harm before it occurs, with the injunction; and it talks about it after it occurs, with the environmental protection action or with the civil action for damages.

As far as the environmental protection action goes, it's modelled after the provision in the Ontario Environmental Bill of Rights. It has a reasonableness standard, and one has to show significant harm. There is a limitation period of two years, and the onus is the balance of probabilities as opposed to the criminal onus.

So one would hope, or think, that this would have been used in the past. It has not. It has been used only once or twice. It has not met the need of the public to participate through this environmental protection action. I mentioned the other possibilities, one of which, outside the act, is private prosecution. Another is acting under other statutes such as the Fisheries Act. It's very clear that this environmental protection action is not working.

Why is it not working? I suggest that there are a couple of reasons, but frankly, I don't have the answer. I think that requires more study. However, I would note that even the Environmental Commissioner of Ontario has commented on this provision and on the fact that it has not been used. In fact, the Ontario provision has not been used often either. Part of the reason is the cost, the potential of costs that can be put on a person using the environmental protection action. There's no environmental protection action if the defendant engages in any kind of mitigation. There's no emergency provision in the environmental protection action.

I'd like to read out just the government's own conclusions on the environmental protection action and the public participation, which are contained in a document at tab A of our material. It's called the Formative Evaluation of CEPA 1999, and in that, at paragraph 2.2, the expected outcome of this action was that Canadians would have “the opportunity to initiate investigations of alleged offences, recover personal damage and economic loss, make personal claims and file citizens' suits”.

Well, it hasn't happened. As they note, “The public participation provisions have not yet been triggered, as no relevant public applications for investigation or public environmental protection actions have been received (One environmental protection action was initiated under a Section 22 request, but this was dismissed by the Minister)”.

Under their issues and challenges, the government itself commented again that very few public applications for investigations have been made. It talks about the barriers to increased public participation and their not having been formally examined.

Again, I said I don't have all the answers. I think I would have some of the answers because we engage in activities under the Fisheries Act, i.e., private prosecutions. We've never done it under CEPA. If we haven't done it, it's unlikely that anyone else will do it, because we're one of the few organizations in the country that do this sort of thing.

To conclude, this is reading from the government document again: “The expected outcome related to Canadians initiating investigations of alleged offences, recovery of personal damages and economic losses, making personal claims and filing citizens' suits is unlikely to be achieved without further actions by the Department. Work needs to be done to identify and address barriers before the opportunity provided through the public action provisions of the Act can be fully realized”.

We make a few suggestions in our document. We laid it out by showing the CEPA provision. We've laid out suggested amendments and we had a comment column as to why that was necessary. There are provisions in numerous U.S. statutes that provide for citizen actions. We feel we can do a better job.

We've also included a section on enforcement. We suggest there should be a Fisheries Act-like provision. The Fisheries Act is the main pollution prevention provision that we use--the federal one, in any event. It is not CEPA. CEPA is anemic regarding individuals beginning and constituting actions for harm to the environment.

One of the advantages of the Fisheries Act is that it has a fine splitting provision. It's been around a long time. It has not opened the floodgates to these kinds of private prosecutions. It is very useful. It takes some of the sting out of the bringing of private prosecution under the Fisheries Act, because you can recover half the fine if you initiate a private prosecution.

Our main recommendation in that regard is there's nothing comparable at the moment in CEPA. As I said, in the other main pollution prevention statute, the Fisheries Act, we have one. So why not have one in CEPA? I throw that challenge out to you.

To conclude, I think you have an opportunity here to really give valid and real public participation, as was intended by the act. Pretty well every poll out there shows the environment is near the top or at the top of concerns of Canadians. You have an opportunity here to bring laggards into line. Mr. Lloyd was talking about good performers, high performers. They're doing the job, and others are not. This would be a good club to bring them into line. I think any socially responsible corporation would concur with the suggestions made under both our headings of public participation with the protection action in the fine splitting provision of the Fisheries Act.

Finally, this is an opportunity to put CEPA on level with the Fisheries Act. Why not? Why shouldn't we protect our citizens as well as we protect our fish?

Thank you very much.

[The Chair, Conservative, Bob Mills]

Thank you, Mr. Wright.

We'll go on to Great Lakes United, Mr. Stack.

[Derek Stack, Executive Director, Great Lakes United]

Thank you, Mr. Chair.

Thank you to the committee for having me, once again, testify.

The Canadian public's interest in environmental stewardship pulls relatively high on voter priority lists, but it's rarely reflected by way of broad participation and CEPA consultation. Committed environmental groups such as Great Lakes United will continue to consult under various provisions of the Canadian Environmental Protection Act, but I think we'll nonetheless be left wondering what to do in terms of engaging the public at large.

Two backgrounders were prepared by Great Lakes United under the auspices of the CEPA Review Advisory Committee, and I've tabled those with the clerk for your review.

For the purposes of analysis, GLU's following comments are loosely grouped as access and outreach, the mechanics of consultation, and the absence of departmental champions.

On public access and outreach, comprehensive state of the environment reporting, I think, would be very beneficial for attracting public interest in CEPA. To date, as it stands now, it's the National Pollutant Release Inventory, more commonly known as the NPRI, that's the primary tool through which the public engages or gets information on pollution data for Canada.

Progress on the NPRI has largely stalled since 2002, and as of August 2006, I believe, PCBs, thallium, beryllium, barium, and radionuclides were still not included in the inventory, despite years of having been tabled for discussion. Likewise, recommendations to reduce reporting thresholds have gone unheeded, revisions to mining exemptions have not been addressed, and the credibility of NPRI data is undermined by a lack of auditing polluter reports.

Other CEPA databases should be tightened to report on actual pollution levels rather than on volume of pollution permitted. I'm referring here to ocean dumping requirements. The use of other statutes in pollution reporting mechanisms--for example, greenhouse gases--that fall outside of CEPA further undermine efforts to draw public attention to CEPA as a one-stop shop for pollution information.

State of the environment reporting has been poor and insufficient for promoting the act and government efforts on pollution control generally. State of the environment reporting needs to be enhanced and should include reporting on specific CEPA provisions, including efforts to meet international agreements impacted by the act. I'm referring here to international emissions into air, land, and water.

With no public profile for the act, a lack of ministerial reporting, and precious few cuts to pollution to report, the value of the CEPA registry is challenged not by the website architecture, but rather by what I would describe as ministerial disinterest in reporting on progress and insufficient interest in the promotion of public participation. For those reasons, a concerted promotional campaign for highlighting CEPA as Canada's cornerstone pollution statute and for the release of the state of the environment report would be beneficial, and I think actually might be needed.

Under the heading of mechanics for consultation, Environment Canada has a well-established history of public consultation and is supported, in part, by the delegate selection processes of the Canadian Environmental Network, whose members nominate NGO representatives on various issues. Environment Canada does a much better job than most federal departments, including, notably, Health Canada, at ensuring stakeholder balance in consultations and at avoiding undue influence in the selection of NGO representatives.

That said, treatment of first nation representatives has been inconsistent under CEPA. At times they fall under the rubric of civil society and effectively displace an environmental representative on that point. My point here is that a first nation delegate typically will focus interest on issues of governance, representation, and treaty rights rather than on broad issues of civic interest and operationalization of the act. It's therefore unfair to dilute representation of non-governmental organizations with representation from Canada's first nations, and it's equally unfair to characterize first nations as stakeholders on par with environmental groups and private industry. Inasmuch as they represent governments or ambitions of self-governance, first nations must be consulted outside of CEPA's delicate stakeholder balance between industry and the NGO sector.

The third point I want to address is the lack of a departmental champion for the environment. Stakeholder balance alone is insufficient to guarantee credible outputs from consultation. Exactly how and the extent to which participants engage largely determine the final recommendations coming out of consultation. Whereas departmental participation is necessary and encouraged, it is not at the moment balanced, inasmuch as no department champions the environment per se. By way of example, at consultations, Natural Resources Canada is routinely able to identify with recommendations that reflect mining and forestry interests, and Health Canada ensures that its pharmaceutical clients are not undermined by proposed action.

Environment Canada seems steadfastly focused on consultation process rather than on promotion of environmental protection. Rarely at consultations does Environment Canada table its recommendations for discussion or provide critiques to consultants' reports. More routinely, as recently reported to GLU from CCME meetings, there is stakeholder review of discussion documents prepared by third-party consulting firms without the benefit of a critique or an indication of what the department plans to do with the report. The public is more frequently consulted on consultants' reports than on any proposed policy direction intended to realize CEPA objectives.

Environment Canada needs to step beyond the current role of coordinating input toward one that also shows leadership in environmental protection in a way that identifies the recommendations the department is tabling. At consultations, stakeholders should be reacting to draft recommendations, not to the recommendations of private consulting firms.

In the view of Great Lakes United, dedication to state of the environment reporting, an enhanced NPRI, improved stakeholder balance, and a special track for consulting with first nations, along with departmental leadership and championing of environmental protection, will all improve the act's capacity to engage the public.

I'm sorry, but the timelines didn't allow for specific clause-by-clause proposals in this text. I'll be submitting those later this month.

[The Chair, Conservative, Bob Mills]

You can send those to the clerk.

[Derek Stack]

We will do that. Thank you.

[The Chair, Conservative, Bob Mills]

Thank you.

Ms. Wright, did you want to comment on the assessment failure mentioned earlier?

[Cynthia Wright, Associate Assistant Deputy Minister, Environmental Stewardship Branch, Department of the Environment]

Certainly. Thank you, Mr. Chair.

I've said this before publicly, so I think it's fair to say it in front of this committee: we learned a lot through the road salts example. We learned a lot about how difficult it is for the public to understand the word “toxic” and how much upfront work you need to do to indicate what the intention is of adding a substance to the schedule. I was pleased that the witnesses did indicate that the risk management has gone better. That's what we've been trying to do more of, so that when we add something to the schedule we give more sense of where we are trying to go and what we are trying to do in terms of managing the risks.

That being said, though, I don't want the committee to feel there's no engagement or consultation during the risk assessment phase. There is expert peer review. There are discussions with experts and there's a peer review process. And then the purpose of publishing a Canada Gazette notice about the intent to add a substance to the schedule is to ensure there's formal engagement.

But that being said, I think we learned a lot about the process we went through with road salts.

[The Chair, Conservative, Bob Mills]

Good, thank you very much.

We'll go to Mr. Silva.

[Mario Silva, Liberal, Davenport, ON]

Thank you, Mr. Chair.

I also thank the witnesses for coming forward. We have heard from many of the organizations before, so it's another opportunity to hear from them again.

I just want it to be clear for the record—and maybe I misheard him—but there seems to be one particular view held and another by the department. I want to make sure this is clarified. In particular, we all know that enforcement actions are essential to ensure compliance with the act, but education promotion activities encourage compliance with the act's essential parts.

Mr. Hanneman, you stated that you have given failing grades for this participation. I didn't hear anything from the department, from Mrs. Wright, on that. I just wonder if you could clarify this, and maybe I can hear from Mrs. Wright on whether she feels there's adequate participation or not, and whether it's working or not.

[Richard Hanneman]

Thank you for giving me the opportunity to respond on that.

We believe that although there was peer review and a formal Gazette comment period, there were several deficiencies in public participation in the assessment process. We've testified to those before. We would say that the primary one is that in the peer review, for example, the reviewers were not even listened to by the departmental staff. We made the point that during the gazetting process, one of the peer reviewers—an expert and consultant and author of some of the background documents—actually had to write in protest that the departmental staff had misrepresented his views in the report they filed.

[A voice]

[Inaudible--Editor]

[Richard Hanneman]

I'm not sure that I understand—

[Michael Teeter, Consultant, Salt Institute]

I think we have to differentiate between the gazetting consultation process and a more open one that might occur with, for example, the risk management process for road salt, which is a very robust process involving hundreds of stakeholders across Canada.

The gazetting process, which is what you get when you're involved in a risk assessment, is, as you know, simply publication in a magazine called the Canada Gazette. Unless there's an attempt to have people participate in that process, it really can be very obscure.

To be fair, certainly in the first phase of the risk assessment, it only happened because the salt industry stimulated conversations on it and actually went out and told municipalities and the provinces that there was this process for them to participate in. Had we not done that, there would have been very little participation in the whole issue of whether road salt should be listed on schedule 1 or not.

That could be improved, I have no doubt. Dick also mentioned that at that time, for some reason—I'm still baffled by it—in August 2000 Environment Canada felt that they had to hold a national press conference on the issue. We were given one day's notice about it. I don't frankly think that was public participation either. It did get some news coverage, obviously, on road salt as being toxic.

Just to summarize, I think the gazetting process is a little obscure, and if you want to enhance public consultation in risk assessment, I'd suggest that maybe Environment Canada could make it more robust.

[Mario Silva, Liberal, Davenport, ON]

Mrs. Wright, when you answer the question, maybe you can also state how we can avoid this situation.

[Cynthia Wright]

The reason I said I think we've learned a lot is that the kinds of substances we were dealing with initially were obscure substances. In the past, CEPA 1988 was dealing with substances that were difficult to pronounce and unknown, and the purpose of the risk assessment phase was really to gather the science and the evidence on whether or not these substances were being properly managed and prevented from entering into the environment in such a manner as to cause harm to the environment or a danger human health.

The reason I say that with road salt we learned is that road salt was one of the early substances we tackled dealing with something people knew and understood. Intuitively, they had their own judgment of how or whether it causes harm.

That means there needs to be more care for communicating what the science tells us about it, and then where we're going in terms of managing the risk. I think that's the part that we've learned and tried to do better, as we've dealt with some other substances that are more of a common nature.

[Mario Silva, Liberal, Davenport, ON]

Let me also clarify something. When I was on city council in Toronto, the issue of salt, of course, was raised many times. I tried my best to either phase it out or to limit it as much as we could. There are other alternatives to salt that can be used for our roads, and it's not helping the environment and isn't helping our water. It's damaging our environment.

Yet even with the classification of salt as a toxin, it didn't seem to at all diminish the use of salt in our city and most of our municipalities. I'm wondering what we can do. By putting in maybe stronger legislation, we could in fact see whether we could phase it out or reduce it within our municipalities.

[Richard Hanneman]

I think the reports that Environment Canada has received—as part of the code implementation, they receive annual reports—have shown actually just the opposite, both in Toronto and throughout Canada, but very strongly throughout Ontario, which has been wildly enthusiastic about cooperating. I think the record shows that although for 40 years we've been preaching using the minimum amount of salt necessary to keep the roads safe and commerce moving in the winter, it wasn't until Environment Canada came in and created this stakeholders process and brought everyone to the table and explained to them that people listened.

So I think you cannot rely on the industry, even though we have tried very hard to be the public education. But I think the record will show that the usage of salt by Ontario municipalities in the last three years has been dramatically reduced.

[Mario Silva, Liberal, Davenport, ON]

You don't mention the fact that we also have had warmer weather in the city of Toronto and other cities as well, which may be the reason we're using less salt.

But I don't want to get into another debate, because I think my honourable colleague has another question. I'll go again in the second round to ask more questions.