I'd like to briefly address two other issues outside of our formal recommendations that have been raised by the witnesses.
This committee convened two sessions dealing with the term “toxic” in the act. In one of those sessions, I raised concerns that changing the term “toxic” in any way would very likely attract litigation, which would be a costly distraction to administering the act.
Gérard La Forest is the former Supreme Court Justice who wrote the seminal judgment in this area of law. Following my testimony, Justice La Forest wrote a letter, which was tabled in this committee, stating that he agreed with each of my conclusions. In speaking of my testimony, he stated, and I quote:
...you are right in so clearly pointing out the dangers inherent in the proposal in relation to both the international and constitutional issues....
He continued:
I would respectfully commend it to the committee for its most serious consideration.
Again, removing the word “toxic” may, in Justice La Forest's words, “cause confusion in the federal-provincial arena”. In what can only be interpreted as a warning, he noted that “the Supreme Court upheld CEPA by a very narrow majority”.
The other issue I would like to finally address is the proposal to review CEPA every ten years instead of every five years. While a five-year review clause is fairly common, it's especially important to revisit CEPA on a shorter timeframe because of rapid developments in our understanding of pollution in our environment. It's also clear that a five-year review is somewhat of a misnomer.
It was eleven years between the original passage of CEPA in 1988 and the “five-year review” that resulted in changes in 1999. Similarly, it's been more than seven years since the last review. It's unlikely that new legislative provisions stemming from this review will be enforced before 2009. Because of the length of time it takes to prepare and administer a review, the practical reality is that we are currently already operating under a ten-year review framework. Changing the five years to ten in the act will mean that this timeline is extended to fifteen years or more.
Thank you very much.