Again, good afternoon, everybody. I'm pleased to be here on behalf of my colleagues at both Environment Canada and Health Canada. I will speak to the presentation, which you all should have before you.
As Madam Cléroux told you, we would be happy to respond to any questions you may have. As you can see, we have representatives from the two departments responsible for the implementation of the act. We also have our colleague here from Justice Canada should we require any legal clarification or help, as the case may be.
The presentation is going to be a brief overview of the act. Our main purpose in providing the presentation is to give you a broad understanding of the objectives of the act, the principles that underlie and that are stated in the act, and that guide our implementation of the act. I'm also going to speak briefly to the various areas that CEPA enables the government to address. Finally, I'm going to describe briefly the various activities that we undertook in preparation for this review and some of the general findings we concluded based on our preparation for the review.
The current act, as you probably all know, emerged out of an extensive review of CEPA 1988 in the mid-1990s. CEPA 1988 was an effort by the Government of Canada to consolidate various environmental protection statutes in order to provide the government with a multimedia authority to support its environmental protection efforts. In the mid-1990s, of course, the review was informed by concepts such as sustainable development, the precautionary principle, polluter pays principles--concepts that emerged following the Brundtland commission, which had then gained currency. There was an attempt, in modifying CEPA 1988, to embody some of these principles in the act, not just in terms of using the actual words but also in terms of providing specific authorities that would enable, or indeed in some cases require, the government to implement those provisions.
The broad objectives of the act are threefold. The first objective is to contribute to sustainable development by preventing pollution. Pollution prevention is at the very heart of the act. Pollution prevention is in some sense a very old concept--as the old adage goes, an ounce of prevention is worth more than a pound of cure--but in terms of environmental concepts, it's a relatively new one. It's derived largely from the learning within the environmental community about energy efficiency.
Of course, energy efficiency is a more efficient way to address energy demand than is enhancing energy capacity. We've learned the same thing in the environmental area. It's easier, cheaper, and more effective in the long run to prevent pollution rather than to either install expensive and technologically sophisticated mechanisms to control pollution once it's been created or to remediate pollution once it's actually had an impact on the environment or on human health. In some cases it's impossible to remediate pollution, and therefore it's much more effective to prevent it.
A second broad objective is to promote coordinated action across Canada. You will see, if you read the act carefully...or indeed, you don't even have to read it carefully; if you just skim it, you'll find repeated references throughout the act to the importance of federal-provincial collaboration. It's not just in the objectives, and not just in the preamble and in the administrative obligations and provisions of the act; throughout the act you'll see obligations on the federal government to consult with and to coordinate with provinces, territories, and aboriginal governments, both in coming to decisions and in terms of designing implementation solutions.
Finally, while the act addresses many issues, at its heart it is a pollution prevention act. It is focused on managing risks from harmful substances. So while the act provides broad discretion in terms of determining which substances to address and what the best way to manage those substances is, it also provides specific provisions that speak to the importance of virtual elimination of the most dangerous chemicals. Those are the three broad objectives that we have outlined on slide 3.
As I mentioned earlier, the act emerged out of the growing policy discourse that occurred in the 1980s around the importance of sustainable development. In that discourse a number of principles emerged as important, and almost all of those principles are explicitly embodied in the statute. So on slide 4 you'll see enumerated five core principles of the act.
The act emphasizes the importance of making decisions based on an understanding of risk. The act, as I'll speak to later, provides for a broad sequence of activities that the government goes through before it can make a formal regulatory intervention, starting with broad science and information gathering, through to risk assessment, through to decisions to manage an issue, and then providing a broad range of authorities to manage a substance and promote compliance in the most effective manner. At its heart, this sequence is based on acknowledging the importance of making risk-based decisions.
The act also emphasizes the importance of taking an ecosystem approach. What that means is we don't look at the effect of a pollutant or an environmental issue on one particular medium. We don't just look at the impact of a pollutant on water, for example. We need to take a look at the impact of the pollutant on all media and on the ecosystem as a whole, including, and importantly, the presence of and the impact on humans within the environment.
Indeed, starting with CEPA 1988 and then broadening with CEPA 1999, it was the bringing together of the broad range of authorities in the act that enabled us to take this multimedia approach. We have found, like many other jurisdictions in the world, that being able to take that multimedia ecosystem approach is valuable, not just in enabling us to identify the most effective solutions but also in enabling us to identify possible trade-offs between one environmental medium and another.
While the act emphasizes the importance of science-informed decision-making, it also emphasizes the importance of the precautionary principle. Indeed, it mandates the Government of Canada to implement the precautionary principle and to take the precautionary principle into account in every decision it makes under the act. It is not a principle that we invoke with respect to certain decisions; it is a principle that we must, by law, implement and account for in every decision we make under the act.
However, we could have made most decisions whether that principle was in the act or not. What it means, though, is that if we advert to that principle in every case, there are some decisions that we might not be able to make were it not for that legal obligation to look at the precautionary principle, which of course means essentially that we do not need to rely on full scientific certainty before we can take cost-effective action to prevent a serious risk to the environment or to human health.
Finally, the act requires us to account for the polluter pays principle. The importance of this is that it is not just government, it is not just taxpayers as a whole who should bear the burden of decisions by individuals, companies, municipalities, or indeed by government organizations that impose an external burden on society, it's not just up to taxpayers as a whole to bear that burden, it's not just up to our future generations to bear that burden, but as much as possible the decision-makers who are imposing that burden should actually pay for that burden. Of course, the best way to pay for that burden is to pay to prevent the burden as opposed to pay to remediate the burden, coming full circle to the pollution prevention concept I emphasized on slide 3.
What slide 5 does—and I recognize this is a rather dense slide—is emphasize the fact that CEPA is one among many federal statutes, and indeed one among many federal, provincial, territorial, and municipal statutes. If you look even further, it's just one among many federal, provincial, territorial, municipal, and industry decision-making guidance mechanisms.
When one looks at the overall environmental protection regime in Canada, one needs to account for the way in which all of those interact, and indeed I would suggest that you need to look even further than environmental protection documents on their own. The fiscal regime, corporate governance mechanisms, etc., all have an impact on environmental decision-making.
However, what this diagram illustrates is that the Canadian Environmental Protection Act provides the central mechanism for the federal government to address risks to Canadians and to their environment from products and from emissions and effluents. Numerous other statutes address specific risks from products, and numerous other statutes address specific risks from emissions and effluent. You can look at the Feeds Act, the Seeds Act, the Canada Water Act, etc.
The Canadian Environmental Protection Act does two things. First it provides broad statutory authority to assess and take action on specific issues, and second, it provides a baseline of environmental protection. So if another statute--for example, one that addresses new substances--is to act in place of the Canadian Environmental Protection Act, CEPA actually stipulates that the other act must provide an equivalent regime, not just equivalent in outcomes but actually equivalent in process. So there must be, in this case, equivalent assessment and notification requirements. CEPA provides that baseline protection.
The other important message from slide five that I would urge you to take is that CEPA is not a completely comprehensive statute. It does not address, in a significant way, habitat protection and land use and natural resource management. Of course, these are addressed to a certain extent by other federal statutes, but even more importantly they are within the purview of the provinces and territories and aboriginal governments, which have developed their own natural resource management regimes.
The point we're emphasizing on slide six is a key one, which, I would respectfully submit, should be taken into account by this committee in its review, and that is that collaboration is fundamentally important to the way in which the federal government makes decisions under CEPA. As I emphasized before, the act recognizes action under other federal statutes and in that sense provides a baseline for other federal statues. And if the other federal statute meets or beats--if I can use that term--the requirements in CEPA then that other federal statute applies. That only makes sense. Where an agency has specialized knowledge on a particular type of product, that agency should be doing the assessment and should be doing the management. CEPA ensures that the agency accounts for the health and environmental protection goals of CEPA.
CEPA also encourages, and in some cases requires, cooperation with other levels of government in Canada. It requires the establishment of a national advisory committee, which comprises representatives of other governments in Canada, as well as aboriginal organizations. It also requires us to consult with the national advisory committee with respect to numerous decisions that we make under the act, in advance of making those decisions and not just to inform those other levels of government.
Stepping outside of the strict legal requirements of the act, we make an observation in the final bullet on slide six: In implementing CEPA we have discovered the importance of sharing information, both with our colleagues throughout Canada who are working on the same issues and, equally as importantly, on an international level. Canada imports 80% of the products that we buy. These products are designed and produced elsewhere. We're not going to be able to completely and comprehensively address the environmental and health risks posed by these products without the collaboration of the jurisdictions in which the products are actually manufactured, so collaborating internationally is essential.
We also collaborate internationally on the scientific front. Why should we assess exactly the same substances for exactly the same issues when another country is already assessing them? There are active fora on a whole range of scientific issues in which Canada participates, so that we benefit from the scientific advances and the information that is being developed by other countries that are addressing similar issues to us. We similarly share as much of the information that we develop as possible.
We would emphasize that while this is the Canadian Environmental Protection Act, the act is not only designed to protect the environment and does not work with environmental blinkers on. It is an act to protect the health of Canadians, and it is an act to protect their environment.
In both the spirit and the actual provisions of the act, there is an explicit intention to enable industry in Canada to meet these environmental and health protection obligations in the most cost-effective manner possible. It requires government decision-makers to account for the ability of industry and other parties that will be subject to decisions under the act to implement those decisions in a manner that allows them to continue to make contributions to Canadians' economic and social welfare.
Of course, the final point is an important one. By providing for and requiring the government to take environmental and health protection measures, the act is not only doing so in a static context, but is doing so in a future-looking preventive context.
On areas of intervention, as I mentioned, CEPA 1988 integrated a number of statutes, and CEPA 1999 went even further and added other areas of authority for federal government action. Slide nine identifies the various areas that the act either enables the government to address or requires the government to address. At the heart of the act, and indeed most of the comments that you'll hear about the act, are the provisions related to assessing and managing risks from substances.
There are two broad regimes within the act that are important to understand. One is the new substances regime. In that regime, we require anybody who wants to import or manufacture a substance that is new to Canada to notify us and to provide information that we prescribe to enable the departments of health and environment to assess the potential risks from those substances before they can be used in Canada. It's only after we assess those risks and determine there is no risk that the substance can be used in Canada. If we determine that there is a risk, we then have the power under CEPA to impose conditions on the use of the substance or we can even ban the use of the substance.
We also have broad authority over existing substances. Of course, the new substances regime came into place in about the mid-1990s, and there were thousands of substances in use before that time. Many of those substances continue to be used in Canada, and the act gives us the power to assess and manage the risks from those substances that we consider pose a risk to human health or the environment.
The act is not, however, only about substances. The act contains specific regulatory authority over emissions from vehicles, emissions from engines, and emissions from fuels. They are different provisions from the new and existing substance provisions, and we indeed have a fairly comprehensive regulatory regime addressing emissions from vehicles, engines, and fuels.
The act also enables us to implement our international obligations with respect to disposal at sea and limits the types of substances that can be disposed of at sea. It requires a permit, and it requires permit applicants to indeed demonstrate that disposal at sea is the best alternative and that pollution prevention, recycling, and re-use alternatives are not available in the specific case.
The act also enables the federal government to intervene with respect to domestic sources of international air and water pollution that might otherwise be regulated by the provinces or territories. But where that particular source is emitting pollution that either is causing harm in a foreign country or where that pollution is in violation of an international agreement, the act sets out a process that the federal government has to follow, which starts with, of course, consulting with the relevant provincial or territorial regime and then, where there is a determination made that the jurisdiction is not able or is not willing to impose the appropriate controls, the federal government can intervene.
The act also provides broad authority over transboundary movement of hazardous wastes and hazardous recyclable materials. Again, it establishes a permanent regime that is based on our international obligations under the Basel Convention, as well as under additional commitments that we've made under an OECD agreement, and additional commitments that we've made under a U.S.-Canadian agreement with respect to transboundary movement of hazardous wastes and hazardous recyclable materials.
The act also provides us with broad authority over environmental emergencies. It enables us to require facilities to prepare environmental emergency prevention plans with respect to a wide range of substances.
It also gives the federal government authority to step in and take action in the event that an emergency occurs and nobody else is taking appropriate action. So we can step in and then we can basically charge back the costs of our intervention to the person or the party that was responsible.
And finally, the act gives us authority to address a wide range of issues over the federal house and aboriginal lands. The reason for this is that, generally speaking--and my legal friends will cringe if I use language that's overly simplistic here--provincial environmental laws don't apply to federal activities and to federal lands.
So whereas a facility that's located in a province might be subject to federal law and provincial law, an activity that's located on federal lands will only be subject to federal environmental law, and therefore the residents of that federal land or that Indian reserve, for example, will not benefit from the comprehensive regime that's established by federal and provincial laws operating together. Part 9 of the act gives us the authority to fill that gap.
The other important message from slide nine is that while we have a range of issues that we can address under CEPA, the act essentially requires us to address all of those issues in a common manner, starting with issues scoping where the act gives us broad authority to gather information to do monitoring, to do science, to understand an issue and define an issue. It then requires us to do risk assessment, for example, of a substance, or to define a hazardous waste or a hazardous recyclable material, or a substance that's going to be disposed of at sea. It gives us additional information-gathering authorities to further understand what the specific issue is, and then if we decide that the issue warrants federal intervention, we can turn to risk management and the act provides us with a wide range of risk management authorities.
Indeed, I would suggest that the act provides the federal government with as wide a range of risk management authorities as any equivalent statute in the world. And when the act was introduced it introduced a number of innovative environmental management tools.
The only tools really that are missing have to do with certain economic instruments. I'm talking about tools that are present in some other jurisdictions in the world, but these statutes have been introduced subsequent to CEPA 1999. The importance of the wide range of tools is that the act doesn't say that if you find a risk, you've got to manage it this way. What the act does is say that if you find a risk, here is the suite of tools that you can use and now it's up to you to identify the most effective way to address the risk.
You can take a draconian approach if you want or you can take an efficient approach, and of course the emphasis within the government is on finding the most efficient approach to manage a risk. We can all debate about whether we've been successful in identifying the most efficient approaches, and I'm not here to defend the government's record in that regard. I'm simply speaking to the fact that the act gives us a wide range of authorities from which we can choose.
The act also gives us a wide range of authorities to monitor and ensure compliance. Then, if we find that a party is out of compliance, it doesn't just give us one option for ensuring compliance; it gives us a whole range of enforcement options, which enable us to tailor the response on a case-by-case basis. If the violation is modest and there is good will on the part of the party, we don't have to take the party to court and send the director to jail for years. On the other hand, if the violation is significant and repeated and there's absolutely no demonstrated intention to comply, then of course we can pursue a criminal prosecution.
So again, there's flexibility built into the act, without a lot of prescription.
The way we implement the act is by coming a full circle, at least ideally, so that our understanding of how parties are implementing the act informs our understanding of the issues and our responses to them.
In speaking to slide nine at length, I've essentially spoken to slides nine to fourteen. I'd be happy in questions to come back to any of those slides, but what I propose to do so that I don't drone on all afternoon is skip to slide sixteen and speak a little bit about the preparations we did for the review. Slides nine to fifteen describe our basic approach to implementing the act; slide sixteen turns to a different subject.
We of course knew the review was approaching: the act requires a parliamentary review. In order to prepare for the review, we undertook a number of steps. For example, both departments commissioned external evaluations of our implementation of the act, and we have provided the members with a copy of the evaluation that was commissioned by Environment Canada. We'd be happy to answer questions about our response to the evaluation and would encourage you to speak with the individuals who actually took the evaluation, who are, of course, independent from the department.
We also spoke at length with stakeholders to help us identify the issues they thought would be important to bring forward for the review to consider. We did that in a number of ways. Most importantly, we prepared a discussion paper, and we've given you a copy of it. We posted that paper on the Internet and encouraged people to respond to the paper. And indeed, we received numerous responses and have provided you with a consolidation of the responses that were provided to us.
We also took that paper on a cross-country tour. My predecessor and Paul spoke to the discussion paper in six cities across Canada, and those meetings were open to the public and were attended by a wide range of stakeholders, informed members of the public, specific industry associations, NGOs, aboriginal groups. Municipal governments, some provincial governments, and some of our federal colleagues attended those meetings. The report that was prepared by an independent consultant summarizing what was heard in those reviews is also included in the binder we've provided for you.
On slide seventeen, we've tried to summarize in just one slide the key messages we think we heard from those reviews. Of course, you're going to be hearing from stakeholders and will be able to form your own views. But essentially what we heard is that the act is fundamentally sound. The act underwent a comprehensive review and a rewrite in the 1990's. I think what most people are telling us is that the act itself—the words in the statute—are fundamentally sound.
Almost everybody recognized, however, that while we've come a long way in learning how to implement the act, and while we've taken numerous actions under the act, there's still a lot to learn about how to make use of the full scope of authority in the statute. The statute is about five times as long as CEPA 1988.
There are authorities in here that the federal government of Canada, and indeed no national government in the world, had prior to CEPA 1999. We think we are now coming to grips with the full range of authorities in the act. We think we're learning how to implement most of the provisions in the act. But we completely recognize that we're still on a learning curve. That's the basic message the stakeholders provided to us, that more needs to be done to implement the act more effectively.
Personally, I think that's consistent with the overall structure of the act. This is an enabling statute. It doesn't actually require us to do a whole bunch of things. What it does is say that we “may” do this or we “may” do that. Really, the issue is how we are implementing this broad range of authorities under the act.
Of course, various stakeholders came forward with specific issues that they thought could be tweaked or reformed or refined within the act. We're confident you'll hear from stakeholders throughout your review about those options.
The final two points are interesting ones, but consistent with the emphasis on implementation. The stakeholders saw the effort that the federal government went through in the review of CEPA 1988. The review that occurred in the mid-1990s of CEPA 1988 was extremely resource-intensive and focused the attention of a number of departments on what should be in the Environmental Protection Act and what should not be in the Environmental Protection Act, and who should be addressing this issue and who should be addressing that one. There was a lot of concern expressed by stakeholders and there was a lot of worry that another review of that magnitude could distract the government or take away the effort from actually getting on with the business of protecting the environment and health.
So while nobody said don't do a review, while nobody said there was nothing to improve, there was also an undercurrent of making sure that Environment Canada and Health Canada get on with their jobs of protecting our health and environment.
Finally, of course, a number of stakeholders spoke to the issue of resources, and that issue is also addressed in the evaluation. You may find more detail in the evaluation itself.
I've gone on at some length. As my colleague, Madame Cléroux, emphasized at the beginning, we'd be happy to answer any questions you might have at this time. I hope that has provided you with at least a broad understanding of the act and our approach to implementing the statute.
Thanks very much.
