Evidence of meeting #4 for Environment and Sustainable Development in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was cepa.
Assistant Deputy Minister, Environment Stewardship Branch, Department of the Environment
There are already Pan-Canadian standards for certain atmospheric pollutants. Others are the topic of discussions. For many years now, there's been talk of taking them one by one and signing agreements throughout the country. The same approach was used both for air and for sewage.
Director General, Safe Environments Programme, Department of Health
Can I add something regarding air?
Is there time?
Director General, Safe Environments Programme, Department of Health
With respect to air, Health Canada contributes to those Canada-wide standards, so they are both environmental and health standards.
Responding to your first question, I'd like to point out there is room for CEPA with respect to indoor environments. We spend 90% of our time in the built environment. It's important for us to look at substances in all of their mediums—not just their emissions to the environment, but also to the built environment.
Bloc
Marcel Lussier Bloc Brossard—La Prairie, QC
Good afternoon. I would like to welcome all the witnesses.
In section 9 of the Act, it is indicated that agreements related to the enforcement of this Act would automatically expire after five years. It also says that with a three months notice, any agreement with the provinces can be cancelled. What guided your decision on those two points?
Assistant Deputy Minister, Environment Stewardship Branch, Department of the Environment
The five-year expiry date is linked to the automatic review of the CEPA every five years. It is one of the elements of the review that does not have the scope it should have, because these agreements should last as long as the Act is not reviewed and amended. That is part of the things that the committee should consider and it comes under the prerogative of Parliament. Now, signed agreements that are working expire within the same timeframe and in our opinion that should be changed.
With regard to the three months notice, there is a follow up regarding the application of an equivalency agreement. If the federal minister of the Environment or the Health minister—that hasn't happened yet, but it could apply—feels that a province with which we have an agreement does not apply the same regime or does not provide the service that was expected, it could be amended provided there's a notice.
Bloc
Marcel Lussier Bloc Brossard—La Prairie, QC
You say that the agreements have to be made public for people to be aware of them. Do you think that this was well done in the past? We often took on projects without knowing that part of the jurisdiction had been transferred to the provincial level. Have you had good experiences in the past? Were the agreements well publicized?
Assistant Deputy Minister, Environment Stewardship Branch, Department of the Environment
If you look at the evaluation, you will see that an outside opinion was sought, which indicates that the process systematically respected legal obligations. I don't know whether these obligations were systematically applied across the board. However, if you look at the obligations as they were intended—
Bloc
Marcel Lussier Bloc Brossard—La Prairie, QC
I'm referring to the public. Is the public well informed of agreements which were signed in the past? You seem to indicate that you want to improve the awareness of the public.
Senior Counsel, Department of Justice
Right now the act sets out a very prescriptive duty on departments to publish any potential agreements before they're signed. They're published in the Canada Gazette and in any other manner the minister or ministers deem appropriate.
Bloc
Marcel Lussier Bloc Brossard—La Prairie, QC
So there has been no change compared to what was done in previous years. The information was published, but not enough and the public was not really aware of the situation.
Senior Counsel, Department of Justice
The Canada Gazette is not a widely read publication for most people.
Assistant Deputy Minister, Environment Stewardship Branch, Department of the Environment
The information is also published in the CEPA register, which is accessible on the Environment Canada's website. However, these are fairly dry subjects, and unless people are personally affected by them, they don't raise a lot of interest.
Conservative
Mark Warawa Conservative Langley, BC
To the witnesses, thank you again for being with us today.
We met with Pollution Watch and Great Lakes United last Wednesday. We appreciated their input, as well your input today, primarily focusing as a group on recommendations from the witnesses on how best to do the CEPA review. Your input will hopefully provide that guidance.
Some of the questions that I had have already been answered, but I do have one.
Mr. Moffet, I believe you made a comment that we need to learn to more effectively implement the act. That's where I'd like to ask questions on the effectiveness of the act.
In your experience and in the department's experience, are there conflicts with other pieces of legislation, which would cause it to be less effective, that we need to look at? How would you recommend that we find those efficiencies and effective changes to CEPA?
Acting Director General, Systems and Priorities, Department of the Environment
When I said that we need to learn to implement the act more effectively, I was speaking in the context of the principle of continuous improvement that Cécile referred to.
The act provides the government with the authority to do things that it wasn't able to do previous to 1999. For example, it requires parties to develop, implement, and publish the results of a pollution prevention plan. That was a brand-new provision, a brand-ew authority. It had been explored by a couple of American states but by no other jurisdiction in the world previous to 1999.
When the government received that authority, it spent a couple of years essentially talking to stakeholders and talking to officials within the government about how to use the provision. In what circumstances would that be a useful authority to use? How would it then relate to other ongoing activities? It took two or three years to sort out.
The department then started to use those authorities. With use, we started to learn the correct assumption, and we could fine-tune it and go in a slightly different direction. There are a range of authorities like that, where we had to start from square one, figure out what it meant, look around at the rest of the world, identify lessons learned, map out a preliminary approach, start to implement it, take stock, and then improve our implementation. I think that is essentially where we are now in year six of implementation of the act.
As to your specific question on whether the act conflicts with other statutes, I think that “conflict” is possibly a harsh word. The act overlaps with other federal statutes, and the act has explicit provisions for circumstances where it overlaps with other statutes.
I'll again draw your attention to the new substances regime, where the act says that if another federal statute provides for an equivalent regime of a notification and assessment, then the government can add that act to a schedule to CEPA. Essentially CEPA won't apply, and the other act will apply. We've done that with a number of statutes.
There are a number of other statutes where we would like that to apply, and we're working with the departments that administer those statutes. Where the other statute doesn't apply and CEPA does apply, you still only have one statute applying. We want to make sure that the agency with the relevant expertise is doing the implementation and using their own statute.
We're not in a situation where we have two statutes applying at the same time with the same obligations. CEPA is very clear that there will be no overlapping obligations. Where one applies, CEPA won't apply at the federal level.
NDP
Paul Dewar NDP Ottawa Centre, ON
Thank you.
I want to go back to the precautionary principle for a moment and actually talk a bit about something connected to that idea of reverse onus of safety. It's something that has certainly been brought up in other jurisdictions. I'm thinking of situations where products have come forward that might be problematic--there might be a hazard or there might be a health concern--but you can't associate direct causality. I guess some of the problems are a result of how different substances combine and have causality with each other in the environment and that is also of concern. In other words, when you have a new substance or a new product that reacts with another one and can become a health hazard, it can be problematic.
If there is precautionary principle, as in a lens that one looks through, would it not then be a logical next step to talk about the reverse onus being placed on whomever? Typically it would be industry. It's fine to say it won't harm me, but prove it. I don't want to wait ten years to find out, as we have in the past.... If you look at any of our bodies right now, we're walking around in an interesting chemical soup. Is it not important here to look at reverse onus to, if you will, be a little more precise in how we implement the precautionary principle?
Acting Director General, Systems and Priorities, Department of the Environment
Perhaps I can speak to your examples that focus on new products and new substances.
First, let me suggest that it may be that the committee will decide it would be appropriate to ask us to come back and provide more detailed advice on how we implement the new substances regime.
The new substances regime is fundamentally precautionary. The new substances regime says that you cannot introduce a new substance until it has been assessed. In the regulations, it prescribes the information that you have to provide to us in order to enable us to make an assessment of whether there's a risk. It's not quite reverse onus in the sense that it doesn't say that you have to prove; it says that we decide what information we think we need to make that judgment. We don't have to go and get it. If you want to use the substance, you have to give us that information. Then we make the assessment.
NDP
Paul Dewar NDP Ottawa Centre, ON
I have one other question.
You were talking about other jurisdictions. I referred to “within Canada”, that it's important to probably look around and see if we can improve things federally, and if there are good policies at the provincial level, and I hope we would certainly do that. But if we're looking at, for instance, other OECD jurisdictions and at how they've implemented policy using the precautionary principle, or followed the requirement to curtail or limit use of certain substances or products, how do we make a comparative analysis? Is there a tangible way in which...? You know, if new policies come out of OECD or other countries and we say that's really something we should be adopting in our own jurisdiction, what process do we follow in terms of doing that?
Acting Director General, Systems and Priorities, Department of the Environment
I'm emphasizing the new substances regime. I'll speak to that and the existing substance regime.
The reason I'm emphasizing the new substances regime is, in part, to be frank, because it's easier to address new substances. There isn't a commercial stakeholder in place. People's jobs aren't at stake. People haven't been producing and using these substances. So we can set these rules.
The other reason I'm emphasizing it is because it's widely recognized around the world as the benchmark for new substances. As an example, a number of countries are exploring the possibility of having mutual recognition among new substances notification regimes. Australia, to my knowledge, is the only one that actually has that kind of regime in their statute. To date, the only country's regime that they've recognized is Canada's. So they've looked around the world and said, “Whose assessments would we accept on par?” And they've said “Canada's.”
That is to say, our regimes are being looked at by other countries. We also look at what other countries do and we're actively engaged in that mutual recognition discussion around new substances. Those discussions occur at an operational level on an ongoing basis. Similarly, with respect to assessing existing substances, we participate in international activities.
One of the first substances addressed under CEPA was a group of substances that you'll all be familiar with, ozone-depleting substances, CFCs. We didn't do an assessment in Canada. The international community had done an assessment. We participated in that assessment, but we didn't do a Canada-specific assessment. The ministers of environment and health, and then the Privy Council, said “The international assessment that concluded this is good enough for us. We're going to take action.”
So we had people participating in the international forum. They brought the information back, and the government was able to act on it. We continue to do that.
Director General, Safe Environments Programme, Department of Health
Just to round that out very quickly, section 75 of CEPA actually requires, on the existing substances side, that we look at decisions of other jurisdictions. So that's something we are obliged to do under the act, and will do regularly, in terms of their assessments.
The other thing I would point to is something a little bit further forward, the results of categorization, where we will have been through all the existing substances and have been able to say these things met a trigger condition that requires us to investigate further. So we will be well ahead of any other jurisdiction anywhere in the world with respect to our existing substances in use in this country and figuring out which ones require further work by governments, cooperatively with industry, and so on.
