Environment Committee on May 1st, 2007

[The Chair, Conservative, Bob Mills]

On clause 3, we have the first amendment.

Mr. Warawa, did you withdraw all three of the amendments regarding headings?

[Mark Warawa, Conservative, Langley, BC]

Yes.

[The Chair, Conservative, Bob Mills]

Yes. So amendment G-6 is withdrawn, and w e're now on G-7.

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

We have a number of concerns with clause 3 as it's written.

First, the bill would take regulatory action on DBP and BBP without scientific assessments in support of that action. Risk assessments conducted in 1994 and 2000 found that DBP and BBP did not pose a risk to human health. Taking regulatory action without scientific evidence could result in legal challenges in trade disputes. Therefore, we're moving to withdraw references to DBP and BBP in clause 3.

We are, however, committed to reviewing new information on DBP and BBP. We will move to add a fifth clause to the bill that would commit the government to reassess DBP and BBP under CEPA. It will be amendment 15, which will be discussed further.

Secondly, as currently written, Bill C-307 would use CEPA to control phthalates in toys and other children's products. Again, these products are normally regulated under the Hazardous Products Act. We need to deal with the appropriate statute.

Our amendments would therefore replace clause 3 with one requiring the Governor in Council to make an order under the Hazardous Products Act to prohibit the use of DEHP products that could be put in the mouths of children less than three years of age.

Finally, Chair, the prohibition of DEHP for medical devices may result in effective devices being withdrawn from Canada. Alternative devices that are phthalate free have not yet been tested for all of the uses and, in some environments, are currently licensed devices. Without sufficient safety and effectiveness testing, these devices may introduce other safety risks to Canadians. No other country has stipulated a phase-out time for DEHP in medical devices. No other country has stipulated a phase-out time. We move to withdraw reference in the bill to regulations pertaining to DEHP in medical devices.

However, we're committed to phasing out phthalates in medical devices, starting with those used by the vulnerable populations, and they are children, pregnant women, and newborns. We will move to introduce other measures to meet those objectives. The objectives and motions are found in a new clause in amendment 15.

Thank you, Chair.

[The Chair, Conservative, Bob Mills]

Thank you.

Before I go to Mr. Cullen, Mr. McGuinty, do you get a feeling now for their concerns regarding making this a very functional bill? Do we need to hear from Mr. Rochon? Have you received some clarity?

[David McGuinty, Liberal, Ottawa South, ON]

Well, the only thing I can deduce from what I've heard is the notion that the powers—As Mr. Rochon said, it is unclear under what authority the environment minister can make the regulations that are called for in the bill. We've heard that there ought to be different statutory authorities referenced in the bill, as opposed to CEPA. We've just seen the interpretation section of this bill not pass, which means it's not the Minister of the Environment. Is that correct?

I'm at a point where I'm not sure how much further we can go without taking a break, which I would recommend, or getting further explanations. There are a number of other substantive changes that I'm seeing now. For example, in the bill, we're talking about a prohibition; in the amendment, we're talking about an order. I don't know if it's the same thing at all.

[The Chair, Conservative, Bob Mills]

Well, these are the concerns that the clerk has, as well, regarding some of the wording.

Mr. Cullen, I believe you had your hand up next.

Oh, you have a point of order, Mr. Bigras.

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

This is actually a point of order, Chair.

[The Chair, Conservative, Bob Mills]

Okay. Mr. Cullen, go ahead, and then Mr. Bigras.

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

Again, there is room and space within our negotiation to enact certain other statutes or use other mechanisms and tools. This amendment completely strips the bill of its intention and focuses it in a new direction entirely. If this were allowed with every piece of legislation that came before committee, the whole process of accepting something through second reading in the House would be redundant because the committee's going to rewrite the intention and spirit of the bill anyway.

This absolutely changes the intention. We'll wait for a ruling, but clearly the point of order I raise is around admissibility.

[The Chair, Conservative, Bob Mills]

Mr. Bigras.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

Mr. Chairman, these discussions on Bill-307 are not starting off well. Once again, we're discussing an amendment that most likely is inadmissible. Even if we agreed to it, the Speaker of the House would rule that this bill cannot proceed any further because it's very spirit is being altered.

I'd like to know where we are going with all of this. We can debate at length all of the following amendments, but there is a possibility that when the bill is sent back to the House, the Speaker will rule fairly quickly that we can't proceed any further with it.

Clause 2 has been voted down and some of the changes proposed by the government party have been ruled inadmissible. I understand people wanting to make the bill more practical, but the fact remains that we have a fundamental problem. I'm even wondering if we can proceed any further.

[The Chair, Conservative, Bob Mills]

Well, Mr. Bigras, the clerk and I have discussed this. If we go back to a number of rulings of the Speaker, he is very cautious in terms of changing what committees decide. It would be up to him as to how he would interpret that. You've heard him say a number of times that committees are masters of their own fate. Unless we have done something major, I believe he will rule that the committee was in charge of that.

I don't want this debate to go on long. We've had a suggestion from Mr. McGuinty that we take a break and re-examine some of these amendments.

We've been at this a long time. We do have until June, of course. I know that's not your intention, Mr. Cullen and Mr. Warawa, but let's get this right.

I believe, Mr. Warawa, you have a point to make here.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair.

I repeat that I think there is goodwill within the committee to deal with phthalates. But we have to have a bill, Chair, that will pass a sober second thought if it is to pass from this committee through the House and on to the Senate. So we need to get it right. We need to have a bill that is constitutional and that deals with the appropriate statutes. As I shared, what is being proposed in the way it is written would have legal problems.

I think the suggestion of Mr. McGuinty that maybe we break, or adjourn if that's his suggestion, is good. Hopefully we can come back with some common ground. There definitely is a willingness to help this move forward, but using the right tools, the right statutes.

So if that's his suggestion, we would favour that.

[The Chair, Conservative, Bob Mills]

In order to adjourn, the clerk advises me we would have to have all parties agree to that. Are you thinking adjournment for this meeting entirely? That is your proposal.

Obviously we would need all-party agreement in order to adjourn. We are at the government amendment 7. We can't just stop there and adjourn without all-party agreement.

Mr. Cullen.

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

My original understanding of Mr. McGuinty's point was to allow some time, in the order of 15 to 20 minutes, to have some discussion about the best way to proceed, which we would attempt. In adjourning, we'll return to almost the identical conversation and waste the committee's time. We have everybody here, so let's have 15 minutes to work something out. We will not agree to an adjournment of the committee's hearing today.

[The Chair, Conservative, Bob Mills]

Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

I think the issue goes deeper than that, Chair. We have a legislative chair ruling and yet we have Justice ruling differently and providing guidance to the committee on how to properly write this legislation with the right statute. I think it would need more than 15 minutes to provide advice to this committee and hopefully get consensus among the members.

[The Chair, Conservative, Bob Mills]

Mr. Bigras, go ahead.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

We have a problem. I understand that Mr. Warawa has evaluated the scope of the bill and has concluded that it could be unconstitutional. However, that's his own opinion.

Your job isn't difficult, Mr. Chairman. You're supposed to tell us if the bill and the amendments put forward are either admissible, or inadmissible. If they are admissible, then we'll debate them and vote on them. That's what your job entails. However, it's a different story if a colleague challenges your ruling. It will then be put to a vote.

To my mind, it's important to proceed very carefully and to follow the rules.

[The Chair, Conservative, Bob Mills]

Thank you, Mr. Bigras.

As you know, how I attempt to run things is through consensus, through working together, through understanding the issues, and not necessarily just following rigid, hard procedure. We have a concern between the clerk and the Department of Justice. We're trying to get that concern out so that we have a functional bill at the end of the day that hopefully gets royal assent and becomes law. That's our purpose.

[Bernard Bigras, Bloc, Rosemont—La Petite-Patrie, QC]

No, Mr. Chairman. We're not looking for a practical bill, but rather for one that complies with the rules. Rules need to be followed. As I see it, you're not strictly following procedure today. We can always debate semantics and the spirit of the bill, but we must follow procedure.

That's been true for all of the bills we have examined in committee. Amendments have been put forward. It's unfortunate for Mr. Warawa if these amendments are inadmissible, but it's his responsibility to put forward amendments that are in keeping with the spirit of the bill. I think that's pretty basic.

Procedure must be followed. Either the amendments are in order, or they are not. If they are inadmissible, then it's unfortunate, but we must set them aside and move on to those that have been deemed in order. I've been an MP for 10 years and unless I'm wrong, that's how things have always worked. I don't see why we would proceed any differently today.

[The Chair, Conservative, Bob Mills]

Mr. Godfrey, we haven't heard from you.

[John Godfrey, Liberal, Don Valley West, ON]

I think, of course, that Mr. Bigras is completely right from a technical point of view. The practical challenge we have is that the changes being proposed by the government, which may be completely valid, are so extreme in the sense that, first of all, we're changing from one minister to another, from one act to another, and in a sense eliminating two of the three phthalates that were targeted by the legislation and three of the four uses that were targeted by the legislation. That strikes me as a fairly dramatic set of changes to be confronted with in one morning.

I think we do need to have a break, but I think it needs to be more than 15 minutes. The practical way of getting around this is that Mr. Cullen needs to negotiate with the government on finding some kind of common ground, and then with us, so that we've actually got a package.

We don't have a minister to do it now because we've already eliminated the proposed minister under clause 2. Because the changes are so big, it may go beyond the scope of the bill. I think it's up to Mr. Cullen to talk to the government in an off-line conversation and then come and talk to the rest of us so we can get the things through; otherwise, it's not going to happen.

[The Chair, Conservative, Bob Mills]

Mr. Bigras.