Thank you, Mr. Chair.
My name is Hugh Benevides. I am with the Canadian Environmental Law Association, or CELA, as I will refer to it in my presentation.
CELA is a legal aid clinic established under the laws of Ontario. We've been in existence since 1970 in order to represent the economically most disadvantaged in society who have needs related to the environment. As part of that mandate, we also engage in law and policy reform activities at the national, provincial, municipal, and international levels.
CELA, as you know, is also a member of Pollution Watch, which is a collaborative project of environmental defence. My colleague, Dr. Khatter, was here with you on May 10, I believe. As you know, we have a website, pollutionwatch.org, and we issue periodic reports, largely making use of the national pollutant release inventory data.
I wasn't certain, given the round-table approach that was anticipated, whether I would have the usual ten minutes, so I'll probably take up less with a few introductory remarks, all of which are tailored around the notion of precaution. Of course that theme is intimately tied to virtually all of the other themes in the act. I've tried to pay attention to that, given the theme today.
I begin by saying that implementing the precautionary principle in CEPA is a journey, not a destination. Having said that, I think it's fair to say that my community wants to travel faster and pass the signposts earlier. In going to the basics of precaution, environmental problems always implicate issues of risk arising because of something that's ever-present in life, including in environmental matters, and that is uncertainty. A precursor to risk is hazard. By that I mean the inherent danger of certain activities, or in the case of what we're dealing with in CEPA, the inherent danger of certain substances. Our vision for CEPA, in order to prevent harm, is to make sure we can eliminate these hazards before they can cause harm. This is at the heart of precautionary action. That means careful consideration and action before we embark on the manufacture and use of new toxic chemicals, which of course is an ethical obligation now reflected in international law. It's also an obligation respecting those substances that are already in use, those we now refer to in the CEPA regime as existing substances.
In respect of existing substances, the importance of the two departments' conclusions in September 2006, post-categorization, are very important. I encourage this committee to follow that process closely. I'll elaborate on that a little bit through the rest of my presentation.
There are several articulations of precaution in various treaties and laws. International law continues to crystallize not around any single one of these articulations, but around the spirit of precaution. As you've heard already in your scoping exercise, the administrative duties section, paragraph 2(1)(a), the preamble, subsection 6 (1.1), and section 76.1 in the current act all mention the precautionary principle explicitly. As a result, CEPA will be interpreted as mandating a precautionary approach. However, we would all be helping officials as well as the environment and human health if we considered during this review how to better articulate it throughout part 5 of the act and elsewhere.
The proposals that have been made by Pollution Watch for this review are intimately tied to and form part of a precautionary approach. That's that linkage among issues including precaution that I mentioned a couple of moments ago. Examples include placing a greater onus on proponents to provide data and information, and greater public involvement, beginning with requirements to make that same information available to the public sooner in the process and more robustly.
I have just a few themes that are all intimately linked to this larger theme of precaution this afternoon. I want to expand briefly on how earlier action could be taken at various stages, how we could be more precautionary, how we can be more preventive in our actions, and how we can protect the environment and human health as a result.
First is the categorization stage. The committee has heard and certainly we in the environmental community are aware that it's anticipated that roughly 4,000 substances will emerge from the categorization exercise as identified for further action. Technically those substances are those that exhibit characteristics of persistence or bioaccumulation and are inherently toxic. It's a considerable group that has at least two of those characteristics, inherently toxic and persistent or bioaccumulative, or there are those substances that have the greatest potential for exposure. So a large number of substances out of the admittedly much larger group of 23,000 are listed.
The act, as you know, requires a further stage called screening. We're very careful with the language because it's easy to confuse one with the other. On the screening-level risk assessment identified in the act, there are a number of questions that arise. For example, we're told that roughly 400 of those 4,000 substances are what we call affectionately, or not so affectionately, PBITs--persistent, bioaccumulative, and inherently toxic, exhibiting all three of those characteristics.
Pollution Watch, the organization and project we're involved with, says we should proceed as soon as possible to a virtual elimination with those substances. In addition, as a subset, or perhaps as an overlapping set of those substances, the two departments may propose the most immediate action on a smaller subset of these. On what basis will they do that? That's going to become clear in the coming weeks. For example, criteria like substances that are known carcinogens and substances that have known reproductive or developmental toxicity are those that are yet to be addressed. Regardless of which subcategory they fall under, we would also suggest they need immediate attention.
I'm raising these because this committee is in a fortunate position, or perhaps a complicated one, depending on how you look at it, because you're charged with reviewing the operations of the act but at the same time, as September approaches, we're coming to an extremely critical time in the life of CEPA 1999. There are a number of decisions the departments will make about how to proceed on those various substances. My suggestion is that the more the committee can involve itself in the questions as to when to proceed to screening, with which substances, at what speed, then Canadians will be better served.
I'll leave that area for now, keeping in mind that the theme here is that the speed with which we do carry on those steps for the different categories will define how precautionary we indeed are in implementing the act.
On the next subject, risk management, you'll want to ask what powers the government has to move now on whichever subset of those most dangerous substances. For example, in section 94 of the act is a provision that allows for interim orders to be made respecting such substances. I believe that provision has not been used yet in the six years experience of the act. For example, for the PBDEs, why has that provision not been used? Will they be used? Why, or why not? So timelines and the speed with which the government can and will act....
A second major category following the process, as it were, is resources. I know that in your scoping exercise with Mr. Moffet and Mr. Glover from Health Canada, this issue was raised. I believe the witnesses invited you to ask the minister about the question of resources. At this point, I would only say that the issue is so important, in terms of answering the questions I asked in the last few minutes about how fast on these substances. The core question is, do we have the resources to carry that out? Again, you're best placed to find out the answers, whether it's from the minister or some other source.
Third is the question of discretion and how to tailor it. I didn't get a chance to tell Mr. Moffet I'd be raising a couple of his points from May 15—and that I wasn't picking on him, or perhaps I am—but one of his comments was that CEPA was an enabling statute, and it doesn't actually require us to do a whole slate of specific actions. I think that's correct, and in most environmental statutes that's the case. Every decision in CEPA requires the precautionary principle be put into effect.
The question is, how can the discretion of the ministers of Environment Canada and Health Canada be tightened in those situations where the most urgent precautionary measures need to be taken? In other words, discretion is always a factor, but are there situations where it's most important that we narrow and tailor that discretion, and lean towards a more mandatory approach?