Evidence of meeting #7 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 mercury.
President, Ivey Foundation (Toronto)
It's one of the best examples of where precaution isn't being used.
President, Ivey Foundation (Toronto)
I don't know if you've seen the recent books such as Tim Flannery's The Weather Makers, or obviously there is Al Gore's movie. Those are the popular things. The weight of evidence suggests that we're facing significant ecological damage and we have already seen evidence of it as a result of the carbon dioxide levels in the atmosphere. If ever there was an example around applying precaution, that's the one.
Counsel, Canadian Environmental Law Association
Of course the act is able to address that problem, particularly, for example, in relation to the large final emitters. So one might ask: where are the regulations that would impose hard limits on those emitters and where are the timelines within those?
Nathan Cullen NDP Skeena—Bulkley Valley, BC
Which the act bears the power of. The precautionary principle would suggest the need to--
Counsel, Canadian Environmental Law Association
Act sooner rather than later.
NDP
Conservative
Conservative
Mark Warawa Conservative Langley, BC
I'll see if I can do well too.
Thank you for being here.
I'd like to follow up on some of the comments made by Mr. Cullen regarding the format today. Being a round table, we're hoping to hear on all sides. This is a CEPA review and the committee has discussed the format and we decided on a round table format and we'll be dealing with specific topics. One of those is what we're talking about today.
On the precautionary principle, Mr. Lourie, you mentioned that CEPA has not facilitated precautionary management. Are you critiquing the precautionary principle or CEPA itself? I think there's consensus for support for CEPA, but we have this review. We're required by law to have the review, and here we are. Are you critiquing CEPA itself, or are you addressing the precautionary principle?
President, Ivey Foundation (Toronto)
It's increasingly difficult to figure out where CEPA begins and ends and where government action begins and ends.
The act itself is quite a fine piece of legislation. That reminds me of the story about your kid has great manners; they've never been used. It's a good piece of legislation. We just haven't actually used it very much to figure out where it can be seen to be effective and where really the challenges are. The precautionary principle is in the preamble. There's no reason why it shouldn't filter through the kinds of actions that are enabled through CEPA.
In one way my response is that I don't really have any criticism of the precautionary principle or the act, but I have a lot of criticism around how it has or has not been implemented. Reading the act, one would assume we would have all kinds of great action in Canada, but we don't.
Conservative
Mark Warawa Conservative Langley, BC
In our first or second meeting we discussed REACH very briefly. It's hypothetical that we actually have real legislation here in Canada, so we'll see what REACH ends up to be.
What you're saying is that CEPA has the potential, but your critique is that we're not using it. That's what I'm understanding. Your example with mercury is a good example.
Instead of going home, as I normally do, I spent the weekend reading through different briefs and materials. I found the “Toxic Nation”, which I had glanced at before. I reread it and it created a lot of thought. We find ourselves in a situation now in a country that has CEPA, but are we using it? What you're saying is that we are not.
Conservative
Mark Warawa Conservative Langley, BC
My question—maybe for Mr. Moffet—is what impact has the precautionary principle had on industrial stakeholders?
Acting Director General, Systems and Priorities, Department of the Environment
Could you elaborate?
Conservative
Mark Warawa Conservative Langley, BC
We have the precautionary principle. We're hearing that we're not using it and CEPA. How is it being implemented with industry? We've had the example of mercury. As just a general overview, how are we using the precautionary principle as we deal with chemicals and substances?
Acting Director General, Systems and Priorities, Department of the Environment
First of all, let me clarify that the act actually refers to the precautionary principle in four places, not just in the preamble. It imposes an administrative duty on the government in section 2 to implement the precautionary principle throughout the act. So the departments have an obligation to account for the precautionary principle in every decision they make under the act, including administrative decisions. Indeed, CEPA is the only federal statute in Canada that has that kind of obligation. There are a number that refer to the precautionary principle in their preambles, but none of them imposes an actual duty. So it informs every decision.
One way to think about the impact of the precautionary principle is to say that it enables certain decisions to be made that would otherwise not be made. So, many decisions that are made under CEPA probably could have been made, and would have been made, without those provisions in the act, or without having an obligation to consider the precautionary principle. What the precautionary principle does is move the threshold of acceptable decisions.
To exactly where is not clear, and exactly what kinds of decisions should be made is not clear. That's left wide open to the discretion of decision-makers, with one exception, and that is the exception of persistent bioaccumulative and inherently toxic substances. When the departments find that a substance is a PBIT, to use Mr. Benevides' acronym, then the ministers must recommend that the substance be subject to virtual elimination. That's one example of where the act actually does prescribe a certain type of action, but Mr. Stoffman is absolutely correct that it doesn't prescribe similar types of actions for other groups or classes of substances, based on the kind of harm that is found.
So the answer to your question is that the departments account for the principle in every decision. I am fairly confident that if industry had agreed to come, at least some would have argued that Environment Canada and Health Canada have been overzealous in applying the precautionary principle. It's a value judgment as to how precautionary we ought to be.
Conservative
Mark Warawa Conservative Langley, BC
Well, there you go.
Back to all three presenters, do you support the precautionary principle within CEPA and its present wording, which came from Rio? Do you support it being part of CEPA? My understanding is that you do, but it's just a matter of using CEPA. We've heard there's the issue of political will. Are you suggesting that CEPA is a good piece of legislation, but that we just need to use it properly, and we haven't been? Is that what I'm hearing?
President, Ivey Foundation (Toronto)
Yes, that's what I'm suggesting. I think you can debate the wording issue, and things like cost-effective or not, but I think they really aren't the issue. I think what's coming out is perhaps this idea of ministerial or political discretion, which seems to be at the heart of a lot of the lack of implementation of the act.
Counsel, Canadian Environmental Law Association
That's right.
In my introductory remarks I tried to establish the proposition that precaution is not an option, as it's an emerging principle of international law, and that the particular articulation of the principle in the act is one that is contested, and not the only one, by any means. Mr. Stoffman gave another one. I have a couple more here that I could offer to the committee. So whether it's written in and how many times it is written in is really not the issue.
If I could go back to the remarks about REACH, Mr. Warawa, of course you're right. REACH at the moment is hypothetical, in the sense that we don't know exactly what form it will take when it is finalized, and due to the same kinds of pressures that affect the quality of our laws in Canada, its initial form has been diluted in Europe.
I would have thought that we'd not be talking here about waiting for REACH and seeing how strong or weak it will be, but to actually compete, as it were, to see if we can have the strongest or most precautionary law in terms of earlier action; more information provided by proponents; greater onus on proponents to provide that information; more information provided to the public; and greater resources, for example, to do the kinds of things like Polluted Children, Toxic Nation: A Report on Pollution in Canadian Families, which Environmental Defence has done, but to do that with some fulsome data, as is done in the United States and Germany and elsewhere.
So on those kinds of questions, I would think our preoccupation would be how can we actually compete with legislation like REACH, regardless of what its final form will be when it arrives.
Chair, National Committee on Environmental and Occupational Exposures, Prevention Action Group, Canadian Strategy for Cancer Control
I'll just jump in really fast here.
I would say, in response to the statement that CEPA is fine and that it doesn't need rewording but that we just need to use it, I wouldn't agree with that entirely. As a framework law, there is a lot you can do with it, but there are certain sections and language in it that, in a clause-by-clause review, we would say need to be strengthened. These would include expanding the scope of CEPA toxic scheduled items to address things like developmental toxins and, in particular, classified human carcinogens, which it doesn't do, as Mr. Moffet noted. So that's there.
If we are talking about definitions, once you put in the words “cost-effective”, I think we would argue that you have to address it more broadly, the way the commission did in Europe, which is that cost-effective does not simply pertain to economic terms. What are the real costs of these cancer deaths, or these people who feel trespassed because they're concerned about their reproductive health or are concerned about early puberty in kids, or whatever? Those are costs too, and they certainly are public costs and political costs. So these things have to be looked at.
One point on REACH is that it's true that REACH is a work in progress, but there are a number of directives that have been adopted by all those countries in the EU, which have already addressed a number of the issues we're saying should be addressed in a renewed CEPA. So whether REACH gets more or less diluted, or whether it's passed by the European Parliament or not, there are a half a dozen directives that have been in place, some of them for a couple of decades, that address the fact that there should not be certain classes of compounds allowed in consumer products, that certain emissions will not be allowed, that there be national registries of those who emit certain carcinogens, and so on. So REACH seeks to consolidate a lot of that work that has already happened there.
Conservative
The Chair Conservative Bob Mills
You are, yes. Thank you very much.
I wonder, would the members agree, and would our witnesses be able, to stay slightly longer because we lost that time? We still have a couple of people who have questions. Is that all right with everybody?
Hearing no complaints—