Thank you, Chair, and thank you to the honourable members of the committee for inviting Ecojustice to speak to the committee today with respect to plastic pollution.
I'm a staff lawyer with Ecojustice. I'm based in the Halifax office which was recently opened. I hope you've received my written submission. It's a brief that was provided yesterday. It has two appendices. The two appendices are examples of how we might use the Canadian Environmental Protection Act to actually regulate plastics now without any major changes to legislation. It would require some regulations being made.
My presentation focuses on that act. We call it CEPA, as you may know. It shows how CEPA can be used to effectively control plastics and prevent them from entering the natural environment. The committee has no doubt heard evidence as to the many harms that plastic can and does cause to the environment and to human health.
The two appendices to my brief show examples of how we believe CEPA can be used effectively. The first is the microbeads example, which you are no doubt familiar with. It shows what can happen when there's a unanimous resolution of the House and the government takes initiative and moves things forward. It happened very quickly and produced an excellent result.
The second is an action that we took on behalf of several clients. It was a request to the Minister of Environment and Climate Change to add single-use plastics, microplastics and plastic microfibres to the priority substances list under CEPA. If it had continued on that track, it would have—and we hope still will—lead to an assessment of those substances, which would then open an array of powers that allow the government to regulate those substances and control plastic waste. Key to the use of the CEPA mechanism is to conduct a toxicity assessment under CEPA.
“Toxic” is defined under section 64 of CEPA. A comprehensive toxicity assessment must be undertaken in respect of the plastic waste that is accumulating in our environment. In the context of such an assessment, the word “toxic” has a particular and a broader meaning than what we might usually think of as the ordinary meaning of the word “toxic”. It's not simply poisonous, if you think of it that way. It is much broader. It's a very broad definition, and the details of that definition are set out in the brief that we submitted. I won't go through that in detail.
Section 68 of CEPA provides guidance as to some of the factors that can be investigated and considered when determining whether a substance is toxic. It's a very wide range of inquiry that can be undertaken. Once the substance has been found to be CEPA toxic, then CEPA provides a wide array of measures and powers to prevent and control the environmental harms caused by that substance. The toxicity assessments themselves are science-based reviews of the substance and gauge the effect of the substance on the environment, biodiversity, species and other things.
To trigger a toxicity assessment under CEPA, one example was the process that was followed in the microbeads situation. It appears in that case that a toxicity assessment was conducted under a combination of CEPA sections 68, 71 and 75. These are overlapping provisions, and it seems that they were used together. Section 68, as I've said, empowers the minister to conduct assessments.
Under section 71, the minister issued a notice requiring persons engaged in activity, specifically in this case, importers, exporters and manufacturers of microbeads to provide information and submissions. An initial science summary was prepared, followed by wide-ranging consultations on the report. The bans in other jurisdictions were also considered. That is often a shortcut to effective action under CEPA because in many cases the science has already been compiled in other jurisdictions to the satisfaction of those jurisdictions, which have then issued orders. We think that this mix demonstrates the flexibility of the CEPA process to conduct assessments. It would work very well for plastics.
Another means to do so is the priority substances list, which is the means we attempted to use via the request to the minister. This is more available to people outside of government who wish the government to take action but are not able to directly trigger a toxicity assessment. They then must engage the statutory process. They can do so by issuing a request to the Minister of Environment and Climate Change under subsection 76(3) of CEPA. Appendix B is our submission under that section. As I said, it requested that single-use plastics, microplastics and plastic microfibres be added to the priority substances list.
The minister is to decide whether to place the substances on the list, but in our case, despite the passage of a statutory deadline of 90 days, the minister has not yet made a decision. We hope one will be made, but it hasn't happened yet.
If the substance is placed on the priority substances list, it is prioritized for a toxicity assessment. If an assessment is not conducted within five years, which is ample time—more than ample time, we believe—the requester can then ask for a board of review assessment on toxicity and a recommendation. The board would then make a recommendation to the minister in that way. This has not happened because this particular initiative is stalled at the request stage.
Another route is, as I said, subsection 75(3), which is about bans in other jurisdictions or other governments in Canada. That is a route that can be followed as well.
Another route is international water pollution, and in this case it could be plastic pollution. That triggers a different section of CEPA, but it is another way of getting to regulations to control the substance.
If a toxicity assessment reaches the conclusion that a substance is toxic or capable of being toxic, then the ministers can recommend to the Governor in Council that an order be issued, which would add the substance to schedule 1, the list of toxic substances under the act. This is under section 90 of the act. In the case of microbeads, this is the process that was followed, and it ended up with microbeads being added to the list. Then regulations followed, as the committee is no doubt aware.
We feel that regulations of this nature are quite suitable and could be used to control many types of plastic pollution.
Thank you.