It's our pleasure. I am happy to be here, and I am happy to return, if the committee would find that useful.
I will attempt to go through this fairly quickly. Again, interrupt me if I am going too quickly or if there is an issue you want to focus on.
The purpose of the presentation is to give you an overview of CEPA, how it is structured and how it works, as well as to speak a little about some of the issues identified in the discussion paper that Minister McKenna shared with the committee.
I'll turn, then, to the structure of CEPA. Slide 4 illustrates the fact that CEPA is a very broad statute that is designed to give the government the authority to address a wide range of pollution sources. I know that, to date, the committee has heard primarily about the way in which CEPA has been and can be used to address chemical substances, but it also has a broad range of authorities for a wide range of other pollutants. Similarly, it provides a broad set of tools, various types of instruments and authorities, that can be used to gather information, publish reports, and that sort of thing. In addition, the act provides various duties for the government, throughout the statute, to guide the way decisions must be made.
I won't take you labouriously through the detailed table on slide 4. I think it's more of a heuristic device to illustrate that we have a lot of tools and authorities, as illustrated down the left-hand column, and they can be applied to a wide range of pollution sources, as illustrated by the top row.
I'll jump to slide 5. I am going to go through the various parts of the act and describe how they can be used, as well as through some of the issues that we have identified in the discussion paper that Minister McKenna shared with you. The first part of the act is primarily focused on administration, including intergovernmental co-operation. It requires the government to establish a national advisory committee, which Mr. Morin and I co-chair. That committee must include representatives of the governments of each province and territory, as well as up to six aboriginal governments, and those are defined in a very specific way. We are obliged to share with the national advisory committee every proposed decision made under CEPA. We do that electronically, and we also convene regular teleconferences to enable discussion of issues among members and with the federal government.
Part 1 also provides for administrative agreements and equivalency agreements. Administrative agreements are just what they sound like—they are work arrangements between governments. We may have an information collecting authority or an authority to take certain actions in the case of emergencies. The minister has the authority to enter into administrative agreements to allow a province, a territory, or an aboriginal government to undertake that work on behalf of the federal government. The federal law still applies; it is just being implemented by a province. We have a number of examples of these agreements, both under CEPA and under the Department of the Environment Act.
We also have authority for equivalency agreements, and those are becoming an increasingly important focus for provincial and territorial governments. The way equivalency agreements work is that they provide authority for the minister to enter into an agreement with a province, a territory, or an aboriginal government where the minister is of the opinion that the other government has a set of legal authorities equivalent to part or all of a CEPA regulation.
In that case, then, where an agreement has been completed, the government can then issue an order in council standing down that part or the entirety of a CEPA regulation in that jurisdiction. For example, last year the government stood down the application of a regulation that addresses greenhouse gas emissions from coal-fired electricity generating plants. We stood down the application of that regulation in the province of Nova Scotia because the minister had entered into an agreement with the province, recognizing that the province's set of legal authorities that it had put in place to phase out coal-fired generation in the province would achieve the equivalent environmental result as the application of our regulations. There was no point in having the two sets of legal obligations apply at the same time, so we stood down our regulation.
We've noted in the green boxes there are a couple of areas where these authorities could be enhanced. For example, I've repeatedly said provinces, territories, and aboriginal governments. Of course, in some cases other types of entities implement regulations. A good example would be offshore boards, which are joint creatures of provinces and the federal government. At the moment, we don't have the authority to enter into administrative agreements with offshore boards.
I described the test that we used for equivalency agreements as an equivalent outcome. There is no test in the statute, so it's ambiguous. For 15 years, we have had an agreement in place with provinces, developed via the national advisory committee, that that will be the test. It was the test that we used for the Nova Scotia coal-fired regulations. We introduced that test in the amendments to the Fisheries Act that were made in 2012, but CEPA could be made clearer if that were amended.
Moving to public participation, there are a range of public participation obligations on the part of the government, and rights on the part of the public throughout the act, but many of them are codified in part 2, which provides for publication of various types of information. We are, by law, required to maintain an online registry, the Environmental Registry, which provides notice of all proposed and final formal actions taken under CEPA. Regulations, orders, guidelines, agreements, etc. are all published online and available for public access.
There's also whistle-blower protection, authority for individuals to apply for investigations of alleged offences, and an authority that has not had significant use, and that is an authority to allow individuals to bring in environmental protection action. In addition to any comments that the committee may hear or may have on your own behalf about the adequacy of this full set of provisions around public participation, the discussion paper notes that the test for environmental protection action is very high. It authorizes individuals to bring these actions only where the alleged offence would cause or has caused significant harm, as opposed to any harm. Of course, somebody might violate CEPA, and it could be debatable how significant the harm was. At the moment there is this high threshold for individuals to be able to bring that protection action. The minister wanted this brought to the committee's attention to consider.
The next part of the act provides a range of information gathering authorities. We're now starting to get into some of the tools that the government can use for risk management. It also provides authorities for the government to establish registries, so a pollutant release inventory and a greenhouse gas inventory. It also provides authorities for the minister to promulgate environmental quality objectives, environmental guidelines, release guidelines, and codes of practice.
Section 9 of the discussion document identifies various improvements that could be made to this suite of authorities around information gathering, in particular. There's a reference to the very tight set of rules around confidential business information, which could be relaxed. There's a reference to the possibility of clarifying the authority of the Minister of Health. The Minister of Health, of course, shares in the responsibility for administering most of the act. However, most of the tools for either gathering information or changing behaviour are either joint tools of the Minister of the Environment and Minister of Health, or tools of the Minister of the Environment on her own authority.
In some cases, though, it may be that the issue is being addressed from a human health perspective. From strictly an administrative efficiency point of view, it may be appropriate to allow the Minister of Health to take the action without having having to come to the Minister of the Environment for concurrence. There are a variety of ways in which these information gathering and softer tool authorities could be enhanced, as described in the discussion paper.
The next part of the act, part 4, is described on slide 8. That codifies a tool that was introduced into the act in its last iteration. That tool allows the minister, for the purpose of managing a toxic substance, to issue a notice requiring an identified set of parties, typically businesses, to develop a pollution prevention plan.
The notice identifies the risk that the plan is to address and the objective of the government, and then says, “You have to develop a plan, and your plan has to tell us how you considered the issue and what you're going to do about it.” You don't actually have to do anything other than develop a plan, and what we've found is that this has been a very effective tool.
It's not appropriate in all cases. We don't use it in all cases. We use it in situations where we believe that, again, typically industry has the wherewithal to respond to the plan and to take initiative, and where it's most appropriate to give full discretion to the affected industy, to figure out how to solve the problem.
We have very robust reporting obligations under these plans. We provide annual reports to the public about the performance under these plans. In no case, to date, have we concluded that we need to take another step, in other words that the industry said, “Actually, we're not going to go as far as your objective.” To date it's been a useful tool. Again, it is not the only tool in the tool box, but it's an example of a kind of tool that is not a traditional regulatory tool that CEPA provides for.
Then we get to the heart of the chemicals regime in the act. Of course, the information gathering and the pollution prevention planning authorities are all extremely useful for the assessment and management of chemical substances. The two core parts are parts 5 and 6. Part 5 deals with chemicals, and part 6 deals with living substances.
In both parts, we make a distinction between new substances and existing substances. A new substance is defined as something that is not on a list. That list was drawn up in the mid- to late 1980s of every substance that was in commercial use in Canada. The list has since been added to over time through the exercise of the new substances provisions. If you're not on the list and you want to introduce a substance into Canada, for any purpose, the law says you can't until you notify us and we conduct an assessment of the environmental and health risks associated with the use of the substance.
The act gives the government the authority to prescribe the kind of information that must be submitted and it gives the government authority to respond in various ways: good to go, good to go under certain conditions, can't use it at all.
Substances get notified under that process. The assessors assess the information, and if they give the substance a green light, then the substance can get added to the domestic substances list so that it no longer needs to get notified. That's one way in which the domestic substances list has grown over time, in order to ensure that it remains an accurate reflection of substances that are actually in use in Canada.
This does raise a couple of issues, however. One is that we actually don't have what we would consider adequate authority to take substances off the list. There are substances that we know are not in use in Canada, and we'd actually like to see notification before they get reintroduced, but they're on the domestic substances list, so they don't have to be notified.
Another issue is flagged in this green box on slide 9, and that is that one of the basic architectural principles in CEPA is that it will provide sort of a baseline reference for the assessment and management of toxic substances in Canada. However, if another statute that focuses on a specific set of substances provides for an equivalent regime for assessment of environmental and health risks, then CEPA can stand down and that other statute can take its place. It makes good sense, because we have purpose-built statutes for regulating seeds and feeds and animal welfare, etc., so where those statutes provide for health and environmental risk assessment, CEPA stands down. We have stood down CEPA to allow a number of other statutes to apply.
However, there are also a number of statutes that focus on specific types of substances that are old. Typically, the problem with them is that they provide for a health assessment and maybe a safety assessment, but not an environmental assessment. By law, we have to do the assessment of those new substances under CEPA, even though there's an entire legal regime to address those substances and, indeed, in many cases an organization—maybe the department of fisheries, maybe the department of agriculture, maybe the Pest Management Regulatory Agency—with all the expertise in those substances.
There are two ways to solve that problem. One would be to amend those statutes. That is easier said than done. There are a lot of reasons in many cases not to open up a statute. Another way to solve that problem would be to create an authority in CEPA for the Governor in Council to give a subset of the authorities in CEPA, the authorities around new substances, to another minister for the purpose of assessing a specific set of substances. If you had another minister with an organization that had expertise in a kind of substance, and a regulatory regime for most of the aspects of that substance, but they didn't have the authority to address the environmental risks, this would allow the government to give the full set of authority under CEPA so that we wouldn't have to do the assessment. What typically happens is that they do the assessment and we double-check it. It has to go to our ministers and they sign off. Really, what you want is for the organization that knows the substance to be doing the work.
We then turn to risk assessment and risk management. I won't go into this at length, because my colleague is going to speak to this at the end of the presentation. I would only say that on risk assessment, you've heard a lot, I think, both from myself in the initial presentation and from some of the stakeholders, about the chemicals management plan and the focus in that initiative on assessing substances that were categorized as meeting certain criteria in 2006. That is a major feeder of our risk assessment activities.
That took the 23,000 substances on the domestic substances list and said that about 4,300 of them meet these criteria. That means they need more assessment. That's, of course, a significant feeder.
There are a number of other feeders. We are obliged under section 75 to look at every substance that has been prohibited or substantially restricted by another jurisdiction in the world, including a province or territory.
A number of feeders contribute to our risk assessment activities. There is a test for what is, under the act, considered to be toxic, and that test triggers the obligation to manage a substance.
With regard to risk management timelines, at least for some substances, depending on the feeder through which they came into risk assessment, there are specific timelines after a substance has been found to be toxic. The ministers have to publish a proposed instrument within two years and then finalize an instrument within another 18 months. As I've mentioned, the act provides for a broad suite of tools, although as the discussion paper identifies, we're always trying to think about new tools and there's at least one that we think could be codified in the act.
Then, of course, another set of issues that has arisen is whether we can use the statutory authority of another minister to manage a substance that's been assessed under CEPA.
The way CEPA works, if you assess a substance under CEPA and find that it's toxic, then you're obliged to develop an instrument under CEPA to control the substance. In some cases we've concluded that something is toxic and it needs to be managed, but there is another statute, perhaps a different statute that the Minister of Health administers, for example, that is much more appropriate and tailored to the particular risk that we're trying to address.
Technically, the way CEPA is written now, we have to use a CEPA instrument. Something for the committee to consider is whether we could discharge the obligation to manage the substance by using a tool under another act. We have the same set of issues for chemicals and new substances, under parts 5 and 6. Part 7 is basically a compendium of authorities for a wide range of pollutants.
I'll highlight a couple of issues. One set of issues that occupies a fair bit of time in the department and that has become fairly significant in the case of environmental assessment decisions has to do with ocean disposal. For that, we've codified an international rule, the London convention, and the further detail provided by the London protocol, which addresses disposal at sea. Basically, the rules are that you can't dispose of anything at sea other than a very small list of substances that are codified in the London protocol and then repeated in CEPA, and even then you have to satisfy us that, basically, this is environmentally the best thing to do.
