Environment Committee on Oct. 6th, 2016

[John Moffet]

First of all, as my colleague explained, Health Canada, which assesses health risks, already does consider vulnerable populations. Of course, as members of Parliament, you may want to provide for more certainty that it will be done.

Putting it in the preamble would provide some general guidance but no mandatory obligations. Is that strong enough? Putting it in the statute would establish an obligation, so we could ensure that Mr. Morin's successor continues his good work and doesn't leave it up to his successor. On the other hand, a possible unintended consequence could be that you would then require assessments in every case to look at vulnerable populations, even when we don't need to do that to make a decision that the substance is problematic. We can stop the assessment, and we can move on to controlling the substance, so that's a consideration.

Do you want to add anything?

[David Morin]

No, that pretty much summarizes.

[The Chair, Liberal, Deb Schulte]

We have run out of time.

[Ed Fast, Conservative, Abbotsford, BC]

I didn't see that red card.

[The Chair, Liberal, Deb Schulte]

You know what? I got busy listening and I missed the red card.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thank you to both of you. It's interesting information, but I wish I had half an hour to ask questions, so we'll probably need to have another meeting.

My first question is to Mr. Morin. There are two unique mandatory duties under CEPA that you don't see very often in legislation, certainly environmental, and they're mandatory duties on your Minister of Health. Under both sections 55 and 45, where information comes to her attention that there may be a relationship between toxins or air pollutants and illness or health, the minister is required to act. She is obligated to act, so I have two questions for you.

Has there ever been a study initiated by your minister on the health impacts of coal-fired power on Canadians? I'm not aware there has been. The Canadian Medical Association issued a report on that. As a result, Alberta has acted. The federal government, as far as I'm aware, has done nothing.

The second study under those provisions is one that the first nations in Fort Chipewyan have been requesting for decades, and that is a health study on the relationship between the air pollutants from the oil sands and the health effects they're suffering.

I would like to hear why there has been no action on that mandatory duty, on either of those two issues.

[David Morin]

In response to your first question, I am not aware of work that was done with regard to an assessment of emissions from coal-fired power plants on humans under that section of the act. I know there are certainly regs in place for coal-fired power plants—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Provincially.

[John Moffet]

Maybe I can step in. I can't speak to assessments or reports that have been done under Health Canada, and we may need to follow up on that. Mr. Morin has only relatively recently moved into the position, so we can't confirm.

However—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Okay, rather than waste some time, we could follow up on it.

[John Moffet]

May I just clarify? There are federal regulations regulating the emission of greenhouse gases—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm talking about mercury.

[John Moffet]

I've got it. Just bear with me for a second. The regulatory impact assessment statement for those regulations does provide an estimate of the human health benefits of reducing greenhouse gases, including the possible indirect benefits from the reduction of mercury emissions.

I'm not fully satisfying you. I'm only trying to explain that some information is available publicly.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks. So that's one assessment that has been done, but I'm bringing those to your attention, and I would appreciate it if you could answer whether the minister has ever triggered her mandatory duty under those two provisions. If she has, I would appreciate it if you could provide to the committee information about when that has been triggered, since CEPA was enacted, and what those initiatives were.

On my second question, CCME, sometime between 2000 and 2004, identified mercury, which is a neurotoxin, as the top priority for action by all governments, so that's my particular concern. Can you tell me, Mr. Moffet, is that list still there? Is mercury still the top-priority chemical identified by the CCME, and therefore Environment Canada and Health Canada would be moving on that?

[John Moffet]

I'm not aware of a list from CCME. We can certainly provide you with two things; one is a list of publications from the Minister of Health pursuant to sections 45 and 55.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks.

[John Moffet]

Second, I think it would be appropriate to provide the committee with a list of the various risk management activities that the federal government has undertaken to reduce exposure to the emission of mercury and methyl-mercury in Canada.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'm only interested in coal-fired power.

My second question is under part 9, and I appreciated your presentation on that, saying that federal lands and aboriginal lands, particularly reserve lands, are not subject to provincial legislation.

Since that part of the act has been enacted, my understanding is that very little has been done to fill that gap. Can you tell me if the department is making it a priority to move to make sure that we have a regulatory regime similar to the provinces or territories for federal and aboriginal lands, and particularly reserve lands?

[John Moffet]

I think the answer is more of a Government of Canada answer. In budget 2016 the government committed a fairly significant amount of money—I don't have the figures off the top of my head—to address solid waste management and waste-water treatment facilities on reserves. For as long as I've been involved in the issue, those two issues have routinely come out at the top of the list of problems, by no means exhaustive, and the government has made a commitment to address those issues.

The second point I'd make is that, more recently, the Minister of Environment indicated to a parliamentary committee that she had instructed the department to conduct a review—I'm going to be careful about my words here—of the status of the gap, so that work is under way.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Great. Thanks.

I just have one other quick request for something that everybody would like. Can you give us the names of the aboriginal members on both the health committee and the national advisory committee?

[The Chair, Liberal, Deb Schulte]

For any question we're looking at here, all of those great things that were asked, it's understood that the information will be shared with everyone on the committee.

Thank you very much. That's great.

Mr. Fisher.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Thank you, Madam Chair. I don't think I'll need all of my time, so I'll be happy to pass it on to someone else.

I'm interested in significant harm versus harm—and maybe you can correct me if I'm wrong—and the fact that it comes across as possibly being open for interpretation. Can you give me a little more detail on how you would register significant harm versus harm? One person's significant harm might be another person's harm.

[John Moffet]

I would agree that the act doesn't define “significant”. However, I think that, as a matter of fairly routine statutory construction, and the fact that you have in two places in CEPA a reference to significant harm, whereas the term doesn't appear anywhere else, a routine statutory interpretation would suggest that there's a higher standard. The act does not determine exactly how high or how much higher that bar is, and therefore it is a matter of wide open discretion.

The first place it appears is in the private action. As I explained to Mr. Amos, that's never been used, so it's never been tested. The other place it's used is in the provisions related to establishing a threshold for regulating emissions associated with fuel content. We have issued regulations and have not been challenged, so we've passed the test. I can't tell you exactly what the test is though.

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

It seems as though that's a problem with CEPA, that there would be the ability for someone to interpret that at different levels. I think that's something we'll have to look at to see if we can get it fixed.

You talked about Governor in Council assessing a specific list of substances and checking to see who has the authority to assess the risks. I'm wondering about the ability to assess the risks. How much work, how much science, how much effort is going into determining whether some of those substances pose risks? Is that something the government is doing? Who does that legwork to determine whether there's actually a substantial risk?

[John Moffet]

I was describing the fact that CEPA says that any new substance that comes into Canada has to be notified under CEPA for an environmental or a health assessment. Then there is a fairly robust regime established under CEPA to allow us to specify what information has to be provided, the timelines under which a decision has to be made, and the kind of recourse the government can have, the kinds of decisions the government can make, depending on its assessment of the information.

The act also states that if another statute provides for an equivalent assessment regime, then that statute can be put on a list under CEPA and then the CEPA obligations don't apply, the authority under the other statute applies. For example, the Seeds Act is administered by the minister of agriculture and is on that list. That means that from a legal perspective there is a full set of legal authorities that are equivalent to the new substance obligations under CEPA, specifically for seeds. So there is a statutory regime that's fully administered by the Department of Agriculture and Agri-Food and no assessment for seeds has to be made under CEPA.

In some cases we have acts that don't provide for a fully equivalent regime but you have a minister and a department or an agency that is familiar with the issue. The Food and Drugs Act does not provide for the environmental assessment of food and drugs so we can't schedule the Food and Drugs Act. A new food or drug also technically has to be assessed under CEPA.