First of all, thank you very much for having me today. More important, thank you for the work that you're doing in this CEPA review.
For those of us who aren't doctors, it's rare that you can say you're work can save lives, but this work you're doing could save thousands of lives every year in Canada, and not just save lives, but improve the quality of life for all Canadians, including children, the elderly, people with disabilities, low-income communities, indigenous communities, and other vulnerable populations. I think we all agree that CEPA 1999 needs a lot of work. You've undertaken a big project, but the good that could come from this is also very significant. I'm very happy to be a part of your work.
I'm a professor at the Centre for Environmental Law and Global Sustainability at the U of O. My expertise is in the area of environmental human rights and liability for toxic substances. In that capacity, I've testified in public hearings at the European Parliament, done consultative processes at the UN Human Rights Council, testified at our own Senate Standing Committee on Energy, the Environment and Natural Resources and before this committee at the last CEPA review 10 years ago. I'm past co-chair of Ontario's toxics reduction scientific expert panel, which helped the province develop their Toxics Reduction Act. Along with Dr. Heather McLeod-Kilmurray I'm the author of The Canadian Law of Toxic Torts.
I have reviewed the submissions that have already come before this committee, and in my opinion, you can find a clear, comprehensive, and feasible road map for building a better CEPA in the submissions of Dr. Dayna Scott, Dr. David Boyd, of course my colleagues on the panel today, as well as Ecojustice and the Canadian Environmental Law Association.
I'm going to focus my submissions in the areas of my own expertise. CEPA needs a lot of revision to meet its goals. I commend to you all the recommendations in those submissions that I mentioned.
I submit that CEPA should recognize, and more importantly effectuate, the right of every Canadian to a healthy and ecologically balanced environment. To do this, CEPA will need to take into account three distinct dimensions of environmental human rights that have been recognized internationally, notably by the UN special rapporteur on human rights and the environment. Those are: one, the substantive right to environmental quality; two, the obligation of non-discrimination in environmental protection; and three, procedural environmental rights.
Taking each in turn, first is the substantive right to environmental quality. As a first step, I submit that the Government of Canada should amend subsection 2(1) of CEPA to impose on the government the obligation to respect, protect, and fulfill every Canadian's right to a healthy and ecologically balanced environment. This amendment would bring Canada into the overwhelming global consensus, which views environmental protection as a human right. Some of you may know that the Supreme Court of Canada will hear its first charter environmental rights claim next week. The environmental rights revolution is coming to Canada. It only makes sense to embody this important concept in our most important federal environmental law.
In my view, even more important than recognizing the concept is implementing it, giving effect to it. To do that, CEPA needs to begin to do a much better job of identifying, limiting, and even banning harmful chemicals. In particular, it should eliminate exposures to known carcinogens, developmental neurotoxins, and endocrine disrupters.
To do that you have to implement the precautionary principle at every stage of the CEPA process. If you don't, you not only end up with under-protective results, but you violate rights in the process. I think Dr. Joe Thornton, says this the best, “People, not chemicals, have the right to be presumed innocent until proven guilty. People also have the right not to be experimented on without consent”. In other words, if the substance hasn't been proven to be safe, I submit it should not be released into the Canadian environment.
Still on this topic of the substantive right to environmental quality, we would need some particular amendments. We should amend CEPA to require the ministers to establish binding and enforceable standards for ambient air quality and drinking water.
As you know, historically we've regulated point-source pollution, without a total limit on the number of point-source permits that can be issued, which results in pollution hot spots. This doesn't make any sense ecologically or physiologically. These values are too important to be embodied in non-binding guidelines. They need to be enforceable within the act. We know from other jurisdictions that these binding national standards can be effective at improving environmental quality and public health.
We also need to remove the need for exposure data in determining toxicity under section 64, and take a hazard-based approach to substances of high concern, requiring industry to prove safety, rather than government proving toxicity.
In my submission, in the 21st century we now know that any substance that enters the environment will eventually end up in human bodies, and vice versa. We're seeing that the drugs and pharmaceuticals we take are in lakes and rivers; similarly, industrial chemicals such as PCBs are measurable in human bodies. In order to assume that you could allow the release of a substance without its resulting in exposures, you'd have to rely on the logical fallacy of the human separation from nature, which is just not supportable anymore.
As Dr. Scott pointed out, the requirement to include exposure data when you're assessing toxicity has resulted in some very long delays. I support Dr Scott's proposal that we should actually delete the words from section 64, “is entering or may enter the environment in a quantity or concentration or under conditions that”.
I would suggest amending CEPA to require assessment of alternatives and substitution with safer options. Again, and you've heard this over and over again from experts in the field, alternatives assessment prevents the adoption of more toxic substances that sometimes can happen without it, and the substitution principle ensures ongoing improvement in health and safety by continuously moving away from more dangerous substances towards safer ones.
Again, to echo the testimony of many of the experts who have come before you, I suggest we need to remove the “do nothing” option once a substance has been identified as toxic. I suggest this is probably necessary just to be in compliance with existing section 7 of the charter. Once a substance has been identified as toxic, to do nothing probably is a violation of security of the person, even under our current constitutional law.
We should implement binding reasonable timelines for assessment and regulatory action—we've already heard some of the notorious examples of very long delays, such as in the case of PBDEs—and we should impose an interim ban on substances when another OECD country has banned or substantially limited the use of a substance.
That's all going to the first category of the substantive right to environmental quality. With respect to the obligation of non-discrimination, this in North America is typically referred to as environmental justice. It deals with the equitable distribution of environmental benefits and burdens. I would suggest again that this is probably already required by our existing section 15, the equality provision of the charter.
In order to improve CEPA's performance on environmental justice, the Government of Canada should amend subsection 2(1) of CEPA to require the government to protect vulnerable populations at every stage of the CEPA regulatory process.
We should ensure that toxicity assessment under section 64 takes into account the unique susceptibility of vulnerable populations. We should amend CEPA to ensure equitable regulation of ambient pollution across the country, in other words, end pollution hot spots in marginalized communities, and we should complete a national environmental health inequality assessment, as recommended by the World Health Organization.
I want to emphasize here that in many cases we have not been doing a good job of collecting data on exposures of vulnerable populations. The absence of that data should never be used as an excuse to delay a listing or regulatory action. I submit that wherever data on the unique exposure vulnerability or susceptibility is absent, we should draw an adverse inference; in other words, we should presume that vulnerable populations are more likely to be exposed and more vulnerable to the adverse effects of exposure, if the data is not there. That is under that section, the second category of environmental human rights, the obligation of non-discrimination.
Finally, we have procedural environmental rights. These again are very well entrenched internationally and have been recognized by the special rapporteur. They're understood to include the rights to access to information, public participation in environmental decision-making, and access to justice in environmental matters.
CEPA needs to be amended to allow ministers to request information at any time and for any purpose connected to the act, and producers should be required to respond expeditiously. Right now, we have a system that actually encourages manufactured ignorance, and this has been well documented in the literature. Why would a rational corporation that has a legal duty to maximize profit fulsomely study its substances unless it has a legal duty to do so? We need to flip that to create incentives to produce information on the safety or toxicity of substances.
We need an overhaul of the national pollutant release inventory along the lines that were very clearly spelled out in the Ecojustice submission, and we need to implement Canadians' right to know by creating a toxics labelling program to permit Canadians to make informed choices in their consumption.
Finally, we need an effective suite of citizen enforcement actions that allows any Canadian to initiate a special review of a substance that has been banned or substantially limited in another OECD country, and to enforce the act whenever it has been violated without the need to show existing environmental harm.
I see that I've been yellow-carded, so I will leave my submission at that.