Madam Chair, thank you for the opportunity to speak to the committee today.
My name is Mark Winfield and I'm a professor of environmental studies at York University. I'm also a coordinator of the joint program in environmental studies and law that we offer with Osgoode Hall Law School.
I come to this meeting with a fair history of involvement around CEPA. I was extensively involved in the first CEPA review between 1995 and 1999. I was somewhat involved in the semi-review that happened in the early part of the last decade and the conversations around the clean air act, and so I picked up on some themes that seemed to have carried over those 20 years, and some new things as well as I was thinking this through.
Originally I was intending my comments to be very short, but as I thought about it more and more, I ended up more with a Frankenstein's monster of pieces from the legislation, but that's inherent to the character of CEPA. The legislation itself was originally an amalgam of different pieces of legislation. It covers a whole range of different topics. It's inevitable that one ends up having to talk about it in those terms.
In terms of specific things, I've identified six areas where I thought the act could be significantly strengthened. I'll talk about each of those in turn. Then there were three or four areas, mostly in the government's discussion paper, which I thought the committee may want to approach with considerable caution. All of them are themes that ring bells going back all the way to 1995. Conversations have been going on about CEPA for a very long time and I think this needs to be approached with some caution.
In terms of things that could be strengthened, I would focus in particular on the provisions around public participation. In part two, the intention was in some ways to have embedded originally a kind of environmental bill of rights into CEPA itself. That happened partially. I've made a number of recommendations there that there be a general statutory duty in the administrative duties section around a general right of public participation within the federal jurisdiction.
I've also made recommendations to expand the application of the CEPA registry, which at the moment is limited to policies and regulation. In particular, I've made a suggestion that the registry should be expanded to include public notice of specific approvals that are given under the act, things like ocean-dumping permits, permits for import and export of hazardous waste, and a number of other examples I give in my brief. I think that would make the registry much more effective. It's certainly been our experience in Ontario with the environmental registry. It also means the registry starts to function in very useful ways as a kind of archive. At least in Ontario, the environmental registry is searchable. It allows you to see the history of decisions that have been made around particular activities or even particular firms. I've also suggested expanding the scope of the application of the request for investigation provision and the whistle-blower protection provisions within the federal jurisdiction.
The second theme that I can touch on is the question of vulnerable populations and environmental justice. I believe the Canadian Environmental Law Association has spoken about this to the committee at some length. My colleague, Professor Dayna Scott, from Osgoode Hall Law School has also addressed this. I think it's quite crucial here. The crucial point really is that the government, in its proposal, simply proposed to deal with this at the level of the preamble. I think Professor Scott, CELA, and others have emphasized the importance of putting the environmental justice components into the operational provisions of the statute. Both have given quite specific examples of the places where those sorts of things should be operationalized.
The third area where I think CEPA could be strengthened is around the management of toxic substances. Professor Doelle spoke to this already in terms of both accelerating and depoliticizing the process of putting things onto the toxic substances lists, TSL, but also emphasizing the importance of the listing of something on the TSL as a trigger for risk management actions, that this can't just be a paper process, that something has to flow from a finding of toxicity, and there have to be statutory duties of some form of action. There already are, but we found they haven't worked very well. There are some things, like the NPRI listing, for example, and the listing under the emergency regulations that are in section 200, triggering pollution prevention planning for example. These are all things that pretty much have happened automatically on a finding of toxicity given the way that is structured at the moment.
I've made a number of suggestions around international obligations as well to introduce into the administrative duties section a requirement that the Government of Canada ensure that it is fulfilling Canada's international environmental obligations. I've made the suggestion that there actually be a specific schedule of the agreements that Canada has entered into, to which that duty would apply. It's probably a more robust mechanism for making sure that the government is conscious of its obligations to the international community and fulfills those obligations.
I've made some suggestions around the international air and water pollution provisions as well, in part 7, essentially suggesting that the process for the federal government to take action against sources of international air and water pollution inside Canada be streamlined. At the moment, those provisions are subject to very extensive consultation requirements with the affected province. We are suggesting that this be streamlined and that there be very clear criteria for the point at which the federal government can act to regulate those sorts of sources of pollution within Canada. We are also suggesting a parallel set of provisions around interprovincial air and water pollution.
Finally, I've highlighted the question of environmental management within the federal jurisdiction. I think this emerges as a particular fail in terms of CEPA and its structure, that we have almost nowhere here at all.... Indeed, as I was researching this, I discovered that of the three regulations that were made under this part, two actually have subsequently been withdrawn.
There are a number of options here. The government has proposed incorporation by reference of provincial standards or simple application of the relevant provincial standards in whatever jurisdiction. There could also be a general offence provision within the federal jurisdiction for activities that cause harm to the environment, which is in fact typically what most provinces have within their jurisdiction. How do you deal with the question of what happens on federal lands and other things? Well, you can have a general offence provision that says you cannot release contaminants into the environment that may cause harm. Something along those lines, I think, would be helpful.
There are cautions growing from the government's white paper. I am somewhat nervous about the notion of separating the virtual elimination substances from the other substances on the toxic substances list. I am sensitive about the construction of the constitutional basis for federal regulatory authority around toxic substances as a result of the Hydro-Québec case in 1997, and I would be very cautious about anything that affects that.
One theme that emerges very strongly from the government's white paper is that of reliance on other departments and other statutes to carry out risk assessment and risk management activities. Again, this is something I would approach with great caution. In the original CEPA review, one of the big issues was around the residualization of the act, making it apply behind everything else. Our view was always that CEPA should actually be the benchmark. If something is going to be regulated under another act, there have to be criteria under which that regime has to qualify in order for something to not fall under CEPA anymore but under something else: the Food and Drugs Act, the Seeds Act, the Feeds Act, or whatever. This can't just be hand-waving. There have to be criteria that apply there.
The same argument in some ways applies to the government's discussion of the expanded use of equivalency and administrative agreements. Again, this is something I would approach with a great deal of caution. As I was researching this, I was quite concerned about the extent to which we don't actually have evaluations, at least that I could find, of performance under the existing equivalency and administrative agreement provisions.
In my view, the government seems to want to lower the threshold here, eliminate the requirements of the actual agreements, and eliminate the requirement that these things have sunset clauses. In the original CEPA review, we argued completely the opposite, and I'm going to argue completely the opposite again here, that the criteria for equivalency agreements have to be articulated within the act in more detail. It's the same thing with administrative agreements. The reporting requirements need to be articulated in the statute in more detail. Otherwise, the risk particularly around equivalency agreements is that these come to be regarded as a kind of “get out of jail free” card for provinces; we are saying that federal rules exist, but they don't really apply in their jurisdiction. I would want to look at that very carefully.
I will end on that note.
Thank you, Madam Chair.