First of all, I would like to thank the committee very much for asking me to give this presentation and for embarking on this important task. It is one that I worry may be overshadowed a bit by other federal review processes, such as the review of the Canadian Environmental Assessment Act, the Fisheries Act, the National Energy Board Act, and the Navigation Protection Act.
I make reference to those not only to express my concern about this one being overshadowed, but also because I think there are important opportunities to integrate the reviews and to draw connections. There are certainly connections, and I will talk a bit about this in my 10 minutes. I see some potential connections between the Canadian Environmental Protection Act and the Canadian Environmental Assessment Act, for example.
I also think there are opportunities to learn more generally and to improve regulatory approaches across the board. Many of the reviews, CEAA being the exception, are really about improving the regulatory craft and regulatory approaches in the federal government. I think there are important lessons to be learned in any of these that can apply across the board.
I have a couple of other introductory comments.
First of all, I think for many of us who have tried to work with CEPA, one of the challenges is that CEPA is not an act we encounter regularly. When we encounter it, it is often in the details when we deal with specific regulations. I'm hopeful that other witnesses have worked with the legislative provisions you are reviewing in more detail, because for many of us it is an abstract act we don't often deal with.
In terms of my background, as was said, I'm a professor at the Schulich school of law at Dalhousie. My research interests are in environmental assessment, climate change, and environmental governance, including regulatory approaches.
I haven't focused on CEPA in particular as a research priority, so my comments will be fairly high level and they will focus on improving regulatory approaches in the context of CEPA.
The focus of my presentation will be on the regulation of toxic substances. I recognize that there other more specific areas in the act, but I will focus on the regulation of toxic substances.
My first point is that I think we need a more science-based approach to listing substances as toxic. A tremendous amount of work has gone on for the last 20 years in categorizing substances, and so on, but I don't feel we have a sufficient focus on science in determining which substances ultimately are listed as toxic and then regulated. Socio-economic and other factors should affect how a substance is regulated, not whether to list it or to regulate it.
I would suggest that the overall goal of listing any substance as toxic should be to minimize the risk in the short term, to motivate research for non-toxic alternatives, and to ultimately eliminate the toxic substance from use.
One of the key themes of my presentation is that too often regulatory approaches are static. They do not have built into them opportunities and motivation for continuous improvement. They often forget about what the long-term goal is. They often are based on what is practical and achievable at the time the regulation is designed, and the solutions that seem practical and achievable at the time are then enshrined over the long term.
I think we need to get past that. We need to design regulation with clear long-term goals, clear motivation for continuous improvement, and clear mechanisms to achieve that.
I think there should be clear legislative timelines and substantive obligations associated with listing a substance as toxic in the Canadian Environmental Protection Act. I think we can look to SARA for some guidance at least on the concept on that.
Those of you who are familiar with SARA will know that the listing process, even though it does have a political component, is largely a science-based process and there are actual legal requirements that are associated with listing a species under SARA. There are prohibitions that apply automatically. There are timelines within which responses in the form of recovery strategies and action plans have to be proposed and implemented.
If you translate that into the approach to toxic substances under CEPA, we should have a science-based listing and clear timelines for a mandatory regulatory action. There should be immediate control of the most significant hazards associated with the toxic substances listed, along with a clear commitment to continued improvement toward the elimination of the threat. We should recognize that the job of regulating and designing the regulation is not over until the threat is eliminated. I think that's particularly important in the context of the growing recognition of cumulative effects, whereas we often only view the effects of one particular activity in isolation. Also, there is the growing recognition of the precautionary approach as a basis for regulating toxic substances. Both of these points suggest that we need to recognize that the job of regulating these substances is not over until their use has been eliminated or at least the threat of release has been eliminated.
Regarding what can be done in the design of regulatory approaches to encourage progress towards elimination, if that is not possible, at the outset, we should create clear targets for regulators that are built into regulations as a possible element of that. We have had experience with that in Nova Scotia in the form of the Environmental Goals and Sustainable Prosperity Act where the government set clear targets for itself. That meant that there was a built-in incentive and requirement for the government to regularly review its regulation and the performance of its regulations to ensure that the overall targets were met. Other elements that would help with this idea of continuous improvement towards elimination of the risk and the threat include financial and non-financial incentives, such as clear timelines for the phase-out that can motivate those who are using substances to find alternatives, and on the financial side, if there are costs associated with using toxic substances, that can also provide incentives for phasing them out.
Full transparency not only for the listing process, but also for resulting regulatory responses is another key element. With respect to the section on new substances in particular, I would draw your attention to the recent AquaBounty decision by the Federal Court. I would suggest that decision is a clear indication that the new substance notification process, or new substance process, is not working and careful reworking of that section I think is important.
I would recommend that this is an area where I would draw connections to other acts that are being reviewed. The integration of the new substances section with the Canadian Environmental Assessment Act and specifically, when a new substance notification is associated with a new project, then the fact that a new substance is being proposed should trigger an environmental assessment. In my view, the environmental assessment would be much better positioned to engage the public to consider alternatives and to consider whether allowing the new substance into Canada is more appropriate than the current new substance review process.