Environment Committee on Nov. 22nd, 2016

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Thank you.

I'm going to change gears now to the reporting mechanism for spills. I think that Mr. Winfield or anybody who feels comfortable can try to answer.

My understanding is that within CEPA, if a spill or a substance has been allowed into the environment, there is a mechanism in place to report existing spills as they happen. I think first it's verbally and then it's followed up by a written submission. I apologize. The legislation is so cumbersome that it's difficult to find this, but do you know if that also applies retroactively?

If a municipality, for example, discovers 50 years after the fact that there is contamination as a result of a gasification plant, for example, or a tannery site, would there be a mechanism to report that after the fact or a requirement to do that?

[Dr. Mark Winfield]

I think the short answer is no. There would be no statutory basis at this stage for that.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

Do you think it's necessary? I represent a southeastern Ontario riding which at one time had a lot of manufacturing, and there was one particular plant where there is a gentleman who has said—and I won't name the particular manufacturer—my job in the summer was to bury the barrels.

There are a lot of places where it's just unknown where these substances are located, but when a municipality or when another purchaser of the property goes to do work and it's discovered, is it not just as important to make sure that this is properly documented and handled? Is there other legislation that does that or should that somehow fall within this legislation?

[Dr. Mark Winfield]

There are two dimensions to this. This largely would actually fall under provincial jurisdiction, under provincial legislation.

The exceptions would be if it involved a CEPA toxic substance and there were some specific regulatory requirement around that.

The other dimension of this is, of course, is CEPA part 9, which is if it was on federal land, then potentially the Government of Canada could do something about it, but, of course, to date there are virtually no rules under CEPA around that and, indeed, the commissioner of the environment and sustainable development has at some length described in detail the problems around the identification of contaminated sites, even on federal lands, and the scale of the problem just within the federal jurisdiction.

The problem at the moment is that we have made virtually no use of the provisions that exist under the act.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

There's a federally owned lighthouse on one of the islands that I own and for 200 years they've scraped lead paint off it and it just fell on the ground. There are lots of examples where there would be federally contaminated sites. I'm curious as to whether there should be a provision to make sure that those.... But I appreciate your answer.

[The Chair, Liberal, Deb Schulte]

Mark, I'm going to have to cut you off. You didn't look my way.

[Mark Gerretsen, Liberal, Kingston and the Islands, ON]

I'm not looking your way intentionally.

[The Chair, Liberal, Deb Schulte]

You were doing that on purpose. I knew that.

Mr. Eglinski.

[Jim Eglinski, Conservative, Yellowhead, AB]

Madam Chair, I will be sharing some of my time with my colleague, Ed Fast.

I would like to thank the four witnesses. I found your information very valuable. Thank you for all being concerned about the well-being of Canadians to live a safe and healthy life.

I want to go back to Mr. Krewski regarding the water. As a former mayor of the city of Fort St. John, I was very proud of a new system that we put in, bringing the water out of the Peace River and pumping it 20-some kilometres, with the state-of-the-art technology, and highest trained technicians in the province of British Columbia. I was quite interested, and my ears perked up when you mentioned a drinking water safety act.

I was under the impression that most provinces have their own legislation with regard to fresh water within the provinces, and are responsible for the distribution of it, the guidance and overall safety within the province. Why do you think we need a national drinking water safety act?

[Prof. Daniel Krewski]

Water quality is the responsibility of the provinces. We have the federal-provincial interplay to think about.

I don't have any wise advice on how to make that run as smoothly as you can, but the drinking water materials safety act, which was designed in 1997 or 1998 and made it to first reading in the House, focused on a subset of the issue. It focused on the distribution system point-of-use devices, filtration plants, and the materials used in those plants. It was subject to extensive consultation. It received support from multiple stakeholders, from federal, provincial, and municipal governments, because it was circumscribed so as to not really conflict with existing jurisdiction.

There would be copies of that statute. It's rather short. It's about 18 pages long compared to CEPA, which I think is 257 pages long. All I was suggesting is there might be some nice ideas in there worth looking at this time around for CEPA.

[Jim Eglinski, Conservative, Yellowhead, AB]

Thank you very much.

Ed.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you.

Again, Mr. Krewski, I heard the other three witnesses actually recommend that environmental justice be incorporated into CEPA. I didn't hear you comment on that, because you're probably the only scientist on this panel.

Do you have a view on that at all?

[Prof. Daniel Krewski]

I do.

The graduate program that we offer in risk at the University of Ottawa has a session on decision-making principles, communication, perception, and regulation. We cover everything. I have 10 principles of risk decision-making that we published. It's in one of the references that I provided with my notes, and that I teach the class.

Precautionary principle is in there, as is risk-based decision-making and benefit risk balancing. Lynda gave the perfect example of a patient-physician relationship where the risks accrue and the benefits accrue to the same individual. It's a natural trade-off of risks and benefits. That's not so much the case for environmental pollutants where I can't think of a whole lot of benefits that we want to trade off for, but we do have environmental justice as one of the 10 principles within there.

I would not be disappointed to see some allusion to environmental justice in the preamble, and maybe some allusion to some other general guidance on how we should make decisions in a fair and equitable way.

[Ed Fast, Conservative, Abbotsford, BC]

My only concern when we talk about establishing new rights.... Most Canadians would assume that these rights are inherent in being a resident or a citizen of this country. When you establish formal legal rights.... There are a number of lawyers on the panel. I'm a lawyer, and I understand the moment you establish these rights, there will be an immediate set of obligations and liabilities which the federal government will assume. It will be left up to the courts then to not only interpret those rights, but over time to expend the scope of those rights. This is essentially creep that occurs as time goes by. When I think that we live in an imperfect world, where we have limited resources, we would like to address the needs of all of our citizens in the most fulsome way, but it is an imperfect world. My only concern is that the establishment of formal rights like this will cost Canadians big time in terms of the resources it will take.

We don't know what the remedies might be in the courts, whether it's damages, or mandamus, under which governments are directed to act in a certain manner.

I don't think you'll find a lot of debate over whether there are some inherent rights. It's when you put them in statutes and establish them formally. In this case, I'm quite certain there would be an immediate liability for the federal government which eventually might extend into the provincial realm as well.

[Prof. Daniel Krewski]

I'm not the right person to comment on that law.

[Ed Fast, Conservative, Abbotsford, BC]

There are a couple of others here.

[Prof. Lynda Collins]

I would say that embodying environmental justice within CEPA is probably the best way to protect the federal government. As you may know, there's already an ongoing section 15 claim. I'm not sure if you're familiar with the claim.

[Ed Fast, Conservative, Abbotsford, BC]

Yes, I'm familiar with it.

[Prof. Lynda Collins]

Yes, it underlines the—

[Ed Fast, Conservative, Abbotsford, BC]

It hasn't been adjudicated yet.

[Prof. Lynda Collins]

No. I fully anticipate it will get to the Supreme Court of Canada.

I typically take a conservative approach to new legal claims. I've often turned down cases that look.... I can point to five or six different examples within CEPA that I would take on right now as cases. They're existing section 15 violations within the act, right now.

An example is assessing vulnerability or exposure based on the average person in a way that doesn't protect children. I think the parents of asthmatic children who have lost their lives have a very strong claim right now under CEPA.

I think the best thing to do is to do the right thing. Effectuate environmental justice. No one is suggesting environmental perfection, just that we shouldn't have these huge disparities in protection.

[The Chair, Liberal, Deb Schulte]

We've run out of time on that one, but maybe someone else will pick that up. That's a good theme.

Mr. Fisher.

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

Thank you, and to echo the immortal words of Mike Bossio, wow. There was an awful lot of stuff there.

Being late in the line-up certainly takes a lot of your questions out, and Mark Gerretsen took a couple of mine.

As a Nova Scotian, I get excited when Nova Scotians craft legislation or come up with really cool strategies or plans. In fact, just yesterday the Minister of Environment and Climate Change was in my riding of Dartmouth—Cole Harbour to recognize the things that Nova Scotia is doing to help with greenhouse gas emissions and climate change.

If we go back a bit—not too far back—we also have former MP Megan Leslie, who worked on the microbeads bill or motion, and had microbeads deemed CEPA toxic. The government recognized them as toxic under CEPA. I followed it in the news. You can still go into any store and you can buy several products with microbeads in them. My question is probably redundant. I probably know the answer.

I'm going to go to Lynda on this, because I felt like you were a race car that was really stuck in idle in your testimony, and you really wanted to get going. Does CEPA appropriately manage the risks? I guess I'm asking if you would extrapolate a little bit on the substitution principle and how we can get there. How can we put some teeth into this?

[Prof. Lynda Collins]

Sure.

No, CEPA doesn't appropriately manage the risk. For many different criteria, as Dr. Dayna Scott put it, we have the least protective standards in the industrialized world. For example, our regulations for persistence and bioaccumulation are the least protective in the world. We allow much higher levels of persistence and bioaccumulation before we regulate, compared to other industrialized countries.

On the substitution principle, in my mind there are many paths to the top of the mountain. One way to get to the substitution principle is pollution taxes. You make it more costly to use the more dangerous substance. You harness the power of the market. There is an exciting field called green chemistry.

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

It's about innovation.