Environment Committee on Nov. 22nd, 2016

[Prof. Daniel Krewski]

Those are two terrific questions. I wanted to slip in one of them as a supplementary to my previous comment, so thanks for setting me up.

Let me answer the question about how the new toxicology will help. If we have these very cost-effective, highly efficient, high-throughput techniques, we could actually get data very quickly. We can run a particular agent through a series of 50, 100, or 200 assays in a range of levels at which we would see biological activity.

We also have advances in high-throughput exposure assessment. There is high-throughput biomonitoring, and high-throughput exposure characterization. I can show you some nice work from U.S. scientists that shows biological activity across a range of assays for a whole bunch of agents being up here, and exposure levels based on high-throughput [Inaudible—Editor] going down here. As long as I have a comfortable margin of safety between where I see biological activity in these high-throughput assays and the levels of anticipated human exposure—now I'm in a risk world—I'm feeling good, because levels at which biological response occurs are maybe a hundredfold or a thousandfold higher than any exposure. We might be able to get data that will help us move this a little out of the precautionary principle arena, where we don't have enough information, to actually make more risk decisions more cheaply and more effectively now than we could in the past.

That was an answer to the second of your two questions.

The first one is whether there are ways in which the precautionary principle can be applied in a risk context. To a certain extent, yes, there are. The Rio Declaration is quite conservative. The Wingspread version of the precautionary principle talks about a little less responsibility to demonstrate safety and a little more cost-effectiveness in its implementation. There are various interpretations, but I think those are subtle. The more important observation I would make is that the new science may get us the data we need to fill data gaps that previously were not going to be easily filled up.

[Ed Fast, Conservative, Abbotsford, BC]

How has the Canadian testing and assessment environment responded to the Tox21 trajectory, which is to use computational methodology to address large data sets and be able to get at more information than traditional processes got at?

[Prof. Daniel Krewski]

We've had a lot of conversations with federal government scientists and regulators on their viewpoints. I actually gave a presentation to Health Canada last month on the new approaches. I think the Canadian scientific community, even in these government regulatory programs, is very much aware of the new science and is accepting of it.

It has been amazing how much endorsement we have from around the world, not just computational methods but high-throughput in vitro screens, high-throughput pharmacokinetics, and high-throughput exposomics. It's a total revolution, and I think the future is really offering us a huge opportunity to do things we never could in the past, and maybe give Lynda the data that she'll be able to use for risk assessment without having to fall back on the precautionary principle.

[Ed Fast, Conservative, Abbotsford, BC]

What I'm hearing you say is that the new computational methodology is going to dramatically improve our ability to protect Canadians, protect their health and safety.

[Prof. Daniel Krewski]

I would rather have data on which to base an evidence-based decision than have to make assumptions or be overly cautious. There is a downside to the precautionary principle. Everybody would agree, it's better to be safe than sorry. If we're overly cautious, we could not be making optimal use of our finite risk management resources.

[Ed Fast, Conservative, Abbotsford, BC]

That is my key concern. We have to find that appropriate balance.

[Prof. Daniel Krewski]

My contribution will be to give you some data to help get yourself out of that box.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you.

On another issue you raised, which is global air pollution, you had suggested that 10% of all deaths globally are from air pollution, or are related to air pollution. How do you feel amendments to CEPA could actually contribute to that? This is a CEPA study. We do have air pollution in Canada but the major risks around the world are mostly outside our country. How do you see a CEPA review and perhaps some amendments contributing to addressing the global challenge?

[Prof. Daniel Krewski]

That's a great question. You are asking thoughtful, perceptive questions of us.

Let's imagine we were to set solid, evidence-based air quality objectives for Canada, and maybe even they're enforceable. We do a great job of controlling point sources, cleaner vehicles, but we import a lot of pollution from other countries. I don't know that CEPA can be enforceable in that area. It's not just from our neighbours south of the border, but from other countries; dust from the Sahara can migrate all the way to Canada. There may be a way to build on CEPA and have some international agreements within the Great Lakes basin or the Lower Mainland of B.C. so that we could try to work in a co-operative manner with the international community.

[Ed Fast, Conservative, Abbotsford, BC]

Thank you. That's been very helpful.

[The Chair, Liberal, Deb Schulte]

Linda Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

As I expected, this is a stellar panel. I wish we could have had each one of you for two hours.

What I'm hearing is, in a number of areas we're getting strong consensus from all the witnesses who have come forward, certainly on strengthening CEPA on environmental rights and on obligations to extend. I noticed, though, in the preamble, interestingly, that there's absolutely no reference to public rights, which is odd. That's something we might want to look to if we're going to be trying to build on.... Interestingly, we have part two, and yet there's no reference in there to do that.

There is the recommendation by a couple of you that we consider endorsing the Aarhus convention. The argument back then by Canada was that we have those rights in CEPA.

As Professor Winfield has pointed out, and I think possibly Dr. Doelle, those aren't provided in other statutes at all. I would welcome any additional presentations. You're well aware that I've tabled an environmental bill of rights three times over in the House. It is basically a framework for exactly the kinds of rights that you're calling for. The reason I did it that way is it should cover everything: endangered species, fisheries, and so forth. I welcome that input.

Thank you, Dr. Winfield, for mentioning part 9. That's been a bugbear ever since CEPA was enacted. It's never been expanded, and I welcome your recommendations also on equivalency. I think both of you talked about that; there's a problem.

One thing I would like any of you to speak to is this issue of the federal government asserting its jurisdiction, and that basically they become a doormat to the provinces. I notice that in section 55, the Minister of Health has an option to confer with other levels, but it's not an obligation. In fact, she has mandatory obligations, whereas the environment minister doesn't, which is a real oddity. I wonder if you could speak to that, about how we might revise CEPA to actually require action instead of this continuous study.

I give you as a case study, mercury. Mercury was actually listed before CEPA. It was under the clean air act. CCME identifies coal-fired mercury as the top priority substance and it's reprehensible that to this day there's no federal regulation on mercury.

I welcome any recommendations you have on how we assert federal jurisdiction more strongly into actually acting on these toxins that we have listed.

[Prof. Lynda Collins]

This comes back to the whole question of mandatory duties on the Government of Canada within CEPA. Many of us, in terms of the expert submissions, have proposed specific mandatory duties. Right off the bat, when we talk about mercury air emissions, I'm reminded of this need for binding ambient federal air quality standards, which is absolutely a way that the federal government needs to exercise its jurisdiction and occupy the field.

When Dr. Krewski was talking about computational models looking at exposures, I don't know what those models do, but in the past we've been looking at average exposures. There are some communities, like the Aamjiwnaang First Nation near Sarnia, that are not subjected to average exposures. They're subjected to exposures that are five to 10 times higher than other communities. That's why we need binding ambient standards that the federal government enforces, as they do in the United States.

Yes, there will always be some levels of inequality in this country, but certain things should not be unequal. You shouldn't have to worry that the air your children breathe might kill them, no matter where you live in this country. So yes, I absolutely agree the federal government needs to occupy the field.

Similarly, you can look at the presumptive bans. Dr. Boyd has suggested that if a substance has been banned in another OECD country—this answers your question as well—there should be an automatic temporary ban until the minister or the proponent can demonstrate that for some reason we're different in Canada and it will be safe here. Those presumptive bans that just kick in when a certain trigger is passed are a really useful way to motivate government action.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I'll let Dr. Doelle speak, then Dr. Winfield.

[Dr. Meinhard Doelle]

I have a couple of thoughts. First of all, I think it's clear that we need timelines. We need required action and response to designating a substance to be toxic. I think we also need to make sure we understand the totality of the use of the substance, identify opportunities for substitutes, and learn from other jurisdictions. For example, the fact that the EU is taking a hazard-based approach means that it's likely we will find opportunities for substitutes and alternatives through that mechanism in the EU.

First of all, I think it's good to also build motivation for finding alternatives for substitutes into our regulatory system. I talked about timelines for phase-out. I talked about using economic instruments to provide economic incentives for the phase-out of substances. I think it's important on an issue like mercury to start with having a good sense of what the sources are of the contamination that we experience in Canada. Some of this may have to be resolved cooperatively with the provinces, so I would separate the question, where is the problem, from the question, what is the role of the federal government in solving it.

I don't think we should be afraid of exploring the issue in the context of CEPA just because we're worried that there may be certain components that you can't make a good constitutional argument over in terms of implementation. I think we should make sure that we gather all the information, find out what the problem is and what the potential elements of the solution are, and then in areas where the federal government maybe doesn't have the jurisdiction to act on its own, encourage cooperative action with the provinces.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Dr. Doelle, can I put this—

[The Chair, Liberal, Deb Schulte]

I hate to do this—

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Is my time up?

[The Chair, Liberal, Deb Schulte]

Yes. There's never enough time. The second round it will be.

Mr. Gerretsen, please.

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

A little bit of discussion has taken place with respect to the precautionary principle, but I was interested to get Ms. Collins' take on it. You mentioned it in your opening remarks. Just for reference, the precautionary principle, as defined by the Canadian Environmental Law Association, is a duty to prevent harm when it is within our power to do so, even when all evidence is not in. Can you explain what currently happens without that principle, the way the legislation is currently set up?

[Prof. Lynda Collins]

Sure. The legislation does incorporate the precautionary principle right now, but it's just not implementing it. To me, the fundamental anti-precautionary aspect of this legislation is that the burden is on government to prove toxicity, rather than the burden being on industry to prove safety. In fact, for some substances we simply don't have a good dataset, so unlike the European Union which has this principle of “no data, no market”, we don't have that principle currently.

For the substances that were grand-parented and have not undergone in-depth review through the chemical management plan, I characterize it as a “hope for the best” policy. That's what Dr. Thornton is talking about in terms of experimentation. When substances are released that aren't well understood, it's effectively an uncontrolled, involuntary epidemiological experiment.

A precautionary approach actually requires industry to provide data, and for substances of high concern, to provide proof of safety.

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

Is your position that this should be an enforceable provision then?

[Prof. Lynda Collins]

Yes, as it is in the European Union, exactly, so to harmonize with that.

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

I'm going to ask you to try to play the devil's advocate then. Can you identify any possible negative implications to applying that principle?

[Prof. Lynda Collins]

I think that the precautionary principle, in my view, and I've always said this, should be paired with what I've called a utility filter. I'll give you an example. I have a family member who twice has had her life saved by an experimental drug, twice was at the brink of death with cancer and was saved by an experimental drug. The drug was not well understood and there was risk, but everyone of course was willing to tolerate it because of the huge benefit.

We haven't so far had that utility filter so that you can experience a risk of possible harm for a substance that does some crucial thing in the economy or for a substance that makes your life greater.

In my opinion, in the European Union and in Japan, for substances of high concern they have a presumptive ban. Then the onus shifts to industry and if they can show that there's a crucial socio-economic reason why it's needed, there's no safer substitute and we need it....

I think there are certainly circumstances. I'm not suggesting that we go back to making fire with two rocks, but the way we've done it now is we've given so much of the benefit of doubt to the substance. We've assumed that an absence of evidence of risk is evidence of an absence of risk, and it's simply not so.