Environment Committee on Nov. 22nd, 2022

[Lisa Gue]

Yes. Thank you for the question.

These proposals, as amendments to CEPA, would complement the requirement under Bill C-226, once passed, for a national strategy on environmental racism and environmental justice.

One of these key principles, the principle of environmental justice, the key principle of the right to a healthy environment, requires the integration of a human rights lens into environmental decision-making to ensure that environmental protections protect every Canadian. This has been a blind spot in Canadian environmental law.

In the absence of these clear requirements, what we see is that sometimes policies are set and risks are assessed based on outcomes for the general population, which is one important assessment, but that can mask particular risks to particular communities or individuals. Too often, those are also economically disadvantaged communities and racialized communities, groups of people who also lack power in the decision-making process.

Integrating a human rights lens into environmental decision-making, as Bill S-5 proposes, will force a bit of a paradigm shift here. It's important that this bill does require the development of a framework about exactly how to implement that in the CEPA decision-making, because it's a muscle that isn't being flexed right now, and it will be such an important update to the Canadian Environmental Protection Act. I think this needs to be part of decision-making across the board, but CEPA is a very good place to start.

[Joanne Thompson, Liberal, St. John's East, NL]

Thank you.

For the record, would you explain to the committee what the term “vulnerable environment” references?

[Lisa Gue]

That term was added through an amendment that Senator McCallum introduced in the Senate. I would invite you to seek her views on her intentions behind that amendment.

[Joanne Thompson, Liberal, St. John's East, NL]

Thank you.

How does the government ensure that the additional transparency measures in Bill S-5 for corporations don't divert their attention toward reporting instead of actually doing the work necessary to avoid harm, actually doing the risk management?

[Lisa Gue]

Are you referring to the new requirement for reasons to be provided with confidential business information requests?

[Joanne Thompson, Liberal, St. John's East, NL]

Certainly, but in general, just across the bill, how is it that we make it detailed enough that there's meat there in reporting?

[The Chair, Liberal, Francis Scarpaleggia]

You have 10 seconds, please.

[Joanne Thompson, Liberal, St. John's East, NL]

Certainly, you can answer in writing after.

[Lisa Gue]

Seeing the chair raise the red flag here, I'll just be very brief.

If we find ourselves in a position where the volume of toxic chemicals on the market makes it impossible to thoroughly assess, monitor and report on exposure to them, then we have a problem.

[The Chair, Liberal, Francis Scarpaleggia]

Okay. You have to stop there.

Thank you to the witnesses for a very interesting discussion to kick off our study. We'll now take a break and go on to our second panel.

Thanks again. It was very enlightening.

[The Chair, Liberal, Francis Scarpaleggia]

We'll get going with our next panel, which includes, from the Canadian Association of Physicians for the Environment, Dr. Jane McArthur, director, toxics program; and Melissa Daniels, manager, toxics program. We have, from Dow Canada, Mr. Scott Thurlow, senior adviser, government affairs. He is no stranger to this committee. From Ecojustice, we have Dr. Elaine MacDonald, program director, healthy communities.

Each set of witnesses has three minutes. We'll try to get it all done by 5:50 p.m., which I think is possible.

We'll start with Ms. Daniels for three minutes, please.

[Melissa Daniels, Manager, Toxics Program, Canadian Association of Physicians for the Environment]

Thank you for inviting me today as a witness. I'm joined by Dr. Jane McArthur, CAPE's toxics program director.

I'm a member of the Athabasca Chipewyan First Nation, a community downstream from the Athabasca tar sands, and I'd like to acknowledge my presence on my homeland, Denendeh, and Treaty 8 territory. I have a background in nursing, and I represented my own first nation as a lawyer to protect our homelands from environmental degradation caused by tar sands development. Today, I am here to speak about why we need to strengthen CEPA.

Being downstream from one of the largest industrial projects in the world has shaped who I am as a person. CEPA has been in existence since I was a child, but despite its being our primary environmental legislation, I have witnessed its failures to protect our homelands and our people. Indigenous communities have been unfairly burdened with a devastating legacy of toxic chemicals that pose a threat to our health and well-being.

I am haunted by the giant unlined tailings dams located beside the Athabasca River that house toxic compounds from the tar sands industry, which we have long suspected to be leaching into the river. There has not been a day in my adult life where I have not considered what will happen when one of them—or both of them—finally breaches and contaminates one of my life bloods, which is already experiencing critically low levels from massive industrial water withdrawals.

The change of season is a significant time to our people, and spring marks a time of renewal and rebirth. This season officially begins when the snow melts and the river breaks up, but instead of celebrating, I experience overwhelming anxiety because it also marks the beginning of our annual oil spill that industry creates through its release of toxic emissions that accumulate in the snow during the winter months and run off into the river when it melts. Our spring rainfall once represented a time of sacred cleansing, but now, due to climate change, we experience floods, and I cannot help but think, “Is this going to be the one that causes the tailings dams to breach?”

[The Chair, Liberal, Francis Scarpaleggia]

Excuse me, Ms. Daniels. Your background is blurred. I know this sounds odd, but it apparently can impact the sound quality. The interpreters are asking if it's possible to de-blur it.

[Melissa Daniels]

Yes.

[The Chair, Liberal, Francis Scarpaleggia]

There we go.

Thanks. Go ahead.

[Melissa Daniels]

With our spring rainfall, because of the floods, I cannot help but think about what's going to happen if the tailings dams breach or if this is going to cause it. Is there a plan in place to protect our community, to protect our river, to protect our future generations? Despite calls for a comprehensive health study on the impact of the tar sands development on downstream communities, we've never had the same completed. I firmly believe that had they been located somewhere else, the government would have demanded industry build a world-class water monitoring facility, and yet we've been left unprotected.

Hydraulic fracturing for natural gas also occurs in Treaty 8. We have no idea what industry is injecting into the bones of mother earth or the cumulative and synergistic effects of mixing all these toxic compounds together, because this information, unlike our health and the environment, is deemed protected.

While we are dehumanized, our homelands are being destroyed by uncontrolled industrial development. We deserve both justice and accountability, which includes not only transparency but also clearly delineated timelines when it comes to assessing toxic chemicals and obtaining safer substitutions.

CEPA was to be reviewed every five years, and yet here we are, almost 25 years later, finally getting around to strengthening parts of the act. While I'm grateful to be included today, because indigenous people have been structurally excluded from participating in processes like this, I do not bring good news. Our communities have been ringing alarm bells for decades about the devastating health and environmental impacts of industrial development, which have been largely ignored by decision-makers.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Ms. Daniels.

[Melissa Daniels]

We cannot have environmental legislation that again is just pushed through and not impactful.

[The Chair, Liberal, Francis Scarpaleggia]

Ms. Daniels, we'll have to stop you there.

Actually, this committee, in 2007, did a study of the Athabasca River watershed using the work of Dr. David Schindler. You're bringing back some interesting testimony.

We'll go now to Mr. Thurlow for three minutes.

[W. Scott Thurlow, Senior Advisor, Government Affairs, Dow Canada]

Good evening, Mr. Chairman and members of the committee.

I am here on behalf of Dow Canada. Dow operates in over 30 countries. We strive to be the most innovative, customer-centric, inclusive and sustainable material science company in the world. Given our global footprint, our company has a great deal of experience on the issues of chemicals management around the world.

Bill S-5 does a lot of crucial things, but the most important is that it sets the stage for the next phase of chemicals management in Canada. True to the CMP's history, it mandates that the ministers engage with stakeholders to establish a new set of assessment and management priorities. The ongoing engagement with stakeholders is key to ensuring that Canadians have confidence in the products they use every day and are assured that the safe management of substances is being carried out by the ministers. The “dear ministers” clause created in proposed subsection 76(1) is a new tool for establishing that confidence and complements existing information-gathering provisions in the act.

The ministers will also engage with Canadians on incorporating into the administration of CEPA their right to a healthy environment. Who better than Canadians themselves to engage in that discussion?

Without delving too deeply into the substantive debates at second reading, there were many points raised by all parties that we would be pleased to offer comments on. Whether it's the so-called watch-list, the new bifurcated schedule 1, the demands that Bill S-5 places on confidential business information, and the Senate's suggestions, we would be happy to answer any questions you may have about these subjects.

How a substance is sent or added to schedule 1, part 1—the substances of highest risk—is an important discussion and requires extensive consultation. Knowing that a priority will be given to prohibition, we must create a system that recognizes the role of transformative chemistry in the economy.

Dow would support an amendment that would add precision to those substance designations to ensure that only the substances that are truly a risk are captured in this list. I would welcome questions from MPs on the perils of using hazard markers for substance deselection without appropriate scientific context and exceptions.

On the issue of confidential business information, I want to be clear that industry has no issue providing information confidentially to the government. We are confident that the government will use that information to protect the health and safety of Canadians and preserve its confidentiality. Changes in this space may not have their intended impact but could certainly benefit our competitors. We urge the committee to be mindful of this as it considers this bill.

Finally, I'd like to flag the so-called watch-list that is being proposed by the ministers. It's redundant and a marked departure from the risk-based approach. If the government wants to send a message to industry about the use of a substance, a “significant new activity” notice accomplishes this task by requiring industry to obtain permission from the government before a substance is approved for new use or significantly increased volumes. That speaks loudly, I can assure you. I would implore this committee to consider an off-ramp for that clause.

I would welcome your questions.

[The Chair, Liberal, Francis Scarpaleggia]

We'll now go to Dr. MacDonald.

[Dr. Elaine MacDonald, Program Director, Healthy Communities, Ecojustice]

Good evening, and thank you for inviting me to testify to this important bill.

I appeared before this committee six years ago, I think, when it first began its review of CEPA, so I'm very pleased to be here to speak to Bill S‑5 after all of this work. It has not been quite as long as Lisa and her maternity leave.

My colleagues have already addressed several of our joint recommendations of strengthening the bill, so I don't want to repeat those, given my limited time, but I do press upon the committee to build upon the amendments made by the Senate and the wisdom of the Senate to uphold things like the watch-list and to strengthen the recognition of the right to help the environment, including the framework and the recognition, as Lisa spoke to.

I'm going to speak specifically to amendments we're seeking with respect to timelines and ensuring accountability. My thunder got stolen a little bit by some of the questions, but I'm going to go ahead anyways.

Specifically, we're seeking amendments to three areas through clauses within the bill with respect to timelines: the planning in clause 19; the toxic substance assessments in clause 21; and the risk management of toxic substance in clause 22. These clauses are where the rubber hits the road. Let me explain.

Priority planning, which Scott just mentioned, is under clause 19. It's very similar to the chemicals management plan, but there is no requirement within the priority planning section to set timelines or update the plan. We are recommending amendments to require timelines and plan updates to ensure that the plan remains current and is updated at least every five years.

Delays in the assessment and management of toxic substance equal delays in the implementation of many of the important provisions my colleague spoke to that strengthen the bill, such as the recognition of the right to a healthy environment, consideration of vulnerable populations and cumulative affects. Waiting several years for an assessment to be finalized after submitting comments is unacceptable. I am in that place right now on several comments I have submitted, five years on some of them.

It only puts the environment and human health at risk, because action delayed is action denied, and it also undermines public participation. To prevent multiple-year delays, we recommend a one-year time limit between the proposed and final risk assessments, but we also allow for an inclusion of an extension if additional data or additional studies are required.

Lengthy delays can also occur in the implementation of risk management plans, which typically involve several measures. The CEPA clock, as it is locally known, refers to timelines written within CEPA requiring one risk management regulation or instrument to be proposed within two years and finalized within 18 months. There is no such timeline for subsequent regulation instruments in the risk management plan, and it's very common for there to be multiple ones, and this leads to years and years of delay.

Bill S‑5 requires a minister to publish a statement respecting the development of subsequent regulations and instruments that specify, to the extent possible, an estimated time frame, but to provide greater certainty, we recommend that Bill S‑5 be strengthened to require timelines for every planned risk management regulation and instrument, and those timelines, when possible, should correspond to the two-year CEPA clock requirement.

I think I'm out of time.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Mr. McLean will be the first in this round of questions.

Ms. Pauzé, did I understand correctly? You wish to give four of your six minutes to Mr. McLean?

[Monique Pauzé, Bloc, Repentigny, QC]

You understood perfectly, Mr. Chair.

[The Chair, Liberal, Francis Scarpaleggia]

All right.

In that case, Mr. McLean, you have 10 minutes.