Environment Committee on Nov. 22nd, 2022

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

If we get it wrong, what happens?

[W. Scott Thurlow]

If we get it wrong, there is the opportunity for innovation to be deselected out of the country and go into other jurisdictions.

On the confidential business information piece, there was one amendment from the Senate—on living organisms, admittedly—where they required demonstrable need to be the test for the approval of a new living organism. That is a marked departure from the risk-based approach.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Speaking of the risk-based approach, some of the amendments that the Senate made affect that.

Can you expand a little bit on why that may be problematic in terms of its effects on the industry and the correlated effects on the safety of Canadians? Is there anything you'd like to speak about?

[W. Scott Thurlow]

I don't know about the second half of your question, because we are part of a global marketplace. What I would tell you is that if innovation was going to happen and there were potential confidential business implications, that innovation wouldn't happen in Canada.

Similarly, industry wouldn't invest in the most modern technologies that they've developed in other countries either. If it would have to be deployed in Canada with the potential of that confidential business information being put into the public domain, Canadians would not benefit from, for example, those newer environmental technologies.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Just to clarify, you're saying that if we don't get it right and end up creating a less competitive environment, we may actually negatively impact the health and safety of Canadians.

[W. Scott Thurlow]

That is very much the case.

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

Okay.

In your opening statement, you talked about the need to add precision to substance designation. I think that's certainly incredibly important. I would suggest it should probably be one of the biggest focuses of this bill, first when it was introduced in the last Parliament and then in the more than year-long delay we had for the bill that we now have before us.

I'm wondering if you could expand on how you would ensure that this added precision is in fact brought forward. Do you have any suggestions for the wording of the legislation we have before us? There's about a minute.

[W. Scott Thurlow]

Thank you very much.

Absolutely. What we have seen through the approximately 4,300 risk assessments is that Health Canada or Environment Canada will identify an exposure that is of concern and that needs to have a specific risk management instrument created, but it's not all exposures and it's not all forms. Whether it's a dust, a rock or a certain chemistry and formulation of those chemistries, they don't always have the same risk for exposure because of their bioavailability.

We would suggest an amendment, a proposed subsection 77(2.1), which would allow for the ministers to offer more precision for what they want to manage. This is incredibly important for schedule 1, part 1 because, as someone on a previous panel noted, there is a default to prohibition. If we're going to be prohibiting substances, we want to make sure we are limiting that prohibition to the substance of concern.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much, Mr. Thurlow.

We'll go to Mr. Weiler for four minutes.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Chair.

I appreciate all the witnesses being here today and the tremendous expertise that they bring to this subject.

I also want to recognize the work that one of the former members of this committee, Will Amos, did in the 42nd Parliament, the work he did both prior to being an MP and then as part of this committee.

My first question goes to Dr. MacDonald.

In their study, the Senate Committee on Energy, the Environment and Natural Resources noted a concern coming out of their work that the right to a healthy environment cannot be protected unless it's made truly enforceable and that the procedural and technical requirements of section 22 of CEPA might make this right unenforceable.

I know that there have been about 20 years since that section has been used. I hope that you could give some advice to this committee on what we may be able to do with the sections of the bill that are opened up right now to have that right be more enforceable.

[Dr. Elaine MacDonald]

That's a tough one. We did have recommendations that we had put forward pre-bill with respect to section 22—sections 17 to 22—in case the bill did open up those sections. That's where my focus has been.

I think there may be opportunity through the implementation framework to look at some aspects of how we could build in some quasi-enforcement. There's a two-year time frame to develop an implementation framework with respect to the right to healthy environment. I think looking at ways to have some kind of complaint or enforcement mechanism through that may be something, but I really would encourage the government to look again at sections 17 to 22 of CEPA and go back to some of our early recommendations pre-bill on how to strengthen those sections.

Disconnecting the requirement for investigation before bringing in an environmental protection action was one of the recommendations. Removing some of the cost barriers to a citizen's bringing enforcement action under section 22 would be another one, as is removing the idea that the Environmental Protection Act can only be brought when there's a highly significant risk. That was the recommendation that the department made in their earlier discussion paper, to remove the word “significant” and just say when there's a risk. That was, for some reason, not followed through in the bill.

I didn't answer your question directly. I went back to section 22, but I still think that a future bill could maybe help address those issues with respect to sections 17 to 22.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Those are some points that are very well taken, both on the implementation plan and for future revisions of this bill, if ever. There are other aspects or parts of this bill that I would like to see opened up as well, like disposal at sea, for instance. That's a big issue in British Columbia.

[Dr. Elaine MacDonald]

Yes, I'm familiar with that one, too.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

We'll have to cross that bridge when we get there.

My second question for you, Dr. MacDonald, is around the fact that Canada is one of the few developed countries in the world that don't have mandatory ambient air quality standards.

I'm wondering if you have any suggestions as we're contemplating this bill today about how we might be able to integrate some of those types of standards within the right to a healthy environment.

[The Chair, Liberal, Francis Scarpaleggia]

That's a great question. I'm really interested in it as well, but can you do it in 30 seconds?

[Dr. Elaine MacDonald]

Yes, we do have a recommendation in our brief that's specifically that the implementation framework should include a requirement for the minister to take action when a Canadian air quality standard is exceeded to try to address that issue. Working it in through, once again, the implementation framework of the right to healthy environment is how we see that there could be some action taken on air quality, given the lack of national enforceable air quality standards.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Ms. Pauzé, you have two minutes.

[Monique Pauzé, Bloc, Repentigny, QC]

Thank you, Mr. Chair.

Thank you to the witnesses.

I have a question for you, Ms. MacDonald.

We have been asking you questions about transparency. Some stakeholders are saying that transparency is a nice idea, but it is difficult to enforce. Consequently, certain aspects of transparency should be strengthened in Bill S‑5. You have given some examples.

I would like to call your attention to Schedule 1. In the current version of the Canadian Environmental Protection Act, Schedule 1 has “Toxic substances” as a title. In this proposed version of Bill S‑5, this title has been withdrawn, which is concerning.

What do you think?

[Dr. Elaine MacDonald]

That's a loaded question. It's an interesting question.

I was initially concerned when I saw that, too, but then, when I went back and looked at the act and the bill, everywhere they talk about schedule 1, they still refer to it as a “list of toxic substances”, throughout the legislation. That hasn't changed in terms of how schedule 1 is described. It is still described throughout CEPA and in Bill S-5 as “the list of toxic substances”. Removing the title from the schedule doesn't have any.... I'm not concerned about serious legal implications of removing the title. That's where I've landed on that question.

[Monique Pauzé, Bloc, Repentigny, QC]

In that case, could you tell us or repeat for us which aspects of transparency should be strengthened in Bill S‑5?

[Dr. Elaine MacDonald]

I think we heard Cassie Barker speak earlier to the issues around labelling. That's one big piece of transparency. We've talked about having a reverse onus system, in which the confidential business information requests are reviewed by the minister or a delegate to ensure that they, in fact, meet the bar for a CBI. Those are two pieces for transparency.

Publishing things like timelines under the priority planning, as well as under the risk management plans, is something we've also requested to be amended to ensure greater transparency.

Those are, I think, four examples that I can pull out on improving transparency on reporting.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Dr. MacDonald.

We'll go to Ms. Collins for two minutes.

[Laurel Collins, NDP, Victoria, BC]

I have a question for Mr. Thurlow and a question for Ms. Daniels.

First, really briefly, putting aside some of the other pieces around the CBI, on the question of whether or not the government should be auditing, would you support the government doing a similar kind of small audit in alignment with what the U.S. does?

[W. Scott Thurlow]

I'm not sure that I agree with the underlying assumption that they're not doing these audits. Access to information requests are conspicuously published on the government website, and they are audited by Canadians.

[Laurel Collins, NDP, Victoria, BC]

On the rationale of the CBI, if they aren't auditing, would you support some provision to create an audit in alignment with the U.S., yes or no?