Environment Committee on Nov. 25th, 2022

[The Chair, Liberal, Francis Scarpaleggia]

Unfortunately, the member’s time is up. You can always answer the question the next time you have the floor, Mr. Piette. My apologies.

Ms. Pauzé, you have the floor.

[Monique Pauzé, Bloc, Repentigny, QC]

Thank you, Mr. Chair.

I would like to thank all the witnesses for being here today.

I have questions for the representatives of the Canadian Environmental Law Association.

You are proposing that a clause containing definitions be added to Bill S‑5.

Can you please briefly tell us what would be the advantages of such a clause?

[Joseph F. Castrilli]

Thank you, Madame Pauzé, for your question.

In our proposed amendments, we have a number of definitions for terms in Bill S-5 that are not defined. For example, “non-regression” appears in Bill S-5, and a number of other provisions or terms are identified in Bill S-5 but not defined.

What we've done in our proposed amendments, which are found at tab one of our proposed amendments document, is to define terms such as those. We've also included definitions for some of the alternatives analysis that we want seen as part of a standard pollution prevention regime.

[Monique Pauzé, Bloc, Repentigny, QC]

I am sorry to interrupt you, Mr. Castrilli.

I would prefer that you tell me about what advantages there would be if we included the definitions that you provided here in tab 1. How would that improve the bill?

[Joseph F. Castrilli]

Let me begin by an obvious fact. Number one, CEPA is an extremely complex statute, both scientifically and policy-wise. What's important for those who will be compelled to interpret it over time, whether that's the regulated community, the non-government organization community, the general public and also especially the courts, is they need to understand what is being pursued by the language that Parliament has used in any particular provision. Anything that helps Parliament and the courts better understand what Parliament wants to do should be welcomed, and that's the purpose of definitions. Judges and administrative tribunal members don't like to have to guess about Parliament's intention, and the more detail and the more information you can provide as guidance, the better the decisions that will result.

[Monique Pauzé, Bloc, Repentigny, QC]

I have two quick questions. I would ask that you reply with a yes or a no.

You stated earlier that this was completely inadequate.

Do you believe that the industry's powerful lobbying efforts influenced the drafting of the bill?

[Joseph F. Castrilli]

I'm sorry, but is that a question to me?

[Monique Pauzé, Bloc, Repentigny, QC]

Yes, the question is for you.

[Joseph F. Castrilli]

I have no comment on whether the industry influenced the drafting of this bill.

All I can tell you is, when I read the words of the bill itself, whether I find them satisfactory as a Canadian or not, and as a lawyer or not. In my respectful submission, I don't find Bill S-5 particularly helpful in addressing the issues that are in play in the year 2022. I would hope that I would not have to come back in 20 years and be making the same submissions about issues that have been dealt with over the last 20 years.

[Monique Pauzé, Bloc, Repentigny, QC]

Indeed.

You are surely aware of the provisions of the EU's REACH regulation, which are much stricter than what we have here in Canada.

Do you think that Canada should model itself on what the European Union is doing?

[Joseph F. Castrilli]

Yes, I do. In fact, we've incorporated some of REACH in our proposed amendments, particularly, for example, at tab three, where we were engaged in expanding sections 56 and 60 of CEPA to better approach the issue of pollution prevention than is currently the case. As you know, sections 56 and 60 have both been opened up by Bill S-5, and those are the provisions we addressed in our proposed amendments to do that.

[Monique Pauzé, Bloc, Repentigny, QC]

The REACH regulation also provides for a generic approach to risk management. That means no longer proceeding on a case-by-case basis.

Do you agree with this approach?

I haven't read your submission, I do apologize.

[Joseph F. Castrilli]

I think the short answer is that on the spectrum of statutes or regulatory regimes that address the issue of toxic substances, laws like CEPA and the American Toxic Substances Control Act are much more risk-driven than is the situation in Europe under REACH, which is much more hazard-driven.

In my respectful submission, given the nature and the quantity of chemicals that are being generated globally and in this country, we need a much more hazard-based regime to address the challenges, and not a risk-based regime, which is predominantly what we have now.

[Monique Pauzé, Bloc, Repentigny, QC]

Right, thank you.

My time is running out, but I have one last question for you.

You are surely aware that the department launched consultations on October 29 on the provisions contained in Bill S‑5 that we are currently studying. The government is saying that the consultations will take place until the middle of January 2023. At the same time, the government is putting pressure on us to wind up our study before the end-of-year break, which means that we can't do an in‑depth study.

Why do you think the government is holding consultations on certain aspects of Bill S‑5 that we will not be able to take into account during the clause-by-clause consideration of the bill?

[The Chair, Liberal, Francis Scarpaleggia]

Unfortunately, again, we're out of time, but you can keep your answer for another opportunity.

We'll go to Ms. Collins, please.

[Laurel Collins, NDP, Victoria, BC]

Thank you, Mr. Chair.

My questions today are for Ms. Plain and Mr. Castrilli, although some have already been answered which is great.

I would like to begin with Ms. Plain.

You spoke about some of the truly horrific and heartbreaking health impacts your community faces. I want to give you the opportunity to talk a bit more about the consequences pollution has had on the health, the way of life, and the culture of your community. From what you've described so far, it's really clear that this is a denial of the basic human rights to live in a healthy environment.

I'd also love to hear about what resources the Aamjiwnaang community has currently. What is needed to both address the health impacts, and also collect data on what's happening?

[Sylvia Plain]

I mean, we're just ignored. We're coordinating a lot with academics. People are doing research. I'm doing a lot of work at the United Nations through the permanent forum, the expert mechanism, because it is a human rights issue. This is an avenue where we can go, engaging with the special rapporteurs and Human Rights Council. We have the opportunity to negotiate resolutions with different departments in the government, with CIRNAC or Global Affairs Canada, wherever we can be heard, because at the provincial and federal levels, the data is not given to us, or if it is given to us, there's no action plan.

We feel very defeated in not having the capacity at the community level to contribute. However, we would like to. I feel there are many options available. It's like we're out of sight, out of mind. We would like to, because we have that data. We have intergenerational data. We know what's going on. We can provide that data, extracted through our land-based activities and oral traditions.

We've developed our own environmental assessment processes. We can articulate our indigenous knowledge at science tables. There's a lot. It's really just being left out of the discussions and the tables where we can take action.

It doesn't need to be this way. We don't want to have these conversations. We want to sit at the table to say, “This is what we've achieved. These are our goals, and we've knocked off a couple of things.”

We would like to see more collaboration with the different levels of government to tackle some of these issues. Why should we have to go to the courts? Why should we have to go to the Human Rights Council? That's just above and beyond.

I feel like Canada has a much higher standard overall. This is an opportunity for these things to be fixed.

[Laurel Collins, NDP, Victoria, BC]

Thanks so much.

Can you talk a bit about the impact that enforceable air quality standards would have for your community?

[Sylvia Plain]

Right now, it just seems really flexible for the industry companies to keep polluting and to exceed the levels. If there were something firm in place where they knew that they were going to be held accountable, would they be testing the limits?

As I've stated to you before, it feels like we're a test site. It's like, let's see how much we can pollute and get away with, and then through the data of the different generations of community members, it will show through. It shouldn't be that way.

The special rapporteur in a recent report, published by the 49th session of the Human Rights Council, classified Aamjiwnaang as a “sacrifice zone”. That's really what we feel like. It shouldn't get to that point. There should be more accountability for the industry to produce the results of their chemicals, and have action plans and reinvestment plans.

There's a lot, and we're just a small example of many issues that are faced by vulnerable populations of indigenous people across Canada. We seem like ground zero as the worst-case scenario for Canadian environmental issues, but we don't want to be that. We should be an example of how you can fix that, and how we can collaborate together.

[Laurel Collins, NDP, Victoria, BC]

Thanks so much.

Clearly CEPA has not been effective at protecting your community. You've taken your concerns to the United Nations. Can you talk about any other changes to CEPA that are needed in order to make a real difference?

[Sylvia Plain]

There is an acknowledgement of the importance of indigenous knowledge, our traditional ecological knowledge.

As I said, we have environmental assessment processes. We have data that we can contribute. I feel as though if there were something in there to support that, whether through funding or regional agencies to bring together experts to utilize that, then we could be contributors to other Environment Canada offices. That's something we fight for at other tables and on other pieces of legislation, to include our knowledge.

We have our own science and technology. I've seen success stories of utilizing traditional practices in collaboration with science, in Yukon, for example, and the inter-tribal watershed. There are really great programs coming out with great results.

It's just a matter of seeing what's on the other side. If we make that decision to invest, what are benefits that can come out of it?

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, your time is up.

For the second round, I am going to reduce speaking times by 20% for both groups of witnesses, as I did last Tuesday, so that we may finish more or less on time. Speaking times will be as follows: four minutes, four minutes, two minutes, two minutes, four minutes and four minutes, for a grand total of twenty minutes.

Mr. McLean, you have the floor for four minutes.

[Greg McLean, Conservative, Calgary Centre, AB]

Thank you, Mr. Chair.

Thank you for the variety of witnesses here.

I'm going to start with Mr. Castrilli. One of the things you said really hit home for me. That was the fact that we want to deal with the definitions in this legislation, as opposed to having them interpreted in courts. It's something that I've said at this committee numerous times as well. You did give some examples of things that need to be further understood before we just throw them into the courts for discussion at that point in time.

You did go into some detail here on some of the proposed amendments you talked about. You talked about the constitutional effect of dividing the schedule into two classes, part one and part two. You referred to a 2007 environment committee report.

I'm a bit of a skeptic on that. I'd like you to enlighten me a little more, please. If I asked four constitutional lawyers something, I think I would get six different answers at this point in time. I'd really appreciate hearing what you have to say about how we're going to have a constitutional battle.

Who are those people who are going to challenge this constitutionally? What would be the basis of the challenge?

[Joseph F. Castrilli]

Mr. McLean, thank you very much for the question.

As you may know, there are already two challenges in the federal courts against the plastic manufactured items designation that's in effect pending the results of federal court cases. They were brought by an industry coalition concerned about that designation. The first of those two cases was actually brought a month after Bill C-28—which is the predecessor to Bill S-5—was tabled in Parliament. There's not necessarily a connection between the two, although the timing is...as I've suggested.

The basis for their concern, as I understand it from reading the notice of application, is that the constitutional foundation for CEPA is subsection 91(27) of the Constitution Act of 1867, the criminal law power. In order for federal legislation to be designated as valid based on the criminal law power, it has to have a valid criminal law purpose. The courts have said, essentially, that the problem has to be an evil or something that is injurious to the public.

I take it from the claims in the documents that were filed in federal court that the industry coalitions are suggesting that plastic manufactured items are not injurious to the public. That's their claim. How that will play out is for the federal courts to sort.

What I'm concerned about is—

[Greg McLean, Conservative, Calgary Centre, AB]

Okay.

What I was trying to get at here was your argument of constitutionality. Your concern here is on what's already ongoing in the federal court regarding the case around plastics. Is that correct?