Environment Committee on Nov. 25th, 2022

[The Chair, Liberal, Francis Scarpaleggia]

I call this meeting to order.

Before we get going, I would like agreement to adopt the committee budget for the study of Bill S-5. You've received it in your inboxes. Is there any objection?

There seems to be unanimous consent. It's done.

In accordance with our routine motion, I would like to inform committee members that sound quality checks have been successfully completed. We are therefore ready to begin our meeting.

During the first hour, we will hear from Ms. Sylvia Plain, environmental consultant; Mr. Joseph Castrilli and Ms. Fe de Leon, Canadian Environmental Law Association; Ms. Justyna Laurie‑Lean, vice-president, environmental and regulatory affairs, Mining Association of Canada; as well as Mr. Jean Piette, chairman of the board, Quebec Business Council on the Environment.

Each group will have three minutes to make their opening remarks. We will then move on to the rounds of questions.

We will start with Ms. Sylvia Plain; you have the floor for three minutes.

[Sylvia Plain, Environmental Consultant, As an Individual]

Good afternoon. My name is Sylvia Plain. I am Anishinabe from Aamjiwnaang First Nation. We're located in southwestern Ontario.

Today, I'm here to share some environmental and health issues the residents of Aamjiwnaang First Nation face due to the pollution being emitted by the 62 petrochemical plants that surround our community. What I can offer here, today, comes from my experiences living in Aamjiwnaang, as well as advocating for Aamjiwnaang citizens at the United Nations. I can also offer my perspectives as an educator, knowledge-keeper and practitioner who works with a group of indigenous knowledge-carriers and elders across Turtle Island.

In November 2021, we received a report and presentation from the Ontario Ministry of the Environment, Conservation and Parks. It was very troubling. It was revealed that benzene, benzo[a]pyrene, fine particulate matter and sulphur dioxide were above the 2020 Canadian ambient air quality standards and the ministry's ambient air quality criteria.

Benzene emissions were 44 times the ambient air quality criteria, and benzo[a]pyrene was between 10 and 20 times the ambient air quality standards. 1,3-butadiene also reaches elevated levels in certain areas of the region. The St. Clair River, which is on the west side of our territory, was heavily contaminated with methylmercury and still remains a binational area of concern for the International Joint Commission.

The members of Aamjiwnaang plant gardens, fish, hunt, trap, harvest plants and medicines, play outside and enjoy outdoor activities, all of which exposes us to the dangers of the pollution being emitted through the air, water and soil, and through the food we eat. In our community, twice as many girls are being born than boys. Children in Aamjiwnaang are being born pre-polluted, and continue to be exposed throughout crucial periods of their development. Some children are being born with deformities, face lifelong respiratory illnesses, and have asthma and regular nosebleeds. Most recently, cancer is becoming a major concern due to the carcinogenic chemicals being emitted.

Overall, Aamjiwnaang community members are denied basic human rights before they are born and throughout all the stages of their lives. With that being said, one must ask, who and what is the Canadian Environmental Protection Act actually protecting?

In summary, Aamjiwnaang citizens would like to be included at the decision-making tables, and to be informed and consulted without delay. We would like to see the fines collected by the polluters in “Chemical Valley” reinvested back into Aamjiwnaang. Furthermore, we would like to contribute our regional, gendered and intergenerational knowledge to support all levels of government in ensuring that we are meeting the highest standards of air quality, water quality and human rights.

I would like to say meegwetch for listening, and for the opportunity to bring forward our issues. I look forward to the health and environmental improvements for Aamjiwnaang community members and a strengthened Canadian Environmental Protection Act.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much, Ms. Plain.

We'll go to the Canadian Environmental Law Association.

Mr. Castrilli, go ahead.

[Joseph F. Castrilli, Lawyer, Canadian Environmental Law Association]

Thank you.

The emission of toxic substances to the environment is a growing problem globally, as well as in Canada. The Canadian Environmental Law Association focused on the emission of cancer-causing agents to illustrate that Bill S-5 will not solve the problem in Canada, unless the bill improves the approach of the act to pollution prevention.

CELA analyzed 15 years of national pollution data from 2006 to 2020. These 15 years coincide with the period the chemicals management plan was in force under CEPA. We reviewed the data for 32 cancer-causing agents listed in CEPA's schedule 1 list of toxic substances. What we found nationally was that while federal requirements are reducing by millions of kilograms on-site air releases of these chemicals, on-site disposal and land releases of the same chemicals have been dramatically increasing in the tens of millions of kilograms.

For certain substances, the trends are even more dramatic. For example, we found in Quebec with respect to arsenic that on-site air emissions decreased 8% during the period of 2006 to 2020. However, on-site disposal and land releases of arsenic increased by almost 2,000%.

The bottom line is that moving a carcinogen from one environmental pathway—air—to another—land—does not represent progress in protecting human health and the environment. It merely represents putting a different part of the environment and a different group of people at risk.

What is needed is a strategy of prevention and the elimination of schedule 1 toxic substances from Canadian commerce to the maximum extent possible. This was the expectation for CEPA, as described in a 1995 House standing environment committee report.

There are three things wrong with CEPA that Bill S-5 does not correct on the issue of pollution prevention.

First, pollution prevention is discretionary, not mandatory, for toxic substances listed in schedule 1. This has resulted in only one-sixth of all substances in the schedule in the last 20 years having a pollution prevention plan. It's a rate that, if continued, will mean that all the existing toxic substances in schedule 1 will not have a plan until the 22nd century.

Second, pollution prevention is meant to control the creation and use of toxic substances. However, because of the approach that has been taken, pollution abatement has become the predominant measure employed by industry That is, only emission concentrations of a substance are sought to be controlled. The 1995 House standing environment committee report warned against doing this. The result has allowed such substances to stay in Canadian commerce and the environment.

Third, Bill S-5 does not make the substitution of safer alternatives to toxic substances a central focus of the amendments to the act, thus placing Canadians and the environment at risk, and Canada at a disadvantage relative to other countries that have done so.

How should Bill S-5 amend CEPA?

First, make pollution prevention mandatory for all chemicals that Canada has designated as toxic under the law, and do not employ pollution abatement as a substitute for pollution prevention under part 4. Second, enshrine the analysis of safer alternatives to chemicals as a central pillar of CEPA—

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

I will go to Ms. Laurie-Lean.

[Justyna Laurie-Lean, Vice-President, Environment and Regulatory Affairs, Mining Association of Canada]

Thank you for this opportunity to speak to you about Bill S-5.

I am Justyna Laurie-Lean with the Mining Association of Canada.

The mining industry is affected by several parts of CEPA, but we do not offer comments on amendments that we have little experience with. We see Bill S-5 as generally well-crafted amendments that modernize and clarify existing enabling authorities, but we are concerned about the departmental capacity and resource implications of legislative changes. We urge you to be mindful that the implementation of changes to the act will require resources from departments already tasked with delivering on other priorities and struggling to deliver regulatory development and administration.

We previously highlighted the need for an online query tool to facilitate finding out the status of a substance under CEPA. Senate amendment number 4 responded to our recommendation. On November 4, Environment and Climate Change Canada made available, on its website, a new tool that meets the needs that MAC identified. This tool will increase transparency and amplify awareness and compliance.

We continue to struggle to understand what the proposed “List of substances capable of becoming toxic” would do that is not already accomplished by other existing provisions of CEPA. The list is not tied to any consequent action. It is not integrated in the CEPA framework for managing substances.

We recommend that this new list be removed or amended to require that the listing of a substance includes a specification of actions to be taken. We are concerned that Senate amendment 15(c) moves proposed schedule 1, part 1 away from focusing on substances that pose the highest risk and towards legislating specific hazard characteristics.

We recommend returning paragraph 77(3)(b) to the original wording and recommend avoiding limiting the flexibility of defining “highest risk”.

CEPA applies to a very wide range of substances with diverse combinations of hazard characteristics and exposure scenarios. CEPA is technical and complex.

As you consider Bill S-5, we urge you to avoid hamstringing enabling provisions through excess prescription. The act should encourage the use of expert judgment to adjust assessments and actions to the specifics of each issue based on the best available knowledge at the time.

We would also urge you to avoid constructing provisions in a way that encourages litigation. Fear of litigation drives departments to focus on avoiding litigation rather than on protecting the environment and health. Transparency and parliamentary oversight would be more effective at stimulating progress.

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much.

Last but not least, we have Mr. Jean Piette.

[Jean Piette, Chairman of the Board, Quebec Business Council on the Environment]

Hello, ladies and gentlemen, members of the Standing Committee on Environment and Sustainable Development.

To begin, I will give you some information about the Quebec Business Council on the Environment, or CPEQ.

Founded in 1992 by representatives of Quebec's main business and industrial sectors, the CPEQ is the umbrella organization that represents and expresses the opinions of Quebec's private sector economic stakeholders on environmental and sustainable development issues.

The CPEQ is made up of more than 300 of the largest companies and associations in Quebec, which generate more than 300,000 direct jobs and report combined annual revenues of more than $45 billion.

Generally speaking, we welcome Bill S‑5. We believe it will allow the key objectives in the Canadian Environmental Protection Act, 1999, or CEPA, to be met more effectively, namely, protecting the environment and human health in this country based on risk assessment of toxic substances. However, we believe that some elements could be further clarified or specified.

First, the bill appears to broaden the scope of control of the toxic substances defined in CEPA by using new terms such as "products," "activities" and "pollution" in new situations. We believe Parliament should be careful and avoid broadening CEPA's scope so as not to infringe on provincial areas of jurisdiction.

Further, CPEQ does support including the right to a healthy environment in CEPA. In this regard, let us recall that Quebec law already establishes the right to a clean environment and the right to a healthy environment. These rights are protected by Quebec's environment quality act and the Quebec charter of human rights and freedoms.

CPEQ maintains that consultations on developing the implementation framework for the right to a healthy environment must include all civil society stakeholders, including businesses. CPEQ also notes that the bill refers to concepts such as vulnerable populations, susceptibility and cumulative effects. We believe these concepts should be clarified so that the scope of these legislative amendments can be properly understood.

Finally, CPEQ reiterates its support for Bill S‑5.

We thank the committee for giving us the time and the opportunity to state our views.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much, Mr. Piette.

We will immediately move on to the first round of questions.

Mr. Deltell, you have six minutes.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you very much, Mr. Chair.

Good afternoon to all my colleagues.

Ladies and gentlemen, welcome to your House of Commons.

Mr. Piette, thank you for your comments on Bill S‑5. You said that you want more details regarding vulnerable populations.

For vulnerable populations, what type of clarifications would you like to see added to the bill?

[Jean Piette]

The brief we submitted sets out the areas we are concerned about.

For example, the bill mentions "a group of individuals within the Canadian population who, due to greater susceptibility or greater exposure."

The word "susceptibility" is not clearly defined. We do not know exactly what it is referring to. We think what the susceptibility of a group of individuals is should be better defined. We would like an amendment or clarification on this. It would allow everyone to properly understand the scope of the law.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

In your remarks, you mentioned that we had to be careful not to infringe on provincial jurisdiction.

In your opinion, is there a clause or element in the bill that does not respect areas of jurisdictions, a principle that is sacrosanct and allows a federation to function properly?

[Jean Piette]

As you know, the Canadian Environmental Protection Act, or CEPA, passed in 1988, was challenged before the courts. It was examined by four courts and 14 judges. Nine of them found that the federal government overstepped its constitutional jurisdiction with this law. However, five Supreme Court justices against four found that the law was justified by federal jurisdiction over criminal law, as set out in subsection 91(27) of the Constitution Act, 1867.

That means that 14 judges looked at CEPA and nine found it to be unconstitutional. However, the five majority justices of the Supreme Court ruled the law constitutional. We believe it is important to tread very carefully.

In some provisions of Bill S‑5, new concepts are introduced in subsections 46(1) and 56(1) of CEPA. The scope of these provisions is broadened. For example, subsection 46(1) mentions activities. The objective is to regulate activities, but activities have always been regulated by the provinces. They fall under property and civil rights, which are under provincial jurisdiction as set out in subsection 92(13) of the Constitution Act, 1987.

It is therefore important to be careful when broadening CEPA’s scope, as it was validated by five justices against four. Of course, if the Supreme Court were to examine it today, I have no idea what the outcome would be. I therefore believe that it’s important to be careful, as the provinces are already active. They regulate activities through provincial environmental protection legislation. So it is a concern we wanted to share with members of the House of Commons.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

That was clearly stated and duly noted, Mr. Piette. Thank you very much.

Madam Laurie-Lean, welcome to the House of Commons.

You talked earlier about the list and your concern about the list the government is tabling in this bill. Can you explain a little bit more your concern with that?

[Justyna Laurie-Lean]

Essentially, we tried to sort of flow-chart how the decisions are made. You arrive after an assessment at a decision. Do you put something on schedule 1 or not? Look at it from the official standpoint. If you put it on schedule 1, you immediately trigger obligations—it's time-limited, you must develop risk management, you have a clock ticking—or you can put it on this new list and do nothing at all. You can imagine, in an overworked environment, what you would do.

So you end up, on this list, with nothing happening. If it's truly of concern, then are you going to monitor it? Are you going to research it? Are you going to chuck toys coming in at the border? What are you going to do if it's truly something of concern?

Frankly, I don't know how you would prove that a substance shouldn't be on the list, because everything is capable of becoming toxic in the CEPA definition. That's our concern. We think it kind of dangles there without doing anything that can't be done by other provisions in the act.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Just to clarify, would you suggest that this article be erased or would you suggest that it be amended?

[Justyna Laurie-Lean]

Ideally, I think it should be removed. It's always concerning when the explanation of what it's for keeps changing and isn't clear. But we respect that the government, Parliament, may have an intent. At a minimum, amend it so that if you add something to the list, you're going to say to the public “this is what I'm going to do”.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Go ahead, Mr. Weiler.

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

Thank you very much, Mr. Chair.

Thank you to the witnesses for being with us today.

My first question is for Mr. Castrilli.

You mentioned in your opening comments concerns about the timelines for toxic substance assessments, given the current pace of such assessments that are taking place. I was hoping you could explain to this committee how you see the right balance being struck between having timely assessments while also having robust stakeholder engagement and informed decision-making.

[Joseph F. Castrilli]

Thank you for the question, Mr. Weiler.

Our focus really has not been on timelines, and my opening comments were not about timelines, so I am not really in a position to advance the discussion further.

I think you're thinking about other environmental groups that have raised that concern.

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

Okay.

One of the other things you mentioned in your brief that was submitted in advance was about the lack of focus, perhaps, on safer alternatives in this bill.

I am wondering what suggestions you would have for amending this legislation such that it would better tackle this issue, and particularly with what you've seen in other jurisdictions.

[Joseph F. Castrilli]

That is something we've addressed, some people would say, in painful detail.

We provided two large documents to members of the committee over the last several months. One was a lengthy set of submissions identifying nine areas of concern with CEPA generally, one of them being the issue of alternatives. A second document, which was our proposed amendments to Bill S-5, is a document that's actually longer than Bill S-5.

The part you're referring to, which deals with alternatives, is set out in tab three of our proposed amendments. What we did was basically take a page from the process that's engaged in by the European Union in their REACH authorization program in how to address the question of alternatives. There it applies to any substance that's on their.... They have a separate listing system, similar to CEPA, and we're proposing that the same approach be applied here.

This is what we have done. Since the government is proposing to bifurcate schedule —something we don't think they should do, but assuming for the sake of argument that the government is going to do that—we've suggested addressing the first 19 substances, which are in part 1, with the alternatives analysis we've set out in our proposed amendments, not unlike the analysis that is authorized not only in Europe under REACH, but also in Massachusetts under their Toxics Use Reduction Act, and giving industry a number of years to address that issue as it relates to part 1 substances.

Then in relation to the 132 substances that are in part 2 of schedule 1, we've suggested a somewhat longer time frame. and we've set that out in our proposed amendments at tab three of our material. That analysis would then go through those 132 substances as well.

The point of the exercise is to do exactly what the 1995 standing House committee, the predecessor to your committee, was urging Parliament to do at the time. That is to basically make pollution prevention the primary approach to this statute and not pollution abatement, which is really what it is engaged in right now. Secondly, include alternative analysis in that exercise in order to expedite those reviews.

I think the answers to your questions are found, in summary, in tab three of our proposed amendments.

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

Thank you very much, Mr. Castrilli.

You had mentioned in some of your materials the challenges with section 22 of the act. Given that almost two decades have passed since this part of the act has been engaged, I wonder if you have any suggestions for the committee on how perhaps that section of the act, or just environmental protection actions more generally, could be improved such that this can be an effective remedy for people.

[Joseph F. Castrilli]

Our proposed amendments dealing with not only our right to a healthy environment, but also the enforcement, or the remedy portion of that exercise, are also contained in our proposed amendments. We have a separate tab for that—I think it's tab two.

There what we're proposing to do is that essentially we've adopted a number of suggestions from, among other places, previous standing committees—again, your committee—in both 2007 and 2017. We're also mindful of the concerns that were identified by the Senate committee this year in June 2022, that the right to a healthy environment in the absence of reforming section 22 will remain as ineffective for the next 20 years as it's been for the last 20 years.

You'll find the statutory language we propose at tab two of our proposed amendments.

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

Thank you very much.

My last question I'd like to ask of Monsieur Jean Piette.

There has been some discussion about labelling provisions in CEPA so far. I am hoping you could discuss the risk of duplicating regulatory regimes for product labelling that already exist under the Canada Consumer Product Safety Act if any labelling measures are pursued in Bill S-5.