Environment Committee on Dec. 6th, 2022

[The Chair, Liberal, Francis Scarpaleggia]

I call the meeting to order.

Good afternoon.

Welcome to meeting number 42 of the Standing Committee on Environment and Sustainable Development.

This is the last meeting in which we will be hearing from witnesses on Bill S‑5.

As a reminder to all those in the room, please do not lean in to speak in the microphone. Doing so causes problems for the interpreters.

I am happy to announce that all the technical tests were completed successfully. We are ready to get started with our first panel.

Joining us, we have David Boyd, United Nations Special Rapporteur on Human Rights and the Environment. From the Collectif de recherche écosanté sur les pesticides, les politiques et les alternatives, we have Louise Vandelac, founder and director. Lastly, from Nature Canada, we have Mark Butler, senior adviser, and Hugh Benevides, legislative adviser. Mr. Boyd and Ms. Vandelac are joining us by video conference, and Mr. Butler and Mr. Benevides are here in person.

Mr. Boyd, you will be going first. You have three minutes for your opening remarks.

[Dr. David Boyd, United Nations Special Rapporteur on Human Rights and the Environment, As an Individual]

Thank you very much, Mr. Chair.

Ladies and gentlemen, it's a great honour to be with you. There's a sense of déjà vu testifying again about CEPA reform.

I'd like to begin by commending the Government of Canada for finally recognizing in law the right of every Canadian to live in a healthy and sustainable environment. This is long overdue, but it is an important step toward the eventual recognition of this right in the Canadian Charter of Rights and Freedoms, which is where 90% of Canadians agree it belongs.

There are already 156 nations around the world that recognize the right to a healthy environment in law through constitutions, legislation or regional human rights treaties. It was recognized by the United Nations General Assembly in July 2022. Canada supported this resolution and voted for it, as did 160 other nations. No states were opposed.

Of course, the right to a healthy environment—it's important to say—is not a new human right. It's been around for decades. Quebec included this right in its Environment Quality Act back in 1978 and in its Charter of Human Rights and Freedoms in 2006.

While it's an important first step, I think it's important to say that the provision in Bill S-5 regarding the right to a healthy environment has several significant weaknesses.

The first weakness is the phrase “as provided under this Act”, which means that Canadians' right to a healthy environment is circumscribed to those issues that are addressed by CEPA. This strikes me as odd, because it means that no Canadian has the right to a healthy environment under the Canada National Parks Act, the Pest Control Products Act, the Impact Assessment Act or any other federal environmental legislation. My first recommendation is to remove the phrase “as provided under this Act”.

Second, Bill S-5 is quite narrow in the way it describes the right to a healthy environment. The UN resolution from July 2022, which Canada voted in favour of, uses the language “clean, healthy and sustainable environment”. Each of those three adjectives—“clean”, “healthy” and “sustainable”—has clear a definition in the Oxford English Dictionary, which I've provided in my written brief.

There's also a bill before the American Congress, called the environmental justice for all act, which has a much more comprehensive articulation of this right: “the right of all people to clean air, safe and affordable drinking water, protection from climate hazards, and the sustainable preservation of the ecological integrity...of the natural environment.”

In summary, my recommendation for proposed section 2 in Bill S-5 is to use the UN language that Canada supported earlier this year: “protect the right of every individual in Canada to a clean, healthy and sustainable environment”. We'd delete the phrase “as provided under this Act” and retain the phrase “subject to any reasonable limits”.

The third weakness is a lack of mechanisms through which this right can be enforced. A right without a remedy is not really a right. Imagine a scenario in which a Canadian community is being exposed to toxic substances at levels far above the Canadian average or levels that violate the Canadian ambient air quality standards. Should people in this community, whose right to a “clean, healthy and sustainable environment” is clearly being violated, not have anywhere to turn? Sections—

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Boyd. Unfortunately, your three minutes are up. You will have a chance to cover more ground and share your thoughts during the question and answer portion.

Since Ms. Vandelac isn't online yet, we'll go to the Nature Canada representatives.

Go ahead, Mr. Butler. You have three minutes.

[Mark Butler, Senior Advisor, Nature Canada]

Thank you, Chair and members, for this opportunity.

I live in Nova Scotia, part of Mi’kma'ki. I wouldn't be here today if an American company hadn't chosen Prince Edward Island to produce the world's first genetically engineered food animal, a transgenic Atlantic salmon containing genetic material from a chinook salmon and an eelpout.

P.E.I. is in the centre of the range of Atlantic salmon in North America. Nature Canada's concern is that these salmon could escape and interbreed with wild salmon. For those who say it can't happen, earlier this year Brazilian scientists published a paper describing the first ever documented case of a genetically engineered animal, a fish, breeding in the wild.

I commend to you the submission by the Atlantic Salmon Federation to the Senate. Their call to protect wild salmon from GE salmon is grounded in science and decades of conserving Atlantic salmon.

I would also draw your attention to the submission made by the Assembly of First Nations. The AFN says that GE organisms could have negative consequences for first nations' inherent and treaty rights, and it recommends a number of amendments to part 6.

In 2017, this committee issued a report on CEPA and made five key recommendations on how to improve part 6. We are asking you to finish the work that this committee began in 2016. It was continued with Senate amendments to part 6, which were supported by senators from all groups.

Last Friday, Minister Guilbeault and senior officials appeared before this committee. We would be happy to answer questions about the oddly timed regulatory review, or the current level of consultation on GE organisms. The minister, in response to a question, said that our amendment on demonstrable need crosses a red line. We see it as common sense. There is also a red line when it comes to nature. Atlantic salmon and many other species cannot withstand additional impacts.

Remember, unlike chemical pollution, genetic pollution only needs to happen once for it to be widespread and irreversible. Nature Canada's interest is in protecting nature and preventing genetic pollution.

We look forward to collaborating with you on our amendments to protect nature and the wildlife we all cherish.

Thank you.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Butler.

I'm being told that Ms. Vandelac is having some trouble joining the meeting, so we'll move right into the first round of questions. If she's able to join the meeting, she can give her opening remarks.

Go ahead, Mr. McLean. You have six minutes.

[Greg McLean, Conservative, Calgary Centre, AB]

Thank you, Mr. Chair.

Mr. Boyd, thank you for appearing today. I have some comments and some questions regarding the statistics you brought forward.

A right to a healthy environment, we appreciate that very much. We'd like to make sure that we have definitions around these things. We have to acknowledge, as many witnesses have done before you, that there are many non-definitions of what's in this bill right now. When you bring forward a definition of a healthy environment, it is somewhat instructive because right now we're leaving this bill open to what some judge is going to interpret. I would like to make sure that this is clearly delineated within the legislation, what we're talking about here, which is the right to a healthy environment. Thank you for putting some definitions prospectively on the page about what that means.

Is it your estimation that the world, including Canada, has a more healthy environment today than it did one generation ago? Let's go to 1950, for instance. Is our environment more or less healthy at this point in time?

[Dr. David Boyd]

That's a complicated question. In many ways it is less healthy, and in some ways it's more healthy. Between 1950 and now, we've encountered the climate emergency, which is something that didn't exist in 1950, so that's a huge problem that has developed over the last 72 years.

In terms of biodiversity, we've seen massive declines. The latest information from the intergovernmental platform on biodiversity and ecosystem services indicates a 70% decline in wildlife since 1970, so we're clearly much worse off there.

There are some areas where we have taken action since 1950. We've eliminated the use of ozone-depleting chemicals. We've seen a huge rise in renewable forms of energy, so there have been some measures of progress. We have far more protected areas in the world today than we did in 1950.

It's a mixed bag, sir.

[Greg McLean, Conservative, Calgary Centre, AB]

I appreciate that there's a balance in this equation, which is exactly the rationale for the question, but in your explanation there about a healthy environment, you didn't isolate it towards healthy for humans. You talked about the healthy environment being, of course, the atmosphere, biodiversity and all these other things.

Is that something that you think is going to be interpreted when people actually explain what a “healthy environment” is in this bill?

[Dr. David Boyd]

Well, sir, “environment” is defined in the definitions section of CEPA. It's a comprehensive definition that I think has served Canada well since its inception close to four decades ago. There are no proposed amendments to the definition of “environment”, because it has been working well.

[Greg McLean, Conservative, Calgary Centre, AB]

Thank you.

You also talked about “subject to any reasonable limits”. Again, this will be the same sort of, “Okay, well, we're balancing on one thing here that's a definition at the same time, but we'll override it with these so-called reasonable limits. That will be left up to somebody else to decide.”

The definitions you're landing on are partial definitions, if I may, and then you subject those to reasonable limits. It is still opaque. Would you agree?

[Dr. David Boyd]

I wouldn't say it's opaque, sir. If you look at any type of human rights legislation, or if you look at the Universal Declaration of Human Rights from 1948, you won't find a single definition of any of those rights. If you look at the Canadian Charter of Rights and Freedoms, you won't find comprehensive definitions of any of the rights there.

Basically, this is the way human rights law works. You—

[Greg McLean, Conservative, Calgary Centre, AB]

Great. Thank you. You're right.

We did talk about no recourse in here as well. When somebody is affected, or when nature is affected, by this abrogation of any clean, healthy environment definition, whom do you think they should have recourse to?

[Dr. David Boyd]

Generally, in the situations where human rights are being violated, there are opportunities for both judicial and non-judicial mechanisms. For example, many countries have national human rights institutions that field complaints from citizens about violations of their right to a clean, healthy and sustainable environment. Of course, the courts also have a role to play. That's the fundamental balance in our society between the legislative branch and the judicial branch. When there are allegations that legislation is not being followed—

[Greg McLean, Conservative, Calgary Centre, AB]

Yes. My question is specific, though. When these people go before the courts on legislation if there's abrogation, whom will they have recourse to?

[Dr. David Boyd]

I'm not sure I understand the—

[Greg McLean, Conservative, Calgary Centre, AB]

If somebody's environmental rights have been abrogated, supposedly, with that scenario going forward here, how do they get recourse? Who will be the party they seek redress against?

[Dr. David Boyd]

In a federal law such as the Canadian Environmental Protection Act, that will be the federal government.

[Greg McLean, Conservative, Calgary Centre, AB]

So the federal government will be on the hook here for a definition of somebody actually coming forward here, and effectively billions of dollars, potentially.

[Dr. David Boyd]

Well, it's interesting that you say “billions of dollars”. I'm not sure where you pulled that number out of the air. This is a right that's recognized by 156 nations around the world, and I can tell you that there's substantial research—

[Greg McLean, Conservative, Calgary Centre, AB]

Dr. Boyd, of those 156 nations around the world—I don't mind interrupting you a little bit—99% of them have worse environmental outcomes than Canada has. Let's talk about words on paper versus reality here. We have to land on something—

[Dr. David Boyd]

How about Norway, sir?

[Greg McLean, Conservative, Calgary Centre, AB]

—that actually serves a benefit to Canadians.

[Dr. David Boyd]

Sure. How about Norway, sir? Norway has had the right to a healthy environment in its constitution since 1992. It has not cost Norway billions of dollars. In fact, it's been a catalyst for Norway to become a global leader in environmental protection.

[The Chair, Liberal, Francis Scarpaleggia]

We'll have to stop there.

Mr. Weiler, go ahead.

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

Thank you, Chair.

I also want to thank all the witnesses for being here today. We've had great testimony and answers already.

First, Dr. Boyd, I appreciate your long-standing work to advance environmental rights in Canada and around the world, as well as your contributions to the 2016-17 review of CEPA in the Senate.

From your point of view as the special rapporteur on human rights and the environment, are you aware of other countries that have legislated a right to a healthy environment and then qualified that right? You mentioned in your opening remarks that you were in favour of having reasonable limits on that right. Could you explain what that would look like as part of this legislation?