Senator Galvez: I would appreciate it if you could provide me with the answers because the answers were not to my satisfaction.

Bill S-5, finally, clearly states that risk is the approach to managing toxic substances, but is it the risk to humans or the risk to the environment? What constitutes highest and acceptable risk?

Hon. Rosa Galvez: Honourable senators, I have the honour to table, in both official languages, the report of the ParlAmericas concerning the Eighteenth Plenary Assembly, held as virtual sessions on November 26, 29 and December 10, 2021.

Hon. Rosa Galvez: Honourable senators, my question is for the Government Representative in the Senate.

Senator Gold, central to the control and management of chemical substances is the need to determine their toxicity and classify them according to their potential harm.

In most developed countries, and to avoid conflict of interest, arm’s length or scientific institutions, such as the Centre d’expertise en analyse environnementale du Québec, do this work.

Several times during study of Bill S-5, I asked government officials who undertake the testing and assessment of substances for their toxicity. Are they actual tests or are they literature reviews conducted by the government or industry?

Hon. Rosa Galvez: Honourable senators, I rise to speak to Bill S-5, the strengthening environmental protection for a healthier Canada act. As you may know, the Canadian Environmental Protection Act, or CEPA, was adopted in 1999 and has not seen any significant modernization since. Twenty‑three years is too long of a wait to update our protection regime in a fast-changing world. More than 28,000 chemicals are registered for use today, and more than 600 new chemicals are introduced every year in Canada, which is more than triple than in the U.S.

I encourage you to vote in support of Bill S-5 as amended in committee and want to use this opportunity to explain how and why CEPA affects all of us, and why it is important that we frequently study and review this act.

CEPA provides the framework for how, why and when chemical substances are assessed for toxicity, and whether and how they need to be regulated. Bill S-5 seeks to strengthen this assessment and regulation-making framework.

[Translation]

The House of Commons Standing Committee on Environment and Sustainable Development studied this bill in 2017 and made 87 recommendations. Just a few of these recommendations were taken into account in Bill S-5, most notably the consideration of vulnerable populations. A number of the recommendations from the committee and from experts have not yet been included, such as the requirement of justification for confidentiality requests, risk assessment, climate change, pesticide management, radioactive substances, electromagnetic radiation and genetically modified organisms.

A number of senators tried to fill these gaps by proposing amendments during the committee’s study. I want to thank Senators Miville-Dechêne, McCallum, Patterson and Arnot for their thoughtful proposals. I also want to thank Senator Kutcher, the sponsor of the bill, for agreeing to take on the difficult task of sponsoring such a large and highly technical bill.

Yesterday, the Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources shared some statistics about our work and our overall findings. I won’t repeat everything that he shared, but I do want to emphasize that 64 amendments were presented, 34 of which were adopted. I’m pleased that my colleagues supported 14 of my amendments, many of which had to do with the reduction of assessments and the number of tests on vertebrate animals.

[English]

Under CEPA, the government is tasked with assessing substances and categorizing them depending on their toxicity. The Government of Canada assesses approximately 600 new substances in the Canadian market each year. Yet, with all these substances and thousands of new products imported to Canada annually, the government has not given itself sufficient resources to undertake adequate testing. If you heard my question earlier to Senator Gold, we don’t know if the government is overly reliant on industry to provide the scientific basis for assessments, if university labs will play a bigger role in this testing or if government officials rely on literature reviews.

This ambiguity is problematic. A literature review, however useful in getting a broad picture, might not include testing in the right conditions to determine if a substance is toxic in the environment, if it might lead to long-term chronic effects in humans or if there are equivalent substances that are less toxic, for example. While these assessments are the responsibility of the minister by law, the government relies on data from experiments that are overwhelmingly designed, performed, analyzed and disclosed by industry for the purpose of sales. This overreliance on industry-provided data should warrant an additional layer of precaution, not less.

CEPA references the precautionary principle several times, an approach that emphasizes caution when addressing substances for which extensive scientific knowledge is lacking. This is a wise approach when dealing with substances that have the potential to destroy ecosystems or cause lasting health impacts on human health. Unfortunately, our environmental protection regime is more grounded in risk management than precaution.

In fact, Bill S-5 changes the CEPA preamble by removing an acknowledgement that we “. . . need to virtually eliminate the most persistent and bioaccumulative toxic substances. . . .”

This was in the initial CEPA. Today, we would rather focus on “the need to control and manage pollutants.” This is neither a precautionary approach nor prevention. It sends the wrong signal, by suggesting that there is no need to eliminate pollutants — only to manage and control them.

When it comes to prevention, we heard from the government that only 25 substances from the list of toxic substances have pollution prevention plan requirements. They went on to suggest that this should not be concerning because not all uses of substances create a risk. We must point out that highest risk and acceptable risk are not defined in Bill S-5. Without these boundaries, risk management may lead to situations where it is acceptable that citizens are exposed to different levels of dangers, which creates more inequalities. This issue is avoided when the focus is put on prevention.

I appreciate that the government proposed an amendment brought forward by Senator Kutcher in committee to extend the priority of pollution prevention actions to both parts of the list of toxic substances in Schedule 1, rather than just part 2. The committee also adopted Senator Miville-Dechêne’s amendment giving authority to the government — should they need it — to require pollution prevention plans from any manufacturer of toxic substances. Prevention is a cornerstone of adequate environmental protection, and these amendments make Bill S-5 stronger.

[Translation]

The bill also introduces a tool that I think will be good for the environmental protection framework, and that is a list of potentially toxic substances. This list sends a clear signal to industry that a substance may become toxic if it is used differently or if more of it enters the environment. It also indicates that further regulatory action may be taken if necessary. It acts as a warning system, one that is not limited to substances tied to a new activity. Although some industry witnesses were opposed to it, I believe it will benefit industry by helping them avoid substances that they would otherwise have to replace eventually.

[English]

With great expectations from citizens, Bill S-5 introduces in its preamble the right to a healthy environment. Sadly, Canadians won’t benefit from this right in its due form when the bill passes. At this stage, the bill only instructs the minister to develop and implement a plan to set out the exact nature of this right within two years of coming into force.

Hon. Rosa Galvez: Honourable senators, with great expectation from citizens, Bill S-5 introduces in its preamble the right to a healthy environment. Sadly, Canadians won’t benefit from this right in its due form when the bill passes because at this stage, the bill only instructs the minister to develop and implement a plan to set out the exact nature of this right within two years of the coming into force of the bill. Moreover, although Bill S-5 stipulates that the implementation framework must consider the principle of environmental justice, it must also consider the balancing of the right with other factors, including economic factors. Obviously, rights are subject to reasonable limits. Our charter and judicial system recognize this clearly. However, I couldn’t find any similar usage of balancing factors in other rights legislation. Colleagues, what if your right to religious freedom, for example, was balanced with economic factors? Would you accept that?

This right is better than nothing, and when Canadians will benefit from a form of this right, they will join 156 other nations around the world who already have this right enshrined in law in their constitutions. Interestingly, 110 of them afford this right constitutional protection, something that we are far from doing with Bill S-5.

Finally, I’m concerned about the government’s decision to remove the title of Schedule 1, “List of Toxic Substances.” Although the schedule is referred to as “the list of toxic substances” everywhere else throughout the bill, the title itself was removed. At first glance, it seemed like a minor omission since each substance on Schedule 1 has already been declared toxic under CEPA. However, upon further reflection, I think that it could have unintended or intended constitutional ramifications. The 1997 Supreme Court ruling in R. v. Hydro-Québec upheld CEPA as adopted in 1988 as valid legislation on the basis of its criminal law power. Justice La Forest, writing for the majority, noted that:

 . . . the stewardship of the environment is a fundamental value of our society and that Parliament may use its criminal law power to underline that value. . . .

He also stated that the act “. . . is an effective means of avoiding unnecessarily broad prohibitions and carefully targeting specific toxic substances.”

In other words, CEPA is within its constitutional jurisdiction as long as it stays narrowly focused on regulating toxic substances, an analysis that is shared with the Canadian Environmental Law Association.

Under CEPA, a substance is declared toxic if it may enter the environment under conditions that may have an immediate or long-term harmful effect on the environment or its biological diversity, may constitute a danger to the environment on which life depends or may constitute a danger to human life or health.

Lead, mercury and plastics, for example, are on Schedule 1 precisely because they are toxic, despite what you might hear from some industry representatives. As with everything, there are cases where these substances do not pose a risk, but that doesn’t mean they aren’t toxic substances as defined by CEPA. Removing the label “toxic substances” from Schedule 1 could undermine the precedents established by the Supreme Court of Canada in that 1997 ruling, ultimately weakening the government’s authority to regulate these substances.

From another angle, simply naming this list as Schedule 1 is meaningless for most Canadians and gives no indication of what this list represents. At worst, it is misleading the public just to satisfy some industries that don’t like seeing the substances they use defined as toxic.

I have opted not to bring forward an amendment to reverse this government decision, but I hope the House of Commons will consider this issue seriously for clarity and transparency.

In conclusion, Bill S-5 does improve certain aspects of Canada’s toxic substance management framework, but as explained, there is still lots to cover. We really need to better protect our environment, as our health and safety depend on it. Vulnerable populations are overexposed to pollutants present in the water and fish they eat. Without proper labelling, we buy food and items that are sprayed or treated with substances that can bioaccumulate in our bodies. Plastics that are composed in their majority of toxic substances break into microplastics that are found today in human blood and placentae. Chronic, low‑dosage exposures are also very dangerous.

I hope that we will continue improving CEPA in the years to come and we won’t wait another 23 years to update this important law. Thank you, meegwetch.