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88-11E
TOXIC SUBSTANCES:
Prepared by: TABLE OF CONTENTS A. Control of Toxic Substances under the Canadian Constitution C. Federal-Provincial Co-operation
1. General Federal Accords with
the Provinces
TOXIC SUBSTANCES: FEDERAL-PROVINCIAL CONTROL*
There is widespread public concern about the effect of toxic substances on human health and the environment. The St. Basile le Grand fire, the Mississauga train derailment, the Hagersville tire fire and other such incidents in recent decades focused public attention on this issue. Increasingly, people are turning to government to deal with their concerns and demanding that stringent standards be set and uniformly enforced across the country. A national survey conducted by Insight Canada Research in 1996 found that more than nine out of ten Canadians were concerned about Canada’s environment. Those surveyed, however, accorded both the federal and provincial governments only mediocre scores for their handling of environmental issues, with federal government receiving a slightly higher average impression score (4.84 out of 10) than the provincial governments as a whole (4.74 out of 10). The control and management of toxic substances in Canada has not been assumed by any one level of government and requires the input of both the federal and provincial governments. It is essential, therefore, that efforts are coordinated and made as uniform as possible. The success of interjurisdictional efforts to control toxic substances ultimately depends upon the adequacy of standards throughout the country, the effectiveness of mechanisms to enforce those standards and the ability of the federal and provincial governments to coordinate their efforts in this regard. According to the report Taking Stock, released in July 1997 by the Commission for Environmental Cooperation (established under the NAFTA environmental side agreement), Canada has not fared particularly well in its fight against pollution. Using data from 1994, the report indicated that, in relative terms, Canadian industries were responsible for more than twice as much pollution as industries in the U.S.: Canadian manufacturing plants each produced an average of 105,000 kilograms of chemical pollution per year compared with U.S. plants' average of 45,000 kilograms. The Province of Ontario was found to be among the top polluters, ranking behind only Texas and Tennessee. A. Control of Toxic Substances under the Canadian Constitution Jurisdiction over environmental matters and the control of toxic substances in particular does not fall clearly under any of the powers assigned to either the federal or the provincial governments under the Canadian constitution. Neither the Constitution Act, 1867 nor subsequent amendments mention the environment or toxic substances. Some areas of the control of toxic substances have been regulated by the federal government; other areas have fallen to the provinces; for yet other areas, laws are overlapping, concurrent or joint. Most often, the federal government has relied on its exclusive jurisdiction over navigation and shipping, sea coast and inland fisheries, the criminal law, interprovincial and international trade, and the residual power to make laws for the peace, order and good government of Canada (the p.o.g.g. power) as bases for legislation to control toxic substances. The provinces have relied on their power to legislate in relation to local works and undertakings, property and civil rights in the provinces, matters of a local or private nature within a province and lands, mines, minerals and royalties belonging to the provinces, among others. The federal p.o.g.g. power has formed the constitutional framework for a number of federal environmental statutes. The courts have generally applied this power in the following circumstances: where a national emergency exists; where a situation or problem is not specifically dealt with in the constitution and is not of a local or private nature; and where the matter is of concern to the nation as a whole and cannot be effectively dealt with by the provinces. The constitutional validity of national emission standards for secondary lead smelter emissions made pursuant to the federal Clean Air Act (now incorporated into the Canadian Environmental Protection Act (CEPA)) has been upheld on the basis of the p.o.g.g. power, the court having determined that the control of air quality transcends provincial jurisdiction and is not a matter of local or private concern. Similarly, the Supreme Court of Canada in the landmark case of R. v. Crown Zellerbach Canada Limited (1988) applied the national concern doctrine of the p.o.g.g. power in holding that the prohibition against dumping without a permit found in section 4(1) of the federal Ocean Dumping Control Act (now incorporated into the Canadian Environmental Protection Act (CEPA)) and, hence, the control of marine pollution, is a valid federal responsibility. On the other hand, in a judgment handed down on 6 August 1992 in R. v. Hydro Quebec, the Quebec Superior Court struck down an interim order on PCBs, made under Part II of CEPA, on the grounds that it was ultra vires. This ruling was upheld by the Quebec Court of Appeal in a decision rendered on 14 February 1995. The case was subsequently appealed to the Supreme Court of Canada, which heard argument on 10 February 1997. The Supreme Court reserved judgment; its decision is not expected before the fall of 1998, at the earliest. If that Court upholds the previous rulings, there could be material implications for the ability of the federal government to regulate toxic substances under Part II of CEPA. Both the federal and provincial governments have enacted laws dealing with toxic substances. The provinces have chosen a variety of means to deal with the control of toxic substances. Through environmental protection laws and other more specific statutes, they generally employ permits, licences, approvals and control orders to limit the discharge of toxic substances into the environment. In addition, the disposal and transportation of hazardous waste materials within a province are regulated. The principal federal statutes are the Canadian Environmental Protection Act (CEPA), which received Royal Assent on 28 June 1988 and was amended in 1989; the Transportation of Dangerous Goods Act (TDGA), the Pest Control Products Act; the provisions of the Fisheries Act that deal with substances deleterious to fish; and the Motor Vehicle Safety Act, pursuant to which motor vehicle emission standards are made. The Canadian Environmental Protection Act is a comprehensive statute which replaced the federal Environmental Contaminants Act and incorporated within its parameters provisions of other statutes relating to international air pollution (the Clean Air Act), ocean dumping (the Ocean Dumping Control Act), and the manufacture and use of cleaning agents and water conditioners containing nutrients (the Canada Water Act). CEPA had two main purposes: first to overhaul its predecessor, the Environmental Contaminants Act, which had become outdated and no longer responded adequately to public needs and concerns; and second, to harmonize Canadian law with that of other nations. This legislation is largely based on the p.o.g.g. power and the federal government's authority over criminal law. The ability to deal with environmental quality, though not a clear or exclusive federal responsibility, has, through CEPA, been linked to human life and health and thus to the p.o.g.g. power. The references in CEPA to "the environment on which human life depends," are attempts to create the legal and constitutional framework for federal action in this area. Toxic substances have a multi-stage life cycle. For the most part, the stages can be described as research and development, introduction of the substance, manufacturing, transportation, distribution, use and disposal. The level of responsibility of the federal and provincial governments varies along that life-cycle continuum. For example, the federal government might have principal responsibility for the areas of research and development and the introduction of such substances; manufacturing, transportation and distribution might be shared responsibilities between the two levels of government; and use and disposal might be predominantly a provincial responsibility. The table on the following page provides an overview of federal and provincial authority in this area. Since the implementation of CEPA, over 23,000 substances have been placed on the Domestic Substances List. Of these substances, 44 were selected for assessment and placed on the first Priority Substances List. Of the 44 assessments, 25 substances were determined to be toxic and 6 were found to be non-toxic. Insufficient evidence prevented a conclusive determination from being made on the remaining 13, which were removed from the Priority Substances List. Regulations or other control options have been or are being developed to cover those substances determined to be toxic. Under the second Priority Substances List, issued in December 1995, 25 additional substances have been selected for assessment. In June 1995, Environment Canada released a publication entitled Toxic Substances Management Policy, which set out the federal government’s new policy on the management of toxic substances. This policy, which would apply to all substances of concern that can be regulated federally, whether under CEPA or some other federal statute, proposed the following two-track approach:
*F = Federal authority *P = Provincial authority 1. Provincial legislation in general does not apply to federal facilities. 2. Potentially an indirect control, provincial authority in this area involves the assessment of manufacturing, processing and use activities for the purpose of controlling the release, not the activity. Source: Final Report of the Environmental Contaminants Act, Amendments, Consultative Committee (1986), Appendix 6 The federal government’s new policy was criticized by the House of Commons Standing Committee on Environment and Sustainable Development, which tabled its year-long review of CEPA on 20 June 1995. Expressing regret that the government had decided to launch a new policy on the eve of the Committee’s scheduled tabling of its report, the Committee took issue with the government’s new policy because it was based on the continued use of the definition of ‘toxic’ under CEPA or its equivalent; the Committee considered this definition too stringent since it would require a full risk assessment of the substances in question. The Committee also was critical of the new policy because it would allow the most dangerous types of substances, those that were toxic, persistent and bioaccumulative, to be used in commerce, provided the proponent of a substance could demonstrate that it would not be released into the environment. In the Committee’s opinion, its own proposal for dealing with toxic substances was preferable, since it would cast a wider net, thereby leading to the eventual elimination of a greater number of substances of concern. In its 14 December 1995 response to the Committee’s recommendations, the federal government essentially reiterated the approach outlined in its June 1995 publication, Toxic Substances Management Policy. Close to one year later, on 10 December 1996, the government introduced Bill C-74, the Canadian Environmental Protection Act, 1997, in the House of Commons. In addition to giving effect to the government’s 1995 policy on the management of toxic substances, Bill C-74 would have made a number of important changes, including:
The federal government had hoped to enact the new CEPA by the spring of 1997. The bill, however, was never brought forth for second reading and it eventually died on the order paper when the federal election was called in April 1997. C. Federal-Provincial Co-operation The interjurisdictional components of the regulation of toxic substances necessitate federal-provincial cooperation. Such cooperation can take place through both formal and informal mechanisms. Some of the mechanisms now employed are federal-provincial agreements and accords, advisory bodies, working-level task forces and committees and inter-ministerial coordinating bodies. 1. General Federal Accords with the Provinces In the mid-1970s the federal government signed agreements for the protection and enhancement of environmental quality with seven of the ten provinces. (No agreements were reached with Newfoundland, Quebec or British Columbia). The objectives of these accords were to enhance the effectiveness of environmental control activities and to provide a framework for more specific agreements relating to particular problem areas. Pursuant to these agreements, the provinces agreed to establish and enforce environmental requirements at least as stringent as federal requirements. For its part, the federal government agreed, after consultation with the provinces, to establish national ambient air and water quality objectives and to develop national baseline effluent and emission requirements and guidelines for specific industrial groups and specific pollutants. A significant aspect of the agreements was the manner in which the enforcement of environmental standards was handled. The agreements accorded the primary responsibility for enforcement to the provinces while providing that federal authorities would undertake enforcement action at federal facilities, unless otherwise agreed upon, at the request of a province, or where a province failed to fulfil its obligations with respect to a matter of federal jurisdiction administered by it. A 1984 Law Reform Commission of Canada draft paper on the prosecution of environmental offences suggested that encouraging the provincial governments to take a leading role in enforcement does not allow for a uniform approach since many of the provinces have differing enforcement schemes. The paper went on to conclude that the delegation of environmental enforcement authority constituted an abdication of responsibility on the part of the federal government and promoted inconsistencies in enforcement. While the accords referred to above are no longer in force, an accord on environmental cooperation was signed with the Yukon Territory on 8 August 1992. In addition, on 31 May 1994, the federal government and the governments of the four Atlantic provinces signed an environmental accord creating a joint management regime to reduce overlap and duplication. This agreement is in keeping with the larger environmental management framework that is currently being developed under the auspices of the Canadian Council of Ministers of the Environment (CCME) and referred to later in this paper. The environmental accords were not used to develop specific toxic substances control agreements with the provinces. CEPA, however, directly contemplates such agreements by allowing the Governor in Council, upon the recommendation of the Minister of the Environment, to recognize, by order, the primacy of provincial regulations relating to toxic substances where the Minister and the government of a province agree, among other things, that the province has in force provisions equivalent to the federal regulations applying to the toxic substance. The presence of an "equivalency agreement" with a province means that the toxic substance to which it applies will be regulated under provincial law rather than under CEPA. Thus, the incentive for a province to enter into an equivalency agreement is the opportunity to regulate toxic substances under its own regulatory scheme. According to the Enforcement and Compliance Policy published by Environment Canada in May 1988, the factors to establish equivalency will include: (a) equal level of control as sanctioned by law; (b) comparable compliance measurement techniques; (c) comparable penalties; (d) comparable enforcement policies and procedures that are consistent with the federal CEPA Enforcement and Compliance Policy; and (e) comparable rights of individuals resident in Canada to request investigation of a suspected offence and to receive a report of the findings. Under the CEPA Federal-Provincial Advisory Committee, the Working Group on CEPA Partnerships developed a report in 1992 addressing the processes and procedures to be used to judge equivalency. Although this report facilitated negotiations, only one equivalency agreement under CEPA has been entered into so far. This was signed with the province of Alberta on 1 June 1994 and is still in effect. In addition, section 98 of CEPA allows for agreements with the provinces with respect to the administration of the Act. Such agreements, for example, were signed with Saskatchewan on 15 September 1994 and with the Yukon on 16 May 1995. Sector-specific administrative agreements have also been negotiated with some provinces under the same CEPA provision and under section 5 of the Fisheries Act, on the enforcement of the pulp and paper regulations pursuant to those Acts. Such agreements were signed with Quebec in May 1994 and with British Columbia in September 1994. Both have since expired, however, and are currently being renegotiated. The Minister is required to report annually to Parliament on the administration of the various federal-provincial agreements made under CEPA including those dealing with the enforcement of equivalent provincial requirements. 3. Federal-Provincial Advisory Committee The Federal-Provincial Advisory Committee (FPAC) was established under CEPA to advise Ministers on the making of regulations relating to toxic substances. The Committee consists of representatives from the federal government, both from Environment Canada and from Health and Welfare Canada, and from the governments of each of the provinces and territories. The Committee works to ensure a cooperative approach to federal-provincial consultation on environmental protection regulatory activities and toxic substance management. FPAC works toward the establishment of nationally consistent levels of environmental quality through harmonizing standards, adopting life-cycle and preventative approaches, and minimizing duplication. FPAC meets two to four times per year and consultations are also conducted through correspondence and conference calls. Under the auspices of the Committee, federal-provincial working groups are established to deal with specific issues as required. 4. Coordination Among Environment Ministers The Canadian Council of Ministers of the Environment (CCME) has played a significant role in the coordination of environmental initiatives at the ministerial level. Having emerged from the 1961 Resources for Tomorrow Conference as a forum for Canadian resource ministers, its mandate was expanded in 1971 to include environmental management. The CCME is now a forum for discussion and joint action on matters of national, international and global environmental concern. The CCME normally holds meetings twice a year. There is discussion of environmental issues, information exchange, and the establishment of policies to direct the work to be carried out on behalf of the CCME between meetings. The CCME's work is carried out by a Deputy Ministers Committee and a full-time Secretariat. Among the CCME's more recent initiatives is a proposal to improve environmental management within Canada. Known as the "harmonization initiative," this co-operative scheme was launched in May 1994 with the CCME’s publication Rationalizing the Management Regime for the Environment. This document called for the development of a new management framework for Canada’s environment that would be based on cooperation and an effective and efficient definition of roles and responsibilities and would result in the maintenance of a consistent and high level of protection for the Canadian Environment. As initially proposed, the harmonization initiative would have consisted of an intergovernmental framework agreement and 11 schedules dealing with the following areas of environmental management: monitoring; compliance, licensing and approvals; environmental impact assessment; international agreements; research and development; guideline development; legislation, regulation and policy; communications and education; state of the environment reporting; and pollution prevention and emergency response. In December 1994, the main framework agreement (the Environmental Management Framework Agreement) and four schedules (monitoring; compliance, licensing and approvals; environmental impact assessment and international agreements) were released in draft form for public comment. A modified main framework agreement was released to the public in October 1995, along with 10 of the 11 schedules (excluding the schedule on environmental impact assessment). Work on the harmonization initiative was subsequently suspended, due in part to the proposal’s controversial nature. Negotiations resumed, however, following a meeting of the Council of Ministers, in May 1996. It was decided to continue working toward harmonization, but with a new approach calling for a more gradual progression towards this goal. A second agreement, the Canada-Wide Accord on Environmental Harmonization, was thus developed and presented to the Ministers of the Environment, who approved it in principle at a meeting of the CCME in November 1996. This Accord sets out a vision, objectives and principles to guide the development of a number of sub-agreements on specific aspects of environmental management and environmental issues. The sub-agreements, which could be multilateral, regional or bilateral in scope, would delineate specific roles and responsibilities for providing a one-window approach to the implementation of environmental measures, and a single assessment and review process for projects requiring an environmental impact assessment by more than one jurisdiction. The Accord further sets out a workplan calling for a number of steps to be taken within specified timelines, including:
Ratification of the Canada-Wide Accord and of the first three sub-agreements, initially scheduled to take place in May 1997, was deferred when the federal general election was called in April 1997; it has been tentatively rescheduled for 8 and 9 October 1997. The Canadian Environmental Protection Act provides in section 139 that its administration shall be reviewed by a committee of the House of Commons, or both Houses of Parliament, within five years of its enactment. The review was referred to the House of Commons Standing Committee on Environment by Order of Reference on 9 June 1993. The 34th Parliament was dissolved, however, before this review could be undertaken. In the 35th Parliament, the CEPA review was referred to the House of Commons Standing Committee on Environment and Sustainable Development by Order of Reference on 10 June 1994. The House of Commons Standing Committee on Environment and Sustainable Development tabled its report on 20 June 1995. Entitled It’s About Our Health! Towards Pollution Prevention, this report made 141 detailed recommendations for change. In general terms, the Committee considered that the Act had been largely ineffectual in dealing with substances of concern and had been poorly enforced and administered. Noting that new developments and trends in environmental thinking were quickly overtaking CEPA, the Committee felt that a new approach was needed. CEPA’s overarching policy goal, the Committee stated, should be to contribute to sustainable development through the application of such principles as pollution prevention, the ecosystem approach, biodiversity, the precautionary principle and user/producer responsibility. In the Committee’s opinion, a major shift in emphasis was required under CEPA, from managing pollution after it had been created toward preventing pollution in the first place. In order to improve the assessment process for substances under the Act, the Committee recommended that the definition of "toxic" be modified to include both risk assessment and hazard assessment, and that the following three-track system be adopted for assessing and managing substances of concern:
The Committee also advocated that the federal government play a strong leadership role in protecting and managing the Canadian environment. Notably, the federal government should set national standards for matters coming under its jurisdiction and for issues of "national concern"; it should promote the establishment of national standards in areas requiring inter-jurisdictional cooperation; and it should lead cooperative efforts to minimize unnecessary overlap and duplication and to harmonize to the highest possible standard the various provincial, territorial, aboriginal and national environmental management regimes. Other noteworthy recommendations included:
The two members of the Committee from the Official Opposition wrote a dissenting opinion. Although agreeing with the Committee’s conclusion that CEPA had not had the intended impact, they disagreed profoundly with the solutions proposed by the Committee for improving the effectiveness of CEPA and of environmental issues generally. They rejected the report in its entirety on the grounds that it advocated a centralizing approach to environmental management in Canada and was unfairly biased against the provinces. Pursuant to Standing Order 109, the Committee requested the government to provide it with a comprehensive response to its recommendations within 150 days. The response was tabled on 14 December 1995.
* The original version of this Current Issue Review was published in November 1988; the paper has been regularly updated since that time. |
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