Senator Plett's Speech at the Third Reading of Bill S-5
Honourable senators, let me begin by apologizing for doing this at this late hour, but the government leader rightfully reminded me that we had agreed to finish this debate today. I will try to keep my remarks short. I will probably not entertain questions, just in case somebody wants to prolong it.
Let me begin my remarks by quoting something that Senator McCallum said during one of the many marathon clause-by-clause meetings on this bill. Her sentiments have become a constant refrain in this place when it comes to government legislation. In response to a comment from the chair that her intervention might mean the committee would have to sit again on the bill next week, she said:
That’s fine. We’re supposed to do this with sober second thought, and I really don’t appreciate how we have been rushed through this bill. . . .
Rushing a bill through the Senate has been a rather common event in this place, honourable senators. As the famous saying goes, the first time it happens, it’s an accident; the second time is a coincidence; the third time is a pattern. I’ve lost count as to how many times this has happened with this NDP-Liberal government.
I have lost patience with it as well. This place is going to slide very quickly into irrelevance — nearly as quickly as the government expects bills to pass through here — if we don’t do something more than express our outrage at it.
Senator McCallum was not alone in her frustration at the committee. Senator Seidman expressed similar frustration when she said:
We are rushing through this like crazy, and we are receiving amendments that we have never really discussed at committee. We have never really heard proper witness testimony about this. We have never had time to really properly study. . . .
She was referring to one of the more than 65 amendments that were proposed to this bill, some of them proposed on the fly.
The context of Senator Seidman’s observation was the real-world consequence of what happens when you are rushing through a bill of such complexity. As I mentioned, it is a situation that several senators from all sides — except the government, of course — complained about in committee.
Of course, the result was inevitable. Senator Patterson, on the last day of clause-by-clause consideration of the bill, felt compelled to propose an amendment to an amendment — an amendment that the committee had already voted to pass earlier in the week, something they did without fully understanding the ramifications. As Senator Patterson explained in moving his amendment, by replacing the word “may” with the word “shall” in clause 10.1 of the bill, Senator Miville-Dechêne’s amendment would oblige the minister to require pollution prevention planning from any person who releases, manufactures or imports a substance listed in Schedule 1 of the Canadian Environmental Protection Act, or CEPA.
The problem with that, of course — and Senator Patterson can correct me if I have this slightly wrong — is that there are many innocuous substances in the schedule that require pollution prevention planning if the word “shall” is used.
For example, plastic manufactured items would target not only shopping bags and disposable straws, it would capture a multitude of everyday objects, manufactured or imported. Some can be made from other materials, but not necessarily.
The example Senator Patterson gave us was a light switch plate, which is made of plastic, is long-lasting and not an important source of plastic pollution. Yet in changing “may” to “shall,” they would be subject to a pollution prevention plan.
Only days after approving Senator Miville-Dechêne’s well-intentioned amendment, the committee felt compelled to reverse itself and, in effect, renege it.
That is unusual, to say the least, but it also raises the question of what other amendments will have similar ramifications that slipped unnoticed past the committee’s lens. It is clearly symptomatic of the committee having to rush through their work without being able to pay the diligence due to the bill’s various facets.
It is not the only one, as we will hear when we debate Bill S-6, an entire part of which was removed at the request of the government who inserted it in the first place. But I will leave that to the debate on Bill S-6.
Honourable senators, the committee had 12 meetings on Bill S-5. I’m sorry, they held 13 meetings on Bill S-5 because, as Senator Patterson said, there was a technicality — a technicality of a senator not being where a senator was supposed to be. That sounds like a lot. Seven of those thirteen meetings — more than half — were devoted to clause-by-clause consideration of the bill. Only five were devoted to hearing from witnesses and gathering testimony. It is fair to say that most of the committee’s time was not spent on hearing from witnesses, but on hearing from each other on some 65 amendments that were proposed during clause-by-clause consideration of the bill.
Committee members had to sit outside their allotted sitting times for five of the seven meetings on clause-by-clause consideration to get this bill passed in time to meet the NDP-Liberal government’s timeline.
Now, I am aware more than anyone that we have constrained hours for our committees. I have complained about it more than once, but that does not negate the fact that, once again, the government’s poor planning became the Senate’s emergency.
While I think the committee did an excellent job under very difficult circumstances and, indeed, went the extra mile to get this done, it is very telling when senators with environmental expertise admit they didn’t have enough time to study all of its aspects. It is a very complex and technical bill, which means there was a lack of time to understand all the ramifications of what was being proposed. This, colleagues, is unacceptable.
Back when I spoke to this bill at second reading, I made a joke about the long title being a mouthful, so I referred to it by its short title, “Strengthening Environmental Protection for a Healthier Canada Act,” as I also did today, if I had read the front page. But in a sense, that is doing the bill a disservice, because that short title misrepresents it as being solely about the environment. It is not. It is, as I said, a very complicated and technical bill, and it concerns more than environmental protection.
The full title is, “An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act.”
Minister Guilbeault, when he appeared before the committee, referred to the dual aspect of the bill. The first aspect being to recognize in the preamble the right to a healthy environment as provided under CEPA, and the second aspect aimed at strengthening the management of chemicals and other substances in Canada.
The bill proposes to address the first aspect — the right to a healthy environment — through the development of an implementation framework, which will set out how this right will be considered in administering the Canadian Environmental Protection Act.
The committee justifiably struggled with how the government was going to enforce a right that is in the preamble to the act and that is not a right like a Charter right. I am not sure they got the answers to that, at least to their satisfaction.
The second aspect of the bill — or as the minister put it, the second set of key amendments proposed by this bill — relates to the management of chemicals and other substances in Canada. It is here where the highly technical aspects of the bill come in and, in my opinion, where the rushing through of this bill has been most keenly felt.
Let me stress that I do not believe this is due to any shortcoming of the committee or its deliberations. This bill amends the Canadian Environmental Protection Act, and the committee, in the time it had, focused its attention on strengthening environmental protection — as the short title of the bill suggested it should. But I worry that those who would be directly affected by the chemicals management regulatory aspect got short shrift.
Many of the industry witnesses — people from the Chemistry Industry Association of Canada, Cosmetics Alliance Canada, Canadian Manufacturers & Exporters, Canadian Paint and Coatings Association and others — appeared as witnesses early in the committee’s study at the second hearing on May 5.
They were followed in the succeeding weeks by the government officials who drafted the bill and by witnesses from various health and environmental associations and activist groups. In fact, the industry people who will be directly affected by the new regulations were outnumbered by a factor of more than 2 to 1 by the non-governmental organizations, or NGOs, and government officials.
I don’t think it is unfair to say that the concerns of the industry with this bill — and they had very few concerns with it in its unamended form — were, perhaps, overwhelmed by the testimony of the disproportionate number of witnesses from those NGOs and the fact that most of the industry witnesses testified so early in the committee hearings. Given more time, perhaps more industry witnesses could have testified.
Since they couldn’t, I thought I would read into the record some of the issues that many of those representatives from the industry raised in a letter concerning the amended bill as it emerged from the committee and arrived here in the chamber.
The Bill, as introduced, advanced important updates to modernize the Canadian Environmental Protection Act, 1999 (CEPA) and prepare for the next iteration of chemicals management in Canada. The Canadian approach to chemicals management is heralded as the global gold standard for protecting the environment and human health. Canada’s program relies on balancing precaution with a weight-of-evidence approach to risk assessments and risk management, focusing on eliminating exposures to chemical substances of concern. CEPA is a science-based statute.
The letter continues:
It is worth highlighting that during the Minister’s testimony on the Bill, he specifically lauded CEPA as a world leading program for the management of chemical substances, noting:
I am looking forward to hearing from Canadians as we develop the plan of chemicals management priorities and continuing the work on what has been recognized as a world-class chemical management program.
In addition to altering the risk-based approach at the heart of the Act, it is our considered view that many of the Committee’s amendments may also be outside of the legislative scope of the Bill.
That should concern all senators, since one of Senator Patterson’s proposed amendments was defeated by the committee for being out of scope.
Finally, the letter says that:
. . . to maintain the global gold standard in chemicals management that protects our environment and the health of Canadians, we urge the full Senate to reverse the amendments introduced by the Committee and pass Bill S-5 as it was originally introduced.
The letter was signed by seven industry associations, four of which did not even have the opportunity to appear before the committee. They are the Tire and Rubber Association of Canada, the Canadian Fuels Association, Responsible Distribution Canada and Electricity Canada.
Honourable senators, let me repeat one line from the letter I cited: “CEPA is a science-based statute.”
When I spoke to this bill at second reading, I referenced two environmental chemical scares — Love Canal and the panic over Alar — that caused untold disruption, cost billions of dollars and were not based in science but rather were activist-driven panics, both of which turned out to be false alarms.
My reservations about many of the amendments made to Bill S-5 is that the balance of the testimony that the committee heard leading to many of the amendments was too heavily weighted in favour of the activist organizations. To repeat Senator Seidman’s words that I quoted at the beginning of this speech:
We are rushing through this like crazy, and we are receiving amendments that we have never really discussed at committee. We have never really heard proper witness testimony about this. We have never had time to really properly study.
The result has been a bill in which some 65 amendments were proposed, some of them from the very government that is responsible for the bill. As the saying goes, you reap what you sow. Thank you.