Comments by the Canadian Environmental Law Association and Nature Canada in response to Bill S-5
Ottawa – By approving a deeply disappointing Bill S-5 (amending the Canadian Environmental Protection Act, 1999 or “CEPA”) this week, Parliament has missed a critical opportunity to protect Canadians and nature from toxic substances and genetically modified organisms, according to several environmental groups.
“At a time where evidence continues to show that toxic pollution is growing, Bill S- prioritizes the phase-out and elimination of only a small fraction of the worst toxic substances in Canadian commerce and does not advance the use of safe alternatives in most instances.” states Joseph Castrilli, a lawyer at the Canadian Environmental Law Association. “The amendments will result in most of the toxic substances listed in CEPA, including most PFAS chemicals, known as ‘forever chemicals’, not being subject to alternatives analysis or prohibition under the Act. How is it possible that the federal government does not regard this huge class of chemicals as highest risk when they are linked to cancers, birth defects, and liver dysfunctions, and are responsible for widespread contamination of drinking water sources?” said Castrilli.
Despite seven years of studying CEPA, Parliament’s amendments to Bill S-5 fail to fix problems with the statute. This failure is compounded by attempts to reform other parts of the law that didn’t need it, making things worse in the process. The overall result is modest changes where significant reform was needed, while also setting back environmental health protections in certain key areas. This includes repealing provisions that granted authority to the federal government to virtually eliminate the worst chemical substances from Canadian commerce, and authority to issue geographically based regulations to control toxics.
The amendments to CEPA made by Bill S-5 will not effectively protect Canadians’ right to a healthy environment, as promised, or ensure that management of chemicals of highest risk is prioritized. The bill fails to make pollution prevention mandatory for all chemicals Canada has designated as toxic under the law. Legislators have also missed the opportunity to make the analysis of safer alternatives to all toxic substances a central pillar of CEPA.
Several positive steps were made in Bill S-5 including amendments to reduce testing of toxic substances on animals. This improvement brings Canada more in line with the approach taken by the European Union and other jurisdictions. Another positive development is recognition of the right to a healthy environment for all Canadians. However, the government will take another two years before an implementation framework is decided upon and sets out how that right will be considered in the administration of CEPA. Meanwhile, the failure to address current enforcement weaknesses in CEPA will likely limit the utility of such a right and make it unenforceable.
The Manitoba Eco-Network “had hoped for more reforms that focus on protection of vulnerable Canadians and improve access to environmental justice,” says Policy Advocacy Director, Heather Fast. “The community members we work with are disappointed that proposed reforms focused on developing stronger national standards for air quality, fixing problems with enforcement, and improving meaningful public participation were ultimately left out of Bill S-5.”
The preamble to Bill S-5 now recognizes UNDRIP, but overall Bill S-5 contains little mention of Indigenous People’s rights.
Bill S-5 also did not include proposed amendments that would improve the regulation of genetically engineered (GE) animals, like the GE Atlantic salmon that a company in PEI is trying to commercialize. Without stronger regulatory requirements, GE animals will escape and breed with wild counterparts, altering the genetic make-up of wild populations forever.
“We worked hard to get measures like transparency, public participation, and consideration of Indigenous knowledge embedded in the assessment of genetically engineered animals,” says Mark Butler, Senior Advisor with Nature Canada. “We know there was industry pushback, but we thought the Government, and the Official Opposition, would consider these reasonable amendments to Bill S-5. They didn’t.”
Parliament has missed a critical opportunity to strengthen the law. It is disappointing that long-standing problems identified by the House of Commons environment committee in 2017 and other regulatory gaps were not addressed in Bill S-5. We hope we do not have to wait another twenty years before CEPA is reformed to better protect Canadians.