Members of the House of Commons voted Tuesday in favor of Bill S-5, which modernizes the Canadian Environmental Protection Act, introduced in 1999. Changes long called for by environmentalists and scientists will soon force of law.
What is the Canadian Environmental Protection Act?
The Canadian Environmental Protection Act (CEPA) is, according to Ottawa, the “cornerstone” of federal environmental legislation. Several federal regulations, including some relating to greenhouse gas emissions, were created under this law. More directly, CEPA provides a framework for risk assessment and management of chemicals and pollutants. Established in 1999, it had never been subject to a major revision.
“The right to a healthy environment”
The text voted by federal deputies on Tuesday enshrines the “right to a healthy environment” for all Canadians. This is the first time that such a right has been recognized in Canadian law. “We believe this is an important turning point,” said Lisa Gue, National Policy Officer at the David Suzuki Foundation.
Note that the Quebec Charter of Human Rights and Freedoms already recognizes the right to live “in a healthy environment that respects biodiversity”.
As soon as the reform is adopted, which must go back to the Senate one last time, the federal environment and health ministers will have two years to draw up an “implementation framework” explaining how the execution of the law will ensure the right to a healthy environment. They should be based on the principles of environmental justice and non-regression of environmental protection. “It may seem like very specific legal considerations, but this is a major paradigm shift for the most important environmental law in the country,” said Ms.me Ford.
The principle of non-regression will complicate the task for governments that want to “unravel” the environmental protection decisions of their predecessors, points out Géraud de Lassus Saint-Geniès, professor of environmental law at Laval University.
Take into account the cumulative effect of pollutants
The government will now have to consider the “cumulative effects of toxic substances” when assessing risks under CEPA. It will also have to take into account these effects on “vulnerable populations”, such as pregnant women or Aboriginal people who consume natural products from polluted areas.
In addition, the government will need to prioritize the “banning” — not just the “virtual elimination” — of the most dangerous toxic substances. We are talking here about persistent and bioaccumulative toxic products, but also, beyond certain thresholds, carcinogenic compounds and those toxic to reproduction.
The Ministry of the Environment will also have to maintain a “watch list” of potentially dangerous substances that have not yet been formally assessed.
In practice, what effects will modernization have?
A recent example illustrates the possible consequences of modernization.
At the end of May, Health Canada published the first draft of a report on perfluoroalkyl and polyfluoroalkyl substances (PFAS, according to the English acronym). These “eternal pollutants” are found in lubricants, cosmetics and non-stick, among others. Based on the approach advocated by Bill S-5, officials decided to assess PFAS as a broad class of compounds, not on an individual basis. This will reduce “the risk of regrettable substitution” in the event of a ban, they say.
“A lot of details still need to be fixed, but this kind of example makes me cautiously believe that the new approach will lead to stronger decisions,” says M.me Ford.
A political consensus, except for a few details
Bill S-5 just missed reaching a consensus among political parties in Ottawa. The Conservatives ultimately opposed it, judging that one of its aspects encroaches on provincial jurisdictions. “We support the main lines of the bill,” however, said Conservative MP Gérard Deltell during the final debates on the text.
The Trudeau government has decided to go through the Senate for this important update to the Canadian Environmental Protection Act. However, the Conservatives did not digest that the government first agreed to strike out a passage on the monitoring of hydraulic fracturing tailings ponds, before changing its mind and reinstating it in the text. According to the official opposition, this is a provincial responsibility. The Liberals explained that they were sensitized by the dumping of tar sands wastewater in Kearl, Alberta.
The two Green Party of Canada MPs also opposed S-5, saying the bill actually represents a step backwards. Adopted by the other parties, the text is again before the Senate, which should ratify the additions within a week.