REGS Committee Meeting
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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue No. 5 - Evidence - June 2, 2016
OTTAWA, Thursday, June 2, 2016
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 a.m. for the review of statutory instruments.
Senator Pana Merchant and Mr. Harold Albrecht (Joint Chairs) in the chair.
SOR/97-109 — PCB WASTE EXPORT REGULATIONS, 1996
SOR/2002-301 — INTERPROVINCIAL MOVEMENT OF HAZARDOUS WASTE REGULATIONS
SOR/2009-162 — CHROMIUM ELECTROPLATING, CHROMIUM ANODIZING AND REVERSE ETCHING REGULATIONS
(For text of documents, see Appendix A, p.5A:1. )
SOR/2012-135 — REGULATIONS AMENDING THE SULPHUR IN DIESEL FUEL REGULATIONS
(For text of documents, see Appendix B, p. 5B:1. )
SOR/2009-20 — REGULATIONS AMENDING THE WILD ANIMAL AND PLANT TRADE REGULATIONS
(For text of documents, see Appendix C, p. 5C:1. )
SOR/2004-109 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS
(For text of documents, see Appendix D, p. 5D:1. )
The Joint Chair (Mr. Albrecht): We have a special agenda item to deal with today. As committee members are aware, we have a different setup for our meeting, with witnesses from the Department of the Environment. We will let them proceed for the first hour. We will have an opening statement by Mr. Moffet and then open the floor to questions.
We don't have a special round of questions as other committees have, so I want to try to be as fair as I can in recognizing people. If you would all do me the favour of turning your name tags toward me, I would appreciate it. I know most of you but am still getting to know some of the names.
Mr. Moffet, welcome to our committee and thank you for your remarks in print. That is helpful as well.
John Moffet, Director General, Legislative and Regulatory Affairs Directorate, Department of the Environment: I am here with Ms. Pledge from the Department of Justice, who will be available to answer questions related to incorporation by reference, should they come up.
As Environment and Climate Change Canada's designated instrument officer, I am here today in response to a number of recent pieces of correspondence from the committee.
As we understand it, this correspondence raises four sets of issues. First, you have asked about more precision about the timing of some of the legislative reforms we have identified in our responses to the committee as being needed to address some of the concerns you have raised in the past.
Second, you have asked for an explanation about the slippage in some of the projected timelines we have provided for amending regulations to address issues raised by the committee.
Third, you have asked me to explain the department's reasons for disagreeing with some of the concerns the committee has raised about some regulations.
Fourth, and what I understand to be the original and primary reason for the meeting, is to discuss the statutory authority under subsection 36(3) of the Fisheries Act to regulate pulp and paper mills that deposit their effluent into municipal wastewater facilities — what we call indirect deposits.
The first issue, the timing of legislative reforms, arises because in some cases the most effective way to address a concern with a regulation is to amend the enabling statute. For example, the committee has correctly pointed out that the government has been late in updating the schedule of species that are subject to import and export restrictions under the fabulously-named Wild Animal and Plant Protection Regulation of International and Interprovincial Trade Act, or WAPPRIITA, following changes to the corresponding list in the international agreement that we are implementing, the Convention on International Trade in Endangered Species, or CITES.
The most effective way to remedy this problem would be to simply amend WAPPRIITA to incorporate by reference all the changes to the CITES lists. We don't have that authority in the act now. We do plan to make that amendment, but the timing of it, like all statutory amendments, is hard to predict given the many evolving legislative priorities of whatever government is in power.
As such, our approach has been and will continue to be to attempt to give the committee regular updates on issues requiring legislative attention, recognizing that we are not able to provide definitive timelines.
The second issue has to do with delays in amending regulations where we give you a projected timeline and don't meet it. While the timing of regulatory amendments is somewhat easier to predict and manage than statutory reforms, I'd like to emphasize that it is still subject to evolving political priorities and therefore somewhat uncertain.
I would like to emphasize that Environment and Climate Change Canada is one of the government's most active — possibly the most active — regulator at the current time. Our regulatory portfolio has increased steadily and will continue to grow as we, for example, address things like air pollution and toxic substances.
Every department issues a two-year forward regulatory plan. Our forward regulatory plan for the next two years includes 46 entries that represent over 70 regulatory initiatives being developed by the department.
By way of information, as of mid-year this year — in a month — we will have published in the Canada Gazette more regulations in the first six months of this year than we have on an annual average for the past 10 years, to give you an indication of the growth of our regulatory agenda and the types of issues that we have to manage.
These regulatory initiatives include political priorities, including priorities that are determined by the cabinet or the minister; regulations driven by emerging science as dictated by statutory requirements under the Canadian Environmental Protection Act or the Species at Risk Act; as well as initiatives driven by the ongoing process of updating and correcting regulations, including addressing the various issues that this committee identifies.
In general, our approach to responding to most of the corrections that are identified by this committee is to make the needed changes at the same time as we are making more substantive changes to the regulation in question.
Recently, however, we have started to bundle minor amendments to multiple regulations in what we call "omnibus" reforms, and it is our hope that this will expedite addressing your issues.
We published one such omnibus regulation two weeks ago, and we plan to publish a second one this fall.
The third issue has to do with substantive issues related to regulations other than the Pulp and Paper Regulations. I am including a question about incorporation by reference, and we would be happy to respond to any questions you may have about those, but I will spend the rest of the time addressing the Pulp and Paper Effluent Regulations.
This committee and the department have spent more than 10 years discussing issues related to the 2004 amendments that we made to the Pulp and Paper Effluent Regulations. By my count we have exchanged 22 letters. During that time the committee has raised numerous concerns, and in our estimation the department has revolved all but one of these issues, either by providing explanations that the committee has accepted or, in many cases, by amending the regulations.
There is one outstanding issue, and in order to explain why we continue to disagree with the committee about it, I would like to start with a brief overview of the department's role with respect to the Fisheries Act, the act under which the regulations are made.
Environment and Climate Change Canada is responsible for the administration and enforcement of what are generally known as the pollution prevention provisions of the Fisheries Act. We have been responsible for those authorities since the department was created, pursuant to a letter issued by former Prime Minister Pierre Elliot Trudeau. Four years ago the act was amended to allow the Governor-in-Council to issue an order officially designating a minister other than the Minister of Fisheries and Oceans to be responsible for certain provisions. Following that amendment the Governor-in-Council issued an order designating the Minister of Environment and Climate Change to be responsible for these provisions.
These provisions include subsection 36(3), also known as the general prohibition. Unless authorized by regulations, this subsection prohibits the deposit of any — and here I am emphasizing the text, " . . . deleterious substance . . . in water frequented by fish or in any place under any conditions where [it] . . . may enter such water." In other words, it works in the reverse of many environmental statutes: guilty, until proven innocent.
The Pulp and Paper Effluent Regulations provide such an authorization to pulp and paper mills to deposit their effluent provided that the mills meet prescribed conditions. The regulations apply to two categories of mills: first, those depositing effluent directly into fish-bearing waters, or direct deposit mills; and, second, mills that deposit effluent into a wastewater system not owned or operated by the mill, which then deposits it into fish-bearing waters, and these are known as "indirect deposit mills." It is the latter we are focusing on today.
The regulations establish three conditions for indirect deposit mills: first, they have to identify themselves to the department; second, they have to develop an emergency response plan; and, third, they have to deposit their effluent into a wastewater system that is regulated by the Wastewater Systems Effluent Regulations, which are also issued under the Fisheries Act. So there are very modest requirements for this second set of mills. It is the authorization for deposits from these indirect deposit mills that are the subject of the committee's attention.
As we understand it, the committee has two broad concerns about our regulations. First, the committee has repeatedly expressed the view that the release of mill effluent into a wastewater system — an indirect deposit — does not constitute a deposit of a deleterious substance under subsection 36(3). It is, therefore, not prohibited, and given that it's not prohibited, you therefore argue there is no basis on which to provide authority, or regulate. We have consistently disagreed with this position. I will explain why.
Given the large volume and deleterious nature of effluent from pulp and paper mills, it is our view that they constitute a deposit into a place under conditions where that deposit may enter water frequented by fish, as envisaged by the prohibition. In other words, there is the possibility that unauthorized deposits from these mills could result in untreated or inadequately treated effluent entering fish-bearing waters that would constitute a risk to fish or to the waters in which the fish reside. The concern is that this effluent could pose a risk to water and the fish.
Having concluded that these indirect mill deposits pose a risk and are therefore subject to the prohibition, we decided to regulate them for two reasons.
First, the conditions imposed in the regulations are designed to ensure that indirect deposits from pulp and paper mills are managed in a manner that minimizes their risk.
Second, the regulations provide a legal basis for these mills to deposit their effluent. In other words, the regulations provide legal certainty for operators of these mills.
The committee's second argument, then, is that if you accept our position that subsection 36(3) should be interpreted broadly enough to cover indirect mills — in other words, if you are wrong on your first point — then it is logical to assume that all indirect deposits must be subject to the prohibition. You have suggested that this would be inappropriate and have asked the department to consider amending the statute to limit the scope of the prohibition to explicitly exclude certain indirect deposits.
In response to the second point, we need to go back to the prohibition. I would like to explain why the department interprets the prohibition broadly, but not as broadly as you are suggesting would be logical.
It is our view that subsection 36(3) gives the government the ability to determine what constitutes a deposit of a deleterious substance to a place under conditions where it may enter water frequented by fish. In other words, the conclusion that indirect deposits of effluent from pulp and paper mills are prohibited under subsection 36(3) does not necessarily lead to the conclusion that every indirect deposit of any kind, regardless of the risk, is necessarily prohibited. Rather, the prohibition applies to those indirect deposits that both contain deleterious substances and that are deposited in such a way that they may enter water frequented by fish. It is a risk-based test.
As such, the wording of the prohibition allows the government to assess risks associated with various situations to determine whether there is a risk of a deposit of a deleterious substance and to then decide which of those deposits should be authorized via regulations.
We believe this this interpretation of subsection 36(3) is legally well-founded, both in the language of the statute itself and in the general judicial interpretation of similar broad prohibitions for environmental purposes.
The courts have repeatedly upheld the validity of the prohibition and in doing so have adopted a broad interpretation of subsection 36(3).
In addition, this approach to environmental legislation is also consistent with other judicial decisions related to other statutes, provincial and federal, such as a 20-year-old Supreme Court case, Ontario v. Canadian Pacific Inc., in which the Supreme Court of Canada upheld the use of a very broad and general approach by provincial legislators which avoids an exhaustive codification of every circumstance in which the pollution is prohibited.
In closing, it is the department's view that we have the legislative authority to regulate indirect deposit mills and that we have appropriately used this authority to address the risks posed by pulp and paper mill effluent, including from both direct and indirect deposit mills. Accordingly, we have not proposed amendments to these regulations or to the Fisheries Act to address this issue.
I would like to emphasize that amending the act to limit its application would reduce the government's ability to respond to unforeseeable circumstances, limit the broad discretion of the kind that was acknowledged as being appropriate for environmental protection in Ontario v. Canadian Pacific Ltd., and such a limitation would significantly weaken the environmental protection provided by the act.
I hope I haven't gone on too long. I look forward to the discussion, and I'm happy to respond to questions about any of the regulations of concern to the committee.
The Joint Chair (Mr. Albrecht): My suggestions, as chair, is that we will deal with the first four, A to E, because these fall under the same category of delayed responses and leave the larger portion of this first hour to the item relating to the pulp and paper effluent. Unless I hear disagreement with that, let us proceed to the questions of delay in response. That is one of our concerns, and it lumps together A to E.
Mr. Genuis: Could I ask a few questions in succession and then move on?
I want to clarify something. You said that the Department of Environment has promulgated more regulations in the first six months of this year than they typically do on an annual basis. Is that correct?
Mr. Moffet: In a month, that will be the case.
Mr. Genuis: Is the one-for-one rule still in effect?
Mr. Moffet: It is.
Mr. Genuis: So you have repealed a similar number of regulations, or other departments have?
Mr. Moffet: No. The one-for-one rule is a bit complicated. Basically, a new instrument has to replace an old instrument. Many of the regulatory initiatives that we undertake constitute amendments to existing regulations. So if you add on to an existing regulation you are not adding a new instrument; you are just replacing an old one with a new one, legally.
We have repealed a few. I think our bank balance at the moment stands at plus one, but the bulk of what we do is amend existing regulations.
Mr. Genuis: In your view this doesn't constitute a new and significantly significant regulatory burden for society, business, not-for-profit, or whatever?
Mr. Moffet: Well, it is an obvious constraint. Whether it is appropriate or not, I will let you folks discuss.
Mr. Genuis: Okay.
The general tone I am getting from your testimony is that you are giving an explanation, which is good and what we were hoping to hear from you, but not really saying you recognize that there is a problem here in terms of process. You are saying that this is why it works the way it does and that essentially everything is fine. Is that a correct interpretation of what you were saying?
Mr. Moffet: I apologize if I suggested that we don't recognize the issues that the committee has raised. We absolutely have indicated that we would make reforms by certain times and in a number of cases have not met those timelines. That is a fact.
The issues that the committee has identified and that we have agreed to are legitimate limitations or problems with existing regulations. They need to be addressed. What I am pointing out is that, on behalf of the government, we have to manage a large regulatory agenda. We have to set priorities in terms of getting access to analysts' time, drafting time and economists' time to prepare Regulatory Impact Analysis Statements. With a finite amount of resources, certain priorities jump to the front.
One of the things that have we tried to do to address this problem is start to bundle a number of minor amendments into omnibus regulations, the weight of which becomes more important than if they were dealt with on their own. You will see two such regulations this year.
I am not suggesting everything is fine. I am giving an explanation from our perspective about how we are managing the issue.
Mr. Genuis: In the context of these omnibus-type amendments, some people raise accountability questions when anything is done via omnibus amendments. I am sympathetic to these arguments in some cases and less so in others depending on the context, but I am curious if you have a comment on which accountability issues may be raised by omnibus amendments and how you would respond to those concerns.
Mr. Moffet: We think we have carefully attempted to restrict the use of omnibus regulations only to issues where we are essentially making technical changes to regulations, like addressing issues of French and English concordance that the committee has appropriately identified.
Where there is a substantive issue that would change an obligation on a Canadian entity, the Department of Environment and Climate Change publishes those regulations distinctly so that there can be a focus on the particular issue and there can be accountability.
I appreciate that in an ideal world every regulatory amendment would be promulgated one item at a time so that it can be addressed as such. As I said, we have attempted to avoid any substantive changes that would have an impact on the regulatory obligations on Canadians.
Mr. Genuis: I think that is sensible. I don't want to imply that I don't agree with that; I just wanted to hear your thoughts.
Ms. Jordan: Thank you for appearing this morning. I have more of a thought than a question.
You have a large regulatory agenda. Time is of the essence for and you have finite resources, all of which necessitate bundling regulations in an omnibus regulatory process.
My concern from the committee perspective is that since I have been on this committee, this department has continually had things go a very long time before we get answers. I believe some have been going on for years, literally, with letters back and forth, some of which came from this committee and have not been responded to. When we ask for a response a second time, we get a response that basically says, "We'll get back to you."
I believe there were even issues that have been going for six or seven years that we have received no response to.
You mentioned finite resources and prioritizing. Obviously we are not a priority if it is taking six or seven years to gets responses to letters.
How do we mitigate those problems? How do we solve that issue? It is very frustrating for us as a committee to keep going back to regulations that we are asking for responses on and that we are not getting. Is there something that we are not doing right in order to get those responses?
Mr. Moffet: I would respectfully disagree with the premise of your assertion. On the one hand, some issues that the committee has discussed with the department, like the pulp and paper issue, have absolutely gone on for more than 10 years. On that issue, we have responded to every letter. We simply disagree. I have every letter here and we have responded to every one, and all but one have been from me. So I have a record for every piece of correspondence you have sent us and every response that we have sent back. We disagree, so I think the issue there is how we can resolve the disagreement. It's not that we are dilatory; it is just that we are at an impasse.
The second issue, where I absolutely acknowledge a problem, is that in many cases we have responded and said we'll fix the issue. We project that we will fix it in two years, and two years passes and we don't fix it. That is the issue that I was just discussing, where we run into regulatory prioritization issues.
I may have misunderstood, but I thought you also asserted that in some cases we simply had not responded to issues for many years. I do not believe that is the case. I do not have any record of any letter that we have not responded to. We might have responded unsatisfactorily, but I don't believe that we have failed to respond to any letter that we have received from the committee.
Ms. Jordan: I'm afraid I don't have it with me, but I believe there were two times where we had to write again and say, "Following up to our letter, could you please respond," and we then got a response, the second time. But we have had to write that letter asking for a response to a letter that we had already written. I do know that has happened.
I agree with what you are saying, namely that you don't agree, so how do we solve the impasse? How do we get these things that have been going on for 10 years off the books? How do we deal with this issue? That is my frustration. What is the process to make it so that we don't have to continue for another 10 years with this same issue?
Mr. Moffet: The ones that have dragged on for a very long time, as I said, are issues where we disagree, and there it is a matter of legal interpretation.
Ms. Jordan: So it will continue?
Mr. Moffet: It will continue. I'm happy to come. I will put my successors in the same place. Officials are here to provide explanations, so I'm happy to appear to provide an explanation as to why we've adopted a certain interpretation. In the absence of actual detailed explanations before the committee and letters that we provide, I can assure you that we never take a legal position without the full support of the Department of Justice.
It is not a bunch of non-legally trained people adopting an interpretation of statutory authority. All of the work that we do is based on legal advice from the Department of Justice, which gives us advice about the scope of authority that we have to do what we want to do for regulatory purposes.
There is a second level of scrutiny from the Department of Justice when you draft regulation, and there is a set of professional drafters who work exclusively on drafting regulations. One of their jobs, again, is to check.
I am obviously not suggesting that it is perfect because the committee does identify issues. I don't have a percentage, but I would say that we agree with roughly 80 to 90 per cent of the issues that the committee identifies. Then we run into the issue of how timely our fixes are. On the 10 per cent where we disagree, there is an issue of fundamental difference of opinion on legal interpretation.
Again, the most effective way is probably to have officials appear and provide a clear explanation. We do our best through letters, but a letter doesn't allow for a dialogue to probe, because a few months pass and I respond. I am happy to come and have that dialogue. I can't suggest anything more formal than that.
The Joint Chair (Mr. Albrecht): I think the frustration around the table, in all fairness, is that, yes, we are sending many letters back and forth and killing lots of trees, but we aren't getting action. If I were in charge I would ask why we can't promise, by a certain date, to have a particular thing done when it has gone on in many cases for 10 years. I have some cases here that date back to 2002.
There is a level of frustration and I think you sense that. We have five speakers who want to speak and our time is running out.
Mr. Dusseault: Thank you for your presence here with us today. I would like to go back to the first issue you spoke about in your introduction, that is to say incorporation by reference. In your correspondence you said you were thinking about this, or preparing a draft amendment to incorporate by reference the animal and vegetable convention list in order to amend the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act.
You alluded to the possibility of incorporating by reference a list which is a document in an international convention. Has this ever been done in the past, in your opinion? It seems to be a new way of doing things, incorporating by reference into the act itself a list or an external document.
Are you aware of any other law in which one would find such a referential incorporation? I think it is the first time we see such an incorporation by reference, and I think that the Department of Justice was also involved in the drafting of this.
I would like to hear your opinion on the government's new way of doing things, which is to incorporate a document by reference into the act itself rather than in the regulations, which method is now permitted under the Incorporation by Reference in Regulations Act.
Do you stand by your position concerning the addition of a referential incorporation in the act?
Patricia Pledge, Senior Counsel, Advisory and Development Services Section, Department of Justice: Thank you for the opportunity to answer the question.
Incorporation by reference is used very frequently with respect to international documents and agreements. It is less common in primary legislation in the enabling statute itself, but it certainly is a technique that could be used.
International standards, treaties and agreements are frequently incorporated by reference in federal regulations. It is a common technique.
Mr. Dusseault: In the act, it is a technique that has never been used before. This would be the first time, should the Department of Environment decide to go forward with this practice?
Ms. Pledge: I'm sorry, could you repeat the question?
The Joint Chair (Mr. Albrecht): Is this the first time there has been incorporation by reference in a statute?
Ms. Pledge: There are other examples where there is incorporation by reference in a primary statute in enabling legislation, but it's just less common.
Mr. Di Iorio: I would like to thank you not only for your presence, but also for the rigorous presentation you made. I take good note of it because I know that this requires a lot of work.
One thing is bothering me and I would like to share it with you. I read the various parts of the correspondence and listened to your presentation. One of the elements raised by the government authority is that they are trying to reassure committee colleagues and generally speaking, I expect, the House of Commons, the Senate and the population, by telling them that basically, after having heard the arguments, they do not have to worry because the government can use discretion in litigation.
That is a fact; the government does have discretion in matters of litigation. However, in this case, this discretion is used to resolve a difficulty resulting from the legislative or regulatory drafting at issue, and that is particularly worrisome. Normally, when the drafting of a piece of legislation or a regulation is complete, one is satisfied with the work that has been done and discretion can be used regarding lawsuits.
However in this case, that is not it; it is, rather, the work that is imperfect. There are important groups and entities such as the House of Commons and the Senate, that are not to be neglected either in our system — aside from the government authority, which is not alone. So there is an important difference, and rather than solving the problem involving the drafting of the text, we are being told not to worry because we can use discretion.
You will understand that we do not accept the idea of living in such a country, because in that case we are subjecting the entities, companies and citizens to this discretion of a government representative, a discretion exercised in a vast country like Canada, with all of the variations this might entail.
I wanted to make you aware of the fact that we did not ask you to appear before the committee lightly. We think that with the resources at your disposal, you could do better than what has been done.
Yes, you could maintain your position and we could maintain ours, but I think doing something concrete is also a possibility. If you are ready to exercise discretion in certain cases in order not to initiate legal proceedings, you could identify those situations and amend the instrument in consequence.
The Joint Chair (Mr. Albrecht): Would you like to respond?
Mr. Moffet: I'm happy to respond.
I would again respectfully disagree with the basic premise that there is a problem with the statute. The statute is deliberately drafted in a broad manner. That's not an oversight and that's not a drafting error: that's the way it was drafted, that's the way Parliament approved it and that is not inconsistent with numerous environmental statutes.
I would like to read you a quote from the Supreme Court of Canada in reviewing a similar statute:
What is clear from this brief review of Canadian pollution prohibitions is that our legislators have preferred to take a broad and general approach, and have avoided an exhaustive codification of every circumstance in which pollution is prohibited. Such an approach is hardly surprising in the field of environmental protection, given that the nature of the environment (its complexity, and the wide range of activities which might cause harm to it) is not conducive to precise codification. Environmental protection legislation has, as a result, been framed in a manner capable of responding to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation.
This is an apt rationale for the way in which the general prohibition is drafted and is the same rationale that we have provided to successive ministers of the environment for retaining the current breadth of the prohibition in the statute.
Mr. Di Iorio: That is precisely the reason why I am fundamentally not in agreement with you. What you do as a government authority is lean on this premise to say that that is the way things are, and so there is no need for you to make any additional efforts. What we are asking you to do is the exact opposite. We are not trying to force you into the last outpost; we are asking you to make the effort to imagine situations in which you want to exercise this discretion and communicate it to the persons subject to trial so that they do not have to spend $500,000 in order to be heard at the Supreme Court. That is the bone of contention.
The Joint Chair (Mr. Albrecht): We're not going to get into further debate on that, but I think the point is well- taken.
Mr. Ehsassi: My question is very simple. As you know all of the members here have expressed concerns about the delays and the fact that there is no explanation in the correspondence. As I recall, you suggested that correspondence is not the best means to explain why there is a delay, which is obviously something I'm sure most of us are very uncomfortable with here.
Allow me to ask you this: From your standpoint is there anything that can be done differently at your department to ensure that we don't have to deal with the types of delays that we've experienced with your department so far?
Mr. Moffet: First of all, can I correct something? I may have been wrong when I said there were a couple of letters that were not replied to. It's my experience we reply to every letter. We reply to every letter twice, the first time without an explanation. The first says that we've received your letter and that we'll get back to you. The second provides explanations. So I do not accept the premise that we do not provide substantive responses to your concerns. We have an exhaustive inventory of responses where we have substantively replied and, as I say, in 80 to 90 per cent of the cases we agree with the issues raised by the committee. So I think we're talking about a very small set of issues where we don't agree.
In addition, we're talking about delays not in replying to the committee but in actually making the regulatory amendment. The one change that we have tried to make in recent years is to bundle amendments into omnibus regulations.
If there are other approaches that we can use, we're absolutely open to suggestions and guidance by this committee. I'm confident that the use of omnibus amendments will actually allow us to deal with significantly more issues raised by the committee in a more timely manner. Indeed, I hope that by the end of this year those two omnibus regulations will have dealt with many of the issues raised by the committee.
Mr. Badawey: Thank you for coming out today. I appreciate it, and I do appreciate all of the comments that are being made. I understand that your docket can be quite full. With that, priority becomes a necessity.
However, one of the things that I have learned on this committee is that we aren't the "opinion and regulation committee"; we are the Scrutiny of Regulations Committee. What I want to drill down on is the process of, once we scrutinize a regulation, what then is the process? I think the question was asked earlier: If we have a disagreement, it becomes a stalemate. Letters go back and forth and nothing gets resolved. It can go on and on and on.
My question is: What is the process? I'm hearing there really isn't a process. That's a question, and I'll make a comment following that question. If there is no process, then we should establish one so that when we do run into situations, we can get results, whether it's through mediation — I won't go so far as saying arbitration because then it becomes arbitrary — or an attempt at mediation between legal entities or between a committee and you or others.
I think that's what the problem is here. It's one thing to resolve and answer correspondence in a timely fashion. I think you're getting that in terms of our frustration there, so I'll park that. Let's just drill down on the issue with respect to the process when something is scrutinized. We don't agree. You don't agree with our scrutiny. Therefore, I think we have to really drill down on either recognizing the process or establishing a process so that we can come to a resolution.
The Joint Chair (Mr. Albrecht): There is the one process that we do have available to us, and that is disallowance of the regulation in the first place.
Mr. Badawey: Mr. Chair, with all due respect, disallowance just brings us back to square one. We're going to go through the whole thing all over again, so let's not go there.
If I may ask either Peter or John, what is the process? Secondly, if we don't have a process, I think it would be prudent and would behoove us to establish a process so that we can come to a resolution on these issues, not just with you but with anyone that we have correspondence and/or a disagreement with.
Mr. Moffet: I can describe very briefly what we do within the department. When we receive a letter from the committee asserting that we lack statutory authority — and that's generally what we're talking about here, not the issue of French/English concordance or where a term is incorrect; generally the issues that we have disagreement on are where we lack statutory authority — for every one of those letters, my team works with the program team responsible for the regulation to understand the rationale for the regulation, not the legal basis. We then consult with the Department of Justice. We then prepare a memo to the minister. For every regulation for which we have received an assertion that we lack statutory authority, before I reply — and maybe this goes to some of the questions about delay — I receive authority from the minister approving our opinion. The minister makes that decision generally based on our advice, including advice from the Department of Justice.
I just want to reassure you that, within the department, it's not a couple of officials disagreeing. Where we're talking about statutory authority, the Department of Justice is involved, and the minister approves the positions. But we still get to the issue where you say A and I say B.
There is an informal process of trying to seek clarity and explanation via correspondence. As the chair has correctly identified, the formal recourse that the committee has is disallowance. I think it's up to the committee to think about alternative formal recourses, as I've said.
I've been the designated information officer for over 10 years. This is the first time I've been before the committee. I'm paid by the taxpayer; I'm completely available to the committee to come to provide explanation, hopefully to try to clarify some of these issues. I'm not suggesting we'll resolve them all, but that might be one option for you to consider.
Mr. Badawey: Thank you.
Mr. Chair, if I may, I think that might be a take-away, after this is done and over with, under "New Business," either today or at a future meeting, to actually kick it up to the next step in terms of coming to a resolution about process so that we don't find ourselves in this back and forth over the course of a 10-year period.
The Joint Chair (Mr. Albrecht): I would remind the committee that the steering committee has come up with a number of recommendations that the full committee will be looking at later — maybe not today but at a future meeting — in terms of trying to streamline the response so that we're not going back and forth.
Mr. Badawey: I recognize that, Mr. Chair. However, the steering committee didn't address that very issue. The steering committee addressed recommendations — and I do have the recommendations here in front of me — which I'm prepared to move later on in the meeting, but it doesn't come to that situation with respect to correspondence and opinions going back and forth, disagreement, and of course having a process in place, whether it be mediation or some sort of —
The Joint Chair (Mr. Albrecht): We can argue that later; let's move on to the agenda.
Mr. Brassard: I haven't got anything further to add. I circled on my sheet, "How do we resolve this?" I think Mr. Badawey brought up that point when we do have these types of disagreements on interpretation issues. We can discuss this a little bit later. I have nothing further to add, Mr. Chair.
Mr. Dusseault: I would like to return to the issue of incorporation by reference.
Could you provide the committee with an example of cases where there was incorporation by reference of an external document directly into the text of a piece of legislation, such as the incorporation of a treaty or a list from an international convention?
Would it be possible to provide the committee with an example of an act containing an incorporation by reference, which could serve as information for the committee when the Department of Environment will suggest doing the same thing?
Ms. Pledge: One example jumps to mind of an external document that's not an international document incorporated in primary legislation. The Assisted Human Reproduction Act incorporated directly medical guidelines in the primary legislation. We can follow up with the committee in writing with other examples where international standards or international agreements are incorporated directly into legislation.
Mr. Anandasangaree: Thank you both for joining us this morning.
Mr. Moffet, with respect to the omnibus regulations that you mentioned a couple of times, of the bucket list we have here, which ones can we expect to be incorporated this year so that we can have a resolution?
Mr. Moffet: We just published one omnibus regulation on May 21, and that addressed seven issues that have been raised by the standing joint committee related to two regulations. One is the Storage Tank Systems for Petroleum Products. That addressed one issue for that regulation. The omnibus regulation also addressed six issues that the committee had raised with respect to the regulations amending the Sulphur in Diesel Fuel Regulations. That's one omnibus regulation that we just passed.
We plan to publish a second omnibus regulation this fall that would deal with 17 issues raised by the standing joint committee related to the New Substance Notification Regulations, plus one of the issues that you had raised in recent correspondence, so 8 issues there. Then there are the Volatile Organic Compound Concentration Limits for Automotive Refinishing Products and another four issues related to VOC Concentration Limits for Architectural Coatings.
It's not a complete panacea, but between the two regulations, we will have addressed 24 issues raised by the committee.
Mr. Anandasangaree: Are any of them with respect to what we have here on our list for today?
Mr. Moffet: I think the New Substance Notification Regulations, SOR/2005-247, and SOR/2012-135, the Sulphur in Diesel Fuel Regulations, will have been addressed via those omnibus regulations.
The Joint Chair (Mr. Albrecht): For clarification on the agenda, Item D is addressed?
Mr. Moffet: I don't have the agenda. I apologize. That would be Item D as in David, and what was the other one? Apologies; it is not on the list, but it had been raised in recent correspondence.
Mr. Anandasangaree: I'm a little concerned, when we come to an impasse and you're suggesting that your legal opinion, that of the Department of Justice, will lead to a position where, effectively, your position is correct.
We, too, have learned legal counsel who have been advising us, and we are not, frankly, picking this up out of a hat. This is coming from informed sources.
Ultimately, I believe this committee is seized with the supremacy for the regulations in terms of how to handle them, and when there is an impasse and a position is put forward by this committee, if there is a disagreement, I would expect the departments to make efforts to resolve it because we are not doing this for posterity. We are doing this because a legitimate concern has been outlined and brought to our attention by counsel.
Without getting into a battle of lawyers, I do think it's important that there is some recognition that this committee is seized with scrutinizing the regulations. When a position is put forward, the expectation is that the departments will make efforts and come to some form of agreement or pathway where we can have resolution. Without this committee being able to exercise the array of remedies available to it, I do believe it is important for the department to make those efforts to come to resolution.
Senator Moore: I want to thank the witnesses for being here.
Mr. Moffet, you are the director general. Are you a lawyer?
Mr. Moffet: I am trained as a lawyer. I want to be careful that I don't practise law. I don't provide legal opinion to the government. Only the Department of Justice provides legal advice to the government.
Senator Moore: So did you write the brief that you presented this morning?
Mr. Moffet: I did.
Senator Moore: You mentioned that in the process of considering correspondence from our committee you go to Justice and then the minister. What is the timing of that? If you get a request today, do you then look at it internally, come up with what you think might be the answer, go to Justice, then come back to your office and then go to the minister? And how often do you go to the minister? Is it with everything? Is it once a week? Is it once a month? I'm trying to get a sense of the time that's passing in between responses to letters from the committee.
Mr. Moffet: We seek approval from the minister when we have an issue of disagreement about statutory authority. We don't seek ministerial approval for every response to the committee. In most cases, those responses are provided at my level, again with consultation with the Department of Justice. We have a service standard within the department. We attempt to reply to those as quickly as possible.
When we need to go to the minister, there is an iterative process, but we engage the Department of Justice at the outset. We then prepare a memo to the minister. That happens whenever we have an issue around statutory authority. Those are very infrequent.
Senator Moore: How often do you go to Justice? Just when you have a difference of opinion with our committee?
Mr. Moffet: No, on every issue, every file raised by the committee.
Senator Moore: How long does it usually take for that process to come back to you?
Mr. Moffet: In most cases, that's a conversation.
Senator Moore: Over the phone?
Mr. Moffet: In person.
The Department of Justice is the government's law firm. It has some offices in a central location. Patricia works in a central location, providing advice to all departments, but every department has its own legal services unit, co-located with the department. I can walk down a couple of floors and talk to our lawyers.
In most cases raised by the committee, it's black and white: Yes, absolutely, there is a mistake. We don't wait for a formal legal opinion; we are not waiting a month for the lawyer to turn from one issue to another. We can resolve it very quickly.
When it is a matter of statutory interpretation, we take it seriously and the Department of Justice takes it seriously. So they review their previous opinions. In some cases, they actually go outside of the department's unit and go to one of the centralized expert bodies. We have centralized experts on incorporation by reference, on constitutional law, on administrative law. Where there is a really complicated issue, we sometimes go to those centralized experts.
Senator Moore: Do they write the letter that you issue to us?
Mr. Moffet: They provide an opinion and they vet the letter.
Senator Moore: Did they vet your brief today?
Mr. Moffet: Yes.
Senator Moore: Thank you.
The Joint Chair (Mr. Albrecht): What does the committee wish in terms of moving ahead with these first four items? We have been told that Item D on our agenda has been published in the Gazette, so I think we have the four others there.
The Joint Chair (Senator Merchant): If it's all right with Mr. Moffet and Ms. Pledge, I think that while we have them here, we should take advantage of it and ask them the questions that we have to ask them. What do you think? We still haven't dealt with the Pulp and Paper Effluent Regulations.
The Joint Chair (Mr. Albrecht): We are going to come back to that one. I going to refer now to A, B, C and E. It would be my suggestion that we set an actual deadline in terms of the action we want by a certain time. Item A has been on the books since 2006. Here we are in 2016, promised action in 2017 or by the end of this year. Do we want to establish a firm deadline, or how do we want to work as a committee so as to not waste the hour that we've invested in finding out the cause of the delays?
Mr. Genuis: Based on these items and coming out of the discussion, it has been mentioned by the witnesses, in fairness to them, that responses are always signed off on by ministers, but we have some significant concerns here. I am going to suggest that we explore calling ministers to talk about what they are signing off on and their view of these issues.
Ultimately, I don't think we can construct a process. The only tool we have is disallowance. As has been mentioned, that may be appropriate in some cases but not in many others. We could bring in the people with ultimate authority for these departments, maybe the Minister of Justice, given the important role that the Justice Department plays in all of these things; maybe it's the Minister of the Environment.
I put that out there for discussion because, rather than prescribing a timeline that could be followed or not followed, actually having a discussion with those directly involved might be the better way to go.
Mr. Anandasangaree: Presumably, given that our government only took office seven months ago, previous ministers had signed off on this. Are you suggesting that we call the ministers from the last government? Ultimately, they are the ones that signed off and have effectively taken the decision to defer this.
Mr. Moffet: Sorry, I would like to clarify. I am not suggesting that the ministers sign off on every letter.
Senator Moore: Just the contentious ones?
Mr. Moffet: Yes. On these ones we have agreed with the committee. There is no disagreement. The issue is a delay. There is no substantive disagreement.
You are free to call a minister. I don't see the merit in calling a minister when there is actually a substantive agreement. The issue is timing. We are proposing to deal with A and B together with another set of issues that the committee raised.
The Joint Chair (Mr. Albrecht): Can you give us a timeline on that?
Mr. Moffet: We are projecting 2017 for publication, so next year for publication.
The Joint Chair (Mr. Albrecht): Of A and B?
Mr. Moffet: Yes.
The Joint Chair (Mr. Albrecht): Can we have that in the minutes and say, "Okay, we expect that action by spring of 2017"?
Senator Moore: Spring?
Mr. Anandasangaree: Given that we are only in early June and that another Gazette omnibus regulation is coming forward in the fall, I will suggest that the timeline be extended to the fall, no later than the end of this year.
The Joint Chair (Mr. Albrecht): This is suggesting spring of 2017.
Mr. Anandasangaree: That is further. They are already in the process of gazetting something by the end of this year. I am suggesting that this be incorporated into the omnibus regulation that they are going to be putting forward.
The Joint Chair (Mr. Albrecht): That is spring of 2017?
Mr. Anandasangaree: No, they have suggested that it will be this fall.
Mr. Moffet: The committee can provide its recommendation, of course. Our advice is not to do that for these two regulations because they are part of a bundle of regulations that deal with cross-border movement of hazardous waste. We have four regulations that deal with that broad set of issues — international, interprovincial, PCB, and non- hazardous waste. We are in the process of consolidating the full set into one regulation and updating the overall approach. So we are making very substantive changes, not to address the issues raised by the committee, but a number of what you might call modernization measures.
We are proposing including the changes to the existing regulations that the committee has asked for in that broader amendment initiative. That is why we are suggesting it will take a little longer because it's part of an initiative. The drafting is already under way, but it's a large regulatory initiative and is going to take some time.
The Joint Chair (Mr. Albrecht): But you indicated in your last response that your timeline is spring of 2017. Are we okay if we accept that timeline?
Mr. Moffet: Yes.
Senator Moore: Is that firm?
Mr. Moffet: It is as firm as I can make it, Mr. Chair. I can't commit a minister or Treasury Board, but we are drafting the regulation now. So we will have a full regulatory package that includes the issues identified by the committee —
The Joint Chair (Mr. Albrecht): A and B on our agenda.
Mr. Moffet: Yes.
The Joint Chair (Mr. Albrecht): Let's proceed in that fashion and accept that as the word from Mr. Moffet at this point.
Mr. Genuis: To me, this is the crux of the matter. Mr. Moffet is saying, by all indications quite correctly, that he can't commit a minister.
To the point about there being substantial agreement on aspects of the item, I think there is disagreement about the process. This is why I would see value in having the conversation with the Minister of Justice.
I have a comment on Mr. Anandasangaree's point. I certainly don't blame current ministers for this. That wasn't what I meant to suggest at all. There have been a variety of different justice ministers over the period in which we have been dealing with many of these items. The question, though, is with the process going forward and having a discussion with the person responsible for that process.
I don't know if there is an appetite for that among others here, but I would see value in having a conversation with the justice minister, given the involvement of the Justice Department in all of these items, not as a way of laying blame on a relatively new minister but just asking questions about what we do in terms of process going forward and drawing her attention to these specific items that we hope for resolution on, in a way aligned with the timelines we have just heard.
The Joint Chair (Mr. Albrecht): We have heard from Mr. Moffet that A, B and D of our first package have been or are being dealt with. Let's try to focus our remarks on C and E and see if we can't wrap this section up and move on to the Pulp and Paper Effluent Regulations.
Ms. Jordan: That was actually my point. Can we find out what is going to happen with C and E, please?
The Joint Chair (Mr. Albrecht): Are there further comments on C and E, then? Mr. Bernhardt?
Peter Bernhardt, General Counsel to the Committee: Item C is similar. The target for the publication of proposed amendments in Part I is during 2017.
The Joint Chair (Mr. Albrecht): Can we put a timeline on 2017, say by November of 2017, so that we have a firmer deadline that will come back to the committee?
Mr. Moffet, would that be creating an obstacle if we were to say November of 2017 for Item C?
Mr. Moffet: Yes, that is consistent with our current planning.
Mr. Brassard: Mr. Chair, can we get an update from Mr. Moffet on where we are at on Item E?
Mr. Moffet: Item E is the issue of incorporation by reference. As we've discussed, in our view the most effective approach would be to amend the statute authorizing incorporation by reference or actually to incorporate by reference.
It's not possible for me to give the committee an indication about a timeline for that as I think it is for the government to provide timelines for the introduction of legislation. The option is very well understood. The solution or the amendment that we would make to the statute, we have worked out with our colleagues in the Canadian Wildlife Service and the Department of Justice. It is now really a question of statutory priorities for the government in terms of whether it wants to introduce legislation on this topic and, if so, when.
The Joint Chair (Mr. Albrecht): I think you have heard the committee's wishes that we want to move forward expeditiously. We will trust you to take that message back on behalf of the committee, asking them to move expeditiously on that one.
Mr. Moffet: Absolutely.
The Joint Chair (Mr. Albrecht): I think we have achieved some measure of success on the first items.
Let's move to the Pulp and Paper Effluent Regulations. Mr. Moffet, I think your opening comments outlined the issue.
Are there any comments from committee members on that? There is disagreement in terms of whether this should be in or not.
Mr. Kmiec: Are we speaking to Item F now?
The Joint Chair (Mr. Albrecht): Yes.
Mr. Kmiec: Thank you very much, Mr. Moffet and Ms. Pledge, and for your presentation.
The issue we have is that our interpretation of what the acts says and what you are trying to achieve here is that you have too much discretion; the discretion is too expansive in the way you're going about this.
Item 10 of the scrutiny criteria for this committee states: "makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice." I think that goes to the crux of the problem. I understand Parliament passed the Act in that fashion, with that type of wording.
I'm looking at section 37 of the act, which, to me, seems to imply that a lot of what the department is trying to achieve through 36(3) is already covered in 37(1) and 37(1)(a) specifically.
How deleterious does the effluent have to be before the department chooses to regulate? Why not regulate households, large commercial chemical manufacturing businesses, arenas, stadiums or anything elsewhere where there is a potential for a large volume of effluent that is deleterious to fish for you to intervene?
I don't see why pulp mills are being targeted here. Pulp mills are also regulated provincially. Their wastewater facilities, if they pass on their effluent through them, are regulated locally as well. There are lots of regulators already doing it. I'm just wondering how far it has to go before the responsible officials use their discretion and deem it necessary to regulate.
Mr. Moffet: I heard two broad questions. First, I think you are asking: Why don't we use 37(1)?
Section 37 allows the minister to gather information about works or undertakings that might result in the deposit of deleterious substances. It also allows the minister to issue a stop order, but it doesn't allow us to authorize a deposit. We don't have the authority under 37(1) to lift the prohibition. The function of a regulation under 36 is to lift a prohibition and to allow a deposit under certain conditions.
We have looked at section 37. We cannot use it to allow emissions. We can use it to stop activities in limited circumstances, but it is not a regulatory authority. So we are back to 36.
Then, to your second question — and I think that is the crux of the committee's concern — we are asserting that 36 is broad and that therefore there is scope for discretion in terms of determining the deposits that are subject to the prohibition. Our view is that that is a risk-based decision. It is not a volume-based decision. It is certainly not an issue that arises with respect to an individual household. It is a risk-based decision. Is there a risk that a deposit of what would constitute a deleterious substance might be made into fish-bearing water?
In the case of my house in downtown Ottawa, there is no risk. In the case of a pulp and paper mill, even if it is going into a wastewater system, there is a risk. There is a risk that the wastewater system will not adequately treat. There is a risk that there will be an overflow. There is a risk, in that situation, that the deleterious substance may be deposited into fish-bearing water. Hence, we concluded that those effluents, those deposits, are subject to the prohibition.
Then we get to the question of what we regulate. We don't regulate every deposit that is subject to the prohibition. Many deposits that are subject to the prohibition remain subject to the prohibition. They're banned, period. There is a subset of deposits that are subject to the prohibition that we regulate because there is no way to avoid those deposits if the activity is going to continue. Pulp and paper mill effluents have to deposit somewhere. Metal mining effluents have to deposit somewhere. Wastewater systems have to deposit somewhere. What we have done is said, yes, they can deposit, but they can only deposit subject to certain conditions that are designed to minimize the adverse environmental impact on the water and the fish.
Mr. Kmiec: As a follow up, I think that goes to the problem that the prohibition, then, is an interpretation of the department, which is a matter of policy as opposed to a matter of statute. It can't be that a government intended to say, "This department will now have the power to regulate all effluent, and the department, on behalf of the government, will determine when you have a deleterious substance. They will determine what that deleterious substance is, and then they will determine when to apply the law and when to proceed in regulation. Then they will determine whether to impose sanctions if you have gone too far and to tell you that you need certain rules or not."
That is a really expansive interpretation and use of a government regulation, a government act, to regulate the lives of people, and it leaves a lot of power with officials as opposed to with Parliament. Parliament passed an act that says "may enter any such water." You have to determine what is a deleterious substance. You have to determine if it is a fish-bearing river or water source. Your department gets to determine what is a deleterious substance and whether or not there are any fish, and then you can determine whether a person has to comply with any regulations you set and any penalties applied to that person. Is that correct?
Mr. Moffet: That is correct. That is precisely the issue we are disagreeing on, but that is precisely what the Supreme Court of Canada upheld as an appropriate type of prohibition for pollution control legislation in Ontario v. Canadian Pacific Ltd. over 20 years ago, acknowledging that the breadth of issues is enormous and, in many cases, unforeseeable and that, therefore, it is a legitimate exercise of statutory authority to provide a broad prohibition that then can be exercised on a risk-based basis over time.
The final point I would make is, yes, the statute is administered by officials, but the determination of whether or not to regulate is not made by officials. It is made on the recommendation of officials, but the decision is made by ministers, on the advice of an individual minister to the Treasury Board. The decision about whether or not to prosecute is made by officials, but whether a prosecution is successful or not is determined by the courts, not by individual departmental officials.
Absolutely, there is broad discretion. Absolutely, it is a risk-based decision. That's the way Parliament wrote it.
Mr. Kmiec: Actually, that is not how Parliament wrote it. Parliament said "any such water." It's even more expansive. If you read it word for word, Parliament meant to say "all of it." When you read it word for word, the way I read it — I'm not a lawyer — it, to me, would say every single household could be regulated. If you had a really large household and are manufacturing mercury lightbulbs in your home for some bizarre reason, technically, then, you would be covered by this. It gives you the opportunity, the possibility, to cover even that because that's the way Parliament wrote this. Am I wrong?
Mr. Moffet: The test is whether there is a possibility of a deposit of a deleterious substance. So not every household, but, depending on what is emerging from the facility, somebody manufacturing a mercury lightbulb who is flushing mercury, yes, absolutely could be subject to the prohibition. It is an extremely broad prohibition intended to protect fish and fish-bearing waters.
Mr. Dusseault: I would like to go back to what you said about the water that goes from the plant directly to the municipal water treatment system. We are talking about a plant especially designed to treat water. In your opinion, this wastewater that goes through the wastewater treatment systems in the conduits that lead to this plant, and are mentioned in subsection 36(3) of the Fisheries Act, may contaminate fish. Can you confirm that wastewater that goes from one plant to another without ever approaching fish bearing waters is dealt with in subsection 36(3) of the Fisheries Act?
Mr. Moffet: I'm not sure I fully understood the question, but there are a couple of things. First, the simple sending of effluent into a wastewater facility of any kind does not constitute a guarantee that the water will be safely treated, which is right. You can have a wastewater treatment facility that is effective and one that is ineffective.
The Joint Chair (Mr. Albrecht): Is that not the issue we should be dealing with; namely, that we should be regulating the wastewater treatment system, not what's going into it?
Mr. Moffet: We are regulating wastewater treatment facilities. With indirect depositing mills, if you deposit into a wastewater treatment facility, you can only deposit into one that is regulated. You can't deposit into an unregulated one. That's the only distinction, other than preparing an emergency response plan.
Mr. Dusseault: What I am trying to get at is to find out if you consider that the water that goes to the water treatment plant is water that is governed by the provisions in subsection 36(3).
Obviously, as Mr. Kmiec said, we could conclude that any water coming from any plant — not just a pulp and paper mill — would be covered by the Fisheries Act.
Do you feel that that interpretation is too broad, and that we should not consider the water that leaves the plant in the direction of the water treatment plant as being subject to the Fisheries Act?
Mr. Moffet: Again, the issue is that not all water flowing into a wastewater treatment facility plant would be subject to the prohibition — and it is 36(3), not 36(2).
The issue is risk based. You need to focus on the word "deleterious." If the water flowing from the indirect depositing mill into the wastewater treatment facility contains substances that could be dangerous to fish-bearing water, we would consider that effluent to be deleterious. If the effluent is benign, there would be no reason to subject it to the prohibition.
We are not suggesting that every source that flows into a wastewater treatment plant is subject to the prohibition. There has to be a risk-based decision, based on the concept of "deleterious" and on the possibility that deleterious substance could be released into fish-bearing water. And if it were to be, would it harm the fish or the environment in which the fish live?
Mr. Dusseault: I would like to confirm one last thing. It would be acceptable to compare the effluents that are poured directly into fish bearing waters. The fact of pouring these effluents directly into a lake, without going through a water treatment plant, would be exactly the same as sending it through the pipes that lead directly to a water treatment plant, because you consider the risks high enough to say that there is a possibility that that water could contaminate the fish.
Mr. Moffet: Yes, we are saying that in some circumstances where the effluent flowed directly into water and was deleterious, and if there is a risk — not a guarantee, but a risk based on the use of the word "may" in the statute, so you combine those two tests — then the effluent would be subject to the prohibition.
Then we get to the issue of why we regulated and how we regulate. We regulated because there was a risk that the indirect deposit could go to a wastewater facility that is not effective and not operating in accordance with federal regulations. We said, "Look, we are satisfied that if it goes through a wastewater treatment facility that is operating in accordance with the regulations, that is okay; otherwise, it is not okay." That is one aspect of the risk: Will it be treated appropriately?
The second aspect of the risk is what happens if there is an overflow or emergency situation? So the second obligation we placed on indirect mills is: Prepare an emergency response plan. We know you can't guarantee there won't be an emergency, but we want assurances that you are putting in place procedures to minimize the possibility and to react as quickly and effectively as possible. Those are the only two restrictions we have placed on those mills.
Mr. Badawey: I want to zero in on the current situation with respect to municipal, provincial and then federal, by which I mean that you are legislating something that could already be there, or you are overseeing something that may be already there. It seems like we are establishing the process I was speaking about before now by doing what we are doing in terms of trying to drill down on this.
I see it as somewhat redundant. Currently we have municipal bylaws, then through your regulations, the Department of Fisheries and Oceans puts a demand on those people who have effluent and how that effluent is treated.
The second part of that is then receiving from the provincial government a certificate of approval through the Ministry of the Environment to then treat that effluent in a municipal wastewater treatment facility.
The second part of that is you then expect that when their effluent is being treated, it is appropriately handled. I don't know, quite frankly, of any wastewater treatment facility that is not regulated. In my knowledge, at least in Ontario, they are all regulated, or you might have an onsite wastewater treatment facility that a bigger company, most times, would embark upon, simply because of economics.
Being from Ontario — and I am speaking from Ontario knowledge and not for the rest of the country — would it not be redundant because of the current regulations being put in place by the municipalities in the province in terms of what you are doing here?
Mr. Moffet: That's a good question. I guess there is a long answer and a short answer. The longish answer starts with an explanation of the overlapping jurisdictions of the federal and provincial governments with respect to environmental protection.
As you likely know, the environment is actually not mentioned in the Constitution, although fisheries are. What we do see is provincial governments taking action on environmental protection and the federal government taking action on environmental protection.
Then we go to your particular example. Some provinces regulate wastewater facilities, but not all do. That's why, a few years ago, the federal government promulgated the Wastewater Systems Effluent Regulations under the Fisheries Act.
Then you get to the question that we now have national obligations, but some provinces are already taking action. Under the Fisheries Act, we have authority to enter into equivalency agreements. So where we have a federal obligation under the Fisheries Act that a province is meeting — it doesn't have to be exact wording or even the precise legal form, but where the environmental outcome is the same, there is explicit authority for the federal government to enter into an agreement with the province, acknowledging that the province is meeting or beating the federal standard, then the federal standard stands down and does not apply. So the facility does not have to fill out two pieces of paper and there is no duplication.
But we come back to the fact that there is not a uniform approach to wastewater treatment across Canada. There is not a uniform approach to regulating wastewater treatment across Canada, and in some jurisdictions there are no legal obligations.
So now we have federal legal obligations. Again, for the indirect deposit mills, we are saying that you can deposit into a wastewater treatment facility so long as that facility is in compliance with the federal regulations. If that treatment facility is in a province with an equivalent regime, it may be that the facility is meeting the federal obligation by meeting the provincial obligation, pursuant to an equivalency agreement. Indeed, we have entered into a number of equivalency agreements already and are negotiating others with provinces that already have equivalent legal obligations.
I hope that answers your question.
Mr. Badawey: You're getting there. We are now drawing down to the crux of it, because there is an inconsistency there between the provinces. That may be the direction we want to take — one of two options. One is to recommend to the provinces that they put regulations in place for water and wastewater facilities. Therefore, the next step is the regional and/or municipal regulations as they relates to, one, what goes into that plant; and, two, the capacity issues, because they might not have capacity for it. The feds can say whatever they want, but at the end of the day, if they don't have the capacity, the infrastructure work has to be done. There is a dialogue that has to happen between the local level as well as the facility, I'll call it.
The second part of that is the uniform approach. I'll repeat myself, and I apologize for that: There are two options. Either we can have a recommendation that comes out of this committee through the ministry to the provinces that we have a uniform approach so that the redundancy is eliminated, especially in the provinces that are already abiding by the regulations you're imposing. Two, if you don't have the regulations in place and you're not looking after wastewater treatment, then we, by default, would be that authority, which I would support.
However, as you might have mentioned, the troubling part of that is that it's not uniform, then, across the country. Second, let's face it: At the end of the day, there would be consistency in which level of government would otherwise look after it. Municipalities being creatures of the provinces, it would be most appropriate for the municipalities to deal with the provinces versus the federal level, besides what you impose through Fisheries and Oceans to the provinces and the municipal level with respect to the rules that they would have to abide by with the certificate of approval.
Mr. Moffet: The current wastewater regulations are the result of over 10 years of negotiations with the provinces. The discussions absolutely were that we should have a uniform approach. Some provinces had stringent requirements and others did not. Some were planning to introduce them.
The agreement among all provinces but one and the federal government was to move to a uniform standard over time. The agreement also was that the federal government would introduce backstop regulations, and that's what we've done. We've introduced the Wastewater Systems Effluent Regulations, and those regulations provide a uniform standard. That standard imposes obligations that come into place over time. Depending on the volume that a particular wastewater treatment facility treats, the obligation kicks in in 2020, 2030 or 2040, because we are talking about massive infrastructure investment in order to comply. So now there is a uniform set of obligations.
The point about equivalency is that if a province that is already regulating wants to develop regulations and wants to continue with its regulations, or wants to develop its own province-specific approach, that's fine so long as the basic standard is met. If that's the case, then the federal obligation stands down. That's the regime we have in place now.
Mr. Tan: My question has been asked by my colleague, but I want to provide some reference information for this issue.
Personally, from a technical perspective, I actually support the position of the department to impose the regulation on the effluent from those indirect deposit mills. I'm saying that because I used to study at the Pulp & Paper Centre at the U of T, and I actually worked in the pulp and paper sector for several years, so I know effluent. I can even tell you what chemicals the effluent contains. So I know the impact of the effluent on the environment without proper treatment.
The issue comes back to the question asked by my colleague: If there are proper regulations on those treatment facilities, we don't need to impose any other regulations, to be honest. But the question is "if" — if it is the case. Otherwise, we will have to be very careful to handle those unforeseeable situations.
Mr. Moffet: Again, the Pulp and Paper Effluent Regulations have two parts. The first is for direct deposit: "Here are the conditions you have to meet," and they're very detailed conditions. For indirect deposit, the only obligation is to deposit into a mill that is subject to the Wastewater Systems Effluent Regulations. That provides assurance to the public that the final effluent that emerges from the mill, regardless of what trajectory it takes, will not be deleterious.
So we're not imposing additional obligations on the indirect deposit mill to treat their effluent. We recognize the effluent leaving the mill is deleterious. We're saying that's okay, so long as it goes to a wastewater treatment facility that will adequately treat the effluent before it's released into fish-bearing waters.
Ms. Jordan: In what way do these requirements help ensure that untreated or inadequately treated effluent does not enter the waters where there may be fish? Is there any follow-up? Is there a regulation making sure those things don't happen?
Mr. Moffet: Again, the regulations comprise, broadly speaking, two parts. One is for direct deposit. For direct deposit mills sending effluent straight into fish-bearing water, standards have to be met and reporting has to be done so that those standards can be verified by departmental enforcement officials.
In addition, there is a regulatory obligation for what is called environmental effects monitoring. The mill has to undertake monitoring not just of what is coming out of their pipe but the water that is receiving the effluent. That monitoring provides information about whether the fish-bearing water is being adversely affected. That gets reported over time.
On a positive note, over about two decades of environmental effects monitoring, data show that the vast majority of receiving water is not being adversely affected. As a result, we're actually contemplating reducing some of the monitoring obligations — not eliminating, but reducing — because the data is showing that there is a consistently positive trend.
For the indirect deposit mills, there is no obligation on them to monitor because, again, their obligation is to send it to a wastewater treatment facility that's regulated. The wastewater treatment facility, then, has very detailed obligations about how it must treat its water and what information it must report.
Ms. Jordan: That leads to another question, then. May I?
The Joint Chair (Mr. Albrecht): One more question. Then I will suggest that we excuse our witnesses and at a future meeting, or possibly today, the committee will grapple with what future action it will take.
Ms. Jordan: If the mill places effluent into wastewater systems without complying with the regulations, isn't the result on the environment the same, or is it any different than if we do have regulations?
Mr. Moffet: The regulation that we have allows that you can only place it into a wastewater treatment facility that is regulated. The risk is that if we don't require that — we're dealing with risks here. We're not saying all mills are bad actors, but the risk is that they could send their effluent to an inadequately functioning wastewater treatment facility. Then there is a risk to the fish-bearing water.
We are reducing the risk to the fish-bearing water by saying, "You have to send your effluent to a wastewater treatment facility that we know will treat your effluent adequately because that wastewater treatment facility is subject to federal regulation or an equivalent province regulation." That is how we're minimizing the risk.
The Joint Chair (Mr. Albrecht): It is troubling to think that there are wastewater treatment facilities that are not regulated. Why do we have them if they are not regulated?
Mr. Moffet: Before the federal regulations, there were wastewater treatment facilities in Canada that were subject to a wide range of provincial standards, not all of which were equally environmentally protective. In some cases, there were wastewater treatment facilities not subject to any obligations. Some of these are in very small communities, with very small capital investment opportunities. So we're now bringing into place a uniformed standard that will be come into place over time.
The Joint Chair (Mr. Albrecht): We will go to Mr. Kmiec. Then we will finish up to allow our witnesses to leave. Then we have a few items we need to get to and finish up.
Mr. Kmiec: The Fisheries Act is to regulate not so much the environment but the fish. That's how I understand it. The act itself says "frequented by fish." Does the actual water — lake, river whatever it is — have to actually have any fish for it to be regulated?
Mr. Moffet: There has to be the possibility of fish. Indeed, that's a test that has to be applied before the Fisheries Act applies.
Mr. Kmiec: In the Province of Alberta, for instance, 90 per cent of our rivers and lakes are a stocked fishery. Sam Livingston Fish Hatchery and the Cold Lake Fish Hatchery raise all the fish and stock all the rivers and lakes in Alberta, for the most part. But that's a provincial jurisdiction; the province takes care of the fisheries, stocking the fish and regulating the pulp mills.
Why, then, is there this duplication at the federal level to regulate them again when these are the Queen's fish, so to speak? The Province of Alberta is responsible on behalf of Her Majesty to take care of her fish, basically. Why is the federal government intervening through this regulation to try and regulate both lakes and rivers that have fish or the possibility of fish when the province may or may not be doing it already? That's a provincial jurisdiction.
I feel like this regulation, specifically — because it's trying to regulate the movement of deleterious effluent between different facilities that are also regulated provincially into a provincially operated, owned and potentially stocked body of water — is just overlap and duplication. To me, it's overreach. It's the federal government overreaching into what should be a provincial jurisdiction. We should trust our provincial governments to do their jobs. They are closer to the situation than we are in Ottawa.
Mr. Moffet: I have two points. First of all, authority over fisheries, unlike the environment, is explicit in the Constitution and is explicitly a federal constitutional authority. That's black and white: The federal government has authority and, indeed, has an obligation to take action to address fisheries in Canada.
The regime that we have put in place under the Fisheries Act acknowledges the fact that some provinces take action to protect impacts on fish and fish-bearing water from some activities. I'm being careful in my words because not all provinces do and not all provinces address the same sets of risks. Some of the larger provinces have very comprehensive licensing, permitting and certificate-of-authority regimes, and others don't.
Where a province has an equivalent set of obligations addressing something that has been regulated under the Fisheries Act, then we have authority under the Fisheries Act for an equivalency agreement, whereby the federal regulation stands down in that province for that particular obligation — not the entire Fisheries Act and not the generally prohibition, but the particular regulatory obligation.
As I said — and I've forgotten the details — we have a couple of equivalency agreements already with respect to the wastewater regulations, and we are negotiating others with a variety of other provinces with respect to the wastewater regulations.
The Joint Chair (Mr. Albrecht): We will move on. We have time for one quick intervention.
Mr. Badawey: It is more about moving forward, Mr. Chair. One of things we may want to look at is going beyond the individuals that you are regulating and going to the people who actually should be doing the regulating. This goes to your point with respect to the provinces and municipalities. Although they have to abide by the Fisheries and Oceans regulations through a certificate of approval, it should be the enforcement agency, and we may want to recommend, one, that it's at the provincial regional or local level, and, two, that it's uniform across the country. I think that may be the solution. Otherwise, this will keep coming before us time and time again.
The Joint Chair (Mr. Albrecht): We will set aside time in the next meeting to finish our action item regarding this issue and also to deal with the recommends from the steering committee.
I would like to thank the witnesses from Environment and Justice for being here today.
Item 3 on the agenda is something Mr. Bernhardt would like to deal with today.
SOR/2015-220 — ORDER AMENDING THE EXPORT CONTROL LIST
(For text of documents, see Appendix E, p. 5E:1.)
The Joint Chair (Mr. Albrecht): Item 3 on the agenda, under the heading "Reply Unsatisfactory," is something counsel would like us to deal with today.
Peter Bernhardt, General Counsel to the Committee: The purpose of these amendments is to continue the requirement that an export permit be obtained for shipments of softwood lumber products to the United States even though the Softwood Lumber Agreement is expired. The purpose is to allow monitoring to continue of softwood lumber products to the U.S.
Under the enabling provision, which is subsection 3(1) of the Export and Import Permits Act, goods can be included on the Export Control List only for certain purposes. The precise listed purpose for which softwood products have been continued on the list was not clear to us, so we simply asked Global Affairs Canada to identify which paragraph of subsection 3(1) they were relying on.
The department has refused to do so on the ground that this would constitute a waiver of solicitor-client and litigation privilege. As is explained in the note in the material, solicitor-client privilege can be waived by the client and, in any event, cannot prevent a parliamentary committee from requiring the disclosure of information. If the joint committee wishes the information, it must be provided, whether in writing or by witnesses in person. It is for the committee to decide what information it wants and how it wants to receive it. This aside, it's fairly obvious that the communication of this type of information is extremely routine.
There is also the suggestion that the precise authority is subject to litigation privilege, because if negotiations on a new softwood lumber agreement break off, the U.S. might take retaliatory action. I suggest this seems a bit fanciful. Litigation privilege is based on the need to protect information when you are preparing for a trial.
Here, I think, it's simple: Either the department believes the order is authorized under subsection 3(1) or it does not. If it can assert, as it has, that the order is legal, it can presumably identify the specific paragraph it is relying on to come to that conclusion. This is hardly the sort of information that has to be protected from disclosure when preparing for a trial.
Our suggestion at this point would be that perhaps the minister can be reminded of these principles and be asked to provide the requested explanation.
The Joint Chair (Mr. Albrecht): Comments?
Mr. Brassard: That would be my recommendation as well.
We also have to be aware that we may not get the information in writing. Mr. Bernhardt, if we need a representative to come to our committee and speak to us about that, then I suggest we write the letter and insist on the information. Failing that, we could have a representative attend our committee meeting to discuss it.
Perhaps we can discuss that in camera, Mr. Chair — that would be your choice — so, for whatever reason, we don't breach solicitor-client privilege.
Mr. Di Iorio: It might be a case where the person who wrote it did not choose the proper terminology to express a valid concern. There might be a concern here that there are ongoing negotiations, and you don't want to be told, "So you told us they relied on that, and now you wrote to these individuals and said you relied on something else." At some point, because there is free trade between countries and we don't know the final outcome, there could be some litigation.
I think the information should be provided to us, but maybe let's do it first through counsel. They are concerned about protecting information. It could even be provided viva voce to counsel; I have entire trust in our counsel. If counsel comes to us and says, "I listened to the explanation and I'm satisfied," we could then adjourn for six months and revisit it to see if there has been any change. It would avoid potential situations that could create unnecessary difficulties.
The Joint Chair (Mr. Albrecht): We will not wait six months if counsel is not satisfied with the answer they receive from the department, according to Mr. Brassard's suggestion earlier.
Is there disagreement with that plan of action? Are all agreed? All in favour, raise your hand? Good. We will proceed in that fashion.
I'm going to suggest that we need to come back and revisit the plan of action we want to take in regard to the information we received from our witnesses today. We'll look to our counsel for recommends on that.
We also need to give consideration to the report of the steering committee that you have. There are many recommendations there that might save us some time in the long term. I think we're wise to finish up this action first, and if we need to defer this until later in June, we're fine.
Is there any further input from committee members?
Mr. Di Iorio: I want to note the fact that Mr. Moffet indicated that he is willing to come back, so that is something we should take note of. We spent a lot of time today going over a process that was quite lengthy, but let's bear in mind that that might be a tool we can use more often and one that would require less time. If they come on a punctual basis to provide us with the information, then we could in 10 or 15 minutes resolve some matters. So we should avail ourselves of that more often.
Mr. Badawey: The concern the committee had with respect to regulations and the authority to regulate is simply because of the lack of regulations at the provincial and municipal levels. I go back to what I said earlier when we were talking about process: When we come to disagreements, what was healthy today was that we established that process simply by getting on with it ourselves. I congratulate the committee for that.
However, the result to all this is based on establishing uniformity. We don't want to be the heavy and come down on the provinces, but this committee might want to recommend to the Minister of the Environment and/or other ministries that may be appropriately affected that we send some correspondence or establish a dialogue, at the very least, with the provinces, which we've heard has already started — even at the local level, because there are infrastructure issues to be dealt with, as well, to, one, come to uniformity, and/or, two, agreement. If there is no uniformity, the federal government through the Fisheries Act would have to be somewhat more involved and sometimes arbitrary because of what the act states.
Beyond that, it's changing the act, and that's a bigger job altogether.
Ms. Jordan: I have a question of process. Mr. Moffet had stated that it's not that he had not responded; it's just that he doesn't agree. We can go back and forth on this for another 10 years with our lawyers not agreeing and so on.
What is the ultimate — I don't want to say "problem." But if we say, "Okay, fine" and let it go, could be it challenged? Is that the issue? If they change it because they finally see our point of view, and then it's challenged and we're wrong, what is the ultimately goal here?
Mr. Bernhardt: The ultimate goal is to have either legal regulations or no illegal regulations.
As far as where the committee goes, the committee is a parliamentary committee and the solutions and tools the committee has are parliamentary tools. Mr. Badawey talked about mediation, and I think we had some mediation this morning. Calling witnesses is always one possibility.
Short of that, as I was saying to the joint chair, at this point the committee has four options. First, the committee can say, "Oh, well," and quit. The second is the committee can keep nagging, and that can go on for another 10 years, as you say. The third is the committee can report the matter and draw it to the attention of the houses in the manner of any other parliamentary committee. The fourth, of course, is the special power of this committee, which is to recommend disallowance and let the houses decide whether that's something Parliament wishes to proceed with.
Those are the tools for use where there is extended disagreement on the substance.
The Joint Chair (Mr. Albrecht): We can discuss that more fully at our next meeting. We will make that the primary item next time.
Mr. Brassard: I wanted to add that I'm a lot less cynical of the department this morning than I was coming into this meeting because of the information that we got. I guess the issue becomes: What do we do when there is that stand-off, other than this becoming a perpetual letter-writing campaign, which it has seemingly evolved into?
I'm comfortable with the four mechanisms Mr. Bernhardt talked about, and I'm sure we will be dealing with the subcommittee recommendations.
I think the exercise we had this morning was extremely critical to the committee determining a course of action going forward.
The Joint Chair (Mr. Albrecht): I thank the committee for your patience. We don't have a back-and-forth flow of questions like some of our other committees, but I hope you thought all was fair in adjudicating that.
We have no further business and will next meet on June 16.
Mr. Bernhardt: We will have CFIA witnesses.
The Joint Chair (Mr. Albrecht): We are trusting that the next set of witnesses don't take an hour and a half. Hopefully, it will be 45 minutes.
(The committee adjourned.)