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Proceedings of the Standing Joint Committee for the 
Scrutiny of Regulations

Issue 14 - Evidence - February 9, 2017

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OTTAWA, Thursday, February 9, 2017

The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:30 a.m. for the review of statutory instruments.

Senator Pana Merchant and Mr. Harold Albrecht (Joint Chairs) in the chair.

[English]

SOR/2004-109 — REGULATIONS AMENDING THE PULP AND PAPER EFFLUENT REGULATIONS

(For text of documents, see Appendix A, p. 14A:1.)

The Joint Chair (Mr. Albrecht): We have on the agenda an item that has been before the committee off and on since 2005, closed in 2011 and opened again in 2012. There have been many correspondence files since that. The last correspondence was to the minister, asking her to appear before the committee. Because of her schedule, she's unable to be here, so we have with us today Mr. Mike Beale, Mr. Gordon Hill and Ms. Danielle Rodrigue.

Mr. Beale, do you want to take it away? Welcome to the committee.

[Translation]

Mike Beale, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada: Thank you for the opportunity to appear before you today. You indicated that you wish to discuss the Pulp and Paper Effluent Regulations and the Sulphur in Diesel Fuel Regulations.

[English]

As the chair indicated, the minister has asked me to appear before you today in view of her busy agenda, and I am accompanied by senior legal counsel for Environment Canada from the Department of Justice, Mr. Gordon Hill, and Ms. Danielle Rodrigue, who is the manager of innovative measures in our regulations group and who is in charge of relations between us and the committee in tracking correspondence and making sure that issues are dealt with appropriately.

[Translation]

Over the past 10 years, the committee has raised numerous points regarding the Pulp and Paper Effluent Regulations that required amendment or clarification. The department has found this dialogue to be useful. It has either amended the regulations or provided explanations that, in our opinion, have been satisfactory to the committee, in all but one case, which involves what is known as indirect deposits. As Deputy Minister of the Environmental Protection Branch, I am responsible for the administration of subsection 36(3) of the Fisheries Act. Subsection 36(3) prohibits the deposit of any deleterious substance into waters frequented by fish, or in any place where the deposit may enter such waters, except for those deposits permitted under the act. The main issue of concern to us is the interpretation of this wording, and specifically whether the act provides for conditions to be imposed on plants with indirect deposits, that is, those that deposit effluent into a wastewater processing system that is not owned or operated by the plant.

[English]

The committee has stated the view that the deposit of effluent from a mill into a waste water system is not subject to the general prohibition in subsection 36(3) and, therefore, cannot be made subject to conditions through regulation.

ECCC has a different view, which is supported by the Department of Justice. The essence of our view is that the statutory language in the prohibition is unbounded by limitations of place or circumstance. It targets deposits made in any place, under any conditions. When there is a risk that a deleterious substance may enter into waters frequented by fish, then the prohibition would apply, and the Governor-in-Council would have the authority to make regulations to authorize the deposit and to impose conditions to ensure that the environmental effects of the deposit are minimized.

Mr. Hill would be pleased to respond to any questions you may have on this issue of legal interpretation.

Satisfied that there is a legal basis to regulate in direct deposit mills, I would like to share with you our thinking on the policy rationale to do so.

[Translation]

Pulp and paper effluent poses a high risk to the environment. The volume of effluent from an average pulp and paper mill is equal to that of 11,000 households. This effluent contains various deleterious substances, in high concentrations. Our regulations require plants to treat their own effluent according to specific standards or to deposit their effluent into a regulated municipal facility. Without this last requirement, a pulp and paper plant that currently operates its own treatment system could circumvent the regulations by transferring the ownership and operation of its treatment facility to a third party. This third party might not be subject to the Wastewater Systems Effluent Regulations.

Indirect deposit plants that deposit their effluent into a municipal facility may choose a better offer by depositing their effluent into a non-regulated facility. Although such an unregulated wastewater treatment facility is subject to the general prohibition, EEC's Enforcement Branch would in practice have to identify the facility and assess its effluents to determine whether they contain deleterious substances. Moreover, according to our interpretation of the Fisheries Act, direct deposit plants that deposit their effluent into an unregulated facility would likely be in contravention of the prohibition. The regulation of indirect deposit plants provides regulatory certainty for the plants and better environmental protection than would be the case without it.

[English]

The obligations imposed on indirect deposit mills are threefold: They must identify themselves to the department; they must have an emergency response plan; and they must only deposit to a regulated WSER facility. Frankly, it is this last condition that is fundamental, from our perspective.

The joint committee also makes the point that a logical implication of the department's view is that subsection 36(3) is contravened on a daily basis by households in Canada that are connected to a municipal waste water system. We have given this view of the committee careful consideration.

Household effluent can constitute a deposit of deleterious substances in a place under conditions where it may enter water frequented by fish. As such, household effluent could be subject to the general prohibition. However, the department regulates based on the risk to the environment. The department decided to address indirect deposits from households by setting requirements on municipal waste water systems through the Wastewater Systems Effluent Regulations. This approach was taken because the risk to fish-bearing waters from normal household effluent can be managed most efficiently by ensuring appropriate treatment at municipal waste water systems rather than by regulating individual household effluent.

We believe the differences in regulatory approach for households and pulp and paper mills are justified by the differential environmental risks associated with these different deposits. The prohibition applies equally to households and pulp mills. However, the risk is different and therefore the way we manage that risk is different.

[Translation]

If I may, I would like to highlight another consequence of making a different interpretation of our legal authority to regulate indirect deposits. Imagine that an industrial plant, a chemical plant for example, knowingly deposits a large volume of a toxic substance into the municipal wastewater treatment network. That effluent could enter the municipal storm sewer network, bypassing the wastewater treatment facility, or the effluent could go through the municipal wastewater treatment station, but the treatment process might be insufficient to remove the toxic substance from the effluent.

According to our department's interpretation of subsection 36(3) of the act, that chemical plant can be prosecuted under the Fisheries Act. That would not be possible under a different interpretation.

[English]

Thank you for your patience as I have sought to convey why the department chooses to regulate in this area given the government's position that we do have regulatory authority to do so.

SOR/2012-135 — REGULATIONS AMENDING THE SULPHUR IN DIESEL FUEL REGULATIONS.

(For text of documents, see Appendix B, p. 14B:1.)

Turning to the Sulphur In Diesel Fuel Regulations, in her letter of December 2016, counsel for the committee indicated that the committee is not satisfied with answers provided to date on three matters. In preparing for this appearance, we have gone back to first principles on those three issues. We have concluded that the provisions in question are not necessary for the purpose of the regulations and propose to bring forward a regulatory amendment to remove them. We appreciate the work of the committee in bringing these issues to our attention, thereby leading to an improvement in the regulation.

In closing, I would note that I was appointed the department's designated instruments officer last October. This is my first appearance before the committee. I look forward to working with the committee and its officers to establish and maintain a mutually cooperative and respectful relationship. Thank you.

The Joint Chair (Mr. Albrecht): Thank you, Mr. Beale, for your opening comments.

I have two quick questions. One relates to your last point in agreeing with the committee's interpretation. You said that you would propose to bring a regulatory amendment forward. Do you have a timeline for that?

Mr. Beale: We already have omnibus regulations that address, among other things, the Sulphur In Diesel Fuel Regulations that were published in Canada Gazette I in May of 2016. We are scheduling those to go to Canada Gazette II in the spring. We are going to seek to include these amendments in that package so that they would go through to Canada Gazette II. We will need to consult with affected industry on an accelerated basis in order to make that timeline, but that is our objective.

The Joint Chair (Mr. Albrecht): Thank you.

On page 3 of your comments in English, you refer to an "unregulated facility.'' I think that term could be problematic to the general public in Canada. If you use the term "unregulated facility,'' are you implying that there are facilities treating waste water that have no regulations attached to them?

Mr. Beale: There are facilities that treat waste water that are not federally regulated.

The Joint Chair (Mr. Albrecht): Not federally regulated?

Mr. Beale: That's right.

The Joint Chair (Mr. Albrecht): But they are regulated?

Mr. Beale: I would imagine there are provincial and/or municipal regulations governing them, yes.

The Joint Chair (Mr. Albrecht): Because I think that term is problematic, for me at least. We'll put it up to the committee. We have been dealing with this file for many months, for those of us on the committee now, and we certainly want to get to the bottom of it.

[Translation]

Mr. Di Iorio: Hello, Mr. Beale and Ms. Rodrigue. Thank you for your cooperation. I need an answer to a question, and then I will check certain things depending on your answer. I will then give the floor to my colleagues, but I might have other questions for you later on.

With regard to the wastewater treatment facilities you mentioned, would you say that fish live in that water? It seems strange that fish would live in that environment.

Mr. Beale: If I understand you correctly, you are asking whether there are fish in the wastewater treatment facilities.

Mr. Di Iorio: Yes, that is the location we are dealing with. Are there fish in those waters? That is not a normal fish habitat, would you not agree?

[English]

Mr. Beale: In the waste water treatment facility itself, we are not expecting to see fish. The question is the scope of the prohibition in the Fisheries Act, and my colleague Mr. Hill can elaborate on how we interpret that scope.

Gordon Hill, Senior Counsel, Department of Justice Canada: To begin, I do have to clarify that I cannot review — and I'm bound not to do so — any advice from the Department of Justice given in the context of these regulations, either in their making or in their interpretation. But, clearly, the department has been consulting closely with the Department of Justice on these matters, and I can present some legal considerations that may be of assistance to this committee in its deliberations.

With regard to the scope of 36(3), the wording is: ". . . no person shall deposit or permit the deposit . . . into water frequented by fish or a place where such deposits may enter into waters frequented by fish,'' so it wouldn't necessarily be limited to the facility itself.

[Translation]

Mr. Dusseault: Thank you for being here. I have perhaps reached a better understanding of the reason for your interpretation this morning. In Sherbrooke, where I come from, when there is heavy rain, there are still places where the sewer system is not separate. As a result, the rainwater and wastewater overflow sometimes ends up in the Lac des Nations. That is one of the problems that occur when there is an overflow, because wastewater ends up in the Lac des Nations. I thought your interpretation was broad enough to mean that all water in municipal lines would be subject to subsection 36(3) for that reason. The only remaining problem, to my mind, is that you seem to have different interpretations of two types of effluents under the same act, one type from pulp and paper plants and the other type being normal household effluent.

Do you think it was really the legislative intent that two types of effluents should be interpreted in two different ways or do you think that the intent was for them to be interpreted the same way?

[English]

Mr. Beale: I think that question goes to the heart of the Fisheries Act and how it is administered. As the committee knows well from your work on this, the Fisheries Act is an unusual piece of legislation, for our purposes, in that it sets a general prohibition and then allows an authorization subject to regulation. Those regulations are decided upon by cabinet, and cabinet has chosen various sectors in which to regulate.

The history of this goes back to the 1970s. The pulp and paper sector was one of the first sectors where cabinet chose to regulate in view of the very heavy volume of effluent coming from the pulp and paper sector.

Other sectors have been added over time. Most recently, in 2012, the previous government introduced the Wastewater Systems Effluent Regulations to cover municipal effluent.

So there's not a comprehensive treatment of regulation. There is not regulation over every single deposit into water.

The previous government committed to adding two additional sectors to the regulatory scope. One is diamond mines. In regulations that we are currently bringing forward to amend the existing Metal Mining and Effluent Regulations, we will be adding diamond mines to that coverage. The previous government committed to introducing a regulation for coal mines, so we are developing a regulation for coal mines.

So it's not a comprehensive coverage under regulation, and those sectors' deposits that are not covered by regulation obviously then fall under the general prohibition.

[Translation]

I am not sure if that answers your question, but I hope it is helpful.

Mr. Dusseault: Yes, in part. The fact remains, however, that cabinet decided to regulate certain effluents and not others. That is perhaps where I see a different interpretation as to the legislative intent in drafting subsection 36(3).

I would like to move on to a second point, if I may.

I am still finding it difficult to understand why we cannot simply regulate the effluents of wastewater treatment systems. If, after being treated, the water can still contain deleterious substances that can make their way into waters frequented by fish, why not simply regulate all plants or all water treatment facilities in Canada? That would ensure that the effluents of those systems would be completely purified and would not contain any deleterious substances.

[English]

Mr. Beale: That is an interesting suggestion. We're continually developing our policy approach to which sectors we should regulate, and that is one that we can look at.

Our way of looking at the current situation is that we currently have regulations, the municipal waste water system regulations, that cover the great majority of waste water treatment facilities, so really all we are doing in this particular provision of the pulp and paper regulations is saying that if you're going to deposit into somebody else's facility, it should be a federally regulated facility. So we're just trying to make sure, since we don't have 100 per cent coverage of waste water facilities, that any indirect deposit goes into one that is regulated.

[Translation]

Mr. El-Khoury: Thank you for being here today. On page 3, paragraph 2, you say:

Our regulations require plants to treat their own effluent according to specific standards.

Can you tell us about those specific standards? Similarly, the last paragraph says:

The department has decided to deal with indirect deposits and households by establishing requirements for municipal treatment networks.

Can you also tell us more about these requirements? Thank you.

[English]

Mr. Beale: With respect to your first question, section 6(1) of the regulation indicates the requirements that a direct deposit mill has to follow. So it relates to the BOD of the matter, that it does not exceed certain quantities and that the deposit is made in accordance with an authorization to exceed certain quantities.

If you wish, I could have one of my colleagues come to the table to provide a greater description of what exactly those quantities are.

Similarly, with respect to the Wastewater Systems Effluent Regulations, that is quite a complex system of regulations that I will not try to summarize here, but for the most part it requires that waste water treatment facilities reach what is called a secondary treatment level. Those different facilities across the country have different timelines in which to reach those standards that are set out in the Wastewater Systems Effluent Regulations. If the committee wishes, I can always come back with more detail on those standards that actually apply to those deposits.

The Joint Chair (Mr. Albrecht): So you're not prepared to share those right now?

Mr. Beale: I don't have them with me.

The Joint Chair (Mr. Albrecht): Mr. El-Khoury, are you comfortable having the committee receive —

Mr. El-Khoury: It depends; it's a general question for the entire committee. I would like our colleagues to decide.

The Joint Chair (Mr. Albrecht): I think that in terms of the technical part we will give the witnesses the freedom to come back with that more detailed information, unless the committee feels otherwise. I don't know what our options are, though, but I think it's a good question. We will expect those as a follow-up.

Mr. Scarpaleggia: In terms of substances deleterious to fish, my understanding is that many emerging contaminants are being deposited into waste water. Pharmaceuticals is one example. Clearly, there are no regulations governing all of these substances. Even if you look at all of the chemicals that are on the substances list, there are thousands, and we haven't gotten anywhere near to evaluating all of them.

There must be many substances out there that would be deleterious to fish and we just don't know if they are or not. They can be dumped with impunity, I imagine, until one day somebody says, "This is deleterious to fish.'' Is that a correct way of looking at it?

Mr. Beale: Essentially, in practice, if my department is informed and a citizen were to, for example, raise concern about a certain deposit being made by some economic activity, if they believe that that contains a deleterious substance, then we would inform our enforcement branch, which would look into it.

They would go and visit the facility and examine that effluent. There is a test to determine whether it is deleterious or not. That test has been established by the scientists at Environment Canada. It's essentially exposing a fish to that deposit and observing the impacts on the fish. That is how it is determined whether that specific effluent is deleterious or not.

Mr. Scarpaleggia: Of course, they could be deleterious in the long term, and we wouldn't know for a long time.

This brings me to the second question I had; it dovetails perfectly with that question. I read somewhere, and correct me if I'm wrong, that one of the tests involves putting fish in a container. If more than 50 per cent of the fish die, it's considered deleterious. The 49 per cent that died would consider it deleterious by definition. The threshold isn't that it would not harm one fish; it's that it doesn't harm more than, say, 49 per cent or 50 per cent.

Are you familiar with this particular concept? It has come up a couple times. Wherever there have been spills, they'll say, "Well, you know, it's not considered deleterious to fish because in our tests, 51 per cent of the fish survived.'' It's deleterious to the other 49 but somehow this makes it acceptable. Are you familiar with this? I'm trying to understand if this is correct.

Mr. Beale: I'm afraid I'm not personally sufficiently familiar with the exact testing procedure. It is an acute lethality test conducted by our scientific colleagues.

Again, I can come back to the committee, should it wish, with more detail on this.

Mr. Scarpaleggia: I'd appreciate that.

Mr. Beale: Along those lines, there can be differences between saltwater and freshwater, and the testing procedures currently in place are for freshwater. So one of the issues we're looking at is what test procedures we —

Mr. Scarpaleggia: Just in case I run out of time, are some of these regulations devolved to the provinces? Will Environment Canada say, "You decide by regulation if some activity in your province is deleterious to fish, and you develop the regulation and the testing methods.'' Does that happen?

Mr. Beale: There is a provision for equivalency agreements with provinces whereby if the minister determines that a provincial system has an equivalent effect to the federal one, there can be an agreement and a subsequent order-in- council that would stand down the federal regulation. Right now, we have one for the Wastewater Systems Effluent Regulations with Yukon, and we're developing one with Quebec and one with British Columbia.

Mr. Badawey: I'm enjoying the conversation here simply because it's all based on the science. I'll make more of a statement than a question, but I will lead to a question.

I don't want people to walk away from this meeting thinking that municipal waste water treatment centres are inadequate. On a regular basis, they establish a science on the effluent that's coming into the actual treatment centre. Based on provincial and/or federal regulation, municipalities regulate the concentrations of effluent entering the plant. By doing that, it then controls what leaves the plant and enters into our rivers, streams, lakes, et cetera.

The reason I find the questions very interesting today is because it takes it to the next level with respect to the unknown. Sometimes there are unknowns that enter our plants. Having said that, and I want to be very clear here, there is still a regulated concentration level that can be allowed to enter that plant. So when industry, regardless of what that industry may be, is discharging into a plant — and by the way, most industries of that size have their own treatment facilities. But if they do go into a municipal facility, the municipality will regulate the amount of whatever they're putting into the plant and the amount to then abide by what's going to then leave the plant based on the system's capacity itself. Am I correct by stating that?

Mr. Beale: Yes.

Mr. Badawey: Once again, I want to make it very clear that we don't want to walk away from here thinking that municipal treatment centres aren't adequate. They have a purpose. This is their purpose. They also have a science attached to that purpose with respect to what's coming into the plant.

Would it be most appropriate that we work with provincial and local providers of that service — provincially regulated of course through the MOE — and the treatment centres themselves on ensuring the science is proper and ensuring that when effluent, regardless of what that may be, enters into that plant, that the science is proper? Otherwise, you would be sitting there with a cup every day to test the waters before it hits the waters. Would it be more concentrating on the science so that we're confident that whatever effluent goes into the plant, the science will cover the bases and the concentration levels would be appropriate?

Mr. Beale: If I may, your question is on the science. There are obviously the legal aspects as well. It's the federal Fisheries Act, and therefore federal regulations are required if there's going to be an authorization under that.

But in terms of the science, yes, we do work with provinces and territories to inform our work.

In terms of the municipal waste water treatment facilities, our current regulations and the standards set under those regulations were actually developed through a federal-provincial process. They came out of the Canadian Council of Ministers of the Environment, with the provinces, territories and the federal government working together to determine that it would be useful to have federal regulations in this area on what those standards should be.

Mr. Genuis: Thank you very much for appearing and for your comments. This has been a good discussion so far. I don't have a lot to add on the technical aspects of the regulations, but I want to add a couple of process questions that I think will help us frame some of the larger discussions and other items as well.

You're here representing the minister's views as well or the views of the department?

Mr. Beale: The minister has asked me to appear.

Mr. Genuis: Yes, but I just want to understand. I'm assuming she's been briefed on these items, and the views you're expressing with respect to legal interpretation are her views as well as the department's views. Is that correct?

Mr. Beale: They are views that she has endorsed, yes.

Mr. Genuis: Okay, that's great. That helps us understand.

The other issue is around legal opinions given from the Department of Justice. Did I understand you right, Mr. Hill, in saying that you can't disclose or are not obliged to disclose the specific nature of the legal advice you received from Justice? Did I understand that right?

Mr. Hill: Just one point of clarification, and I apologize if I wasn't clear. I am with the Department of Justice.

Mr. Genuis: I'm sorry. Right.

Mr. Hill: The caution that I started off with was that we're not able to disclose solicitor-client privilege items to this committee.

Mr. Genuis: I'm sorry. I missed that. Obviously if you are with the Justice Department, you can't disclose the advice you gave to Environment and Climate Change Canada. But the department would be free to disclose that legal advice if they wished; is that right?

Mr. Hill: We're walking into a sensitive area. The privilege belongs with the minister and the Clerk of the Privy Council. Through section 3 of the Statutory Instruments Act, the Department of Justice will advise on whether a proposed regulation is in accordance with the enabling authority, whether it constitutes an unusual or unexpected exercise of power, whether it infringes on existing freedoms, whether it's consistent with Charter rights, et cetera. So the privilege would belong at the senior level of both the cabinet and the Clerk of the Privy Council.

Mr. Genuis: On that basis, I don't know if you're able to do it today, Mr. Beale, but in general when we have these kinds of conversations, it would be helpful, to whatever extent possible, the holder of that privilege would waive it so we can get the broadest possible information about the nature of that legal advice.

I'll just leave that as a comment. If you want to follow up, great, but that will wrap up my comments.

[Translation]

Mr. Dusseault: I think I have understood the subtle distinction in the interpretation, but correct me if I am wrong. If effluents were discharged into municipal wastewater treatment pipes — such as pulp and paper effluents — and these deleterious substances inadvertently found their way into waters frequented by fish, your department would in that case not have any recourse against the plant that discharged the deleterious substances. Is that correct?

[English]

Mr. Beale: Let's consider a hypothetical situation where there would be a major discharge of a deleterious and toxic substance into water frequented by fish. I'm sure our enforcement branch would look into it and would try to determine whether there was fault on the part of the municipal facility or whether there was some degree of negligence on the part of the pulp and paper mill.

Due diligence would be looked into should there be a major discharge of something that should not have happened.

[Translation]

Mr. Dusseault: That is why you claim that subsection 36(3) covers effluents discharged into municipal water treatment systems if these deleterious substances were hypothetically to end up in waters frequented by fish.

Mr. Beale: Yes.

[English]

Mr. Oliver: I'm trying to understand the problem in my own words so I can understand it a bit better and process it.

As I read it, the concern is that a pulp and paper mill could dispose of its effluent into an unregulated waste water facility. Because it's not regulated, you're looking for ways to force them to come back and put them into a WSER- regulated facility. The way to do that is that you've interpreted 36(3) broadly and said it's about the waste and the toxicity of it. You can go back at them through that route to force them to put their waste into a regulated WSER facility. Our legal counsel is saying that's too broad a reading of 36(3), and there's a whole other subsequent round of discussion household versus paper mill.

Given that the debate is around that interpretation of 36(3), would it not be simpler to regulate or require a pulp and paper mill to either do it themselves, in which case you can regulate them, or require them to deposit only into regulated WSER facilities so that you don't leave the window open for them for non-regulated facilities?

Mr. Beale: That is essentially what the regulation does. It simply says that a pulp and paper mill has two options: It can treat its effluent itself or it can discharge into a regulated facility.

The one nuance I would add to your statement is that we are not starting with the regulation and working back to the authority under the Fisheries Act; we're starting with the authority under the Fisheries Act, which, as Mr. Hill has indicated, is a broad interpretation of the Fisheries Act. It's that which gives us this authority to make this regulation.

Mr. Oliver: But the difference between your interpretation and the advice we've had from counsel is around 36(3) —

Mr. Beale: Absolutely.

Mr. Oliver: — which doesn't actually require them to dispose into either their own or a regulated facility. It leaves open the window to use a non-regulated treatment plant.

Mr. Beale: That's right.

Mr. Oliver: You're reading 36(3) more broadly to require them to use the two facilities you want them to use, either their own or the regular ones.

Mr. Beale: We believe the facts are that there is a risk that a pulp and paper mill could choose to deposit into an unregulated facility. We believe that would be bad for the environment.

Mr. Oliver: Absolutely.

Mr. Beale: And we believe we have the authority to prevent it under the Fisheries Act.

Mr. Oliver: Again, to avoid what appears to be a conflict between the committee, the Justice Department and your interpretations of this, why would you not just make a regulation that forces them to use a regulated WSER facility or their own, so it closes that window?

Mr. Beale: That's right. That's exactly what our regulation does: It tries to close that window.

The Joint Chair (Mr. Albrecht): The point Mr. Oliver is making is whether there is a way we can tighten it even more. Is that your question?

Mr. Oliver: Yes. The debate is around your interpretation of 36(3) versus our legal counsel here. They would disagree that it does close that loop, so why not just regulate it? Just close the loop.

Mr. Beale: I'm afraid I don't understand.

Mr. Badawey: What Mr. Oliver is getting at is that right now the regulation actually gives them the choice to go to an unregulated treatment facility. By blanket saying, "No, it has to go here or here and you can't go to an unregulated facility,'' that shuts the door.

Mr. Beale: I think this again goes to the somewhat unusual nature of the Fisheries Act. The Fisheries Act has this blanket prohibition. What regulations do is permit. They don't say "you can't''; they permit. The permission is to go to a regulated facility. I'm not the lawyer, but I don't believe we would have the ability to say in this regulation, "You shall not do this.'' We have the ability to say, "You may do this, subject to certain conditions.''

The Joint Chair (Mr. Albrecht): Just to follow up, that doesn't make sense. If the legislation says that you can't and this says that you can, the regulation is done by order-in-council. I'll going to ask counsel to comment.

Evelyne Borkowski-Parent, General Counsel to the Committee: I refer you to page 2 of the background note prepared on February 1 that we provided for you. Under the act, there is a general prohibition under subsection 36(3). The next sentence, subsection 36(4) of the act, provides that certain deposits may be authorized by regulations. That is what the Pulp and Paper Effluent Regulations do: They authorize the deposit of mill effluent, as long as it's done in a waste water treatment plant that is regulated.

The Joint Chair (Mr. Albrecht): So it appears that the regulations open the door much more broadly than the actual legislation does. That's what this is saying. It allows something that the legislation didn't allow.

Mr. Di Iorio: I understand the argument being that you start from the legislation, which I think we all agree on; we have to start with the legislation. I never heard that we have to start with the regulation — not in this country. The prohibition is large, and then I agree with the point of view that normally it's not what we see; it's the opposite. But here is a general prohibition, except for what regulation will permit.

But if I look at the totality of it, how do you wind up with the result? I'm going to be very polite and courteous about this, but I don't want to introduce the notion that there is a prosecutorial discretion. I have difficulty with that. We were talking about legislation, so we have to rely on the written word. Why is it with that framework that it's okay for a household but not okay for pulp and paper? It would have to flow strictly from the regulation, based on that reasoning. If everything is prohibited and then some things are not prohibited anymore, it would have to flow from the text, not from the discretion.

Going back to the questions asked by my colleague Mr. Dusseault and the answers provided, I sense that there's a discretion that authorizes it, and that's what I have difficulty with.

Mr. Beale: My perspective is that the discretion is essentially cabinet's in determining where it wishes to provide an authorization. It determined that it did not need to provide an authorization in the case of individual households —

Mr. Di Iorio: Thank you. That's the answer. I don't want to cut you off, but others want to talk. What you qualify as a discretion takes us back to the text, because cabinet exercises a discretion in writing the text. That is their discretion. Therefore, when we go back to the text, we cannot see the distinction that you make.

Mr. Scarpaleggia: Isn't the discretion around enforcement? The department decides.

We had a case in my riding where there were pipes going in and out of the homes. They were crossed so that sewage was getting into the storm water pipes and going into the river. Theoretically, that's a violation of the Fisheries Act, but Environment Canada would never look at that. It sounds like it's just too small an issue. That would leave it to the provincial government to take action under its regulations.

When we talk about discretion, isn't it also an enforcement?

Mr. Beale: There is discretion around enforcement. Certainly, the case you have brought forward is a good example. It is one we deal with all the time in terms of municipal discharges. The committee will be aware, for example, of the planned Montreal waste water discharge in the fall of 2015, and successive ministers found that to be of concern. Therefore, they issued directives under the act as to the conditions under which that would take place.

There would be other discharges where that may not happen, and our enforcement officers do go out and enforce and bring charges in certain cases and not in others. So there is discretion there.

On Mr. Di Iorio's point, I believe also that there is discretion in terms of where government chooses to regulate and where government chooses to provide explicit authorization. Frequently that is in order to provide regulatory certainty.

I gave the example earlier of coal mines. The coal mining industry wants a regulation under the Fisheries Act. They want it because it would provide regulatory certainty to them on what they are allowed to do in terms of what they discharge into water and what they're not allowed to do. That is one of the key purposes again.

So from our point of view, one of the benefits of the Pulp and Paper Effluent Regulations is that they provide regulatory certainty to those mills as to what they can do and what they can't do.

Mr. Scarpaleggia: I just want to clarify: We've talked about regulated waste water plants and that pulp and paper mills should be using regulated waste water plants. We're talking about "regulated'' for the purposes of receiving pulp and paper effluent, are we not? It's not in terms of the 2012 regulations, which I would imagine would not cover all the substances that are in pulp and paper effluent.

Mr. Beale: We are talking about the 2012 waste water regulations.

Mr. Scarpaleggia: My understanding was that those regulations only covered certain substances in waste water and not every chemical that might be in, say, pulp and paper effluent.

Mr. Beale: They set out a level of treatment that municipal facilities are expected to meet. That level of municipal facilities is generally set up to be able to manage and treat the kinds of effluent that come out from those facilities.

If I can interpret your question: Is the effluent from pulp and paper mills a good fit for municipal waste water facilities? We believe municipal waste water facilities can do an adequate job of treating that effluent, but they're not necessarily designed in order to do that.

Mr. Scarpaleggia: What about effluent from fracking? Is some of that effluent disposed of through waste water facilities?

Mr. Beale: Not to my knowledge.

The Joint Chair (Mr. Albrecht): Committee members, we're going to need to come to some conclusion in the next little while. We still have a little time.

Our counsel has done a great job of summarizing a number of possible questions and actions on pages 8 and 9 of your notes today. I note particularly the last bullet on page 9. There are some ways forward. At this point, we look like we're at a standoff. I don't see a solution — at least an easy one — moving forward.

On page 9, I'm just going to read it:

Subsection 199(1) of the Canadian Environmental Protection Act, 1999, allows the Minister to require the preparation and implementation of an environmental emergency plan in respect of listed toxic substances, including "effluents from pulp mills using bleaching.'' Could mill effluents more generally be added to the List? Would relying on this authority accomplish the same environmental goal?

I think we're speaking for Canadians today in saying that our ultimate concern comes back to Mr. Dusseault's point: Can we not simply regulate what exits the treatment facilities, be they under the federal, provincial or municipal system, to ensure that none of those effluents are detrimental to fish?

We're concerned about protecting the environment. Is there a way to do that without getting hung up on some of these legal and interpretive blockages that we're into now?

Have you had a chance to look at the last one? What are your comments, Mr. Beale?

Mr. Beale: The act allows for authorization subject to conditions, and we have two conditions: We have the condition that one of these indirect mills needs to identify itself to us and that they need to prepare an emergency response plan.

On the specific instance of the emergency response plan, counsel is correct in saying that there is a provision right now for effluents from pulp mills using bleaching. That is on Schedule 1 of CEPA. The way CEPA works, you can regulate it if the substance is on Schedule 1. Those effluents are on Schedule I, and that's primarily because the word "bleaching'' is important. That relates to the use of chlorine. It's the fact that chlorine used in bleaching makes those effluents a toxic substance under the terms of CEPA, so it can be on Schedule 1.

We would need to look into whether all other effluents meet the test for toxicity under Schedule 1. Mr. Scarpaleggia was asking about the test for deleteriousness under the Fisheries Act. It's different from the test for toxicity under Schedule 1.

I don't have an answer at this point as to whether other types of effluent would meet the test for toxicity under Schedule 1. We can check that out, but normally there is a fairly detailed scientific assessment that determines whether a substance meets that toxicity test, and whether all general pulp and paper effluent would meet that test is something we would have to look into.

The Joint Chair (Mr. Albrecht): I'm looking to the committee for direction. How do we want to deal with this?

Mr. Di Iorio: Mr. Beale, thank you very much. You've been helpful. We don't agree, but you've been helpful.

I'll just add one thing about the discretion. In my view, very humbly, there's a distinction to be made with discretion. There's dynamic discretion, which I refer to as prosecutorial discretion, and there is also static discretion, which is discretion exercised by cabinet. Once static discretion is exercised, it is spent and therefore cannot be relied on anymore. The cabinet does have that discretion, but once it has exercised it, it comes to an end.

That's why I go back to the point that the only rationale I can find in your position is prosecutorial discretion disguised as cabinet's static discretion. I cannot accept that. So that's where we are.

The Joint Chair (Mr. Albrecht): Counsel, do you have some advice for us to move forward?

Mr. Beale, do you want to respond to that?

Mr. Beale: No.

The Joint Chair (Mr. Albrecht): If there are no further questions, we're going to thank our witnesses for being here today. I have a suspicion that we may be having further dialogue, but we thank you for your time today and your input. We'll dismiss you and the committee will remain for a few minutes to determine what our future course of action is. Thank you very much.

We would like to conclude by 10:00 at the latest, if we can. I think we all see the complexity of this file and I'm very grateful to our counsel for the incredible background work they've done. I'm going to look to them now for potential suggestions as to how the committee might proceed.

Ms. Borkowski-Parent: I'll preface my comments by saying that the Fisheries Act is one of the oldest acts on the statute books. It received Royal Assent in 1868.

The Joint Chair (Mr. Albrecht): There's our problem.

Ms. Borkowski-Parent: The other thing I want to mention is that no one is arguing that the protection of fish habitat is not an important goal. It's the way it is done here that is in question and whether it has been in a way that upholds the rule of law.

The other thing I want to mention is that on the broad prohibition of 36(3) in the Fisheries Act, up to last December when we received Mr. Beale's comment for his then scheduled appearance, the department disagreed that their position implied anything and everything that would end up in a waste water treatment facility would contravene the act, which was the initial point made to the department. On the basis that a deposit of effluent made to a waste water treatment facility constitutes a deposit that is contravened by the act, then any and every deposit that is made in a waste water treatment plant is also a prohibited deposit. Up to December, the department would not recognize that.

At this point, they have now recognized that if they're going to go one step further in the chain — which is not only regulating the waste water treatment facility, with those facilities being the ones that might inadvertently reject substances that could be deleterious to fish — they've regulated an entity that is putting effluents in a waste water treatment plant.

Up to now, that implication that anything and everything, including household effluent, would be covered by the prohibition was not recognized by the department. They now do, but that was new as of last December. There was incoherence in the way they interpreted the prohibition.

That being said, if I look at the questions prepared for today, there was the matter of whether it can be done under CEPA rather than relying on what they consider to be a general prohibition for everything that could potentially enter water frequented by fish. That is one reason why it has not been done by the department. I can't speak to that, but it could be one way out of this particular problem.

Ultimately, if the department's position relies on the fact that waste water treatment facilities might be inadequate in the treatment of effluent, it's that entity that should be regulated, not the mill that is putting the effluent in.

Those are the comments I wanted to make in light of what was said by the witnesses.

The Joint Chair (Mr. Albrecht): Responses? Suggestions?

[Translation]

Mr. Dusseault: After hearing the witnesses, I would say I am fairly satisfied with the department's reply, because the only subtle distinction I noted, which I mentioned earlier, is that even if we have the best water treatment facilities in the world, in certain situations such as during heavy rain, between the pulp and paper plant and the water treatment plant, there could be water in those pipes that ends up in waters frequented by fish.

If we interpret the general prohibition too narrowly such that it does not include the effluents of pulp and paper plants that end up in wastewater systems, we would not have any recourse. If deleterious substances were discharged somewhere between the pulp and paper plant and the water treatment plant and fish were killed, Environment Canada could not take action against the pulp and paper plant if those effluents are not included in the general prohibition.

As a result, I am satisfied with the reply. The general prohibition includes all eventualities, including households, and the act allows the government to make exceptions and to regulate them, which it does in the case of pulp and paper.

[English]

Mr. Di Iorio: With all due respect to my colleague, we have rule of law in this country. We're not talking about how an employer manages the workplace and gives general guidance to employees. It has to be black written on white. Yes, it can be interpreted, but not, "I'd rather make it wider in case I miss something.'' We don't write legislation and regulation like that in this country. Citizens need certainty within the bounds of interpretation, but here it's not interpretation; it has been acknowledged.

[Translation]

Ms. Borkowski-Parent: To answer your question, if effluents were discharged between the pulp and paper plant and the water treatment plant, depending on who owns those pipes, it would be a direct deposit. Is that clear? In that case, the prohibition applies to the pulp and paper plant that discharged effluent containing substances that are deleterious to fish.

The regulations do not prevent anything. What they allow is for deposits to be made into a water treatment plant and for the plant to treat its own pulp and paper effluents. As a result, if we consider the prohibition in subsection 36(3) to be complete and universally applicable, if we want to treat households differently, authorization has to be granted for household effluents. Regulations to that effect would have to be made. The department's position is not consistent.

I understand that we have decided that pulp and paper effluents are more toxic and more abundant, but if we make regulations pursuant to subsection 36(3), perhaps then we should use the Canadian Environmental Protection Act to avoid this type of discretion or distinction as to different effluents.

[English]

Mr. Badawey: I think the key paragraph in this report is on page 2. The fourth paragraph states:

So while there is a deleterious substance, in the form of mill effluent, the question is whether the action of putting the effluent in a wastewater treatment plant constitutes a deposit prohibited by the Act in the first place.

That's the crux of the discussion here today. It goes to the comments I made earlier. Either you are or you're not going to allow these substances to go into the actual treatment facilities.

I would more than hesitate; I would not state that treatment plants are not adequate. Treatment plants are adequate for the effluent going into them. As Francis said earlier with respect to the effluent going into treatment plants, if a plant can't handle it, then they won't allow it. It's that simple, hence the reason why a lot of these places, especially the bigger places, have their own treatment facilities. Quite frankly, in the broader sense, this is a moot point because most if not all the bigger plants do have their own treatment facilities.

However, I want to go back to the point I made earlier. Municipal treatment facilities are bound by provincial regulations under the ministry of the environment. They're regulated, inspected and there are ramifications if they allow effluent to leave the plant. That again might continue to be deleterious.

Having said that, when you have an effluent coming from any plant, not just a pulp and paper mill, that has this type of seriousness attached to it, they will bind the plant in terms of its concentrations so that the plant can in fact handle it. The plant's capabilities, based on its capacities, can handle the effluent. Otherwise — and I'll repeat myself — they simply wouldn't allow it in the plant in the first place.

Again, with what we're discussing here, I agree with Mr. Dusseault. Right now, we're overthinking this. Coming from the municipal sector myself, I recognize the value of treatment facilities. I recognize they can handle most if not all effluents. If they can't, they won't bring it into the plant in the first place. They have procedures that they abide by to ensure that what is discharged out of that plant is dealt with through the concentration levels; the treatment is based on those concentration levels. Therefore, I have enough confidence that what they've addressed here is adequate.

Having said all that, I still feel that under the Fisheries Act they can, as I mentioned to the witness earlier, work more with the provinces on the science, which he's assured me they do. That science is never ending. There's always something new coming through the system.

You were right in your comment earlier about the seriousness. There are times when you have an overflow or a capacity buildup, usually during a storm, where the plant has to discharge. They're discharging into the lakes, rivers, streams and that discharge can have some of that effluent attached to it. That can happen. That has to be addressed, because if in fact we have that deleterious substance in the discharge, then of course you're going to affect the fish. Thank you.

Mr. Scarpaleggia: I'm a lawyer and sometimes I may make a naive point or two. I don't know what the terminology is, but is it not the case that when faced with a regulation, you can't do indirectly what you cannot do directly? Would that cover this situation? The Pulp and Paper Effluent Regulations are pretty clear. Even if they're not as specific as we'd like, the principle remains that you can't try to get around them through the back door. We use this in the house all the time when the Speaker gets up and says, "You can't do that; you're trying to call somebody a name in another way,'' and everybody says, "Hear, hear!'' I'm throwing that out there in a naive way, I guess.

The Joint Chair (Mr. Albrecht): Are you suggesting we leave it as it is?

Mr. Scarpaleggia: I don't know. I'm just throwing the point out there.

Mr. Oliver: Like my colleague, I was quite impressed with their testimony. I think everybody in this circle is in agreement. We're doing what we can to protect our fish stock and our water systems. I didn't hear anybody saying that's not the issue.

What it comes down to is they needed a regulation for the pulp and paper industry to stop putting their effluent into unregulated waste water treatment facilities, and they brought the Pulp and Paper Effluent Regulations to bear. Our staff are reading that section 36(3) is incongruent — I think that is the word used — because if you apply the same rulings to households, if there was a spill, you could come back and sue households for different toxic substances going in, just as we would go to the pulp and paper industry if there was a spill from the water system they were using. There was incoherence there.

Nothing in the staff's report says that we are in violation and that the regulation doesn't fit with 36(3). It simply doesn't fit all circumstances.

It is a pulp and paper regulation. It's not a household waste regulation. It is written to capture the pulp and paper industry and make sure that they're being handled properly. There's a nuance here that, perhaps, if they then went back and addressed household waste water — I think someone recommended that — maybe that would take away some of the incongruity here with this.

To me it's a pulp and paper regulation and it's geared to that industry. It's achieving the purposes that we all want to see achieved, so I wasn't feeling particularly compelled to ask for further changes.

Mr. Genuis: I appreciate the points that have been made and the testimony. I think we saw a sincere effort to engage us in a good discussion about the issue, but at the end of the day, I agree with Mr. Di Iorio that there's a rule of law question and a process question, and it's important that those mechanisms be satisfied in the proper way. It's not sufficient to talk about alignment of objectives and these sorts of things without acknowledging the issue in terms of the substance of the regulation.

The department's argument is that things are basically clear enough the way they are, but amendments that clarify the regulation and/or the legislation would seem to be sensible to satisfy our concerns, and then everybody's happy.

We've heard the department's perspective and we've got many here with a bit of a different perspective. The solution I propose and the next step for us, I think, is to look at tabling a report and informing the house of this issue. Ultimately it's up to the house which way they go on this. But given the work we've done up to this point on this issue and given the outstanding concerns, I think tabling a report that outlines both sides in a fair way but also provides a recommendation is a responsible next step.

The Joint Chair (Mr. Albrecht): Counsel, do you have a response to that?

Ms. Borkowski-Parent: I forgot to mention this earlier, but in light of the comment you made, one option that has not been mentioned is that if the department is going to start discriminating between different kinds of effluents or deposits, one solution would be to say so in the act. If the act provides for that risk assessment to be made and it then clarifies the situation, it's no longer a broad general prohibition. It's based on the risk assessment of the department. At least those differences between household effluents, other effluents and pulp and paper can be brought back to Parliament's intent or wish. That is another avenue, which is to clarify the act to make sure the end result is actually provided or stated in there.

Mr. Genuis: I know it's a power that's rarely used, but my understanding is that committees do have the power to table legislation. Am I totally off base?

Ms. Borkowski-Parent: I'll look to my colleagues at the end of the table.

Mr. Genuis: I just made that up, sorry. It's a good thing we have lawyers here.

The Joint Chair (Mr. Albrecht): It sounded so good and like such a simple solution.

If I understand correctly, Mr. Genuis is suggesting that we table a report to Parliament. I think counsel is suggesting — maybe I'm putting words in her mouth — that in addition to the report we could make a recommendation that the act be amended to include these prohibitions. Am I interpreting you correctly?

Ms. Borkowski-Parent: Yes, that could be another solution. That, or put it in a report.

Senator Wallin: I'm hearing this for the first time. My understanding of what our witness, Mr. Beale, said is that there is a blanket prohibition on everything, such as household effluent. Pulp and paper has come to their attention, and that is why they've imposed this. The blanket prohibition means they rule by exemption, by pulling certain things out. It makes sense to me that they would, if something came to their attention.

I come from a rural area and I'm worried, in the pursuit of making everything equal here, if we also want a regulation on household and domestic effluent, about the kind of pressure that's going to put on local facilities and the testing that's going to be required. Why would we go down that road unless there has been something brought to the attention of the authorities, which seems to be the case with pulp and paper and has not yet been the case in terms of domestic issues? That is, except, as we've noted, there are floods and snow melts and stuff happens, but it's usually in such a small quantity that it doesn't constitute a major environmental crisis. Am I getting what they're saying?

Mr. Di Iorio: I agree entirely with Mr. Genuis. We have to file a report. I just want to add a few things.

First of all, I want to say to counsel and her team — the people who did this — this is impeccable work. It's fabulous. I've been a law professor for 35 years, and any professor that sees this kind of work would be amazed because it is fabulous. It has to be pointed out. This requires immense work. You really have to go and dig. Why is it done? Let's not forget the name of our committee: Scrutiny of Regulations. This has been scrutinized. That is what has been done. It has to be said.

I don't want to enter into banalities. This is great work that has been done, and this is truly the core of our mandate. I cannot overstate the importance of protecting fish and fresh water. Don't take this badly, but what we're doing at this moment has nothing to do with fish. We're not dealing with fish this morning.

What we're dealing with is the rule of law and how we proceed. We have legislation in this country, but mostly regulations. We're dealing with how government officials who have to apply it are supposed to behave. To me there has been an admission. They admitted it. They said, "We take a negative of a discretion, and we say we are not using a discretion, but we're saying that since they did not do that, we are allowed to do it, but that's not a discretion.''

Well, they can say, "Obviously it's a tulip, but you know, when I touch it, it stings me and it has a splendid perfume — but it's a tulip. Why? Because the government did not say it's not a tulip, so we're allowed to call it a tulip.'' With all due respect, it doesn't make sense.

We have to be serious and true to our mandate, so at the very least I believe we have to file a mandate, or maybe we should amend the Constitution. Probably somewhere we have that discretion, if we look hard enough.

The Joint Chair (Mr. Albrecht): I always knew this was a very powerful committee.

Mr. Di Iorio: We'll amend it in secret. Nobody will know.

[Translation]

Mr. Dusseault: Returning to my question, I was not very convinced earlier because, if I owned a pulp and paper plant and Environment Canada took action against me because, between the two, there had been an error and deleterious substances had inadvertently made their way into waters frequented by fish, I would vigorously contest its interpretation. I would say, "You have regulated our sector and we have followed the regulations to the letter. Something happened between the two so I am not responsible.''

Moreover, I think it would be interesting to write a report to confirm what we have heard. I am not sure though that we could agree on our recommendations. I think the best approach would be to clarify subsection 36(3) of the Fisheries Act. Can we switch the wording so that people are not treated differently? Would we want to switch the wording of the act to allow everything, except in specific circumstances? I do not think that would help the fish.

The general prohibition applies to households, which effectively makes it discretionary, as in other acts. There are other acts whose rules are not applied. It is left to the discretion of those who enforce the act to determine whether or not they will apply. Marijuana will soon be legalized and police could decide not to apply the current act in view of the upcoming legalization. There is discretion in enforcing acts and I think it is used in this case. I do not consider this a major problem.

Do we want to switch the wording of the act? I am not sure that is the right answer either. I am giving you my opinion on this, but we could consider some potential recommendations to clarify at least subsection 36(3) of the Fisheries Act.

[English]

The Joint Chair (Mr. Albrecht): Thank you.

Mr. Badawey is next, and then I want to come back to the idea of a report and potential recommendations.

Mr. Badawey: What I want to try to do is focus in on the actual topic at hand with respect to recommendations. I go back to that paragraph where we talk about putting the effluent in a waste water treatment plant and whether it constitutes a deposit prohibited by the act. I think that's the crux of what we're discussing here.

May I suggest, Mr. Chairman, that moving forward we ask staff to come back with a report that splits this in two and that actually looks at what we're discussing here. What we're discussing here is whether the effluent should, in fact, be allowed in the plant. I have an opinion on that and I've already given it twice, so I'll leave it at that.

I do have to give respect to the legal minds around the table, from the comments already made by Nicola and Garnett, with respect to the wording because I think they are two separate issues. The one that we're talking about here is whether we prohibit the effluent coming into the plant, and the second part is how we're going to word that.

May I suggest, Mr. Chairman, that we actually separate the two in asking staff to come back with the report to make an ultimate recommendation that, first, deals with what we're discussing and, second, deals with the wording behind tying up loose ends that some of those around the table may feel exist?

The Joint Chair (Mr. Albrecht): I think that's the crux of the matter. The wording is what got us in trouble in the first place. I will look to counsel again.

Ms. Borkowski-Parent: On that paragraph, I'm not an expert on fisheries or effluent; I'm a legal counsel. What that paragraph meant is, when we asked the department, "Where is your authority to make those regulations?'' the answer was, "Well, it's the general prohibition under 36(3).''

Fair enough. If you rely on 36(3), there are other implications to that position, mainly that if you're going to see 36(3) as a general prohibition of anything and everything entering a waste water treatment plant, you have some distinction between different types of effluents that are not provided for in the act. There's nowhere in the act that says the department can decide to regulate, or not, depending on the risk factors.

Mr. Badawey: Going back to my earlier comments, that's not their responsibility. Their responsibility is, under the Fisheries Act, to protect fish. They then delegate the responsibility of regulating what goes into the plant, and how it's treated, to the provinces, and that falls under the Ministry of the Environment. The province then puts that regulation in place to ensure that the treatment plants abide by those regulations by reacting accordingly to the concentration levels and how they're going to treat and/or simply not allow it to go in the plant in the first place.

Ms. Borkowski-Parent: Then there's no legal basis for the pulp and paper effluent and they shouldn't be there.

The Joint Chair (Mr. Albrecht): I think we're dealing with a federal act here, the Fisheries Act. There's a difference.

Mr. Badawey: That is my point, Mr. Chairman. Let's deal with the federal Fisheries Act. That's my point.

The Joint Chair (Mr. Albrecht): I think that's what our counsel is suggesting.

Mr. Badawey: But we're not. Some of the comments being made around the table are going into the provincial and municipal jurisdictions.

The Joint Chair (Mr. Albrecht): I don't think so.

Mr. Badawey: I do.

The Joint Chair (Mr. Albrecht): Let's let our counsel finish.

Ms. Borkowski-Parent: Also, the intent of that paragraph is whether putting something in a plant, which is not water frequented by fish, should be considered a deposit prohibited by the Fisheries Act. There are two ways of seeing this. Either putting something in a waste water treatment plant is not a deposit and therefore there's no authority under the Fisheries Act to make those regulations and they're ultra vires, or the committee can accept the position of the department that 36(3) is the broadest possible kind of prohibition. But that does not explain how the department made those regulations and did not make regulations regarding other types of effluents.

Based on that analysis, those are the two possibilities.

Mr. Di Iorio: At this point, Mr. Genuis, Mr. Dusseault and I have articulated our views that we should have a report prepared by counsel. Then we'll review and either adopt or amend.

The Joint Chair (Mr. Albrecht): You suggest we proceed, asking counsel to prepare that report and possibly some potential recommendations.

Mr. Di Iorio: Correct.

The Joint Chair (Mr. Albrecht): The committee will look at the recommendations before they go to the house. We're not going to give them a blank cheque and say, "Do it.'' That's not fair to them, so we'll need to have another meeting to discuss what the report will actually look like.

Mr. Badawey: Could we also include in that report the responsibilities of the other jurisdictions, provincially, territorially and municipally?

The Joint Chair (Mr. Albrecht): I'm not sure that's part of our mandate, quite frankly. Unless the committee disagrees, I don't think that's part of our mandate. Our mandate is the federal Fisheries Act and how it's being interpreted and administered.

Mr. Badawey: The only thing I can see is whether, in fact, we're sticking to our mandate. I don't want to see us cross into those areas, especially if we're looking at the validity and/or the capabilities and capacities of the treatment facilities. I feel we're getting into that area. We're getting to the point now where we're actually questioning the validity, capacity and abilities of the treatment facilities. That's what I'm hearing. If we can get into that area to get more information on that, it may be beneficial for the members of the committee.

Mr. Oliver: I would just hope the report might include a recommendation around amending the act to allow these kinds of specific effluent regulations by sector or industry. I think that would be very helpful.

The Joint Chair (Senator Merchant): I think the reports typically make recommendations to the federal government. I don't know how broad you want the list to be.

The Joint Chair (Mr. Albrecht): We need to wrap this up quickly. Mr. Genuis?

Mr. Genuis: I'd like to comment on what I think is a summary of what everybody wants: that we have a draft report prepared that deals with the legal issues at the federal level, not dealing with technical, non-legal issues about fish, but that focuses on the legal questions raised through this discussion, as well as recommendations for resolving those legal issues. I think that's what everybody wants, so let's proceed on that basis.

The Joint Chair (Mr. Albrecht): Agreed.

Mr. Di Iorio, you have last word.

Mr. Di Iorio: Maybe we should address the effects of hypothermia on staff and members of parliamentary committees while studying this matter.

The Joint Chair (Mr. Albrecht): You mean because of the snow on the window sill? Oh, that's not snow.

Thank you for your patience.

(The committee adjourned.)