Hon. Peter M. Boehm: I do have a question, Your Honour.

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. As I may have answered on a previous occasion, senators may recall that the government, in fact, laid the foundation in this area, as in many others, by accepting an interim recommendation from former Supreme Court Justice Louise Arbour to begin referring the investigation and prosecution of Criminal Code sexual offences from the military justice system to the civilian one.

Since Minister Anand received and accepted the recommendation to refer sexual offences from the military justice system to the civilian system in the fall, the government has made substantial and substantive progress in such referrals.

As Ms. Arbour outlines in a report — and this is my understanding of the facts on the ground — there have been some challenges with certain jurisdictions. To this end, Minister Anand is writing, again, to provincial and territorial partners about the path forward and to start the process of establishing a formal, intergovernmental table to build a durable transfer process that will better serve the Canadian Armed Forces now and in the future, and, of course, serve the interests of justice for those who are victims of alleged assault.

Senator Lankin: Thank you for all your work on this. I applaud anyone who takes on sponsoring the budget implementation act. I do share the opinion that was just offered about omnibus legislation, but I am also aware that in a minority Parliament time is always at a premium.

I want to come back to the question about clean drinking water in First Nations. I’m sure it was the way I heard this, and I was concerned when I heard you say that the government was working to help First Nations to, for example, learn about the environment and the connection with clean water — I know you agree with me that government has much to learn from First Nations on that point — but when you went on and talked about a few other things, I see that as capacity building. For some communities that is a requirement, and the resources to do that have to be there. For ongoing sustainability of the systems — maintenance upgrades, new technology et cetera — the resources have to be there.

Would you just deconstruct for me the budget provisions themselves and how they will enable these last 30-odd more difficult cases to be resolved in short order?

Senator Moncion: Thank you for the question. It’s a good question. By repealing the Safe Drinking Water for First Nations Act, it gives more powers to the First Nations to take ownership and to have more freedom to work within their communities to resolve the water problems. I think it is more in that aspect, and the government keeps working with the communities to find solutions.

Being from the North, I will give you the example of the reserve in Kashechewan, which is in northern Ontario, and which has been a difficult situation to resolve because of the yearly debacle of the river and the water system that is not viable because of the location. When you are in Ottawa, you don’t necessarily know all about what is going on in a community and when the government is working with the First Nation.

I understand when you talk about capacity building, and I think the water solution is a larger one than just putting in a system and hoping that the system is going to work. It is capacity and community building. It is working with First Nations, giving them the freedom to work and find solutions and working with government.

I want to apologize to my First Nations colleagues because I might not be answering this question in the best way, but I’m doing my best to try.

Hon. Frances Lankin: Senator Moncion, would you accept another question?

Senator Moncion: With pleasure.

The Hon. the Speaker: Honourable senators, today we pay tribute to three more of our dedicated Senate pages who will be leaving us this summer.

Nonso Morah is honoured to have had the opportunity to represent the province of Alberta within the Senate Page Program this year. She is looking forward to starting her second year at the University of Ottawa, studying Conflict Studies and Human Rights in both official languages, with a minor in Creative Writing. Nonso looks forward to pursuing new challenges and working in the service of her community. She says she will forever cherish her time as a page and is grateful to all who contributed to making it such an incredible experience.

On behalf of all senators, thank you, Nonso, for your dedication.

Senator Housakos: Senator Gold, the RCMP has been very clear in their claims in this investigation. The only people refuting them are the government talking points that you are spewing here today.

If your government really wants us to believe that you are putting the interests of Canadians — in particular, the families of victims in Nova Scotia — ahead of the Trudeau government’s political interests, you would have already agreed to the emergency debate on the accusations revealed yesterday regarding the RCMP commissioner. Instead, your government has moved to have Parliament remain at half efficiency for yet another year as a response.

Senator Gold, I know you came to this place in the spirit of independence. I know you have an open mind, and somehow now you have found yourself as a member of Privy Council representing a government that has proven to be hyperpartisan.

Don’t you think the people of Nova Scotia deserve better? Don’t you think the victims’ families deserve answers to these important questions?

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, my next question again is for the government leader. Leader, La Presse reported yesterday that Minister Sajjan, the Minister of International Development and Minister responsible for the Pacific Economic Development Agency of Canada, sought an exemption from having to go through security in our airports. This exemption, leader, is reserved for the Prime Minister of Canada and his immediate family, the Governor General of Canada and the Chief Justice of the Supreme Court of Canada.

Leader, after Transport Canada initially refused Minister Sajjan’s request, he tried again and was successful. Your government has apparently given him a partial exemption from airport security measures that countless other Canadians — you and I — have to go through.

Could you tell us why? How many other Trudeau cabinet ministers are now going to ask for the same exemption?

Hon. Senators: Hear, hear!

[Translation]

Hon. Tony Loffreda: Honourable senators, my question is for the Government Representative in the Senate.

Once again, Senator Gold, my question is on minority rights. They are so important, not only in Quebec, but across Canada. Today, I want to address Bill 21 which infringes on the civil liberties of Quebecers. Many religious and ethnic communities in Quebec continue to feel their rights have been eroded. As you know, the law is currently being challenged before the provincial courts.

Last December, in an answer to a question from Senator Omidvar, you said:

. . . The Government of Canada remains committed to following the litigation closely and will take whatever decisions are deemed appropriate at the appropriate time.

Senator Gold, some might argue the appropriate time was a long time ago. When will the government take a strong stand on this bill and start defending the rights of minorities in our province? What is your definition of the appropriate time?

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, as we approach Canada Day and the end of the parliamentary session, I want to take the opportunity to say a few words about our great country.

As Canadians, we are blessed to live in one of the freest and safest nations on Earth. We have much to be proud of and grateful for. As a beacon of hope, democracy, opportunity and liberty, Canada has attracted millions of people from around the world, who came here to make this country their home. Every year, hundreds of thousands of newcomers are welcome with open arms to join our growing Canadian family and way of life.

This Canadian way of life is one that is rooted in a distinct set of values: prosperity, security, hard work, opportunity, free enterprise, human rights, community and compassion, to just name a few. But the most foundational principle of this great country is, without a doubt, freedom, for without freedom, none of the other things I just mentioned would be possible.

The last few years have been difficult for everyone. Faced with challenging times brought on by a pandemic, Canadians have been divided, isolated and often pushed to the limit. Governments have repeatedly tried to restrict our freedom, yet I believe the adversity we have faced will only strengthen our resilience and make us an even better country. In spite of governments’ best efforts to divide us and turn us against each other, I believe Canadians will emerge more united than ever — with one another, their families, their friends and fellow Canadians.

Our governments have also tried to use the pandemic as a means of getting rid of proper accountability and diminishing the role of parliamentary oversight. That needs to end. The hybrid Parliament needs to end. Canadians expect us to ensure proper parliamentary oversight, which is our role and our duty to them.

As Canadians, we must never forget that the freedoms we enjoy every day cannot be taken for granted nor are they free; our freedoms came at a very costly price, paid for by men and women far braver than any of us, who sacrificed themselves in the fight against tyranny so that future generations could be free. It now falls upon us to guard that freedom and protect it for those who will follow us.

Canada is a great country worth celebrating, and it is my hope that we will do just that, not just this upcoming Canada Day but every day. Thank you.

Senator Gold: Thank you. I’m flattered and honoured to be in this position despite what some of my colleagues have said about the government that I represent.

But I’m neither the sponsor of the bill nor an expert, nor indeed even a member of the committee, even though I participated ex officio.

Senator Galvez, respectfully, I think that the question was asked — or should have been asked, if it wasn’t — to the officials in the course of the protracted and extensive study on the bill. I’m afraid I’m not in a position to answer that question in this setting.

Hon. Jane Cordy: Senator Gold, on May 20, after nearly a year of study, former Supreme Court Justice Louise Arbour released her report on the external review into sexual harassment and misconduct in the Canadian military. Her report consisted of 48 recommendations.

As you mentioned in this chamber to a question from Senator Coyle, Minister Anand committed to implementing 17 of those recommendations immediately.

My question concerns recommendation number 5 — which is not one of those 17 — which states that Criminal Code sexual offences should be removed from the jurisdiction of the Canadian Armed Forces and they should be prosecuted exclusively in civilian criminal courts in all cases. Senator Gold, could you let us know what is the hesitation to committing to this recommendation?

A similar recommendation came out of a previous 2015 study of sexual harassment and misconduct in the Canadian military. I’m just wondering what are the barriers for the transfer of the cases to civilian investigation and prosecution?

Hon. Stan Kutcher moved third reading of Bill S-5, An Act to amend the Canadian Environmental Protection Act, 1999, to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act, as amended.

He said: Honourable senators, I rise today to speak at third reading of Bill S-5, the “Strengthening Environmental Protection for a Healthier Canada Act,” which modernizes the Canadian Environmental Protection Act, or CEPA.

I would first like to acknowledge the work done by the members in this chamber of the Standing Senate Committee on Energy, Environment and Natural Resources as we studied this bill. A huge thank you is also owed to our staff: the clerk, analysts of the committee and all those whose support has brought us to this point.

I would also like to especially thank Senator Arnot, who kindly gave up his space on the Energy Committee for me, as sponsor of the bill, to participate. I congratulate him on having his first amendment to a piece of federal legislation accepted by the committee. It will not be his last, I’m sure.

When Minister Guilbeault, in his opening remarks at committee, invited the Senate to study and seek ways to improve this bill, senators took this to heart. You all heard about the number of amendments that were proposed to this bill from Senator Massicotte. We all discovered that modernizing an act as complex as CEPA is not an easy task.

As Senator Massicotte noted yesterday, the committee made a number of amendments to the bill. It also refused some amendments after vigorous debate and thoughtful deliberation. In my opinion, in these decisions around which amendments to accept and which to refuse, the committee exercised its due diligence — moving ahead on those areas it had comfort with and not moving ahead on areas that gave it discomfort.

Over the past two months, the committee heard from numerous witnesses representing many and diverse perspectives. I acknowledge the interest and valuable input of all those who took the time to testify, to provide briefs and to reach out to discuss the many issues that arose during our committee work. The engagement of civil society and industry in our study of this bill illustrates the importance and value of our democratic process.

I am proud to support this bill as it has been amended, and I urge all senators to vote to adopt it and send it to the other place for their consideration.

CEPA is one of Canada’s core environmental laws. It protects the health of our people and our environment, largely by enabling federal action on a wide range of pollution sources.

Much has changed since its last significant update in 1999. The proposed amendments to CEPA, if passed, will strengthen the protection of Canadians and our environment, and will provide Canadians with an environmental protection law that confronts 21st-century issues with 21st-century science.

This bill proposes a number of changes to achieve this goal, which can be summarized in two major themes. First, Bill S-5 recognizes that every individual in Canada has a right to a healthy environment, as provided under the act.

To ensure that the right to a healthy environment is meaningful in the context of CEPA, this recognition is paired with a duty of the government to monitor and protect that right. How that will be operationalized will be elucidated in an implementation framework to be developed in collaboration with Canadians within two years of Royal Assent of this bill. That will explain how the right will be considered in the administration of the act.

With amendments that were made in committee, that implementation framework will, among other things, elaborate on principles such as environmental justice, which includes avoiding adverse effects that disproportionately affect vulnerable populations; intergenerational equity, which means meeting the needs of the present generation without compromising the ability of future generations to meet their needs; and non-regression, which means not rolling back environmental protection and continuously improving the health of the environment and of all Canadians. It was clear from the thoughtful discussions in committee that senators were keen to ensure that this right would be meaningful and the guidance on developing the implementation framework clear.

I think the bill reflects those considerations.

Second, this bill proposes to modernize Canada’s approach to chemicals management. It requires a new plan of chemicals-management priorities to give Canadians a predictable, multi‑year, integrated plan for the assessment of substances, as well as the activities and initiatives that support substances management. That includes, but is not limited to, information gathering, risk management, risk communications, research and monitoring. It also adds a mechanism for the public to request the assessment of a substance.

The bill sets out a workable regime for substances of the highest risk, which include persistent and bio-accumulative substances, as well as certain carcinogens, mutagens and substances that are toxic to reproduction. The bill requires that, when considering how to manage such substances, priority be given to prohibiting them.

The bill also reorients the act to additional considerations based on emerging concerns of Canadians and the growth of a robust and yet-developing scientific understanding of the impacts of cumulative effects of substances. It also extends its acknowledgement of the necessity to identify and protect vulnerable populations, and, as a result of the committee’s discussion, vulnerable environments.

The bill also now includes several provisions to avoid regrettable substitution. That means taking a substance which could be quite toxic to human health and putting it into commerce. The most important of these remains the watch list, which will give an early warning to industry of substances that, for example, are hazardous and may be determined to be CEPA‑toxic if exposure to them or their uses change.

The bill further eliminates duplication between acts and departments, and, if passed and if appropriate regulations are adopted, would remove the requirement to notify, assess and manage new drugs under two separate acts as is currently the case. For example, the Food and Drugs Act for the safety, efficacy and quality of a drug; and, concurrently, CEPA for the environmental risks of the drug’s ingredients. This would provide a more efficient and effective approach to assessing and managing the risks of drugs in Canada.

Finally, the bill increases transparency with changes to the confidential business information regime and now includes substantive requirements to accelerate efforts to replace, reduce and refine animal testing.

As someone who is familiar with the issues regarding the use of animals in health-related research, I am particularly pleased that the Senate amendments to this bill have moved the yardsticks toward the goal of eliminating animal testing of substances as soon as is scientifically possible.

As I mentioned previously, there was vigorous and thoughtful input from civil society and from industry during the committee’s study of this bill. We heard from over 35 witnesses and received numerous written submissions covering a wide swath of issues, items of concern and suggestions for changes. The committee heard from Indigenous organizations, industry organizations, non-governmental organizations, academic experts and individual Canadians, all of whom shared their opinions on the bill and CEPA reform in general.

We heard commentary on a variety of topics, including animal welfare, increasing transparency, public access to information and the assessment and management of toxic substances, among others.

We heard pleas for increased transparency and easier access to information provided under CEPA, confidential business information and modifications to the online CEPA Registry to make it more user-friendly.

We had calls for increased specificity in the risk assessment and risk management processes. We heard about some of the many long-standing hardships faced by Indigenous peoples in relation to pollution and the need take to heart the UN Declaration on the Rights of Indigenous Peoples as well as our constitutional duties and to ensure that the implementation of CEPA would be guided by these.

We heard about the need to “put the health of people and the environment first” and to ensure that vulnerable people and vulnerable environments would be top of mind, not bottom of the pile.

The committee adopted several amendments related to these topics. I will highlight three recurring themes in our discussions and address some of the adopted amendments that address those.

To begin, several amendments were made to better incorporate Indigenous rights and perspectives. Indigenous knowledge was explicitly recognized alongside current and emerging science.

The committee also addressed consultation and reporting requirements. New requirements were added to provide greater notice of actions and decisions under the act, and emphasis was added on the need for a searchable, electronic registry.

The committee added additional protections for vertebrate animals by including substantive provisions to the bill that go beyond the aspirational statement in its preamble and that reordered the three Rs — reduce, replace and refine — to reflect that the first priority is to replace entirely the use of vertebrate animals in toxicity testing. If that is yet not possible, then their use should be reduced and refined. That means attending to their welfare when used for testing.

Among other changes along this theme, the committee also adopted an amendment to require that the plan of chemicals management priorities include specific activities or initiatives to promote the development and implementation of alternative testing methods that do not involve the use of vertebrate animals. This will encourage the development and timely incorporation of scientifically justified alternative methods and strategies in the testing and assessment of substances and is consistent with actions being taken by international partners such as the United States and the EU.

The committee also made a number of observations that I personally hope will drive the government to improve its ability to deliver on what this bill now demands.

Bill S-5 amendments have noted, for example, in section 44 that:

The Ministers shall conduct research, studies or monitoring activities to support the Government of Canada in protecting the right to a healthy environment. . . .

Another amendment replaces paragraph 45(a) with a new passage that requires the Minister of Health to “conduct research and studies, including biomonitoring surveys, relating to the role of substances in illnesses or in health problems.”

Unfortunately, honourable senators, as we heard from witness testimony, the government is not at this time able to provide the essential, robust and comprehensive biomonitoring, biobanking, ongoing longitudinal cohort studies and toxicogenomic analyses that are necessary to support what this bill promotes. Additionally, the committee learned that existing biomonitoring activities do not currently include an appropriate representation of Indigenous peoples. Both of these issues will need to be resolved, as without a robust and fulsome scientific capability in all the areas that I have mentioned, the promises that this bill makes for improved health for people and the environment will not be met.

Many Canadians will be watching to see how rapidly this need for enhancing our capacity to do this essential scientific work will develop and what funding and expectations for the development of this scientific capacity the other place can put into the bill to further promote this necessity.

I am proud to support this bill and urge all senators to vote to adopt it and to send it to the other place for consideration. This modernization of CEPA will be an important step for the Government of Canada toward the continued protection of people’s health and the environment, and I trust it will not be the last.

Many parts of CEPA were not modified as they were not within the scope of this bill, but we hope that in the not-too-distant future, as alluded to by Minister Guilbeault’s testimony before our committee, we will soon have a chance to address other parts of the act and continue to improve CEPA.

I look forward to following the debates on Bill S-5 in the other place, and I hope the revised and improved version of Bill S-5 which is before the Senate today will be adopted here and moved forward as expeditiously as possible.

Thank you, wela’lioq.

Hon. Mary Jane McCallum: Thank you. Could you expand on biomonitoring as it applies to Indigenous people and when you think it will come to fruition? In other words, what are the areas we have gone over that will be excluded because this cannot be done at this time?

Senator Kutcher: Thank you very much for that excellent question. Biomonitoring, which means looking at the accumulation of substances in the human body — you can look at that through blood work or your nails, hair, tissue and other things — is an essential component of being able to determine how substances impact human health, not just at one point in time but over longer periods of time.

We need the capacity to do that kind of biomonitoring work in the general population, but also very importantly in vulnerable populations. With respect to people who are living in environments in which toxicity is known to be potentially greater, biomonitoring tells us what we need to know in terms of the impact of environment on human health. Canada currently does some biomonitoring but not enough. We heard from witnesses that the biomonitoring has to be much more robust. Many more people need to be involved. It has to reflect the variety of Canadians, of the Canadian population. It cannot just be given to one group. All Canadian groups have to be involved in the biomonitoring so we can see what differential effects the environment can have on different groups.

We also heard testimony that Indigenous peoples are not included in the routine biomonitoring, and certainly not as included as they should be in terms of large enough numbers for us to get a good understanding of what’s happening to Indigenous peoples.

Because we can’t put money into this bill in the Senate, we strongly urge through our observations that these scientific necessities be improved dramatically within Canada and that the other place address those in this bill. Thank you very much, Senator McCallum, for that question.

Hon. Rosa Galvez: Honourable senators, I rise to speak to Bill S-5, the strengthening environmental protection for a healthier Canada act. As you may know, the Canadian Environmental Protection Act, or CEPA, was adopted in 1999 and has not seen any significant modernization since. Twenty‑three years is too long of a wait to update our protection regime in a fast-changing world. More than 28,000 chemicals are registered for use today, and more than 600 new chemicals are introduced every year in Canada, which is more than triple than in the U.S.

I encourage you to vote in support of Bill S-5 as amended in committee and want to use this opportunity to explain how and why CEPA affects all of us, and why it is important that we frequently study and review this act.

CEPA provides the framework for how, why and when chemical substances are assessed for toxicity, and whether and how they need to be regulated. Bill S-5 seeks to strengthen this assessment and regulation-making framework.

[Translation]

The House of Commons Standing Committee on Environment and Sustainable Development studied this bill in 2017 and made 87 recommendations. Just a few of these recommendations were taken into account in Bill S-5, most notably the consideration of vulnerable populations. A number of the recommendations from the committee and from experts have not yet been included, such as the requirement of justification for confidentiality requests, risk assessment, climate change, pesticide management, radioactive substances, electromagnetic radiation and genetically modified organisms.

A number of senators tried to fill these gaps by proposing amendments during the committee’s study. I want to thank Senators Miville-Dechêne, McCallum, Patterson and Arnot for their thoughtful proposals. I also want to thank Senator Kutcher, the sponsor of the bill, for agreeing to take on the difficult task of sponsoring such a large and highly technical bill.

Yesterday, the Chair of the Standing Senate Committee on Energy, the Environment and Natural Resources shared some statistics about our work and our overall findings. I won’t repeat everything that he shared, but I do want to emphasize that 64 amendments were presented, 34 of which were adopted. I’m pleased that my colleagues supported 14 of my amendments, many of which had to do with the reduction of assessments and the number of tests on vertebrate animals.

[English]

Under CEPA, the government is tasked with assessing substances and categorizing them depending on their toxicity. The Government of Canada assesses approximately 600 new substances in the Canadian market each year. Yet, with all these substances and thousands of new products imported to Canada annually, the government has not given itself sufficient resources to undertake adequate testing. If you heard my question earlier to Senator Gold, we don’t know if the government is overly reliant on industry to provide the scientific basis for assessments, if university labs will play a bigger role in this testing or if government officials rely on literature reviews.

This ambiguity is problematic. A literature review, however useful in getting a broad picture, might not include testing in the right conditions to determine if a substance is toxic in the environment, if it might lead to long-term chronic effects in humans or if there are equivalent substances that are less toxic, for example. While these assessments are the responsibility of the minister by law, the government relies on data from experiments that are overwhelmingly designed, performed, analyzed and disclosed by industry for the purpose of sales. This overreliance on industry-provided data should warrant an additional layer of precaution, not less.

CEPA references the precautionary principle several times, an approach that emphasizes caution when addressing substances for which extensive scientific knowledge is lacking. This is a wise approach when dealing with substances that have the potential to destroy ecosystems or cause lasting health impacts on human health. Unfortunately, our environmental protection regime is more grounded in risk management than precaution.

In fact, Bill S-5 changes the CEPA preamble by removing an acknowledgement that we “. . . need to virtually eliminate the most persistent and bioaccumulative toxic substances. . . .”

This was in the initial CEPA. Today, we would rather focus on “the need to control and manage pollutants.” This is neither a precautionary approach nor prevention. It sends the wrong signal, by suggesting that there is no need to eliminate pollutants — only to manage and control them.

When it comes to prevention, we heard from the government that only 25 substances from the list of toxic substances have pollution prevention plan requirements. They went on to suggest that this should not be concerning because not all uses of substances create a risk. We must point out that highest risk and acceptable risk are not defined in Bill S-5. Without these boundaries, risk management may lead to situations where it is acceptable that citizens are exposed to different levels of dangers, which creates more inequalities. This issue is avoided when the focus is put on prevention.

I appreciate that the government proposed an amendment brought forward by Senator Kutcher in committee to extend the priority of pollution prevention actions to both parts of the list of toxic substances in Schedule 1, rather than just part 2. The committee also adopted Senator Miville-Dechêne’s amendment giving authority to the government — should they need it — to require pollution prevention plans from any manufacturer of toxic substances. Prevention is a cornerstone of adequate environmental protection, and these amendments make Bill S-5 stronger.

[Translation]

The bill also introduces a tool that I think will be good for the environmental protection framework, and that is a list of potentially toxic substances. This list sends a clear signal to industry that a substance may become toxic if it is used differently or if more of it enters the environment. It also indicates that further regulatory action may be taken if necessary. It acts as a warning system, one that is not limited to substances tied to a new activity. Although some industry witnesses were opposed to it, I believe it will benefit industry by helping them avoid substances that they would otherwise have to replace eventually.

[English]

With great expectations from citizens, Bill S-5 introduces in its preamble the right to a healthy environment. Sadly, Canadians won’t benefit from this right in its due form when the bill passes. At this stage, the bill only instructs the minister to develop and implement a plan to set out the exact nature of this right within two years of coming into force.

Hon. Rosa Galvez: Honourable senators, with great expectation from citizens, Bill S-5 introduces in its preamble the right to a healthy environment. Sadly, Canadians won’t benefit from this right in its due form when the bill passes because at this stage, the bill only instructs the minister to develop and implement a plan to set out the exact nature of this right within two years of the coming into force of the bill. Moreover, although Bill S-5 stipulates that the implementation framework must consider the principle of environmental justice, it must also consider the balancing of the right with other factors, including economic factors. Obviously, rights are subject to reasonable limits. Our charter and judicial system recognize this clearly. However, I couldn’t find any similar usage of balancing factors in other rights legislation. Colleagues, what if your right to religious freedom, for example, was balanced with economic factors? Would you accept that?

This right is better than nothing, and when Canadians will benefit from a form of this right, they will join 156 other nations around the world who already have this right enshrined in law in their constitutions. Interestingly, 110 of them afford this right constitutional protection, something that we are far from doing with Bill S-5.

Finally, I’m concerned about the government’s decision to remove the title of Schedule 1, “List of Toxic Substances.” Although the schedule is referred to as “the list of toxic substances” everywhere else throughout the bill, the title itself was removed. At first glance, it seemed like a minor omission since each substance on Schedule 1 has already been declared toxic under CEPA. However, upon further reflection, I think that it could have unintended or intended constitutional ramifications. The 1997 Supreme Court ruling in R. v. Hydro-Québec upheld CEPA as adopted in 1988 as valid legislation on the basis of its criminal law power. Justice La Forest, writing for the majority, noted that:

 . . . the stewardship of the environment is a fundamental value of our society and that Parliament may use its criminal law power to underline that value. . . .

He also stated that the act “. . . is an effective means of avoiding unnecessarily broad prohibitions and carefully targeting specific toxic substances.”

In other words, CEPA is within its constitutional jurisdiction as long as it stays narrowly focused on regulating toxic substances, an analysis that is shared with the Canadian Environmental Law Association.

Under CEPA, a substance is declared toxic if it may enter the environment under conditions that may have an immediate or long-term harmful effect on the environment or its biological diversity, may constitute a danger to the environment on which life depends or may constitute a danger to human life or health.

Lead, mercury and plastics, for example, are on Schedule 1 precisely because they are toxic, despite what you might hear from some industry representatives. As with everything, there are cases where these substances do not pose a risk, but that doesn’t mean they aren’t toxic substances as defined by CEPA. Removing the label “toxic substances” from Schedule 1 could undermine the precedents established by the Supreme Court of Canada in that 1997 ruling, ultimately weakening the government’s authority to regulate these substances.

From another angle, simply naming this list as Schedule 1 is meaningless for most Canadians and gives no indication of what this list represents. At worst, it is misleading the public just to satisfy some industries that don’t like seeing the substances they use defined as toxic.

I have opted not to bring forward an amendment to reverse this government decision, but I hope the House of Commons will consider this issue seriously for clarity and transparency.

In conclusion, Bill S-5 does improve certain aspects of Canada’s toxic substance management framework, but as explained, there is still lots to cover. We really need to better protect our environment, as our health and safety depend on it. Vulnerable populations are overexposed to pollutants present in the water and fish they eat. Without proper labelling, we buy food and items that are sprayed or treated with substances that can bioaccumulate in our bodies. Plastics that are composed in their majority of toxic substances break into microplastics that are found today in human blood and placentae. Chronic, low‑dosage exposures are also very dangerous.

I hope that we will continue improving CEPA in the years to come and we won’t wait another 23 years to update this important law. Thank you, meegwetch.

Hon. Mary Jane McCallum: Honourable senators, I rise today to speak to third reading of Bill S-5, the strengthening environmental protection for a healthier Canada act. I want to acknowledge my brothers and sisters of the Tataskweyak Cree Nation.

[Editor’s Note: Senator McCallum spoke in Cree.]

This is for you; this is your voice. Thank you to James and Anna for all their work, spirit and energy in working alongside me.

I would like to begin by registering my concern on the continuous assault of the water and lands surrounding vulnerable populations and vulnerable environments. The assault that I speak of largely occurs at the hands of resource-extractive companies. This unrelenting pressure and demand on our natural resources comes from various industries, including oil and gas, whose activities result in tailings ponds and orphan wells and whose hydraulic fracturing on both land and water comes with its own list of environmental concerns; hydro, which has had devastating effects on the quality and calibre of water, the health of the people and species who live in and rely on that water and the surrounding lands that are flooded or eroded with the changing water levels, affecting cultural and spiritual practices; forestry, which discharges effluent that has adverse impacts on surrounding land and waterways; agriculture, due to both herbicides and pesticides making their way into water sources as well as the effluent sewage and related runoff from farms; and mining, whose tailings and effluent are often discharged into the river system.

The vulnerable populations who are disproportionately affected therein, colleagues, are First Nations. Many nations and reserves are located on or in proximity to resource extraction sites. They experience many burdens that are largely unknown and unseen to Canadians who live in cities and in rural settings isolated from the multiple devastations that occur.

Honourable senators, the Assembly of First Nations’ brief to the Standing Senate Committee on Energy, the Environment and Natural Resources, under the heading “Right to a Healthy Environment Requires a Remedy,” states:

First Nations experience environmental racism throughout the country, resulting in disproportionate exposure to toxic substances and hazardous activities. Children living in communities or on reserve are disproportionately impacted by unregulated chemicals (e.g., the lack of regulation on use of pesticides and herbicides on and around reserves).

The Assembly of First Nations continues:

As noted by the United Nations Special Rapporteur on Human Rights and Hazardous Substances and Wastes, “[t]he invisible violence inflicted by toxics is an insidious burden disproportionately borne by Indigenous [P]eoples in Canada.”

The rapporteur states that the rights to health, safe water and food, adequate housing, safe and healthy working conditions and others implicated by toxins do not appear to be directly actionable under Canadian law.

Colleagues, CEPA, 1999 has been in effect for 20 years; yet, where is the protection for First Nations promised by this legislation? There was much discussion on the concept of “balancing” in the Energy Committee’s study of Bill S-5. Was the protection against toxins “balanced” with other factors like employment and economic considerations, factors that then took precedence over the lives and lands of First Nations?

Has this misaligned “balancing” led to vulnerable populations and environments? The term “vulnerable environment” was defined for the Energy Committee by Mr. John Moffet, Assistant Deputy Minister, Environmental Protection Branch, Environment and Climate Change Canada. He stated:

. . . the concept of cumulative effects is becoming better understood in the scientific community, and so an environment could be considered vulnerable, for example, if it has been subjected to multiple stresses over a period of time and a new stress, a new emission or pollution that might not have a large effect somewhere else might have a significant effect in an area that has already been subject to multiple stressors over time.

Honourable senators, I would like to raise the case of Tataskweyak Cree Nation, a community in northern Manitoba. Their stressors include the cumulative impacts of residential school and intergenerational trauma; dispossession of lands, culture, livelihood and spirituality and their impact on food security and health; endangered sturgeon population; the devastation of hydro impacts including unsafe drinking water; effluent discharge from mining in Thompson, Leaf Rapids and Lynn Lake, including tailings; and being a water basin for interprovincial and international drainage that flows into Split Lake — the water that is sacred to them.

Now, Tataskweyak Cree Nation has found that new toxins, resulting from the presence of blue-green algae, have added to the myriad of stressors already burdening their waterways. This compounding of issues is a prime example of the term “vulnerable environment.”

Colleagues, as we balance economic concerns against health and environmental concerns, we must understand the concept of poverty. Poverty is not simply the lack of income or economy. It is the lack of ability to achieve minimally satisfying living conditions. It is the devolution of one’s ancestral home territory into a hazardous environmental wasteland — as we see occurring with Tataskweyak Cree Nation and many communities.

People continue to remain disempowered due, in large part, to the regulatory gaps within federal and provincial jurisdictions. Poverty cannot be removed mainly in terms of economic growth; social changes are required. It is incumbent on us as parliamentarians to identify and remove these barriers to change.

Honourable senators, while CEPA endeavours to protect all aspects of the environment, I will largely focus on issues related to water and environment, as First Nations have been fighting for clean water in their own homeland of Canada and on their reserves for the past 100 years.

Generations of youth have never experienced clean water, having lived their entire lives under a boil-water advisory. The physical, mental, spiritual and emotional burden that this causes cannot continue to be ignored by parliamentarians. These kinds of assaults on the basic needs and human rights of human beings, as well as on those of Mother Earth, are unconscionable.

The issue of blue-green algae raised by Tataskweyak Cree Nation, or TCN, was highlighted in a brief provided to the Energy Committee by TCN’s Chief Doreen Spence, who wrote:

We are particularly concerned about the presence of the blue-green algae toxins in our Lake and drinking water supply which is why we are asking for this amendment.

In an accompanying brief, Mr. Ian Halket, TCN’s project director and a hydrologist, states:

Our lake receives the wash loads from watersheds as far away as the Rocky Mountains in Alberta, southern Minnesota, and North Dakota, as well as, the wash from Winnipeg and English River in Northern Ontario. . . . Our Lake sits at the bottom of watersheds that [drain from the above]. By the time these waters reach our Lake, the plant-available nitrogen has been used up and blue-green algae dominate.

Mr. Halket continues:

When the natural balance [of nitrogen to phosphorus] gets out of hand (low nitrogen and high phosphorus) blue-green algae start to dominate the algae community in the lake. Blue-green algae release toxins, some of which are the most toxic substances we encounter in the environment, even if you include industrial pollutants. With the advent of big agriculture, wastewater treatment plants and industrial and mining releases of effluents, the natural balance of plant-available nitrogen to phosphorus is being altered, swinging it towards the thresholds that encourage the growth of blue-green algae and increasing concentrations of cyanotoxins in lake water.

He continues:

Blue-green algae toxins . . . can result in serious illness. . . . In 2020, Health Canada confirmed that more severe symptoms include liver and kidney, nerve and muscle damage.

On this point, Chief Spence wrote:

People in our community have health complaints ranging from gastrointestinal upsets and skin rashes to disease of the liver, kidneys and nervous system, symptoms that parallel effects of exposure to blue-green algae toxins. Ours is not the only northern reserve that is experiencing these health symptoms.

Although some have tried to argue that blue-green algae are naturally occurring, it has been well established that human activity and intervention have been the main culprit in the spread and propagation of this serious matter that has brought with it dire health consequences for the surrounding communities.

As such, honourable senators, the onus is on us to embrace this opportunity and ensure that toxins from blue-green algae are addressed under Bill S-5.

As the proliferation of these toxins is largely attributable to human activity, it goes to follow that this issue would logically fall under section 46 of the CEPA legislation, which deals with “activities.”

For context, colleagues, I would like to quote Mr. John Moffet, from Environment and Climate Change Canada, where he defines “activities” within the bill. He says section 46:

. . . covers authority to gather information on a range of pollutant-related issues and covers all of the various authorities in the act: toxic substances, nutrients, intergovernmental water and air pollution, et cetera.

He goes on to say:

What we are trying to do by adding (k.1) is to go beyond information on substances and gather information about activities themselves that may, when the activity is carried out, create pollution. Then we can have better information to devise risk management approaches focused on preventing pollution as opposed to just identifying it and managing it once it occurs.

And further:

. . . the idea of (k.1) is to focus on activities related to pollution, and by that I meant activities that contribute to the kind of pollution that releases substances that are harmful to the environment or human health.

Colleagues, as Mr. Moffet has stated, this section has been specifically created to gather information on a range of pollutant-related issues, including toxic substances. I would like to point out that the Energy Committee’s report on Bill S-5, adopted yesterday, added hydraulic fracturing and tailings ponds to this section already, establishing an important precedent.

Hon. Mary Jane McCallum: Therefore, honourable senators, in amendment, I move:

That Bill S-5, as amended, be not now read a third time, but that it be further amended in subclause 9(3) (as amended by the decision of the Senate on June 21, 2022), on page 5, by adding the following and repositioning and renumbering accordingly if required:

Some Hon. Senators: Nay.