Blog: Time to Fix Amendments to Toxic Substances Law

Blog post by Joseph F. Castrilli, CELA Counsel

The Canadian Environmental Law Association (CELA) is urging the federal government to substantially improve amendments to the Canadian Environmental Protection Act (CEPA) which were introduced for First Reading in April 2021 in Bill C-28 but did not proceed further due to the intervening Fall 2021 election.

CEPA is Canada’s primary law for protecting human health and the environment. Yet Bill C-28, containing the first major amendments to CEPA in over 20 years, seeks to fix things in the Act that are not broken, and fails to correct things in the Act that are not working. The Canadian public should not have to wait another 20 years to fix in 2040 what is already long overdue for reform today. Among the problems with Bill C-28, identified in a 45-page CELA brief recently provided to the federal ministers of environment and health, include:

• Changes to Schedule 1 of the Act on toxic substances risk the Act’s constitutionality;
• Failing to make pollution prevention plans mandatory, instead of discretionary, for any toxic substance listed in Schedule 1 (this failure has resulted in only one-sixth of all substances in the Schedule in the last 20 years having a plan, a rate that, if continued, will mean that all existing substances in Schedule 1 will not have a plan until the year 2100);
• Treating the pollution prevention plan requirement in the Act, meant to control the creation and use of toxic substances, as predominantly a pollution abatement measure has allowed such substances to stay in Canadian commerce and the environment;
• Proposing to repeal the virtual elimination provisions of CEPA will further weaken attempts to get toxic substances out of Canadian commerce and the environment;
• Proposing to recognize a right to a healthy environment but not provide an enforceable remedy will render the right ineffective;
• Failing to make substitution of safer alternatives to toxic substances a central focus of amendments to the Act places Canadians at risk, and Canada at a disadvantage with other countries that have done so;
• Lack of a mandatory testing requirement where available information is inadequate to determine if a chemical is toxic, capable of becoming toxic, or disruptive of the endocrine system, for example, undermines protection of the general population as well as vulnerable populations;
• Missing the opportunity to address increasing ambient air quality issues posed by Schedule 1 toxic substances inequitably risks greater health problems across the country

The problems CELA identified with Bill C-28 need to be corrected and are all capable of correction. The federal government should commit to correcting them either: (1) before re-introducing a Bill in Parliament, if possible; or (2) during Parliament’s consideration of a new bill. When it comes to dealing with toxic substances, including substances present in the environment due to human activity that cause cancer, mutations, or neurotoxic effects, the Canadian public deserves more than housekeeping tweaks, changes that do not go far enough, or amendments that lead the charge in the wrong direction.