The Government of Canada has re-introduced legislation to amend the Canadian Environmental Protection Act, 1999 (“CEPA“) and make related amendments to the Food and Drugs Act.
Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act
On February 9, 2022, the Honourable Senator Marc Gold introduced and sponsored the first reading of Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, in the Senate. Except for minor revisions, Bill S-5 is a re-introduction of Bill C-28, which was sponsored by Minister of Environment and Climate Change Steven Guilbeault and introduced in the House of Commons on April 13, 2021. Bill C-28 did not pass before the federal election in 2021.
Bill S-5 proposes to amend CEPA in three main areas:
- introducing the right to a healthy environment;
- providing protections for vulnerable populations and considerations of cumulative effects; and
- changing the management of toxic substances.
The Right to a Healthy Environment
Bill S-5 proposes to amend the preamble to CEPA to “recognize that every individual in Canada has a right to a healthy environment.” Within two years of the relevant section of Bill S-5 coming into force, the Ministers of Environment and Climate Change and Health would be required to develop an implementation framework for administering the right to a healthy environment in the context of CEPA. The implementation framework would be developed in consultation with interested persons and elaborate on:
- how principles such as environmental justice and non-regression will be considered in administering CEPA;
- research, studies or monitoring activities the Minister will conduct to support the protection of the right to a healthy environment; and
- balancing the right to a healthy environment with social, economic, health and scientific factors.
Protections for Vulnerable Populations and Considerations of Cumulative Effects
Bill S-5 would require the Government of Canada to protect the health of vulnerable populations in the administration of CEPA. Vulnerable populations would be defined as those who may be at increased risk of experiencing adverse health effects because of greater susceptibility or exposure to toxic substances.
In conducting research on whether a substance is toxic or capable of becoming toxic, the Ministers of Environment and Climate Change and Health may consider whether exposure to the substance in combination with exposure to other substances has the potential to cause cumulative effects and whether there is a vulnerable population in relation to the substance.
The preamble of CEPA would also be amended to refer to the Government of Canada’s commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples.
Management of Toxic Substances
Bill S-5 would also extend various regulatory powers over toxic substances to products containing toxic substances or that may release a toxic substance into the environment.
The Ministers of Environment and Climate Change and Health would be required to compile a list of substances they have reason to suspect are capable of becoming toxic or that have been determined to be capable of becoming toxic. The Ministers would also be required to respond to a request from any person to assess a substance to determine whether it is toxic or capable of becoming toxic. The Ministers shall consider the precautionary principle, any vulnerable populations and any cumulative effects resulting from the exposure to the substance in combination with exposure to other substances.
The list of toxic substances would be divided into two Parts: Part 1, requiring total, partial or conditional prohibition of activities related to the substances; and Part 2, requiring pollution prevention actions in relation to the substances.
Finally, Bill S-5 would extend the power to pass regulations respecting the importation, manufacturing, processing, use, offering for sale or selling substances or products containing substances to include exporting the same.
Before Bill S-5 can become law, the Senate and the House of Commons must pass the bill and the Governor General must give Royal Assent. There is potential for further changes to be made to the text of Bill S-5 through the legislative process.
Our team of lawyers will continue to closely monitor the progress of Bill S-5. If you have questions regarding Bill S-5 and its potential effects, we invite you to contact one of the lawyers in our Environmental practice group.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.