Follow-up report to the Standing Committee on the Canadian Environmental Protection Act: chapter 5

5 Environmental rights

In its report, the committee recognized that numerous aspects of CEPA “[…] exemplify substantive and procedural dimensions of environmental rights […]” and framed a number of its recommendations in terms of giving greater force and effect to environmental rights. For instance, the committee recommended that “[…] a series of substantive and procedural improvements be incorporated into the various sections of CEPA to give greater force and effect to environmental rights, including as set out in recommendations 2, 4, 15-34, 36, 37, 39-50, 52, 54, 56-60, 62, 75, 76 and 80” (recommendation 5).

The committee characterized environmental rights as having three dimensions: i) a substantive right to environmental quality; ii) the obligation of non-discrimination in environmental protection (environmental justice); and iii) procedural environmental rights. Each of these dimensions is discussed in the sections below.

5.1 A substantive right to environmental quality

The committee recommended that the preamble of CEPA be amended to explicitly “[…] recognize the right to a healthy environment” (recommendation 3, sub-bullet 1), and that the “[…] government consider amending CEPA to include the right to a healthy environment […]” in a number of specific sections of CEPA (recommendation 4). However, the committee did not define what such a right would mean. The committee recognized that the environmental protections provided in CEPA already establish substantive protections for environmental quality. The government commits to further study and stakeholder engagement on the implications of these recommendations.

5.2 Procedural environmental rights

As noted by the committee, procedural rights are already strongly represented in CEPA, including access to information, public participation and access to justice (e.g., codified consultation and public comment periods; requirements to publish information and maintain the CEPA online registry; the ability of the public to bring civil actions against alleged offenders, and to request reviews of existing laws and policies and whistle-blower protections).

In addition, engaging stakeholders and the public is central to several programs under CEPA. For example, at each stage in the CMP management cycle stakeholders are engaged, the public has the opportunity to be involved, the government works closely with provincial, territorial and Indigenous counterparts, and information is reported to the public. Under the CMP, the government publishes rolling work plans for information gathering, risk assessment, as well as risk management activities and consultations.

External bodies also support the implementation of the CMP. The CMP Science committee helps to ensure that the CMP has a strong science foundation. The Science committee meets biannually, and can hold additional meetings as needed. The CMP Stakeholder Advisory Council encourages dialogue among different stakeholder groups and offers them the opportunity to provide advice and input to government on policy and program implementation. The Stakeholder Advisory Council also meets biannually, with the possibility of additional technical meetings or discussions. In addition, the CMP program also holds biannual Multi-Stakeholder Workshops with a focus on engagement with a broader group of stakeholders on current and future topics.‎

The committee recommended that CEPA be amended to “[…] expand and strengthen duties and rights for transparency, public participation, accountability mechanisms and consultation” (Recommendation 2). The committee also recommended that taking action on a number of its recommendations could result in procedural and substantive improvements to the Act (recommendations 2, 4, 15-34, 36, 37, 39-50, 52, 54, 56-60, 62, 75, 76 and 80) (recommendation 5). The government will take actions to strengthen procedural rights under CEPA—such as access to information and public comment periods—through improved implementation of CEPA and programs. These recommendations will also inform the government’s work to reform CEPA.

The committee recommended that “[…] following stakeholder consultations on the implementation of hazard labelling, CEPA be amended to require mandatory hazard labelling of all products containing toxic substances” (Recommendation 15). The government recognizes the importance of improving Canadians’ access to the information they need to make informed decisions about the products that they use. The government commits to continuing to consider product labelling as part of the suite of available risk management tools and to reviewing best practices regarding product labelling internationally. The government also commits to further consider the committee’s recommendation as part of its stakeholder engagement on this issue through the CMP Post-2020 process, which will inform how CEPA is reformed.

CEPA includes authorities to require the labelling of products. This authority has been used in various cases, such as the Products Containing Mercury Regulations. Labelling requirements also exist under other federal acts that manage chemicals in consumer products (e.g., the Canada Consumer Product Safety Act, the Pest Control Products Act and the Food and Drugs Act).

As part of the current phase of the CMP, ECCC and HC have increased transparency through a number of implementation-based approaches and will continue to do so. In response to the committee’s recommendations, ECCC and HC have already made changes to make it easier for the public to obtain information on chemicals, including through the creation of information sheets and plain language summaries for assessed substances, risk assessment fact sheets, and the publication of risk assessments and risk management actions. Summaries of data collected using information gathering provisions under CEPA are also made available to the public, and raw data is now being made available through the government Open Data portal. A national media campaign (radio and print) has focused on high profile substances such as asbestos, boric acid and flame retardants. HC has targeted specific groups (youth, seniors, homeowners, caregivers, and Indigenous organizations) to communicate information on toxic substances that is relevant to them. Website improvements, contributing data to Open government, and increased use of social media platforms, such as Facebook and Twitter, are also aimed at engaging and informing Canadians.

The government also publishes a Chemicals Management Plan (CMP) Progress Report twice a year to keep stakeholders and other interested parties up to date on the activities and programs related to the CMP. It reports on advances in major initiatives and highlights key activities related to the government's recent work under the CMP.

Potential new areas are being considered to further improve Canadians’ access to information they need to make informed decisions about the products they use:

  • Identifying information needed by Canadians and consumers to make informed product choices:  Additional research is being conducted to better understand what information is needed by consumers, and in what format, to help them make informed decisions about the products they buy and how they use them to protect themselves from risks, as well as how to determine safer alternatives. The government will consult on options and roles of various stakeholders as it develops its post-2020 chemicals management program.
  • Building partnerships to provide better information: ECCC and HC are considering how to better engage manufacturers and retailers to determine how they could play a more active role in communicating the risks of chemicals at the retail level. Using science-based information provided by the government and other sources, manufacturers, distributors, retailers or third parties could develop consumer tools (e.g., barcodes / QR codes, mobile apps, certification programs) to identify product ingredients, in particular harmful ones, and provide links to trusted safety information or product alternatives.
  • Considering the potential for “nudging” techniques and new technologies to influence consumer behaviour: The use of technologies such as cell phone apps could help consumers make point-of-purchase decisions, and exert influence on manufacturers to use greener chemistry in their products.

The committee recommended “[…] improving the CMP website to allow anyone to submit data, evidence, and arguments for consideration” (recommendation 24). The government supports the intent of this recommendation, and is implementing it through online reporting tools. For instance, ECCC’s single window and an e-mail portal allows stakeholders to provide any data or comments they want the government to consider in risk assessments and risk management activities. Stakeholders may also provide views or seek clarifications through letters to the Minister or petitions to the Commissioner of the Environment and Sustainable Development, or by contacting the program directly.

To further increase transparency and to facilitate access to information on substances in commerce in Canada, the government is also committed to providing summaries of information received in response to information gathering initiatives. Non-confidential summaries can be found on the Government of Canada’s Open Government Portal.

The committee also recommended that CEPA be amended to “[…] require notice in the Canada Gazette for a 30-day comment period when a person submits a new substance or living organism notification […]” (recommendation 25) and that CEPA be amended to “[…] establish a more open, inclusive and transparent risk assessment process that better enables public participation in the evaluation of new living modified organisms” (recommendation 26). The government recognizes the committee’s concern, and acknowledges the need to balance the private interest in confidentiality and the public interest in access to information.

The government publishes summaries of the risk assessments of new living organisms, and new chemicals and polymers where a risk management instrument has been imposed on the substance.

The government will take actions to strengthen procedural rights under CEPA—such as access to information and public comment periods—through improved implementation of CEPA and programs. For example, the government will publish summaries of completed risk assessments of all substances assessed under the New Substances Notification Regulations that are eligible for addition to the Domestic Substances List. The government will also work with notifiers to voluntarily publish non-confidential summaries of notifications for higher organisms (e.g., genetically modified plants and animals). The publication of the summary will allow for a public comment period where the public will be invited to alert the departments to relevant scientific information and test data that may inform risk assessment. A summary of comments received will also be published.

The government continues to engage stakeholders on additional program improvements to increase ‎transparency and public engagement as part of the CMP Post-2020 process, including at the May 2018 multi-stakeholder working group meeting. These recommendations will also inform the government’s work to reform CEPA.

The committee also recommended amending subsection 54(3) and similar sections of the Act to “[…] require public consultation and the publication of peer-review comments” (recommendation 27).  The government will take actions to strengthen procedural rights under CEPA—such as access to information and public comment periods. Public participation and transparency are important in the development of objectives, guidelines and codes of practice issued under subsection 54(1). While not all comments should be publicly attributed, the government is addressing this recommendation through implementation. For example, ECCC has implemented a process where instruments issued under section 54 are pre-published in the Canada Gazette for a 60-day public comment period. ECCC also commits to considering opportunities for increased transparency and public participation in the development of environmental quality guidelines.

The committee recommended that CEPA’s procedural rights and transparency could be increased by amending CEPA “[…] to expand the scope of the environmental registry to consolidate all postings and provide notice and comment opportunities for all applications and proposed regulations, policies, guidelines, approvals and permits under federal environmental legislation” (Recommendation 29). The government does not support this recommendation at this time.

The CEPA environmental registry publishes all documents relating to the administration of CEPA, including: agreements (e.g., administrative agreements, equivalency agreements); CEPA annual reports; the CEPA compliance and enforcement policy; environmental protection alternative measures; fact sheets; codes of practice, guidelines and objectives; memoranda of understanding; notices of objection; plans (e.g. pollution prevention plans); significant new activity notices; and substance lists.

The CEPA environmental registry also contains a number of notices, orders and permits issued under CEPA, as well as current, proposed, or repealed CEPA regulations. It can also be used to search all public consultations that are in progress or that have been completed under CEPA.

Expanding it to all federal environmental legislation would increase its complexity significantly, and could be duplicative of other resources, such as the Species at risk public registry).

The government supports the committee’s recommendations concerning disclosure of information such as “[…] explicit biological names of substances or living organisms when risk management instruments are in place for the substance or living organism” (recommendation 16) and the release of “[…] the explicit chemical or biological name […]” for masked names after a 5-year period (recommendation 17) (see discussion paper 2.3). The government agrees with the committee and these recommendations will inform its work to reform CEPA. In the interim, the government is finalizing an approach to strengthen transparency in CMP risk assessment activities which will require that companies now provide a rationale for confidential business information (CBI) claims and outline the types information that are generally not expected to be CBI. The approach will also detail a process whereby the government may disclose certain CBI in specified circumstances.

Finally, the government agrees with the committee’s recommendation to require proponents to provide a justification for keeping information confidential under section 313 (recommendation 18) (see discussion Paper 9.1), and this recommendation will inform its work to reform CEPA.

5.3 National Pollutant Release Inventory reporting

Good information is crucial for enabling informed public decisions and holding the government accountable. The National Pollutant Release Inventory (NPRI) plays an important role in supporting that goal. The NPRI is Canada's legislated, publicly accessible inventory of pollutant releases and transfers. It comprises information reported by facilities to ECCC under CEPA. The NPRI is at the center of the government's efforts to track toxic substances and other substances of concern. It is a key tool for identifying and monitoring sources of pollution in Canada, as well as for developing indicators for the quality of our air, water and land. Information collected through the NPRI is used for chemicals management initiatives and is made publicly available to Canadians each year. Public access to the NPRI motivates industry to prevent and reduce pollutant releases. NPRI data helps the government track progress in pollution prevention, evaluate releases and transfers of substances of concern, identify and take action on environmental priorities, conduct air quality modelling, and implement policy initiatives and risk management measures.

ECCC considers improvements to the NPRI program requirements on an ongoing basis through existing processes and using published decision factors. The decision factors help to determine if the NPRI is the appropriate vehicle to collect the information sought by the change proposal and whether the change is warranted.

Any person in Canada can propose changes to the NPRI reporting requirements. Proposed changes to NPRI requirements are consulted on with stakeholders, in particular through the NPRI multi-stakeholder work group, which includes representatives of the reporting community, environmental non-governmental organizations, and Indigenous organizations.

Recent changes to NPRI requirements, which were considered through this multi-stakeholder process, are improving the data available through the NPRI. For example, the coverage of reporting from the oil and gas extraction sector is being increased. Many reporting facilities from this sector are being required to report more information about their releases to air for a larger group of substances. Also, up to 2,000 additional facilities are being required to report their releases from storage tanks. Other changes include increasing reporting from the chrome plating sector, changing the list of volatile organic compounds to be more relevant for forecasting air quality, and providing more information to understand changes in reported values over time. The NPRI will collect and publish data reflecting these changes in 2019, and annually afterwards.

The committee recommended that various improvements be made to the NPRI, all of which could impact reporting on releases of pollutants to the Canadian environment. The committee recommended “[…] removing the reporting exemption for oil and gas exploration and drilling […]” activities (recommendation 19, sub-bullet 1). Emissions from most oil and gas activities are covered by the NPRI. About 3,500 oil and gas facilities currently report under the NPRI each year. Following the committee’s report, ECCC announced an expansion in NPRI reporting requirements, which will result in more oil and gas facilities starting to report for this year. The exemption for exploration and drilling activities has been retained because emissions from these activities are typically too low to meet the NPRI reporting thresholds, and the activities themselves are time-limited, making them difficult to capture through an annual, facility-based reporting program like the NPRI. As part of ongoing program review processes, the government continues to assess new information on oil and gas exploration and drilling activities to determine if a re-consideration of reporting to the NPRI for these activities is warranted. If so, such changes would be considered using existing NPRI processes and using published decision factors, in consultation with NPRI stakeholders.

The committee recommended “[…] including separate NPRI spills reporting requirements in CEPA […]” (recommendation 19, sub-bullet 2). The government supports the intent of this recommendation, and will implement this intent by collecting and reporting separate information on spills through the NPRI, under section 46.

The committee recommended “[…] requiring reports on facility operational performance on pollution prevention and reduction […]” (recommendation 19, sub-bullet 3). The government supports the intent of this recommendation and has expanded the NPRI reporting requirements as of the 2018 reporting year. These include improving information on the reasons why reported quantities change from year to year, and identifying potential barriers to pollution prevention. Changes being considered for 2020 reporting include better linking of reported pollution prevention activities to individual NPRI substances. These changes were informed by regular engagement with stakeholders and data users, from within and outside of government, to seek input on potential improvements to the program.

The committee recommended that NPRI reporting include “[…] daily, weekly and monthly pollution data […]” (recommendation 19, sub-bullet 4).  The government does not support this recommendation at this time. The purpose of NPRI reporting is to provide information on annual trends in emissions and releases. The NPRI is not intended to capture specific information on releases at a particular moment in time. Reporting requirements under regulations, on the other hand, are often more detailed and require more frequent monitoring and reporting. ECCC continues to require reporting through the NPRI on a monthly breakdown of pollutant release data for certain substances and a quarterly breakdown for others.

The committee recommended that the government consider “[…] lowering thresholds for NPRI reporting […]” (recommendation 19, sub-bullet 5). The government supports the intent of this recommendation, and will continue to consider changes to NPRI reporting requirements, including reducing the thresholds for substances that must be reported. The program recently set reduced thresholds for a number of substances. Any person in Canada can propose changes to the NPRI reporting requirements, including threshold reductions.

The committee recommended amending CEPA to “[…] enable public input to NPRI reports and to require timely government response” (recommendation 19, sub-bullet 6). The government supports the intent of this recommendation and has established a public process for considering changes to the NPRI. This enables public input to program requirements and timely responses to change proposals.

The committee recommended that CEPA be amended to “[…] require that all substances known to be persistent and/or bioaccumulative be included in the [NPRI]” (recommendation 20). The government recognizes the concern of the committee and will assess these substances for addition to the NPRI as part of the public process for considering changes to the NPRI using published decision factors. These decision factors require that substances listed on the NPRI are of human health or environmental concern and are released in significant quantities from facilities.

5.4 Environmental justice

Environmental justice, or the obligation of non-discrimination in environmental protection, relates to addressing the unequal burden of exposure of certain groups of the population to environmental impacts. For example, environmental exposure to certain substances may pose greater health risks for certain more vulnerable members of society, such as children, expectant mothers, and elderly persons, than for the general population, owing to physiological differences such as body size, weight, metabolism and growth rate. It is also important that risk management decisions provide protection to all Canadians, and avoid situations where low income or other groups of people are exposed to higher risks than others. The committee made several recommendations relating to vulnerable populations and “hot spots” designed to help improve environmental justice under CEPA. For a full discussion of the steps the government is considering to improve environmental justice under CEPA, refer to the “vulnerable populations and cumulative effects” and “response to addition to schedule 1” subsections of chapter 3 and the “hot spots” subsection of chapter 4.

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