April 28, 2023 Page 1 of 6 Follow-up from the March 19 Appearance before the Senate Commitee on Energy, the Environment and Natural Resources Ques�on 1: Senator Galvez: Thank you so much for being with us tonight to answer our questions. First, it’s impactful that you’re recognizing that you knew about environmental racism for decades. So it took decades to put this bill there, and to support it, because now it’s supported by the government, which is very good. But the devil is in the details, and when we studied here CEPA modernization, there were two important changes.

One is that we took out “prevention” and replaced it with “control and management” of pollution, but if we don’t prevent pollution, we will always end up in the situation of having to clean up whatever is contaminated. I would like you to put in context these changes. The other thing, again, is that another important change in CEPA was that

Schedule 1, lethal toxic substances, got its name changed, and now it’s only called "Schedule 1." Now in the courts, they are — people are debating what is toxic, what is not toxic; plastic is toxic or it’s not toxic. So all of this creates a lot of confusion, and it doesn’t make the court case clear, or we put too much pressure on courts to take a position. Ms. McCready: (…) Thank you for the question. We may want to follow up with you in writing, because there might be important contributions from our colleagues at Health Canada on your question relating to toxic substances.

Answer to Ques�on 1: Pollu�on Preven�on • Pollu�on preven�on remains a founda�onal principle of the Canadian Environmental Protection Act, 1999 (CEPA or Act). This is reflected in the long �tle of the Act, which remains

An Act respecting pollution prevention and the protection of the environment and human health in order to contribute to sustainable development and, as stated in the Act’s declara�on, “the primary purpose of this Act is to contribute to sustainable development through pollu�on preven�on.” The principle of pollu�on preven�on is found in various provisions throughout the Act, and

Part 4 of the Act is specifically dedicated to “Pollu�on Preven�on”. In fact, no references to “pollu�on preven�on” were removed by Bill S-5. Control and Management • The phrase “control and management” appears alongside the concept of “pollu�on preven�on” in the

preamble of the Act. This was not changed by Bill S-5 (see comparison table below).

April 28, 2023 Page 2 of 6 • The only modifica�on to this paragraph was to remove reference to the virtual elimina�on regime. The provisions for virtual elimina�on of toxic substances that are persistent and bioaccumula�ve were repealed and replaced with a new regime that remains risk-based but provides that toxic substances of highest risk should be managed by giving priority to prohibi�on. Before Bill S-5 A�er Bill S-5

Whereas the Government of Canada will endeavour to remove threats to biological diversity through pollu�on preven�on, the control and management of the risk of any adverse effects of the use and release of toxic substances, pollutants and wastes, and the virtual elimina�on of persistent and bioaccumula�ve toxic substances;

Whereas the Government of Canada will endeavour to remove threats to biological diversity through pollu�on preven�on as well as the control and management of the risk of any adverse effects of the use and release of toxic substances, pollutants and wastes; • The following link provides a side-by-side comparison of CEPA before and a�er amendments included in Bill S-5: htps://www.canlii.org/webdiff/diff.do?lang=en&path=%2Fen%2Fca%2Flaws%2Fstat%2Fsc- 1999-c-33%2Flatest%2Fsc-1999-c-33.html&path=%2Fen%2Fca%2Flaws%2Fstat%2Fsc-1999- c-33%2F187686%2Fsc-1999-c-33.html#h=97844.734375

Schedule 1 of CEPA • Bill S-5 renamed “the List of Toxic Substances in

Schedule 1” as simply “Schedule 1”. However,

Schedule 1 is s�ll referred to as the “list of toxic substances in

Schedule 1” throughout the Act. The change from upper case to lower case reflects that the language is now descrip�ve of the list in

Schedule 1, rather than its �tle. • The test to trigger risk management under CEPA remains the same, and that is the conclusion by a risk assessment that a substance meets the criteria in sec�on 64 of the Act to be considered “toxic” – harmful to environment, danger to life or health, or danger to the environment on which life depends. That test has not changed as a result of Bill S-5. • In short, all substances on

Schedule 1 (Part 1 and

Part 2) have been found to be “toxic” based on the criteria in sec�on 64, and this test has not changed as a result of Bill S-5. Ques�on 2: Senator Sorensen: I’m going to take an opportunity to get a bit of a status update. I think most people in the room are aware of this, some may not be.

April 28, 2023 Page 3 of 6 Last year, Imperial Oil and the Alberta Energy Regulator hid from Athabasca Chipewyan First Nation the fact that a massive spill had occurred in their community. If it’s okay, I thought I’d take an opportunity to ask for an update on what’s happening with that scenario. To tie it to the bill, do you believe that the strategy that will come out of this bill will assist the federal government with better tools and proper tools to ensure the protection of communities like Athabasca Chipewyan First Nation and more accountability for, in this instance, the regulator? Ms.

McCready: For the update, we will have to get back to you in writing. It’s good that you got it on the record, but we’ll get you a better answer from the appropriate officials. Senator Sorensen: Yes, I’d be curious to know where it’s at. I was reading an

article from several months ago. Answer to Ques�on 2: • Since becoming aware of the seepage incidents at the Imperial Oil Ltd.

Kearl Oil Sands Site in February 2023, Environment and Climate Change Canada (ECCC), Indigenous Services Canada (ISC) and Health Canada (HC) have worked with the Government of Alberta and Imperial Oil Ltd. to respond to the Athabasca Chipewyan First Na�on’s immediate concerns, including to ensure access to safe drinking water and to advise on the safety of tradi�onal food sources. • Provincial, territorial, Indigenous and local community officials are currently engaged through various working groups with the Government of Canada, such as the No�fica�on Monitoring Working Group (NMWG).

This working group is comprised of ECCC as the federal partner, several Indigenous Na�ons including the Fort Chipewyan communi�es, Indigenous representa�ves from the Northwest Territories, with Alberta Environment and Protected Areas as observers. The NMWG may develop improved no�fica�on and communica�on protocols to communi�es for environmental incidents, and may examine approaches to support a more open and transparent approach to monitoring, depending on its scope and mandate, which are s�ll under development.

Addi�onally, in recogni�on of the importance of the Athabasca River to Indigenous Peoples, ECCC and nine Indigenous communi�es also established a Crown-Indigenous Working Group (CIWG) in 2021. This group is exploring a range of op�ons to manage the accumula�on of oil sands process-affected water in exis�ng tailings ponds. One of the op�ons under considera�on includes regula�ons that, if developed, would place strict condi�ons on the treatment of effluent for its release.

Any such regula�ons would only be developed with strict protec�ve standards reflec�ng the best available scien�fic informa�on and Indigenous knowledge. The federal government is con�nuing to work on what other op�ons may exist, in coordina�on with the provincial government.

April 28, 2023 Page 4 of 6 • We an�cipate that the strategy, as outlined in the Bill, will enable other ini�a�ves, like the CIWG, to assess, prevent and address issues of environmental racism. Ongoing formal inves�ga�on into Imperial Oil Ltd.’s Kearl Oil Sands Site • ECCC is responsible for administering and enforcing the pollu�on preven�on provisions of the Fisheries Act, which prohibit the deposit of deleterious substances into water frequented by fish.

These provisions are enforced in accordance with the Compliance and Enforcement Policy for the Habitat Protec�on and Pollu�on Preven�on Provisions of the Fisheries Act, which is available online at: htps://www.canada.ca/en/environment-climate- change/services/environmental-enforcement/publica�ons/compliance-enforcement-policy- fisheries-act.html. • ECCC enforcement officers are con�nuing their ongoing inves�ga�on into a possible contraven�on of subsec�on 36(3) of the Fisheries Act at the Imperial Oil Kearl Oil Sands Site. • ECCC enforcement officers and environmental emergencies officers have carried out inspec�ons at the site since they became aware of the incident on February 7, 2023.

In addi�on to the inves�ga�on, officers con�nue to monitor the mi�ga�on measures taken by Imperial Oil Ltd. to prevent impacts to fish bearing water, as required by the Fisheries Act Direc�on issued by ECCC Enforcement on March 10, 2023. • As the inves�ga�on is ongoing, it would be inappropriate to provide further informa�on at this �me. News releases in rela�on to the incidents at the Kearl Oil Sands Mine are available online at: htps://www.canada.ca/en/environment-climate-change/services/oil-sands- monitoring/federal-ac�ons-kearl-oil-sands.html. • Imperial Oil Ltd. has also published a

summary of its own inves�ga�on into the cause: htps://www.imperialoil.ca/-/media/imperial/files/opera�ons/kearl/kearl-seepage- inves�ga�on-results-may-5-2023.pdf

April 28, 2023 Page 5 of 6 Ms. Heather McCready: “It’s not appropriate for us to opine on any amendments the government should or should not make because that’s a ques�on for cabinet. But there are a number of ini�a�ves under way in the department … that are relevant to the issues here.” Ms. Susan Mar�n: “Just to build on what Heather has already men�oned, I think there are a number of programs that operate in this space, so I think to look at individual amendments to different pieces would make it more complex than actually a single bill that goes at this issue directly.” Ms.

Amanda Monforton: “In prepara�on to meet the requirements of Bill C-226 and to inform a Canadian-specific approach to the development of an environmental jus�ce strategy, the department has undertaken research on the concept, along with the policies, ini�a�ves and models that exist in other jurisdic�ons.” Environmental jus�ce (EJ) is a new policy area for the federal government, as EJ has typically been pursued at a localized, grassroots level.

In prepara�on to meet the requirements of the proposed Act, and to inform a Canadian-specific approach to EJ strategy development, ECCC officials have undertaken research on the concept and on policies, ini�a�ves and models that exist in other jurisdic�ons. The only jurisdic�on that has ins�tu�onalized EJ is the United States, where there has been an intent to formally incorporate the concept into federal efforts since the early 1990s, led by the United States Environmental Protec�on Agency (USEPA).

While the United States has over thirty years of experience applying EJ across their federal government, significant progress within the federal space has only taken place within the past decade, and with huge policy leaps over the last two years. Further, the US policy approach to key elements, such as measuring cumula�ve impacts and clearly defining EJ across federal departments, is s�ll being developed and explored. EJ as a principle and concept has grown and evolved since early incep�on in the 1980s.

While there is no established defini�on, the principles and concepts of EJ are broadly understood to include improved procedural, recogni�onal and distribu�ve jus�ce. Procedural and recogni�onal jus�ce seek to improve the ways in which decisions are made and ensure that those who are impacted by environmental injus�ce are reflected and included in decision- making spaces. Distribu�ve jus�ce involves iden�fying the ways in which certain popula�ons face dispropor�onate environmental burdens, such as pollu�on, and seeking to improve environmental benefits for said communi�es.

Given EJ is a broad set of principles and/or concepts, there are already several direct references to EJ in some federal ini�a�ves, including (but not limited to):

April 28, 2023 Page 6 of 6 • Bill S-5,

An Act to amend the Canadian Environmental Protec�on Act, also includes an EJ principle related to distribu�ve jus�ce, “the avoidance of adverse effects that dispropor�onately affect vulnerable popula�ons”. • Na�onal Adapta�on Strategy includes “Advanc(ing) equity and climate and environmental jus�ce” as a guiding principle. o Consequently, Climate Jus�ce (CJ) is o�en used interchangeably with EJ, given both concepts are concerned with systemic issues (e.g., unequal outcomes, impacts on air, land and water, etc.). o Recognizing that EJ adopts a broader lens towards issues of representa�on and recogni�on in all types of environmental decision-making and policies, it will be important within the Canadian context to ensure policy coherence between CJ, par�cularly in the context of climate adapta�on (e.g., the Na�onal Adapta�on Strategy), and the EJ strategy. • Federal Sustainable Development Strategy encompasses environmental jus�ce concepts, par�cularly Goal 16: Promote a fair and accessible jus�ce system, enforce environmental laws, and manage impacts.

Further, officials have iden�fied federal legisla�on, policies, tools, and programs that may be considered in the development of the strategy, including (but not limited to): • the implementa�on of the United Na�ons Declara�on on the Rights of Indigenous Peoples Act (UN Declara�on Act), • Government of Canada’s An�-Racism Strategy (2019-2022, and renewal), • amendments to the Canadian Environmental Protec�on Act, • Indigenous Jus�ce Strategy, • the priori�za�on of the Federal Contaminated Sites Ac�on Plan, and • the applica�on of Gender-based Analysis Plus Policy coherence among various ini�a�ves will be important in the context of strategy development.