A federal government lawyer tried last week to answer environmentalist
critics of proposed new pesticides legislation by insisting that Ottawa
does not have the constitutional power to control or ban cosmetic
pesticide use, even if it wanted to.
Basil Stapleton, a justice department lawyer, told the House of Commons
health committee on May 21 that critics are wrong when they complain
Ottawa could use its jurisdiction over public health to ban cosmetic
pesticide use if it had the political will.
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Pesticide manufacturers have warned that a ban on cosmetic use would
deprive the industry of revenues and make it harder to create and
market products to farmers.
Last year, the Commons environment committee recommended the phasing
out of cosmetic pesticide and herbicide use aimed at keeping lawns,
golf courses and parks as weed-free as possible.
Stapleton said Ottawa’s share of control over pesticides rests in the
Criminal Code and its ability to set rules about how pesticides can
legally be put on the Canadian market. He said the government would
have to prove in court that using pesticides on lawns or golf courses
or within urban areas poses a serious public risk.
He said it would be a difficult point to prove when all pesticides
approved for sale by the Pest Management Regulatory Agency already have
been deemed safe if used as prescribed.
“Clearly, the federal Parliament can enact legislation which can
regulate some aspects of the use of pesticides. That’s not an issue,”
he told MPs. “The question is, how far can it go?”
Stapleton said provinces have jurisdiction over pesticide regulation
because of their constitutional jurisdiction over property. Courts have
ruled provinces can delegate to municipalities the right to ban
cosmetic use.
He said those who insist Ottawa should intervene in the issue in the
interests of national health are essentially saying the federal
government should intrude in provincial jurisdiction.
“The federal government can’t oust provinces from their jurisdictions
using criminal law.”
To go further would lead to constitutional challenges and spending
money on defending the law rather than on regulating chemicals.
“That is, in my humble submission to you, as far as we could
legitimately go,” Stapleton said.
He also tackled the critics over their complaint that the pesticides
act does not err on the side of caution by incorporating the
“precautionary principle” when assessing the acceptability of pesticide
products.
Environmentalists often pine for the precautionary principle that was
adopted 10 years ago during a United Nations environmental conference
in Rio de Janeiro, Brazil.
Stapleton said the caution used by the PMRA actually is more stringent.
In the Rio declaration, the precautionary principle requires a product
be kept off the market if there is evidence of “serious or irreversible
harm.”
The PMRA standard says a product can fail the test if there is “a
reasonable expectation of human or environmental risk,” he added. He
said the only higher standard Canada could have would be a ban on
pesticides.
“Canadian standards are much more stringent and provide a much higher
level of protection,” he told MPs.
