Intervenor: vol. 27, no. 1 - 2, January - June 2002

Implementing Precaution: NGO Response to the Government of Canada's Discussion Document, "A Canadian Perspective on the Pre

The complete NGO Response to the Government of Canada's Discussion Document "A Canadian Perspective on the Precautionary Approach/Principle" was submitted in April 2002

I. Introduction

The Canadian Environmental Law Association (CELA) in consultation with members of the Canadian Environmental Network has prepared a response to the Government of Canada's discussion document entitled "A Canadian Perspective on the Precautionary Approach/Principle" (referred to as Discussion Document). Unfortunately, neither the Government's proposed vision, nor its current practices, reflects what is emerging as a new paradigm for decision making about hazards in the presence of uncertainty, namely the precautionary principle.

Seven core elements of precaution are referred to frequently in the literature and are used here as a framework for discussing precautionary approaches and their implementation. These interrelated elements are: the need for proaction, proportionality of response, provision for ecological margins of error, the intrinsic value of non-human entities, a shift in the onus of proof to those who propose change and adjusted standards of proof, a concern for future generations, and payment for ecological debts.

II. The Emergence of and Rationale for Precaution

Failures of risk-based approaches

Prevailing risk-based approaches may over-rely on hard science, mathematics and cost-benefit analysis and downplay uncertainty and value assumptions. For example, one case study on benzene occupational standard setting noted that risk-based approaches vastly underestimated the true risks because they only considered some of the then-known health risks.

There are many examples of the problematic assumptions made in traditional risk assessment. A non-exhaustive list includes the tendency to deal with simple and direct cause and effect relationships, but not with cumulative and synergistic effects of multiple activities or events and the inability to deal with complex situations; that those carrying out the assessment may not know of all hazards posed by the activity; that assumptions about levels of exposure may be completely erroneous; that the range of consequences being considered may be very narrow and the level of anticipated consequences may be completely erroneous. Furthermore, traditional risk assessment often excuses involuntary public exposure to harm.

The emergence of and rationale for precaution as a response to the failure of risk assessment.

The 1998 Wingspread Statement on the Precautionary Principle provides a rationale for precaution including the unintended environmental and human health consequences of various human products and activities, and the failure of existing regulations and risk-based decisions to adequately protect human health and the environment.

The Wingspread articulation of the precautionary approach stated,
When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof. The process of applying the precautionary principle must be open, informed and democratic and must include potentially affected parties. It must also involve an examination of the full range of alternatives, including no action.

Acceptance of precaution in the international context

The precautionary principle can be viewed as, at least, an emerging principle of international environmental law. Some commentators argue that the precautionary principle is already a principle of international law, based in part on existing state practice and its incorporation into the five environmental instruments signed at Rio de Janeiro in 1992.

Some formulations of the precautionary principle in international instruments such as the Cartagena Protocol on Biosafety and the Convention on Biological Diversity recognize the need to take earlier, preventive action.

Some versions of the precautionary principle are also stronger in that they require its exercise even where there is a "significant" threat or when there are "reasonable grounds for concern; not all formulations invoke the principle only when the concerns reach the level of "serious or irreparable damage".

CELA and other environmental NGOs assert that Canadian government policy must invoke the precautionary principle when there are "reasonable grounds for concern" so that measures can be truly precautionary. To wait for a "significant" threat or imminent prospects of "serious and irreparable damage" may often mean that it is too late to take truly precautionary measures.

Many formulations of the precautionary principle also do not include the phrase "cost-effective" measures. In the United Nations Framework Convention on Climate Change, the use of cost-effectiveness was not a test as to whether action should be taken, but was rather a screen as to the choice of method. The use of cost-effectiveness requires comparison of the overall cost of action and lack of action, in both the short and long term, and the scope of the analysis includes non-economic considerations such as efficacy of possible options and public acceptability. The European Commission's Communication on the Precautionary Principle requires that the protection of health takes precedence over economic considerations.

Canadian application of the precautionary principle

Examples of application in Canada of precautionary approaches in policy statements, statutory language and judicial interpretation date from at least the late eighties. In addition, the 2001 Royal Society's Expert Panel Report on the Future of Biotechnology advocated that Canadian regulatory agencies adopt the precautionary principle. The House of Commons Standing Committee on Environment and Sustainable Development has pressed for strong emphasis on the precautionary principle in at least two reports, and the precautionary principle has been incorporated into the CEPA, 1999 and the Oceans Act. In a recent Supreme Court of Canada decision, Hudson, the majority of the Court cited a number of authorities favouring the proposition that the precautionary principle has become a principle of customary international law. In reviewing the principle, the court considered it to be relevant in interpreting domestic Canadian law, and in particular recognized the value of a precautionary approach to issues and decisions involving potential environmental hazards.

III: Defining Elements of Precaution

The Lowell Statement on Science and the Precautionary Principle builds upon the 1998 Wingspread Statement. CELA and other Canadian groups have formally supported the Statement. It reads in part,

Growing awareness of the potentially vast scale of human impacts on planetary health has led to a recognition of the need to change the ways in which environmental protection decisions are made and the ways that scientific knowledge informs those decision. As scientists and other professionals committed to improving global health, we therefore call for the recognition of the precautionary principle as a key component of environmental and health policy decision making, particularly when complex and uncertain threats must be addressed.

Among other things, the Lowell Statement calls for action on early warnings when there is credible evidence that harm is occurring or likely to occur, even if the exact nature and magnitude of the harm are not fully understood. It imposes responsibility on originators of potentially dangerous activities to thoroughly study and minimize risks, to evaluate and choose the safest alternatives to meet a particular need, with independent review.

In addition, the Royal Society of Canada's Expert Panel suggested that the precautionary principle recognizes scientific uncertainty and fallibility, and that the precautionary principle favours a presumption or error in favour of health and environmental values.

The Lowell Statement also says that the precautionary principle reverses traditional scientific and legal burdens of proof and relaxes the standards of evidence demanded for the suspicion of unacceptable risk. The burden of narrowing uncertainty should be on proponents.

Instruments of Precaution

Some commentators have called for a general duty to use precaution in any and all environmental or public health legislation. Some promote the need to set aggressive goals to prevent, eliminate and reduce hazards, and to develop prevention-based tools such as bans and phase-outs, clean production / pollution prevention and alternatives assessment. Ongoing monitoring, investigation and information dissemination as well as participation and democratic decision making are also critical to implementation of the precautionary approach.

The precautionary principle offers an alternative paradigm, not a "distinctive approach within risk management" for decision making about potential hazards.

IV: The Precautionary Principle in the Canadian Context

Where Canada ought to apply the Precautionary Principle

There is a great variety of functions involving hazards to human and ecosystem health performed by government departments and agencies. Government roles and functions can reduce or increase the impact of a hazard. A preliminary list of functions and departments and agencies is provided.

The role of other government policies

The Government of Canada's Integrated Risk Management Framework is referenced in the Discussion Document as part of the foundation for the implementation of the Precautionary principle in Canadian government policy. However, there are some concerns that must be highlighted with respect to that Framework. For example, precaution is limited to application "within" the risk management paradigm. The Framework also pits innovation against protecting the public interest, as though they were necessarily different goals.

The Government of Canada Discussion Document

The Discussion Document proceeds from a number of principles that are not consistent with the articulation of the precautionary approach by a growing number of observers and by international practice. For example, predictability of regulatory decision making may not always be possible and should not be placed ahead of environmental and health protection as overarching goals. The Discussion Document also assumes the existence of a mythical notion, namely "society's chosen level of protection against risk". It also appears to be based on an underlying assumption that risk-based science is "sound science" and that the precautionary principle by contrast is poor science.

The Discussion Document stresses a "cost-benefit" approach in determining acceptability of risks that does not deal with non-monetary or difficult-to quantify costs and benefits, nor with distributional issues (who bears whose costs) nor does it adequately deal with future interests. The Discussion Document also overlays an insistence on selecting measures that would be "least trade-restrictive", an approach that unduly restricts domestic Canadian decision makers who might otherwise choose to stress safety, health or fairness.

The Discussion Document is, among other things, not sufficiently proactive, does not adequately provide for children and vulnerable populations, is heavily based on risk assessment as practised including its value judgments that favour some and may impose increased risk of hazard on others, does not adequately deal with the onus of proof, lacks an adequate statement of the need for alternatives assessment, fails to include a plan for Canada to develop "early warning systems", fails to leave adequate room for human error, and fails to provide for margins in our ecosystem's resources.

V: Summary and Conclusions

Future application of the precautionary principle in Canada should include recognition and treatment of uncertainty, presumption in favour of health and environmental values, assessment of alternatives, a shift in the burden of proof, and adjusted standards of proof, greater openness, transparency and external review, and approaches to "acceptability" of hazards that are based on distributional issues, potential loss of social and ecological capital and other non-monetary values.

Theresa McClenaghan is a lawyer at CELA.
Hugh Benevides is a researcher and writer in environmental law and policy.