By: Aaron Cressman
On January 6, 2018, Environment and Climate Change Canada and Health Canada sponsored the Prohibition of Asbestos and Asbestos Products Regulations (the Prohibition) and amendments to the Export of Substances on the Export Control List Regulations (the ESECLR Amendments) through the Canadian Environmental Protection Act (CEPA). The stated purpose of the Prohibition and Amendments are to reduce Canadians’ exposure to asbestos by reducing the market for Canadian asbestos, which would, in turn, result in fewer cases of mesothelioma and a reduced burden on the Canadian healthcare system. This blog will provide a brief explanation of the dangers of asbestos and its place in Canada before turning to an evaluation of the effectiveness of the Prohibition and ESECLR Amendments.
Asbestos and Its Place in Canada
Asbestos fibres are often inhaled when present in the air and accumulate in the lungs. This can cause diseases that make it difficult to breathe, or more commonly, deadly diseases such as lung cancer and mesothelioma. Due to its fibrous nature and common use in insulation, labourers working in the construction of buildings are the most susceptible to exposure to asbestos. This is because workers are exposed when they cut or break asbestos materials and cause the fibres to be distributed into the air.
In Canada, many private and publically owned buildings were constructed with asbestos from the early 20th century to 1990 due to its fireproof nature before the health impacts of the substance became widely known. As it is often driven into the air by construction and renovation, asbestos is the most common cause of worker-related deaths in Canada. Furthermore, due to the high demand for the substance and Canada’s abundance of the resource, the country became one of the world’s leading exporters of asbestos, with the vast majority of the exports going to developing countries Bangladesh and Thailand where workers are unable to handle asbestos safely due to their lack of proper equipment and training .
The Prohibition
The Prohibition aims to ensure that asbestos is gradually replaced by other substances by prohibiting the import, sale, use of, and manufacture of asbestos and products containing asbestos. However, there are several exemptions within the Prohibition. While exemptions for museum display and for laboratory use are not likely to have a major impact on the health of Canadians, the Prohibition contains an exemption for asbestos mining residues (waste material from mines) and allows provinces to authorize the use of asbestos mining residues for construction, landscaping, and resources extraction. As a result, provinces like Quebec with “millions of tons of residues” will continue to face high rates of asbestos-related illnesses among its workers.
The ESECLR Amendments
The ESECLR Amendments place a prohibition on the export of asbestos subject to several exemptions. Like the Prohibition, these exemptions apply to the export of asbestos for laboratory use and museum display, as well as an exemption for material containing less than 0.1% of asbestos. The Amendments also include an exemption for the export of hazardous waste and recyclable material containing asbestos. Lastly, there is an exemption for persons attempting to export asbestos who are in compliance with the Rotterdam Convention. The Rotterdam Convention allows for the export and import of asbestos to any of its 158 member parties provided the parties follow the convention’s Prior and Informed Consent Procedure. However, as The Prohibition states that “any remaining stockpiles would need to be disposed of or destroyed” it is unclear whether any asbestos will be available for export to a Rotterdam Party.
Assessing the Impacts
Overall, the Prohibition will likely result in a gradual reduction in workplace related asbestos diseases as the material is removed from everyday use in Canada. However, as there are still significant amounts of asbestos in Canadian buildings and the Prohibition does not deal with their removal, the threat of asbestos diseases will linger over Canadian workers whenever they conduct work on such buildings. Furthermore, the extraction of resources from asbestos mining residues and redevelopment of lands with asbestos mining residues will be permitted. As a result, The Prohibition will not completely erase asbestos from the Canadian marketplace. Lastly, the exemptions within the ESECLR Amendments may mean that Canada remains an exporter of asbestos as hazardous waste accumulates from the removal of mining residues. While regular asbestos exports will be less available due to the destruction of stockpiles, there may be circumstances where persons continue to export under the Rotterdam Convention. The Prohibition and ESECLR Amendments will provide a positive impact on the reduction of asbestos inside and outside Canada. However, they contain weaknesses that ensure Canadians will continue to be exposed to asbestos and that asbestos remains part of the Canadian economy.
Aaron Cressman is a second-year student at Osgoode Hall Law School.
