Federal court rules against Ottawa’s classification of all plastics as toxic; International community responds

Eight years ago, marine biologist Christine Figgener was with her team collecting parasites living on sea creatures. During their expedition they came across a large sea turtle which appeared to have a piece of plastic lodged in its nostril.  Her colleague, Nathan Robinson, used pliers to slowly extract a straw as the turtle began to sneeze and bleed, wincing in obvious pain. 

Figgener posted the video to her social media but never predicted how far and wide it would reach. The 2015 clip was instrumental in pushing large corporations like Starbucks to ban plastic straws. 

Canadians use an estimated 1.5 billion disposable coffee cups per year, according to research from the University of British Columbia.

(Farhad Ibrahimzade/Unsplash)

Americans use approximately 340 grams (about three-quarters of a pound) of plastic everyday. In Canada we use about 90 grams each, on average.

According to research, around 50 percent of the plastic produced worldwide is used just once before being thrown away. Consumer habits and the lack of proper waste systems — despite recycling programs, only eight percent of plastic in Canada is put in a blue bin — has led to widespread plastic pollution in our environment, much of it pooling in waterways, making its way to the oceans. 

“The odds are not in our favor, the infrastructure is not in our favor,” Anthony Merante, plastics campaign manager with Oceana Canada, told The Pointer.

Oceana, the largest international advocacy organization dedicated solely to ocean conservation, reported last month that, each year, eight million metric tonnes of plastic ends up in our oceans — in one year, the weight of plastic that enters the world’s oceans is twice the weight of the entire remaining population of blue whales, the world’s largest animal. If no action is taken, the annual global flow of plastic into the ocean will nearly triple by 2040.

“Plastics have played an important role in moving forward the Canadian economy and a lot of things like electric vehicles have a lot of plastic in them. Airplanes have plastic in them, solar panels, windmills, life saving medical devices are plastic. However, if we look to the data, half of our plastic waste is packaging,” Merante said.

A growing number of countries are implementing legislation to limit plastic waste.

(Alexis Wright/The Pointer)

Recognizing the rapidly growing problem of plastic waste —according to the United Nations it is the second biggest threat to the planet next to climate change — governments around the world have taken various novel efforts to eliminate waste. In 2008, Rwanda became the first “plastic free” nation, a decade after it introduced a ban on plastic bags and packaging. The small central African nation cracks down hard on its legislation, confiscating plastic items from tourists and imposing a sentence of up to six months jail time for anyone caught with plastic. 

European nations like Germany and Norway have been monumental in implementing deposit and return schemes where plastic bottles are returned and recycled to avoid ending up in landfills. In Germany and Norway respectively, these moves have seen 99 percent and 95 percent of plastic bottles returned for proper recycling.

Various sources have applauded Canada for its innovation and ambition, being the first nation globally to declare plastic as a “toxic” substance. In 2021, the Canadian government announced the designation of some plastics as a toxic substance under the Canadian Environmental Protection Act (CEPA), paving the way for the single-use plastic ban that it promised in 2020. The government received at least 60 notices of objection on the matter from plastics and oil producers, but nevertheless, the move was celebrated widely by environmental organizations and the public — according to Oceana, 91 percent of Canadians support a ban on single-use plastic. 

A timeline of the federal government’s planned single-use plastics ban.

(Government of Canada)

The designation under CEPA was a crucial first step in the move to ban certain plastic products because it gives the federal government the authority to produce the legislation — typically waste products are governed by the provinces and territories. Beginning in December 2022, the federal government began the rollout of legislation that sought to ban six single-use plastic items: checkout bags, cutlery, foodservice ware, stir sticks, straws and ring carriers. By mid-2024 all of these plastic items would cease to be sold in Canada.

That was before the federal court ruled last month that the CEPA designation was “unreasonable and unconstitutional”. While the ruling itself would not impact the ban on the six plastic items, the CEPA designation is needed for it to remain in federal jurisdiction; without it, the regulations would have to be rolled back.

Not all industries have been supportive of Ottawa’s ban on single-use plastics — listing the substance as toxic cuts into the profits of a $35-billion industry by limiting its ability to produce and sell plastics. The request for judicial review was brought to the federal court by a group dubbed the Responsible Plastic Use Coalition (RPUC). RPUC is a conglomeration of Canada’s largest plastic producing companies, including Dow Chemical, Imperial Oil and NOVA Chemicals, backed by American oil companies and the governments of Alberta and Saskatchewan. 

“The (toxic) label [under CEPA] is not only scientifically inaccurate but could have far-reaching and unintended consequences,” RPUC said on its website. “The Coalition opposes the designation of any plastic manufactured items as toxic and believes that the federal government, along with industry and stakeholders throughout the value chain, must work together to innovate and implement tools that will solve the problems of plastic waste.”

During a series of hearings held in March, members of the RPUC argued not all plastic is threatening to wildlife and the bigger issue is dealing with plastic waste not production. Despite the intervention from several environmental organizations on the matter, including Oceana Canada, arguing the underlying science for the CEPA designation is well founded, the November 16 decision stated Ottawa had overstepped by labelling all plastic manufactured items as toxic, stating the category was too broad. 

“There's so much scientific evidence that plastic pollutes the environment and causes harm to people, to wildlife and to ecosystems. The ability of the federal government to fight plastic pollution is paramount,” Merante said. “And what we're hearing is this constant loop of promises and commitments from industry to fight plastic pollution, to reduce their plastic footprint to improve their sustainability. But when push comes to shove, they back this industry court challenge, they take away the ability for the government to fight plastic pollution. And I think that's a huge step in the other direction.”

Over one million marine animals are killed each year from plastic debris in the ocean, according to UNESCO.

(Top: U.S. Fish and Wildlife Service Headquarters/flickr Bottom: USFWS - Pacific Region/flickr)

The decision from the federal court sent shockwaves across the country as evidence from international negotiations on the development of a global plastics treaty show Canada is not out of step with the rest of the world in fighting plastic pollution.

“Canada is very ambitious when they're talking about which options and which tools and mechanisms they want in a global plastic treaty, to end plastic pollution, especially in oceans. And they're not alone,” Merante said. “This idea that industry has best interests in mind here is quashed when you look at the global stage.”

In March 2022, at the fifth United Nations Environment Assembly, all 193 UN member states unanimously voted to end plastic pollution. The decision sparked a series of negotiations set to end next year serving as the basis for a binding legal agreement by the end of 2024. 

Merante said Canada is not immune to misrepresentations of the country’s role in the plastics crisis with critics suggesting we have a small impact on the overall global contribution to problem plastic, and therefore a sweeping ban is not necessary. In fact, given Canada’s geographic position with three ocean coastlines and possession of the world’s largest freshwater system in the Great Lakes, we have an incredibly important role to play, he says. Canada has one of the highest rates of single use plastic use — twice as much as Scandinavian nations — producing 4.8 million tonnes of plastic waste per year, half of which is single use. 

“It is imperative that Canadians take ownership of the plastic pollution crisis and become a global leader,” he said.

(Oceana Canada)

To help guide this transition, at the beginning of November, Oceana published the first ever policy roadmap tailored specifically to Canada for tackling plastic pollution. The report uses empirical data and case studies from successful jurisdictions to develop seven interventions for Ottawa to take that can eliminate one-third of the country’s plastic packaging, preventing the creation of nearly nine million tonnes of single-use plastic by 2040. 

The report targets the dine in and dine out food service sectors, grocery retail packaging, pallet wrap, PVC packaging, e-commerce packaging and plastic bottles. In 2023, the target sectors generated more than 1.1 million tonnes of single-use plastic waste combined. Oceana determines that by following the series of interventions, including complete distribution bans and prevention plans, four of the seven sectors can be plastic waste free by 2040. 

While the interventions detailed in the plan are ambitious, Merante said it is the kind of action that is needed to properly address the crisis. If all of the interventions are adopted, Canada will reach peak plastic consumption in 2026, before observing a downward trend. 

“These systems are very feasible. They may just seem like a shock to our system right now, because we haven't had them in so long. But that's the way it used to be. We used to be 100 percent reusable in Canada, we used to have all of our beverage bottles sold in glass that were recaptured. These are systems that used to exist, and they just faded away with single use.”

Given the federal court decision, Merante said he is unsure whether to expect the federal government to implement these interventions immediately. Ottawa is appealing the decision, meaning for the time being, some plastics are still listed as a toxic substance and the single-use plastic ban remains in place, but the decision to implement further policies would rest on the Attorney General of Canada, the Ministry of Environment and the Ministry of Health. 

“Whether the government chooses to move forward with regulations during this appeal process, the ball is in their court and their best legal strategy because ultimately, we need to fight plastic pollution,” he said.

But Oceana’s report does not only provide a roadmap for the federal government. Individual industry sectors or even businesses can adopt the framework in order to make changes quicker. In August 2021, Starbucks Canada rolled out sippable strawless lids and compostable paper straws to eliminate one billion plastic straws globally and contribute to the company's effort to reduce waste 50 percent by 2030. Even at the smaller scale, local businesses are making small contributions to effect greater change. Found coffee shop in Guelph provides reusable cups on an exchange program where customers will receive their takeout coffee in a registered ceramic travel mug which is returned to the shop within 30 days to get their deposit back. 

“Grocery store chains could follow our recommendations, beverage bottle companies could follow our recommendations, dining locations could follow our recommendations. There is a very clear opportunity here that if industry is going to fight the government on their methods of fighting plastic pollution, they also have the tools in their toolbox, they're able to take these changes and make real progress towards plastic pollution,” Merante said. “We know that industries can move much quicker on changing supply chains or the way that they operate than the government can. So I think the ball is in their court and I think we should shine a public eye on that.”

“Every minute that we are fighting plastic pollution, more and more plastic just keeps ending up in landfills, ending up in the environment, and puts our health, as well as environmental health, at risk.”

Email: [email protected]

Twitter: @rachelnadia_

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