Federal Government Moves to Ban Asbestos

  • May 22, 2018
  • OIiver Moore and Jean Piette, Norton Rose Fulbright Canada LLP

In late 2016, Minister of Science Kirsty Duncan, along with three other ministers, announced that the Canadian government was moving to ban asbestos and asbestos-containing products by 2018 and meet its international obligations. The outcomes of stakeholder discussions and input and the proposed text of the Prohibition of Asbestos and Asbestos Products Regulations became public on January 6, 2018. The ban will apply to the use, manufacture, import and export of any product containing asbestos, with the goal being to eventually reduce the rate of asbestos-related diseases. Asbestos was formerly a popular Canadian export and import commodity until reports of its carcinogenic effects became widespread. The government expects to bring the full regulations into force as of 2019.

Asbestos in Canada

Canada began mining asbestos in the 1870s and quickly became one of the world’s largest producers. After many years of success, Canada’s last asbestos mine closed in 2011. Although its mines are now closed, Canada continues to import millions of dollars’ worth of asbestos products every year, including brake pads and construction materials. In the last year alone, a total of $8.3 million in asbestos-related products were imported into Canada.

The Proposed Regulations

The government held a two-year consultation period where various ministries met with and heard from stakeholders in the health, labour, trade and commerce sectors. Submissions closed on June 4, 2017, and the government released its Executive Summary and proposed text of the regulations on January 6, 2018. Of the 292 businesses that would be affected by the regulations, many expressed support for the changes.

The proposed regulations under the Canadian Environmental Protection Act, 1999 will ban the import and use of asbestos and asbestos-containing products, including chrysotile, and will also amend the Export of Substances on the Export Control List Regulations to ban the export of such products. The proposed regulations would not prohibit the use and sale of asbestos and products containing asbestos that were installed prior to the coming into force, as removal could be costly and increase health risks.

The removal of asbestos from buildings and structures is heavily regulated by provincial occupational health and safety authorities. In September of 2016, a list of asbestos-containing buildings that are owned and leased by Public Services and Procurement Canada was made public. In light of the ban on asbestos, the government has announced that it plans to expand this list throughout the years. The government also plans to collaborate with provincial and territorial governments to update the national, provincial and territorial building codes to prohibit the use of asbestos in new construction and renovation projects across Canada.

Health Implications

Under the proposed regulations, the government will also establish new federal workplace health and safety rules to limit the risk of people coming into contact with asbestos. This is particularly important because the Canadian Labour Congress has estimated that over 150,000 Canadians working in construction, waste management, auto maintenance and ship-building are regularly exposed to asbestos. Of concern, the Globe and Mail also reported that asbestos is the top cause of workplace deaths in Canada, and studies from the Canadian Cancer Society have found that asbestos exposure kills more than 2,000 people in Canada each year. In fact, inhaling even small amounts of airborne fibres can cause lung cancer, mesothelioma and asbestosis.

Statistics like these caused the World Health Organization to declare asbestos a human carcinogen back in 1987. For this reason, it may be surprising to learn a ban does not yet exist in Canada. But Canada will soon join the ranks of more than 50 countries that have already banned the substance, and the government plans to update Canada’s international position regarding the recognition of asbestos as a hazardous material. With the ban, the government of Canada expects to raise awareness of the health impacts of asbestos and hopes to reduce diseases that are attributed to asbestos exposure.

Health Canada and Environment Canada will face many challenges in implementing the regulations when they come into force, including the challenge of finding safe ways to remove asbestos already in people’s homes and workplaces and updating lists of asbestos-containing buildings. Health Canada estimates the regulations will prevent cancers and generate health benefits worth $1 million per avoided case of mesothelioma or lung cancer – a savings of $34 million by the year 2050. They are not expected to significantly reduce adverse asbestos-related health outcomes in the chlor-alkali sector, given that workers are subject to safety protocols and that the current risk of exposure is low. The changes the government makes now provide continued efforts to protect our future generations.

Proposed Exceptions

Although the government seeks to impose an almost-complete ban on asbestos in 2019, there will be exceptions for certain pest control products, museum displays and scientific research. The mining and processing of asbestos tailings, or residue (which can be carried out to extract minerals such as magnesium, nickel, chrome and cobalt) in Quebec will not be included in the ban. There are currently several provincially regulated projects in Quebec for treating or developing asbestos mining residues and handling materials with asbestos content. Industry will be able to use asbestos-containing mining residues for landscaping, landfilling and road construction purposes. The proposed regulations contain some additional exceptions to the year 2025 for the chlor-alkali industry. Excluded activities would be subject to notification, reporting, permit and record-keeping requirements.

The authors wish to thank Jasmine Landau, articling student at Norton Rose Fulbright Canada LLP, for her assistance in preparing this paper.