EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, December 10, 1996

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[English]

The Acting Chairman (Mr. Adams): Let's begin. We are today considering Bill C-65, an act respecting the protection of wildlife species in Canada from extirpation or extinction.

Our first witnesses this morning are Professor Tom Herman, head of biology at Acadia University, and Don McAlpine, curator at the New Brunswick Museum.

Welcome, gentlemen. Please proceed.

Professor Tom Herman (Head, Department of Biology, Acadia University): Thank you. I can see that 8:30 a.m. hearings are as popular as my 8:30 a.m. lectures.

Growing up in a household of academics, our children learned at an early age the value and importance of asking questions. They also quickly learned to qualify their questions with a supplemental one: ``Dad, can we just have the five-minute explanation, please?'' When feeling particularly generous, they will indulge me and give me 15 minutes. Today you get the 15-minute explanation.

I come here not as a legislator or as someone who promises to understand the subtleties of the federal-provincial pas de deux but as an academic who teaches ecology, biodiversity and conservation biology and supervises students' research in those areas; as a research scientist working on dynamics of small populations of a variety of faunal groups, including species at risk; as a co-director of Acadia University Centre for Wildlife and Conservation Biology, which works closely with government, NGOs and private industry on a variety of biodiversity conservation issues; as a member of two COSEWIC subcommittees on the topics of reptiles, amphibians and mammals; as chair of the COSEWIC recovery team on the blanding's turtle; as a member of a small, informal Nova Scotia provincial working group on species at risk; and as president pro tem of the Federation of Nova Scotia Naturalists. I mention these not to establish my credentials but rather to try to honestly portray my bias here.

In my preliminary remarks I want to set the context for the bill. Although it certainly grows in part from our international commitment to sustaining national and global biodiversity, it's not a biodiversity bill. Rather, it's a bill aimed at protecting species at risk, one that allows us to assess the degree of risk to which species are exposed. Ultimately, we can ask how well it does this.

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Well, clearly the first step in protecting endangered species is to identify them. How well are we doing? How many endangered species are there? I have no idea, quite frankly, but if you look at the COSEWIC list, it can be very misleading. How well do we know our biodiversity in general? I think my colleague from New Brunswick has more to say on that.

Our past disregard for those species we share our planet with, our ``fellow travellers'', as I call them, becomes apparent when we compare knowledge bases. A culture that has developed the capacity to send humans to the moon but doesn't know within an order of magnitude how many species it shares its own planet with is narrow in its vision.

I hope that our world view is changing, that we're beginning to recognize our ``biophilia'', our love of all life, as E.O. Wilson calls it, and its central importance to our own well-being.

So what do we know? Well, most species in the world and in Canada are rare. That is, their populations are low, their geographic ranges are small and/or their habitat requirements are very specific. To put it another way, rare species are common. It doesn't mean they're at risk, but it does present us with the challenge to assess which ones are.

Most species in the world and Canada are invertebrate animals. The vast majority of those are insects, mostly small insects. Most are undescribed and probably never will be described. They'll go extinct before then. However, this in no way reduces their value or importance or the attention they deserve.

At the risk of stating the obvious, things are changing. The world is not static. Clearly, the environmental changes we do recognize have in part provided the impetus for this bill. But how well do we understand the nature of these changes and how they affect these other species, our fellow travellers? How well can we predict future changes? The answer to this latter question, I would argue, is not particularly well. In that light, planning for uncertainty must be integrated into the bill.

In my estimation, the two environmental changes that threaten species the most are climate change and habitat degradation and fragmentation. Our understanding of the individual impacts of those two on species at risk is growing, but we haven't actually begun to understand the effects of the interaction of those two on species at risk, the synergistic effects.

Species that are long-lived and/or have complex life cycles, such as many of our reptiles and amphibians, are probably particularly vulnerable. These groups are also disproportionately represented among our species at risk.

As an example, in terms of one of the species I work on, the blanding's turtle, I have females out there who are the same females nesting on the same nesting beaches they nested on when Newfoundland joined Confederation, and the population of Canada was a quarter of what it is today. The same individual is doing the same thing, but times have changed.

What are the problems in our approach to protecting endangered species to date? Well, we tend to exaggerate the importance of the individual. This is a natural bias. It probably extends from our tendency to recognize the importance of individuals in our interactions with one another. As a result - and you know, these are the 1990s and we're all special - we often seek solutions to problems at the individual level. Protecting endangered species really requires thinking at other levels, particularly at the ecosystem level.

How many of us, when we hear the term ``endangered species'', think panda or whooping crane? This is the stuff of glossy magazines and fund-raising promotions, but protecting endangered species is more about protecting processes in space and time, things that are difficult to put on the cover of a magazine. It's more about that than it is about protecting large, charismatic, furry or feathery individuals.

Finally, we're still struggling with the concept of species. What exactly constitutes a species? This question has been hotly debated in academic circles, but to most people it seems relatively unimportant. However, it is not a trivial issue. All you have to do is look south of the border. The experience with endangered species legislation in the U.S. provides us with a good example of that.

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We could take the pragmatic, businesslike approach frequently promoted by conservation biologists that a species is whatever a competent taxonomist says it is. I think Don wants to comment on that as well.

I hope I've set the context for what follows. I'm operating under certain assumptions, and I feel these are secure. One is that the bill was crafted and written in good faith, with the interests of species at risk paramount. In the interest of those species it is always desirable to avoid incidents and circumstances that would generate the need for litigation.

It's clear from my earlier remarks that we face significant information or resource gaps, including the need for extensive inventories. Bill C-65 at present does not adequately address these. If the bill brings a substantial reallocation of funds that can be directed at improving our information base and public education and involvement, I would consider it progressive. If the bill brings little funding that is channelled to enforcement only, I would consider it regressive. At present, it would appear that internal measures of success of the bill are based primarily on the meeting of deadlines for status designations, etc.

It is sometimes difficult to identify with certainty which species are covered by this bill. ``Aquatic species'' is somewhat ambiguous. Some turtles are fish, but others are not. A supplemental list could easily be included to avoid this problem. The bottom line is we don't want species to fall through the cracks, regardless of what federal-provincial mix we finally end up with in terms of jurisdiction.

Similarly, some clarification of transboundary issues would be helpful. I've always had difficulty with this one. Should concerns be targeted to transboundary species perceived to be at a particular risk? At what level is a species considered to be transboundary? If a damselfly flies across the Montana border, are we responsible for it? How many species are transboundary, or perhaps alternatively, how many species aren't transboundary? I suspect the answer to the latter question is a small minority, depending on how you define transboundary.

The structure of COSEWIC is extremely important. Integrity and independence must be maintained, with all decisions being based on good science. I know you've heard this a thousand times already. The transparency of COSEWIC's decisions is well protected by the bill. Some will argue that the scientific committee should make the final listing decision rather than the ministerial council, and in this light the link between COSEWIC and the ministerial council and the independence of COSEWIC are critical.

I agree that the identification of species at risk should not be political. The final listing will have more credibility if subclause 30(1) reads ``The Governor in Council, on the advice of the Minister, will make regulations''.

I might add another item that's not on my prepared text, about funding. The funding of COSEWIC is also crucial. It is essential that status reports, which will now have legal standing, be carefully and thoroughly prepared. At present, most reports are prepared on an embarrassingly small budget. I don't know whether you realize this, but most of those reports are prepared for between $1,000 and $1,500, which is more or less really an honorarium for the people who prepare them. It doesn't represent the amount of work that goes into them. COSEWIC is largely a volunteer operation at present.

Habitat protection in the present bill is weak at best. The greatest single threat to most endangered species is loss of habitat. Although habitat appears throughout the document, there's really very little protection of it afforded by the bill. The primary avenue to protection seems to be through an emergency order at the discretion of the responsible minister, in subclause 34(4).

To its credit, the bill requires that recovery plans be struck and that those plans identify the critical habitat issues, but the plans, according to the bill, need not be implemented, nor are they enforceable. The lack of consistent protection here is disturbing to me.

I'm willing to admit that the identification of critical habitat has significant political implications. Because of this, listing and determination of critical habitat are probably best separated, and I think they are reasonably well separated in the bill. This should minimize the political pressure on the listing process.

The bill does, to a certain extent, address the taxonomic question I raised earlier, but it could be improved by some judicious wordsmithing in the definition of wildlife species. There are some ambiguities, and I think biological distinction needs to be pointed out as the important criterion in this case, rather than geographical distinction.

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Under measures to protect listed species, clause 31 prohibits killing, harming, harassing, capturing or taking an individual of a listed, endangered or threatened species. What about extirpated species that are being reintroduced as part of a recovery plan? Are they not included in these prohibitions, or does the emergency orders provision cover this?

There is good coverage of direct harm to endangered species, perhaps again reflecting our individual level thinking, but less direct disturbances appear to be excluded. Really, when you think about it collectively, these are probably far more damaging to species.

Also, under these measures, subclause 38(4) identifies the responsible minister as the individual to prepare a recovery plan. Was consideration given to placing the ministerial council in that role?

Under enforcement measures, should there not be some provision for the disposition of confiscated live specimens? I would hate to see a repeat of the rather ugly situation that occurred recently in Sweden.

I find it particularly disturbing that the bill is binding on the Crown, but not on crown corporations. What exactly is the intent here? Surely governments and their associated enterprises should lead by example.

I'll end by again begging the indulgence of the committee for pointing out the obvious, and I'm sure many have pointed it out before me. Species do not recognize provincial boundaries, but rather landscapes. An aerial view reminds us often how arbitrary these boundaries are; from the air...the colour of the pavement.

As one of my colleagues pointed out after reading the draft bill, we need a national endangered species act, not a federal one - out of the mouths of naive biologists, but it's true. It's clear that the bill is far too restrictive in terms of species and area covered, and even much of that limited jurisdiction can be exempted if you look at subclause 3(3).

This bill will leave most of presently recognized endangered species with little or no federal protection. Some groups of organisms, such as plants, are particularly excluded. It's likely that the percentage protected will shrink even further as we assess the status of additional species, particularly invertebrates.

It's obvious that a federal act alone will not and cannot protect all species at risk. The ideal federal act is probably not legally defensible. It's unlikely that we're going to rewrite the Constitution to accommodate it. The only biological solution is to resolve the political problem.

Alienating any particular agency, be it a federal or provincial ministry, only creates a biological gap and is therefore self-defeating. Both the feds and the provinces must buy in; therefore the success of Bill C-65 is probably tied to the implementation and success of the national framework for the conservation of species at risk.

I suppose in that spirit it's wise that provinces are not bound by the present act to participate in the ministerial council, but clearly they should be encouraged to do so. Thank you.

The Acting Chairman (Mr. Adams): Thank you, Professor Herman.

Mr. McAlpine.

Dr. Don McAlpine (New Brunswick Museum): I make my living studying biological diversity. I'm employed as curator of zoology at the New Brunswick Provincial Museum. I'm also a member of the Canadian Society of Zoologists.

What I have to say today affects not only my own concerns but concerns of this society as well, which includes about 580 members who work in Canadian museums, universities and government labs.

I've been a member of the New Brunswick Ministerial Advisory Committee on Endangered Species since the committee's inception in 1988. As such, I've been directly involved in the recent revisions to the New Brunswick Endangered Species Act. As you probably know, New Brunswick is one of only four provinces to have an endangered species act in place at the moment.

Revisions to this act were passed in the spring of 1996 and the list of species protected revised for the first time since 1974.

My involvement with provincial endangered species legislation gives me, I think, a useful perspective on Bill C-65.

Federal legislation to protect threatened and endangered species in Canada is long overdue, and I certainly consider Bill C-65 a major accomplishment. There are, however, several areas of this bill that must be improved if the act is to accomplish its stated goals. There are two criteria this bill must meet if it is to be successful.

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The designation of species at risk must be based on the best available scientific evidence. This is critical if this bill is to be credible. The process must be transparent throughout. My experiences in New Brunswick highlight a significant problem with Bill C-65 as it is now structured.

Members of the New Brunswick endangered species committee review species status, prepare a list of designated species and advise the minister. The minister is under no legal obligation to accept the list of endangered species as determined by qualified scientists.

During recent revisions to the New Brunswick Endangered Species Act, recommendations of advisory committee members were ignored. Legislative protection for a list of regionally endangered plants was denied, although all animals designated as regionally endangered were included.

It became clear, but it was never made public, that there were concerns within the government that the protection of regionally endangered plants might impede the extraction of pulpwood and lumber from New Brunswick forests, despite our efforts to convince them this was not the case. The manner in which this decision has been implemented has, I think, compromised the credibility of the committee. It's also frustrated its members. As a result of this decision, our botanist has resigned. There's been one other resignation from the committee directly linked to this lack of protection for plants.

Based on this experience, you might expect I would argue that the minister must be bound by legislation to accept all COSEWIC designations. This is currently not the case with Bill C-65 and might be considered to be a departure from the recommendations of the earlier task force. I don't believe this is reasonable or even a normal expectation. What I do expect, what I believe is absolutely essential, is that the process of species designation be scientific and open.

As currently structured, the designation of species status under Bill C-65 appears to be a process that will require COSEWIC members to carefully weigh scientific evidence and to provide details concerning these decisions in the public registry. However, there is no requirement that the minister provide any details of a decision to accept or, more importantly, to reject COSEWIC recommendations on species status. This part of Bill C-65 is clearly not open.

If Bill C-65 is to be credible and if the federal government expects scientists to be willing to devote their time to COSEWIC and its committees - as Tom has pointed out, much of it is volunteer time - then the decisions to protect or deny protection to species at risk in Canada must be open throughout. Currently, this does not seem to be the case.

There's no doubt some interests will view the protection of certain species under Bill C-65 as threatening. We can expect these interests to lobby against protection for these species. If the minister is bound to accept COSEWIC decisions, it is my fear COSEWIC members would in some cases come under intense lobbying pressure, perhaps straining the purely scientific basis on which decisions should be made.

I think we expect ministers to be lobbied by vested interests. We should try to cope with this by demanding that the process be open. If the minister is not prepared to accept the scientific designations of COSEWIC, then he or she must be bound to explain these decisions publicly.

The minister should be required to place the reasons for rejections as well as acceptance to COSEWIC designations in the public registry. We might think the reasons for acceptance by the minister are obvious. The minister has simply agreed with the need for protection, perhaps based on the interpretation of evidence collected by COSEWIC. But perhaps the minister gives some criteria more weight than others. Perhaps his or her reasons are not those of COSEWIC; perhaps they are.

In any case, a precedent is set that may be useful in evaluating future species designations and the manner in which those designations are made. But there must be a mechanism for a public review of ministerial decisions based on the sound scientific designations of COSEWIC. Currently there is no such requirement in Bill C-65 or, for that matter, in the New Brunswick Endangered Species Act. This is a weakness that threatens to undermine the process of species designation in both pieces of legislation.

In the vast majority of cases, it is habitat loss or habitat disturbance that poses the greatest threat to species. Without habitat protection, measures to preserve species will prove futile. Prior to the recent revisions to the New Brunswick Endangered Species Act, habitat protection for endangered animals was not provided. This was one of the first and most glaring problems to which New Brunswick committee members turned their attention. It's imperative the federal government use the full weight of its authority wherever possible to ensure habitat protection is required for a species at risk.

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Currently Bill C-65 offers habitat protection only for aquatic species and those on federal lands. Habitat protection should be extended without exception to transboundary species, an approach unanimously recommended by the federal task force on endangered species. Likewise, the federal government is in a position, it's my understanding, to extend habitat protection to migratory birds in Canada and should do so.

Species recovery plans, although required, will have no legal force. In other words, the minister is not bound to provide habitat protection for any species at risk. This is unacceptable given that such species already have some measure of protection once designated and can well undermine the spirit of this legislation.

Ironically, under the National Accord for the Protection of Species at Risk, the provinces must agree to provide just such protection for endangered and threatened plants and animals. Can the federal government really expect the provinces to comply with such an agreement when the government itself is not prepared to apply the same high standards to areas where it has clear legal authority?

To be effective, this legislation must require the minister to implement measures to provide habitat protection once habitat critical to the survival of threatened or endangered species has been identified in recovery plans. The task force recommended this, and with good reason. As Tom has already mentioned, it has recognized that habitat protection is the key to species preservation. I'm sure you'll hear this over and over.

The task force also recommended that should the government decide not to implement a recovery plan, there must be a full public review. This recommendation has not been followed, and one is therefore left with the possibility that recovery plans can be ignored without explanation. The process is not transparent. The federal government must be prepared to lead by example and should certainly be prepared to observe the same high standards for habitat protection that it expects from the provinces.

In the long run, a preventive approach to species protection is the best strategy. It makes good sense, both biologically and economically. I'm therefore rather surprised that in spite of the recommendations of the task force Bill C-65 does not require the advance review of all development projects that will affect species at risk.

In the long run it may prove more costly to rehabilitate or re-establish populations than to review the impact of projects on such species and attempt to mitigate the effects of development.

With the exception of coastal waters and the two territories, Bill C-65 applies to relatively little of the land area of Canada. For example, in New Brunswick less than 4% of the approximately 72,500 square kilometres that make up the province will come under the direct jurisdiction of this act. The principal areas included are two small national parks, Fundy and Kouchibouguac, and a much larger military base.

It is clear that provincial legislation will remain the key to providing protection for species at risk in Canada over those parts of the country where human population is most dense, pressure on wildlife habitat most intense and biological diversity highest. The success of Bill C-65 largely depends on the commitment of the provinces to the National Accord for the Protection of Species at Risk.

This is why I think it is vital that the act be reviewed three years after implementation. I'm relieved to see this is part of the current strategy.

I'd like to conclude with a warning. As pleased as I am to finally see a piece of legislation devoted to protecting endangered plants and animals in Canada, this bill alone will not solve biodiversity problems in this country. I expect this legislation will offer substantial protection only to a small subset of Canada's species at risk, primarily vascular plants - by that I mean wild flowers, trees and shrubs - and vertebrates: fish, amphibians, reptiles, birds and mammals.

My botanist colleague, Stephen Clayden, and I have estimated the number of species in New Brunswick at about 31,500. What proportion of these are plants and vertebrates? A mere 7.1%. We find the highest diversity among the little known and little studied groups, particularly the fungi and invertebrate groups such as flies and wasps. There's no reason to believe these proportions vary in any substantial way across Canada.

If Canadians hope to maintain biological diversity, we must increase our efforts to train specialists, particularly in systematics; we must fund fundamental biological work that will advance our understanding of little-known life forms in Canada; we must determine what is out there if we are to protect it.

We must also recognize that in the short term the task of enumerating and describing species is too great and the available expertise too little to accomplish anything near the full census of Canadian species we need now. Ultimately, we must take a broad-scale approach and ensure that sufficiently large representative habitats and landscapes, hopefully with all their life forms intact, are protected. This is the only way we can ensure the protection of most of Canada's threatened and endangered species.

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Nevertheless, I believe Bill C-65 is an important step forward in ensuring that Canada protects the diversity of plants and animals clearly valued by Canadians.

To summarize, to be effective, Bill C-65 must require that the minister place in the public registry the reasons for decisions on species status designations recommended by COSEWIC, must require the protection of critical habitat wherever federal government has jurisdiction and where critical habitat has been identified in recovery plans, and must require the advanced review of all development projects that will affect species at risk.

Thank you.

[Translation]

The Acting Chairman (Mr. Adams): Thank you, Mr. McAlpine, gentlemen.

Mr. Asselin.

[English]

If you can handle turtles, you can certainly handle these things, okay?

A voice: But these are not endangered.

[Translation]

Mr. Asselin (Charlevoix): The government has decided to table Bill C-65, the purpose of which is the protection of species which are at risk or endangered. This bill could be passed by the House of Commons. It was highly publicized, but it will not work.

It will not work because there will be problems with its implementation due to the overlap between provincial, territorial and federal legislation. There will also be problems in the territories of aboriginal people, because existing legislation and treaties will prevail.

You said it was useless to try and protect endangered species if we don't protect their habitat. The government should focus its attention on the natural habitat of these endangered species. I think that the government should start by getting down to fundamentals: by that, I mean passing legislation to improve the quality of our air, our water and our land. The natural habitat of species at risk is conditioned by the air, the water and the land.

Regarding the air, the Minister of the Environment should get some legislation passed to eliminate carbon monoxide as quickly as possible and as much as possible. At the moment, carbon monoxide warms up the atmosphere and reduces the quality of our air.

Also, large quantities of industrial emissions are released in our major urban centres. All species are affected by those industrial emissions. Carbon monoxide, industrial emissions, in other words, everything which is released in the atmosphere comes back on earth and in our waters through acid rain. Acid rain is terribly devastating. In Quebec, because of acid rain, a number of sugar bushes are endangered.

The quality of our waters is affected by the dumping of toxic products. Right now, nothing prevents industries, municipalities or individuals from dumping toxic products in our waters.

Municipalities are starting to set up systems for the treatment of wastewater, rainwater and wastesnow which is dumped, particularly in the St. Lawrence River.

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As you know, when you consider all the things which are dumped in the St. Lawrence River - waste from sanitary sewers, storm sewers, wastesnow as well as toxic products - you realize that the St. Lawrence River has become the biggest open-air sceptic thank in the world. How many rivers flow into the St. Lawrence or into large unprotected expanses of water?

Now, I'm going to talk about the land. There are toxic or hazardous products out there, and I am thinking in particular about those oil products which contain PCBs and so on and which are buried because the owners of small businesses or industrial operations have no place to destroy them and therefore go and bury them in our forests, which destroys the natural habitat of species.

Let me also mention sanitary landfilling. No sorting is done at source. Various toxic products are buried together with municipal waste.

Also, what do you think about logging and clear-cutting? Forests are a natural habitat and clear-cutting destroys this natural habitat.

Then, there is mining. Mine operators do not restore the land to its original state, particularly in the case of open-pit developments.

So, the government should start by protecting the environment of these endangered species through regulations to improve air and water quality and to protect the earth from whatever it can absorb.

We are going to pass a bill which will have no bearing on these three protection issues. It's one thing for the Minister to be in a position to say that there is a legislation protecting species at risk, but is he interested in the outcome? No, he could not care less. It will all be left to his discretion, but this will have no effect whatsoever.

[English]

The Acting Chairman (Mr. Adams): Dr. McAlpine or Dr. Herman.

Prof. Herman: You've raised some important issues, and one of them is the question of scale.

Certainly I would agree that climate change, because of its many direct and indirect effects on habitat and other aspects of species' lives, is one of the most serious problems if not the most serious problem species face. There are aspects of climate change that can only be addressed at the federal level or at the international level.

The same applies to your comments on the quality of water. It is discouraging that when belugas in the Gulf of St. Lawrence die, they are declared toxic waste. That should be an embarrassment to all of us.

But the scale of the problem determines the scale of the solution, and there are problems with air and water on a national scale, on an international scale, on a regional scale and on a municipal scale.

Threats to species also occur on different scales. Certain problems are national in scope and other problems are very limited spatially and might best be addressed at a much smaller level, at a provincial level.

But I do share your concern about the protection of land. I don't think anyone is ignorant of the need to protect that habitat.

I suspect the major stumbling block, as you pointed out, is the controversies that arise over land ownership. I don't know what the limits of federal protection are, legally, on habitat. I don't understand that. I'm sure that's an element and a hotly debated issue.

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How far can we go in the protection of the habitat, at the federal level of habitat, of endangered species? I can't answer that; I'm not a legal expert. But I suspect that's what's going to determine how much protection we afford the species federally. It's not how much they need federally.

Don, do you want to add anything?

Dr. McAlpine: I'm sorry, I didn't get the beginning of your comments, but what I did hear, I agree with wholeheartedly. Certainly habitat is the big issue here, but I think a piece of federal legislation like the endangered species legislation is important, because it focuses attention at the species level. Although we certainly need habitat protection, the two things fit together. It's important to have that species focus, particularly where genetically distinct populations may be concerned. So I wholeheartedly agree with what you've had to say.

The Acting Chairman (Mr. Adams): Mr. Forseth.

Mr. Forseth (New Westminster - Burnaby): Thank you, Mr. Chairman.

You have outlined, you might say, the boundary of where the fight will be, if there will be a fight. This has to do with habitat, critical habitat, or whatever.

We know that the designation of habitat that's going to be protected as part of a recovery plan is essentially a zoning decision. We know that essentially all the work of municipalities is in public hearing processes about deciding land use, how a particular piece of land is zoned.

So in a residential area, you can't put a shingle factory or a gas station at a particular place. We have commercial, industrial, residential and single-family zoning. The community comes together to decide how the shape of its land is going to be designated, largely to protect economic values but also to protect social values. I don't want a cement plant next door in a residential area, and so on. So the business of municipalities is to decide zoning, and there are very clear rules about what goes on in those particular zones.

We know now that this particular federal legislation can be seen as rezoning a person's property by federal or provincial edict. I want to hear about how the provincial legislation in New Brunswick operates. If a particular piece of land is now designated as a habitat for a species, that may automatically or immediately devalue that land.

In essence, it's a zoning change because it restricts activity. It restricts whether that land can be subdivided or not or what kind of economic activity can go on that land. That then greatly affects the saleability of that land or its value for what can be conducted on that land, such as whether a building can be put there or whatever.

I used the example of some industrial land. An industrial park is generally developed in phases. Say the owner has three phases to his industrial park, and he has developed phases one and two. Now the economics are right to fulfil phase three. So he has a large area of land that is still undeveloped.

But then along comes an endangered species designation that includes that area as part of a habitat. It may adjoin a military base or whatever. All of a sudden now, by edict, he cannot put in the roads and the sewer or build the buildings on that third part of his industrial land because it's a habitat. So immediately there's a financial loss.

So I want you to address perhaps how this rezoning by edict and loss of value is working out in the New Brunswick legislation, and how we can get at compensating landowners.

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You may find that this industrialist with a fair amount of money may have have some mortgages and what not and some investors. He may decide that he doesn't necessarily want to develop phase three of his industrial land. He might want to protect endangered species, but he's caught in the middle because of his investments.

If he can get some compensation somewhere else, he would love to join in with the recovery plan. But we know from the passage of this legislation that there's going to be no money coming from the federal government.

That's the dilemma. You've outlined that the boundary would be at the viability of habitat. I've got presentations from people who have, in the Ontario jurisdiction, suffered financially. Maybe you can address it. How is it working out in New Brunswick? How can we overcome this problem of rezoning by edict?

Dr. McAlpine: In New Brunswick it isn't working out in the sense that it hasn't really been tested yet. The legislation has just been reviewed. Prior to that, a small number of species were included. There was only one plant. Actually, there was only one conviction under that. Somebody shot a bald eagle. That was the only thing that happened.

Most of the plants that are now protected, about a dozen or so, occur in very small, discrete populations in areas that are far away from settled spots. They're usually in a unique habitat, perhaps a gypsum cliff or a bog, which are areas that aren't necessarily likely to be developed.

This is a fact. While we argued very strongly that they weren't really going to affect even clear-cutting operations in any substantial way, some of these things should be protected.

It's not clear what's going to happen with animal habitat now that it has been protected. Until very recently, this spring, animal habitat was not protected. I think part of the reason for that was what you mentioned: how do you protect habitat for a wide-ranging animal like the eastern cougar? What do you do? What is its critical habitat? In a lot of cases, we don't have a good handle on that. It's not clear how that's going to shake down at the moment.

I would also add that, as far as compensation goes, I think there's a certain issue of social stewardship here for species and ecosystems. I realize that people will have money invested in pieces of property and may be disappointed to discover a rare species on their property, but other people will be quite pleased to know about that. But I'm not sure we should be considering paying out large sums of money to compensate people because they happen to have an endangered habitat on their piece of property.

Prof. Herman: Could I add something?

You certainly raise an important issue. It's one that comes up frequently in discussions at all levels. I'm reminded of another example. Basically what you're asking and saying is that through no fault of their own, some individual just happens to end up with a piece of land that has a rare or endangered species on it. Why should they be expected to bear the costs of looking after that species? We're really talking about the distribution of costs here.

On a larger level, I recognized this very real problem when I spent a year in Central America, in Costa Rica, which is a tiny country but which has an enormous percentage of the world's biodiversity for its small area. It has more species of butterflies than the entire continent of Africa, yet it's smaller than most Canadian provinces.

The question arises: why should Costa Ricans be expected to look after this biodiversity on their own? By an accident of history, they happened to end up in a very biodiverse place, yet the world expects them to conserve that biodiversity. Well, if it expects them to conserve that biodiversity, it's going to have to bear some of the cost of doing that.

That's exactly what's happening on an international level, and it's working.

It has problems, but I think we need to look at the problem on the national level in the same way. I think you've actually presented a very strong case for having a strong federal bill for that reason. One of the things that needs to be done is for the costs to be distributed among all of those who get to reap the benefits of that biodiversity.

So really, this is Canadian biodiversity. Canadians should pay the cost, but they reap the benefits. The cost should not all be constrained or limited to your one individual landowner, I would agree.

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I think there are ways to do that. Don has suggested that there are costs to looking after endangered species as well as benefits. We can see in Nova Scotia, for instance, a burgeoning ecotourism industry based on species at risk. Whale watching, for instance, nature tours and so on have grown exponentially in the last ten years in Nova Scotia.

I would predict that tourism has now become more important in Nova Scotia than fishing or forestry, or will be well on its way over the next ten years. Certainly the most rapidly growing sector of tourism right now is nature tourism. So I can see endangered species actually bringing money into areas if they're properly looked after. But I think you've raised an important issue.

You also raised the issue of the community, and that's one I didn't mention in my remarks. But one of the things that has actually bothered me a little about the bill - and I don't have a suggestion for how to incorporate it - is there's really no incentive for community participation or involvement. That's, of course, a hazard of a federal bill, because community participation is grassroots and comes from the other direction.

Community participation, in looking after endangered species, is absolutely essential because it's the only way we're ever going to get people to buy into the concept of conserving their biodiversity. It's also the only way we're going to be able to afford to do it, because it's simply too expensive to pay somebody to look after all of this biodiversity. It's going to have to be done to a certain extent from the grassroots level.

Getting your community on side is essential, and I think one of the ways of doing that, ironically, is by having a strong federal bill that in some way bears some of the cost, or redistributes some of the cost of looking after that biodiversity so it doesn't fall on the shoulders of one individual or one community.

Dr. McAlpine: Can I add something to that?

One thing that has happened in New Brunswick in the last couple of years is the development of the Nature Trust of New Brunswick. That group has taken over management of properties of significant habitats, in many cases habitats that contain rare endangered species, and managed them, in a sense, on behalf of the public. It's incorporated and in some cases it has been able to offer tax receipts to owners.

Many of these pieces of property have been donated to the nature trust, which has no money of its own. It has also set up a network of local stewards, which goes back to what Tom said about getting local people involved. These people generally take a great deal of pride in knowing that these pieces of property are their responsibility and are within their community. That has worked very well. In fact, a lack of action on the part of the provincial government and its Ecological Reserves Act led to the grassroots evolution of this particular group, and it's been very successful.

Mr. Forseth: Was this society formed by volunteers?

Dr. McAlpine: Yes, it was formed by volunteers.

Mr. Forseth: But was the original impetus set up by government?

Dr. McAlpine: No, it wasn't. It's really a grassroots organization. It's modelled on the National Nature Conservancy, a U.S.-based group.

It has also formed relationships with a number of timber companies. For example, there's a bog with a large number of orchids in it that has been set aside. It has a long-term lease with the timber company. The agreement is to set this area aside and protect it in perpetuity, and that has worked very well. Over the last five or six years, it has taken on a relatively large number of properties - probably seven or eight.

Mr. Forseth: Thank you.

The Chairman: Next is Mrs. Jennings, then Mr. Steckle, Mr. Taylor and Mr. Knutson.

Mrs. Jennings (Mission - Coquitlam): Thank you, Mr. Chair.

First of all, I would like to thank you, Dr. Herman and Dr. McAlpine, for your presentations this morning. There are a couple of comments I would like to make.

First of all, Dr. Herman, in your presentation you speak of the need for funds. I fear you will perhaps have to do without too many funds for a little longer, because the reality of the situation today - and it seems a lot of parliamentarians don't like to mention it - is that we are in financial straits in this country.

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I'm glad to hear you both mention the necessity of volunteers, because we are really in the position today where volunteers are essential for all of us. I don't think with a $600 billion debt any of us can say we have extra money for things. That's not to say we cannot very seriously address your concerns. That is being done.

You mentioned, Dr. McAlpine, volunteers and community participation starting in the community. In my municipality we have ARM - the Alouette River Management Society, which is completely organized by the people in my community because our government in British Columbia and our power company, B.C. Hydro, almost destroyed a river in my riding. If it hadn't been for community people on their own restoring the Alouette River and once more getting salmon flowing in it, we would be in great trouble.

So I can't support the people enough, because people do rise to the occasion. I know we have a lot of MPs right here who are very concerned about what is happening in their communities too.

That's the caution, I would say, Dr. Herman. I understand money can help so much more, but people's awareness and education are all there. There's community participation.

I think Dr. Herman mentioned perhaps funding nature tourism. There is a caution with nature tourism. We're finding on the west coast the sea kayaks are going in far too close to the seal population. The seal population fears them, as you're probably aware, because all they see is the shape on the water and it alerts them to the danger of perhaps a shark being in the area. So there are those kinds of things. While nature tourism is growing, and I think it's wonderful that people appreciate it, I think we have to put a caution on that as well.

Dr. Herman, you mentioned confiscating live specimens. You asked for some cautions on that and mentioned Sweden. I wonder if you could very briefly tell me what happened in Sweden. I'm sorry I'm not aware of that. What do you suggest we should be doing with live specimens we confiscate?

Dr. McAlpine, when you talk about money being invested in pieces of property, please remember that these pieces of property are often people's livelihood. Private property means a lot to individuals who are trying to earn a living and get along, the same as all of us.

So how do you see habitat protection on private property? If you're a rancher, do you actually set aside large pieces of land and not use them for ranching, or do you see working hand in hand? Keep in mind that many of our private property owners - our farmers and our ranchers - already respect the species that are found on their properties. I believe it's the isolated cases that actually hurt and destroy endangered species. Thank you.

Prof. Herman: Yes, river protection groups are cropping up all over the country. It's very exciting. We have a number of them in our area as well. They are a perfect example of the way we should be looking after landscapes, because they're watershed-based, and that's the way landscapes work. That's the way organisms work.

Before I forget, the question about the situation in Sweden to which I was alluding was an incident in which a large shipment of tortoises, an exotic species for Sweden, was imported illegally into the country and confiscated. The result was that some of them were in relatively bad shape. But the problem was like a hot potato. Nobody knew exactly who had jurisdiction over what to do, and nobody wanted to be caught doing anything and be responsible for them. They got into an argument between ministries about who was responsible, and the ministry of agriculture apparently seized them.

Ultimately, to minimize the debate, they destroyed the tortoises, which was unfortunate because many of them could have been rehabilitated, sent back to their source in central Asia, and everything would have been fine. But it was a jurisdictional debate and there really wasn't a process in place to deal with it. It's always important, I think, to be prepared for those kinds of events.

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I share your concern about the limits of nature tourism; there's no question. We see the same problems on the east coast that you describe on the west coast. All the better to have legislation in place and strong public education programs about how to effect sustainable ecotourism. We need legislation that works to protect those seals and whales from disturbance.

Your example is a good one about disturbance, because the kind of disturbance you're talking about is not outlined in the bill. It's the one thing missing from that clause. It's really this kind of threat that is probably, at the population level, much more important. If you have hundreds of kayaks paddling past these seals, although nobody is physically harassing the seals, and certainly it's the last thing they want to do because that's why they're there, to watch the seals, but inadvertently they are a disturbance factor. I don't think disturbance is adequately covered in this draft of the bill.

Don, did you want to add anything?

Dr. McAlpine: I'll comment on a couple of things you've brought up.

It strikes me that a really important part of this bill will be public education. I mentioned earlier the whole business of social stewardship. I'm very aware that there is not going to be a large amount of money to implement this bill. I think that's why I suggested, when the question was raised earlier about who is going to pay landowners, that although we certainly want to spread the costs around, to all of a sudden find ourselves obligated to pay people large sums of money to take their land out of use is simply not going to happen. It's not practical. That's why I think the public education aspect is so important, and it has worked very well in New Brunswick.

As it happens, many of these rare and endangered species occur in rare and endangered habitats to begin with. These are not large, extensive habitats. It's a particular lake, a particular bog, a particular cliff face, and these are often not habitats of great economic value to begin with. If people are educated about the value of these habitats to the species involved, they are often more than happy to look over them and play the role of steward. Often they are very proud that they have this particular animal or plant on their property.

In the case of other, more wide-ranging species like the eastern cougar in New Brunswick, it's very difficult to define what the critical habitat is. They need large areas of open, undisturbed space, but it's probably more important that those open areas be connected in some way, that the habitat not become too fragmented. Often those kinds of problems can be dealt with by restricting the size of clear-cuts and by leaving corridors between areas for animals to pass back and forth.

Although there are certainly going to be cases of environmentalists, people concerned about protecting endangered species, and landowners butting heads, I think that in actual fact those cases may be in the minority. There may be many cases where we can deal with these issues simply by compromising.

But I think the whole issue of public education and encouraging public stewardship is really critical to the success of this bill.

Prof. Herman: If I could add quickly, I appreciate the limitation of funds. Remember, we're both from the Maritimes. But if you look at the cost, for instance, of preparing COSEWIC reports, I don't think it's unrealistic to expect to come up with a bit more money. In terms of what we're getting at present for what I consider to be a very small sum, I don't think it's unreasonable to look at allocating a bit more money to the presentation of those reports, especially since they will have a much stronger legal standing. They need to be defensible. They need to be well and carefully prepared by experts in the field.

It takes weeks to prepare a COSEWIC report, and to pay someone $1,000 as an honorarium if they've spent weeks doing it.... We need to be realistic about that.

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I'm not suggesting this bill should cost us an exorbitant amount of money. I'm not talking about allocating huge sums of money, but we do have to recognize that there will be some additional costs if the bill is going to work.

As I pointed out in my submission, if all the money goes into enforcement, then it's a regressive step. If it goes into increasing our information base so we know more about endangered species and how to protect them - which ones are endangered and how we can best protect them - and if it goes into integrating the community into the approach and solving the problem, then it's a progressive bill and we're way far ahead. As you pointed out, you can do far more with volunteer organizations than you can without them. We can't do this without volunteer organizations.

The Acting Chairman (Mr. Adams): Colleagues, we should move it along. The order is Mr. Steckle, Mr. Taylor, Mr. Knutson and then the chair.

Mr. Steckle (Huron - Bruce): You gentlemen have made some interesting observations this morning. Mr. Forseth has taken some of my thoughts, Ms Jennings has done the same, and Mr. Asselin alluded to some of the things we have done that have gotten us into the kinds of difficulties we're in today.

If I can draw a conclusion from listening to the various arguments and positions put forward this morning, what we need certainly is a great educational program.

Ms Jennings alluded to the fact that in her community, as in all communities, there are volunteer groups that work very diligently doing one thing or another.

Certainly when we look at the various species that are at risk today, we would find a greater support, I'm sure, for the general public to agree that the protection of the bald eagle, the loggerhead shrike or perhaps the peregrine falcon is more important than protecting a particular species of mosquito that happens to inhabit a certain swamp or wetlands area, but that depends, again, on the perspective of the person putting forward the argument.

In the past week there was an occasion when a party came to visit me and present her case before me. Her mortgage came due unexpectedly because of the nature of the mortgage, and there was foreclosure, because on her land there was a natural habitat for the loggerhead shrike. She didn't know that when she bought the property, but because this property could become a threatened property for the mortgage holder, he decided he'd better have his money. This put this person in a tremendously awkward position and put her in financial difficulty because of this.

So we see these things are already beginning to happen. The threat of what might happen in the future in terms of cost and where the money is going to come from to support these kinds of challenges is limitless. I have a real fear.

As I see it, that is probably the main reason so little attention has been given in this bill - and we're hearing it in submissions from all the people appearing as witnesses before the group here - to the whole issue of habitat protection.

Somehow we have to have public involvement here. Unless we educate volunteers to become partners as we go through this and develop the legislation, I don't think this will work, because simply, the government cannot begin to measure the cost against those kinds of demands that could be placed upon it with the challenges that could come forward.

I believe truly we need education and we need to work in partnership with these various groups.

Prof. Herman: You won't get an argument from me that education is important. If we could only teach the turtles how to deal with -

The Acting Chairman (Mr. Adams): The shell game.

Some hon. members: Oh, oh!

Prof. Herman: Well, the nice thing about turtles is they get there eventually, unless they try to cross the road.

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You're very right that education is central to any solution. You're also correct that we have a certain bias. It's a real educational challenge to convince someone that a mosquito in a wetland is as important as the loggerhead shrike in their neighbour's backyard.

You make an important point when you bring up wetlands. Traditionally we have viewed wetlands as waste places. I was just in a wetland last week with one of my graduate students who had been working on a project there for the past three years. We were dismayed to find that the agricultural operation next door had just dumped a significant amount of solid waste in the wetland. It's just a small wetland; it's nothing to write home about, as they say, except that within several hectares you can find in that wetland roughly 50% of the mammal species that inhabit the province of Nova Scotia.

Most Nova Scotians (a) are totally unaware of that, and (b) - I hate to say it - probably couldn't care less. That's our challenge: to make them aware of it and to make them care about it. Of course, most of those mammals are not large, charismatic species. Most of them are shrews and rodents. So there is certainly a challenge there.

Your example of your constituent with the foreclosed mortgage is an example of where we get into the problem of individual versus population thinking. At times the two conflict. We are concerned about the fate of that individual, but we must also be concerned about the population of those shrikes. The solutions to problems and the approaches at population levels are often different from at individual levels. It is an educational problem.

Ultimately, of course, she should have gotten a better rate on the mortgage. If someone had recognized the real value of having a piece of land with loggerhead shrikes on it, then that land would be in greater demand and she would not have been in the difficulty she found herself in.

The Acting Chairman (Mr. Adams): Dr. McAlpine.

Dr. McAlpine: I agree that education is the key to all this. That's why it's important that the provincial accord...that these work through smoothly, because it's at the provincial level that the provincial departments will make arrangements and will form partnerships with local groups. In many respects the most valuable point that the federal legislation can make is in education, in sensitizing people to the need to protect not only species but whole complements of species and habitats as well.

The Acting Chairman (Mr. Adams): Mr. Taylor.

Mr. Taylor (The Battlefords - Meadow Lake): I have two questions. I'll put them both at the same time to save time.

My first question deals primarily with Dr. McAlpine's preliminary comments. However, both Dr. Herman and Dr. McAlpine mentioned the fact that the minister should be bound by the decisions of COSEWIC. I agree that the COSEWIC designation should be the final authority in this. However, Dr. McAlpine mentioned that this may not be practical and therefore the process should be more open.

I'm just wondering what he means by ``more open''. I'm thinking about that lobbying process he alluded to. Do the COSEWIC members become subject to lobbying as a result of that? Or is it simply that the decisions of COSEWIC become open and the political debate occurs subsequent to that, should there be any? What does he mean by open? And for Dr. Herman in this case, as a member of COSEWIC, is that indeed practical?

My second question has to do with habitat and the possibility of establishing a habitat inventory. Is it feasible to look at the lists designated as endangered or at risk? Is it possible from that list to develop a habitat inventory so that some of the concerns that have been raised about private property and that sort of thing can be dealt with at least in a preliminary manner by looking at the inventory of designated endangered habitat?

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Dr. McAlpine: In actual fact, I don't think the minister should be bound by the decisions of COSEWIC. I don't think that's a practical approach. I know some people have argued that the minister should be, but my understanding is that ministers are very rarely bound by what advisory committees suggest to them.

However, what I mean by ``open'' is that if the minister decides not to accept the COSEWIC decision - those decisions should be based on good science and we assume they will be - there should be some avenue to examine why that decisions was turned down. At the moment, COSEWIC decisions are all completely open. All of their information, all of the COSEWIC reports, the decisions they make based on those reports are placed in a public registry. There will be a requirement to place that in a public registry.

So if any individual wants to know and follow how that decision was arrived at, he can do that. However, if he wants to know why the minister turned down the COSEWIC decision or, for that matter, why he accepted the decision, there is no requirement for that information to be in the public registry. There is no way to determine on what basis that decision was made. That's what I mean by not being open.

I think it's very important that should be open, not just because of individual cases but also because precedent is set. A minister may decide that species A is going to be protected as a species at risk for a particular reason. The next species may come along, species B, and he or she may decide it's not going to to be protected for a particular reason. The reasons may conflict with each other. I think it's important to be able to discuss that, to have some review process in place to examine that. I'm not suggesting the minister should be bound. I don't feel that's going to happen.

The Acting Chairman (Mr. Adams): Professor Herman.

Prof. Herman: I'm not sure I understand your question about whether it's practical. Do you mean is it practical from a COSEWIC standpoint for the minister to be bound?

Mr. Taylor: I mean that in the listing process COSEWIC should have the ability to operate independently and openly and then have its decision be the ultimate and final decision.

Prof. Herman: I believe it is. Because COSEWIC is firmly science-based, it is of course impossible to be objective about anything. Scientists like to pretend they're entirely objective, but we're all biased.

I think the tradition of COSEWIC has been that it has been relatively unbiased. It has been as objective as possible. It places a greater responsibility on the shoulders of COSEWIC; it would indeed. I think the people involved to date in that organization take their responsibilities very seriously already. This would certainly be in keeping. Don may be right that it's not politically feasible, but from COSEWIC's standpoint it is practical in that sense.

The Acting Chairman (Mr. Adams): We do have to move along, gentlemen.

Dr. McAlpine: Yes, I'd just like to make one comment. My concern is that if COSEWIC themselves make the final decision, those members will be under intense lobbying. My understanding is that even now there is some lobbying. For example, in the case of the polar bear, there was some lobbying of COSEWIC members by native groups.

It seems to me it's much better if the minister is making that final decision, because we expect lobbying at that level. If the whole thing is open and transparent, we can perhaps deal with it much more readily. It seems to me COSEWIC members will be much better able to make those, we hope, unbiased decisions if in fact they're dealing just with the science and not with the lobbying aspect. I think they will come under lobbying if they're making the final decision.

A voice: Inventories.

The Acting Chairman (Mr. Adams): Yes. Professor Herman.

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Prof. Herman: I support the idea of a habitat inventory. It needs public education to go along with it. It's probably the best way to get in and see what's there without disturbing or threatening anybody. So I'd support it.

Dr. McAlpine: A lot of those inventories are going on now actually at both the federal and provincial levels.

The Acting Chairman (Mr. Adams): Mr. Knutson.

Mr. Knutson (Elgin - Norfolk): My questions have already been asked. So I'll pass.

The Acting Chairman (Mr. Adams): Then I'd like to ask, if it's all right, ladies and gentlemen, that we don't have a second round of questions. We've been fairly generous with the time and we've moved around the committee fairly well.

Dr. Herman, it was you, I think, who mentioned that you can't even properly define species. I don't want you to get into that, but in relation to the question of a habitat inventory, some have suggested it might be worth while including a definition of habitat in the legislation. Others have argued the opposite, that in fact it might not be useful to include a definition of habitat in the legislation. I'd be grateful for your comments on that.

The second thing is that with regard to the prohibitions part of the legislation, in subclause 31(1) there's been discussion of the inclusion of the word ``take'' and in paragraph 33(a) of the word ``taking'', as compared with killing, harming, harassing, capturing and so on; it says ``take'' and ``taking''. It's been suggested that the word ``taking'' is a very broad word and that it has caused some problems in the United States.

So there are two areas. One, should we include a definition of habitat? Number two, do you have any comments on the inclusion of the words ``take'' in subclause 31(1) and ``taking'' in paragraph 33(a)?

Prof. Herman: In response to defining habitat in the legislation, if you increase the teeth of the legislation in relation to habitat, I would think that legally it's essential that you define habitat. It's certainly one of the most common words in the legislation at present. Who defines it and how you define it might be another problem.

I don't know why you wouldn't want to define it in the legislation. You may have a fight over the definition, but I would think it essential to have a definition of it, especially if it has any legal protection. How can you legally protect something when you don't know what it is?

The words ``take'' and ``taking'' went right by me. I'm used to seeing that term used in a variety of ways. In the U.K. it means one thing; in the U.S. it means something else. I don't know what the intention of the word was in this legislation. Maybe you can tell me what was intended.

The Acting Chairman (Mr. Adams): Again, I didn't write the legislation, but the thought is that collecting -

Prof. Herman: Isn't collecting capturing for -

The Acting Chairman (Mr. Adams): The idea is that taking is much broader than, for example, collecting.

Prof. Herman: Yes, exactly. If you mean collecting, to me collecting is a subset of taking. Taking would include both live and dead collection, hunting, taking for captive animals, taking for the pet trade. Maybe it might be judicious to spell out what taking means, what the intent is.

The Acting Chairman (Mr. Adams): Dr. McAlpine.

Dr. McAlpine: I certainly think it would be useful to include a definition of habitat, but it's going to have to be a relatively broad definition. In a sense we all know intuitively what an animal's or plant's habitat is. I think you're going to have a difficult time providing a definition that's anything more than that intuitive feeling we all have for the place where an animal lives or....

The Acting Chairman (Mr. Adams): You're starting to do it. I wondered if either now or in the future you'd care to take a stab at it and let us have the results of that stab.

Dr. McAlpine: Before I try to answer that, the other thing that's mentioned in here is critical habitat. I don't know if anybody's brought up the issue that if you're going to define habitat, you're going to have to define critical habitat as well.

The Acting Chairman (Mr. Adams): That's correct.

Dr. McAlpine: It's probably easier to define critical habitat than it is to define habitat.

The Acting Chairman (Mr. Adams): Would you care to have a stab at that now?

Dr. McAlpine: The habitat required for a plant or animal to complete its life cycle....

The Acting Chairman (Mr. Adams): Again, if in the coming days you or your colleagues have some thoughts on it, we would be most grateful to receive a definition of habitat and critical habitat.

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Dr. McAlpine: I'm sure there are definitions of habitat in the conservation biology literature. There are probably established definitions out there. I'm also sure they're going to be very vague.

Right now a lot of the focus has been on what we call ``charismatic '' species, such as larger mammals, birds and some groups of plants, but as time goes on there's going to be more and more interest in these very tiny groups, such as mosquitoes in marshes. The ways in which ways we define their habitat specifically may be much different from the way we define habitat for some of these larger things. The work on frog parasites, for instance: they have a particular kind of habitat.

The Acting Chairman (Mr. Adams): I can imagine they do. Of course, you should be one jump ahead of the rest of us.

Some hon. members: Oh, oh!

The Acting Chairman (Mr. Adams): To move on here, Dr. McAlpine, have you any thoughts on ``taking''?

Excuse me, but I think that's the 30-minute bell for the House opening.

Gentlemen, likely the most useful thing I can do is to thank you for your presentations. We enjoyed both the presentations themselves and your comments. We do appreciate your being here. I thank you for it.

Before we call on other witnesses, colleagues, we should discuss what we're going to do next. It is my understanding there's a vote at 11:30 a.m.

[Translation]

Mr. Asselin: I did not tell anyone that I will not go and vote. So I have to go.

[English]

The Acting Chairman (Mr. Adams): We don't know, but there's going to be one.

The clerk says we have at least 30 minutes. My thought is that if I could pass the chair over to our vice-chair - is that okay, Ms Payne? - then in my judgment we could proceed.

I apologize to the next witnesses for this, but we will proceed, if that's okay with you. Ms Payne's going to take the chair, and I'm going to move to my proper place. We'll do what we can before the bells ring for a vote. Then, when the vote has been completed, we will return and continue with the hearing, if that's okay with you. We apologize for this, but it's something outside of our control.

Mr. Taylor: Mr. Chair, if you want to do a survey of the members who are here, I have no particular need to go and vote on this motion. I'm prepared to stay.

The Acting Chairman (Mr. Adams): Okay. Fair enough.

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The Vice-Chair (Mrs. Payne): If everybody is ready to resume, we'll do that as quickly as possible. We apologize for any intervention we may have to make when the bells begin to ring again, as they undoubtedly will.

I would like to start off with Ms Thomson from the Canadian Bar Association. If you would like to introduce the other members of your panel, we'll begin with your presentation.

[Translation]

Mrs. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Madam Chair.

[English]

The Canadian Bar Association is a national association representing -

The Vice-Chair (Mrs. Payne): Perhaps we should begin by introducing the rest of the people at the table. We have the Canadian Bar Association, the Canadian Environmental Law Association, and the Wildlands League.

Ms Thomson: The Canadian Bar Association is a national association representing over 34,000 jurists, including lawyers, notaries, law teachers, students, and judges from all provinces and territories in Canada.

The association's primary objectives include improvement of the law and improvement in the administration of justice. It is in that vein that the Canadian Bar Association makes its remarks today. The submission being distributed to the members of the committee was prepared by the national environmental law section of the association. That section comprises some 1,400 members of the association from all provinces and territories. Each has a particular expertise in their practice, relating to environmental law.

With me today are Gary Meschishnick of Saskatoon, chair of the national environmental law section, as well Franklin Gertler, a long-standing member of the section. I am going to ask Mr. Meschishnick and Mr. Gertler to comment on the substance of the bill before us today.

Mr. Gary Meschishnick (Chair, National Environmental Law Section, Canadian Bar Association): Thank you, Madam Chair, hon. members. In our opening comments, I would like to talk very briefly about the history of our association's involvement in this subject. I would like to touch briefly, as well, on the constitutional obligations that we feel are important, as well as the federal government's obligations under international convention, most importantly, the Rio Convention.

Madam Chair, the history of our involvement goes back to 1990. It began with the Canadian Bar Association's sustainable development committee report. A paper attached to the brief, by Ronald Orenstein, dealt with the federal government's role in the protection of endangered species.

That committee report was followed up by Canadian Bar Association resolution M-05-91, passed in February 1991. In that resolution our association urged the adoption of legislation within the scope of federal jurisdiction to effectively conserve endangered species and their habitat.

In 1992 our association wrote to the House of Commons environment committee, then dealing with the implementation of the Rio Convention. We again urged the federal government to take a leading national and international role in the implementation of the Rio Convention and, more particularly, in the adoption of federal legislation to protect endangered species.

Our history continues. After the recommendation for implementation of endangered species legislation, our then president wrote a letter to the standing committee in April 1993, praising the call for federal legislation in this area, and urging that it be enacted as soon as possible.

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Since that time - as recently as June of this year - the Canadian Bar Association has presented its opinion with respect to the constitutional jurisdiction of the federal government to deal with endangered species. We also wrote a letter to the Minister of the Environment and the Minister of Justice on that subject.

I would like to comment briefly on the issue of constitutional jurisdiction. While we acknowledge that the matter has not been clearly determined judicially, specifically with respect to endangered species, our association was of the view that Parliament should adopt legislation providing effective protection for endangered species and their habitats. It was our view that the federal legislation can, and should, cover a broad range of species, habitat and territory, and would still remain well within federal jurisdiction.

I would like to comment specifically on a couple of matters pertaining to the scope of the legislation. We feel that one of the important segments of the bill, as it now stands, deals with cross-boundary species. These are species not only of passing international boundaries but provincial boundaries as well.

We think the restriction on the applicability of the legislation with respect to crown corporations and crown lands is not necessary. It's clearly within federal jurisdiction. We would seek to have a further study done with respect to some of the exemptions under clause 36 of the legislation, to precisely find out the impact of all the exemptions that are found there.

I would like to speak briefly about what we feel are Canada's obligations under international convention. We would ask the committee to note that Canada became a contracting party to the Rio Convention on December 4, 1992. The obligations of the contracting parties to that convention are set out in article 8 and are well described. The purpose of the convention is well described in the preamble.

We would see this bill as the federal government's attempt to fulfil international obligations under that convention. We think this bill ought to be analysed against constitutional obligations and international convention. Thank you, Madam Chair.

Mr. Franklin Gertler (Member, National Environmental Law Section, Canadian Bar Association): Madam Chairman, my name is Franklin Gertler.

[Translation]

I am going to present in English, but I'll be happy to answer questions in French.

[English]

I am just going to take a few more minutes to talk briefly about some specifics with respect to the bill.

First, I have a note on vocabulary. I think that in some places in our brief we've used ``endangered'' and in other places ``species at risk''. We realized - perhaps only too late - that whatever words we chose, we were running into defined terms.

So what we're talking about are species with problems, species that need protection. We recognize the different levels of protection, but please don't get too technical about some of the words we've used, because the way the drafters have monopolized the words, there's nothing much left you can use.

In our examination of Bill C-65, we believe it is necessary to consider whether it is comprehensive and effective and fulfils Canada's constitutional responsibilities and international obligations. When it is tested under those criteria, our view is that the bill falls short in many respects.

I should also note that even though this bill is about a very public matter - something of importance to Canadians, as reflected in the preamble - it is so convoluted as to be inaccessible, and so carefully drafted, with exceptions, as to lose most of its meaning. So there's a large gap between the press releases and the reality in this case.

In coming to the conclusion that it falls short, we have three primary concerns with Bill C-65. First is the failure to provide comprehensive protection for species and habitat. Mr. Meschishnick has mentioned that to some extent already.

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The second thing is inappropriate reliance on discretion and political will for the implementation of the legislation.

The third is inadequate provision for public participation, inadequate remedies for harm to species and habitat, and government inaction in that respect.

I'm going to briefly comment on each one of these.

On the failure to provide comprehensive protection for species and habitat, our view is that in view of the scope of federal authority to protect species and habitat, the bill is needlessly narrow - in fact, dangerously so.

It ignores clear areas of federal responsibility. For example, the protection of international species is deferred to regulation, and interprovincial species are left out entirely.

So the result is that some species currently within federal jurisdiction would be preferred over others. That is a distinction that, in view of the biological reality and the obligations of international law, we find difficult to understand.

Just to give you an example of the kind of problems, we look at clause 3, the scope provision of the bill. Subclause 3(1) essentially excludes from the provisions of the bill everything except fish - aquatic species - and migratory birds. And what is excluded in subclause 3(2) is nothing minor.

The species outside those limited numbers are excluded from the listing process, from the prohibitions under clauses 31 and 32, from any regulations putting into place recovery plans, and from emergency orders. So you might say this is where the body is buried, or will be buried.

We say that the treatment of habitat issues is particularly worrisome and that the bill takes an unnecessarily narrow view of federal jurisdiction in that regard. The purposive reading of federal power would say that if there is power to protect the species, there must be power to give effect to that protection by protecting the habitat. That would be in line with the trend in some court decisions regarding environmental and related natural resource and wildlife matters.

Now I will turn to the question of discretion and political will, Madam Chairman. Our view is that the bill is characterized by a high degree of discretion vested in the executive. As we said in our letter of June 1996 - and the situation has not essentially changed:

...concrete regulatory and administrative action to protect habitat and endangered species would have essentially been rendered optional. Failure to appropriately exercise that discretion would deprive the legislation of all but symbolic effect. At best, such discretion would create regulatory uncertainty and insulation from legal accountability. ...in accord with the Rule of Law, we are of the view that any legislative proposal should avoid unstructured discretion in favour of objective and reviewable standards and language.

Madam Chairman and members, this is good not only for environmentalists and species but also for industry.

You will hear over and over again that industry would like to have certainty in the rules that govern their activity, whether it be a mining concern or a pipeline company. They want to know when they can and cannot act, and not be left to ministerial discretion, which can be lengthy and uncertain.

We give as examples things like the fact that the listing of recommendations of COSEWIC is left to discretion; it should be automatic. If this is a scientifically based exercise, there shouldn't be a need for exercising discretion in that regard.

There's no legal obligation to implement recovery plans. I understand there is an obligation to implement recovery plans, but not in a legal way. In other words, the making of regulations is optional.

Just as an example of the kind of language that could be used to tighten things up - and we haven't gone through the exercise throughout the bill - let me give just one example.

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Clause 34 of the bill deals with emergency orders, and in subclause 34(2) we see discretions. It says:

The responsible minister may

- not ``shall'' -

make an emergency order providing for the protection of a wildlife species if the responsible minister determines that the recovery plan for the species no longer adequately protects it or that immediate action is required to protect the species.

And then it says:

The order may include

The way to reform this would be to simply take out the words ``if the responsible minister determines''. It should then read:

The responsible minister shall make an emergency order providing for the protection of wildlife species if the recovery plan for the species no longer adequately protects it and immediate action is required

This doesn't mean that the minister doesn't exercise any discretion. He'd be the one to make the finding, but it would remove the situation where the exercise of that power - more precisely, the failure to exercise it - is entirely insulated from any review or oversight.

We had the same problem with Bill C-78, which became C-13, the Canadian Environmental Assessment Act, and that act was cleaned up considerably. The first versions were just riddled with this kind of language. It doesn't serve the public. It serves the needs of those who want to be insulated from the courts.

On the question of public participation and remedies, we know the bill makes a serious effort in this regard. However, there are a number of places where narrow definitions of interested parties are used in a way that does not allow for easy or meaningful public involvement.

In that regard, we would refer particularly to public participation with respect to recovery plan in relation to clauses 38, 39 and 41. There the question as to who may be directly affected is left to ministerial discretion.

The bill also doesn't make systematic provision for public involvement in all aspects of its administration. For example, in making territorial equivalency orders under clause 3, the Canadian public is left out.

With respect to accountability, we also made recommendations that you'll find on page 14 of our brief. There are also recommendations on page 15. These are with respect to: reporting on the application on the bill, both by federal and provincial authorities, in the case of delegation; and the need for sunset clauses so there's reconsideration of these issues, especially agreement for delegation and periodic review.

We also make recommendations on the need to add some extra language regarding the comprehensive nature of reports under clauses 101 and 103. That's found at page 15.

Finally, in this regard, with respect to protection actions under clause 60, we're just amazed at this idea that you have to show there's an unreasonable refusal to act before there can be a citizen's right to participate through a judicial process. That's an unprecedented and unworkable prerequisite for access to reports.

So that covers our basic concerns under the three headings I mentioned earlier.

I have a final note on environmental assessment, Madam Chairman. We believe that the interaction between this bill and the environmental assessment under CEAA needs some further clarification and development. We set out 4 different points on pages 16 and 17 of our brief. I'd like to mention only one in my oral remarks, and that is the whole question of whether permits and authorizations for activities affecting species at risk should be subject to environmental assessment.

Our view is that just as section 35 authorizations under the Fisheries Act, which allow for the destruction of fish habitat, have to be subject to environmental assessment because they are a law list trigger, the same situation should apply to activities, permits and authorizations with respect to the destruction of, or damage to, species at risk or endangered species.

That would require amendments to the law list regulations under the Canadian Environmental Assessment Act. I believe it would also require an amendment to make sure that the kinds of activities are brought within the inclusion list of physical activities that are projects for the purposes of CEAA. This is because they're not physical works but activities in question.

I think I've taken too much of your time, and I look forward to your questions. Thank you.

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The Vice-Chair (Mrs. Payne): Thank you. That was a very inclusive presentation. Thank you very much.

We will go on and hear the other two presentations. We have about 15 minutes left for the bell, which gives us about 10 minutes more here.

So, Mr. Lindgren, I think you're coming up next.

Mr. Richard D. Lindgren (Counsel, Canadian Environmental Law Association): Thank you, Madam Chair. As many committee members will probably know, CELA is a public interest group, established in 1970 for the purposes of using and improving laws to protect the environment and natural resources. We certainly are grateful for the opportunity to address the committee on this important piece of legislation.

Madam Chair, members of the committee, we have used our environmental law experience and our public interest perspective to review Bill C-65. Our conclusion is that Bill C-65 should be supported in principle. After all, having an endangered species law at the federal level is better than not having an endangered species law at the federal level.

While we do support the bill in principle, there are many provisions in the bill as drafted that we cannot support. For that reason we have suggested some substantial amendments to this legislation.

It's our conclusion that, as drafted, the bill will not adequately protect species at risk in Canada. We note that clause 5 of the legislation provides that the purpose of Bill C-65 is to prevent extinctions and to help with the recovery of species at risk in Canada. That is a very laudable objective, and we certainly support it, but Bill C-65 as drafted will not achieve that objective.

So if the federal government is serious about achieving that objective, then the bill must be amended, and amended substantially. It's something that cannot be done through fine-tuning or tinkering.

Now, the amendments that we believe are necessary are set out in the detailed brief I filed with the clerk this morning. The clerk has distributed that to the committee members.

We make approximately 37 different recommendations in order to identify those reforms, those amendments, that are necessary to make Bill C-65 a workable piece of legislation. Madam Chair, you'll be relieved to know that I'm not going to go through each of those recommendations. In fact, I'm not even going to open the brief. I'll leave it to the committee members to read it at their leisure. I can assure you it is very scintillating leisure reading.

I'd like to highlight very briefly two of our key concerns about the bill. The first is the scope and application of Bill C-65, and the second is the new public right to sue that my friend Mr. Gertler just spoke about.

I will turn first to the scope and application of Bill C-65. As the committee just heard from my friend, clause 3 of the bill limits the bill to three things: fish, migratory birds, and species that are smart enough to live on federal lands. Now, that's a little bit surprising, because it doesn't even apply to or protect the transboundary species, species that are clearly within federal jurisdiction.

In our opinion, this very narrow, very selective application of the bill is probably the most objectionable aspect of this proposal. In my view, there's a strong need for strong federal environmental, endangered species legislation.

There's a strong constitutional basis for strong federal endangered species legislation. We've just heard our colleagues from the Canadian Bar Association make the same point. That's why -

Mr. Knutson: On a point of order, I find that double bell really distracting. You know, I'd like to hear what you're saying, because I think it's important. I just wonder if we could break now, and come back.

The Vice-Chair (Mrs. Payne): We do have 14 minutes left. But like Mr. Knutson, I would also like to be able to pay more attention to your presentation. So with your permission, I think we'll break at this time. Thank you for the intervention.

We'll be about half to three-quarters of an hour.

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The Vice-Chair (Mrs. Payne): Good morning once again. We will resume these hearings. I apologize again for the interruption.

I think we finished with the second-to-last witness.

A voice: We're still on CELA, the Canadian Environmental Law Association.

The Vice-Chair (Mrs. Payne): Okay, then we'll continue with the Canadian Environmental Law Association.

.1115

Mr. Lindgren: Thank you, Madam Chair. I'll attempt to wrap up my comments as quickly as possible.

I was in the process of outlining CELA's two principal concerns about Bill C-65. I was dealing with the first one, the scope and application of the bill. I was in the middle of saying to the committee that there's a clear and compelling need for strong federal endangered species legislation and there's a clear constitutional basis for such legislation. That's why we fail to understand why Bill C-65 has been deliberately drafted in such a narrow and tight fashion. We can only conclude that this narrow application was prompted more by political considerations than by legal or constitutional considerations.

What has to be done to fix that problem? Our prescribed solution is set out in recommendations 3, 12 and 15 of our brief. I won't take the time to take the committee into the brief to look at those, but essentially we're asking for a comprehensive amendment of clause 3 of the bill to ensure it clearly applies to all species at risk in Canada and to all residences and critical habitat of such species in Canada. That's what we're looking for.

But if that kind of amendment is not possible or not adopted, then our alternative position is that at the very least clause 33 has to be amended so as to impose a mandatory duty on the minister to actually pass regulations protecting transboundary species. By regulations protecting transboundary species, I'm referring to prohibitions against harming those species, prohibitions against harming the residences or critical habitat of those species and prohibitions that outlaw the possession of transboundary species.

Those general prohibitions must be incorporated into any regulations promulgated under clause 33, and they have to apply to both interprovincial and international transboundary species. As drafted, clause 33 merely permits but does not require regulations for only international species, and that's far too narrow, in my view.

Let me turn briefly then to the second major concern we have with the bill, and that is the new public right to sue. As the committee is aware, Bill C-65 contains a new public right to sue in order to protect endangered species. This new right to sue is an important reform, and we certainly support it.

We also note that it looks very similar to the new right to sue that is found in Ontario's Environmental Bill of Rights. I was a member of the task force in Ontario that actually drafted that legislation, including the new right to sue, so I read the Bill C-65 provision with a great deal of personal and professional interest.

The problem I see with the Bill C-65 right to sue is that it unnecessarily incorporates too many of the qualifications and limitations found in the Ontario legislation. Those qualifications and restrictions may make some sense in the Ontario context, because the Ontario Environmental Bill of Rights is a law of general applications. It allow citizens to sue in respect of any contravention of most of Ontario's environmental laws, environmental regulations and environmental approvals, even offences that may objectively be regarded as fairly insignificant offences, such as failure to file a monitoring report. Under the EBR in Ontario, technically you might be able to bring an action with respect to those kinds of offences if you meet the conditions precedent.

That is not the situation under Bill C-65. Bill C-65's right to sue is focused on the very narrow and very important prohibitions in the bill, such as harming species or harming residences. For that reason, it's our suggestion that there is no need to incorporate the EBR qualifications and limitations into the new right to sue.

In our opinion, the Bill C-65 right to sue should be lean, mean and green. All it really has to say is, if a person violates or is about to violate the act, then any person resident in Canada should be able to go to the civil courts to stop the activity or to remedy the activity. That's all it needs to say.

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For that reason, Madam Chair, it's our further recommendation that the Bill C-65 right to sue should not be predicated on the filing of an investigation request. In our view, it makes no sense to make a plaintiff file an investigation request, wait two, three or more months for a government reply and then go to court. If there's serious or imminent harm to a species that has occurred or is about to occur, that plaintiff should be able to go to court directly. It makes no sense to make the plaintiff wait even one, two or ten days before they can go to court.

If the filing request is retained in Bill C-65, then at the very least Bill C-65 has to be amended to include an emergency exception to allow people to get around the filing request in truly urgent circumstances. I should point out that this emergency exception does exist in the Ontario legislation. It's a very important exception.

My conclusion on this point is if Bill C-65 is going to lift an EBR-type right to sue with the precondition that you have to file an investigation request, then at the same time Bill C-65 should include the emergency exception. You can't take one without the other. If you're going to file, you need an emergency exception opportunity.

I understand there's been some concern in these committee hearings that the new right to sue will translate into a whole proliferation of lawsuits under this legislation. In my view that is not going to happen, and I base that answer on the Ontario experience that has this type of right to sue.

Since the Ontario legislation was proclaimed in 1994 there has not been a single lawsuit commenced under the Ontario legislation. There have been 28 applications for investigation filed under the Ontario EBR, but not one has translated into litigation. I think that means, among other things, that plaintiffs in Ontario are being very selective and very strategic about the types of lawsuits they're going to bring under the Ontario right to sue. I think we've seen that experience in other jurisdictions that have the right to sue, and I fully expect that plaintiffs will exercise the same level of caution and restraint when they're using the new right to sue under Bill C-65.

Let me conclude my remarks on that optimistic note, and I look forward to any questions the committee may have. Thank you.

The Vice-Chair (Mrs. Payne): Thank you very much, Mr. Lindgren. We'll now go to Mr. DeMarco for his presentation and then on to questions by the panel.

Mr. Jerry DeMarco (Director, Wildlands League): Thank you, Madam Chair. My name is Jerry DeMarco and I'm a director of the Wildlands League, which is a provincial group based in Toronto but with over 4,000 members across Ontario.

Our primary focus is protected areas, i.e., protecting habitat in the province of Ontario, as well as sustainable forestry practices and sustainable land use practices.

I'll try to keep my comments to a provincial perspective, but I do support the comments of the Canadian Bar Association and the Canadian Environmental Law Association on such aspects as scope and eligibility. I will try to maintain a link to the Ontario experience.

I'm a lawyer as well as a professional land use planner, but my interest in this is more of a personal one. I've been a natural historian and amateur ornithologist since I was a child and have seen many species in my short lifetime added to the endangered species list. In fact, the one added this year, the prothonotary warbler, used to be visible from my family's residence and it is no longer.

The context of this legislation bears a lot of resemblance to the Ontario Environmental Bill of Rights and Endangered Species Act, and I believe there are important lessons to be learned from those acts.

In terms of eligibility, I don't see why the present bill has to be restricted to only about 40% of the species in Canada. Many of Ontario's species will not be covered by this bill.

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It should include cross-border species - those crossing both international boundaries and interprovincial boundaries. Those are fairly clear federal responsibilities. It should include all migrating birds.

It is often forgotten that the Migratory Birds Convention Act doesn't cover all migratory birds, because in the early 1900s when it was passed, people didn't have a very enlightened view of predators such as owls, falcons and hawks, and therefore they were excluded from that act. So the definition as found in clause 3 would maintain those prejudices against birds of prey and exclude many of the species that have been used in the press releases and press conferences for this bill, such as the falcon and burrowing owl, which will ironically continue to be unprotected by this bill. So those two things are minimum - cross-border and migratory birds - but as endangered species are a national concern, it should include all endangered species in the country.

Listing a species is a major problem with this bill. As in Ontario, it's left to the executive to decide which species are included in the list to be protected. Last night I prepared a list of the Ontario species that are on the present COSEWIC list, and there are approximately 50. Only 17 of those have been listed in Ontario thus far, including many endangered birds. Three endangered birds, and many plants as well, have still not been listed in Ontario. That's our track record on a listing process that is left up to the executive.

In the province of Quebec there are 10 COSEWIC animals that have been listed. None have been listed provincially by that province - a similar situation. So the discretion to list at the cabinet or ministerial level should be removed and replaced with a mandatory clause incorporating the COSEWIC list by regulation or by schedule.

Perhaps the most disturbing part of this bill is the level of protection. Habitat loss, especially in the province of Ontario, is the single greatest factor for endangerment and extinction of species. In fact, it's estimated that about 80% of those species have become endangered because of habitat loss.

Unfortunately, this bill can't protect those species by simply protecting the individuals of those species or their narrowly defined residences, such as dens and so on, especially for migrating birds and species that do not have very identifiable homes, such as caves or nest sites. Most of their life cycles will be spent away from that definition of residence, yet they require those places to live. If one protects the bed of a person's house but lets the rest go up in flames, that person will not really have much of a residence left in which to live.

So the level of protection is quite minimal in this bill and really forces the bill to fail in achieving the goal of preventing any more extinctions in this country. I would suggest that habitat be added as a protection measure in the bill.

A general comment about the bill is that it seems to maximize options for discretion and exemption as a narrow scope of what is included. Really, when one looks at the goal of endangered species protection, none of that discretion, exemption or narrow scope is really defensible in any way. If the goal is widely held, and I believe the polls suggest over 90% hold the goal of endangered species protection, including landowners and farmers, then why doesn't the bill reflect that public will? That probably epitomizes the problems identified with the bill by the environmental community.

In today's Globe and Mail in the context of the new CEPA, the concluding remark is that ``Ottawa is expecting criticism from environmentalists who say this bill, as the endangered species legislation, doesn't go far enough''.

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The reason is that if one were true to the words of the act and said that this is an act that may help in some small way to protect endangered species, and that's all it sets out to do - if that's what it said and if it were honest, then it wouldn't be as open to criticism. But when it's lauded as the cornerstone of endangered species protection in this country, when it really only seeks to implement a very narrow aspect of that protection, then it is open to criticism and that criticism is well founded.

Until these changes are made, that criticism is expected to continue from environmental groups and the general populace across this country.

Thank you, Madam Chair.

The Vice-Chair (Mrs. Payne): Thank you very much, Mr. DeMarco.

For the first round of questions we'll go to Mr. Asselin first.

[Translation]

Mr. Asselin: Do you feel that Bill C-65 is going to change the world and protect endangered species? It is entirely possible that the bill will be passed by the House of Commons and will have no effect whatsoever. There is no provision in there to protect the natural habitat as well as the air, the waters and the land, which would also help species at risk to survive. If we do not see to the quality of our air, our waters and our land, we are going to self- destroy.

Bill C-65 will only be useful to the Minister. He will be able to say that, because of his concern for the environment, he was responsible for the legislation protecting endangered species. But who is going to inform the public? Who is going to monitor the situation and impose fines?

We must inform the public, exercise controls and impose fines on those who contravene the legislation. Bill C-65 will not be enforceable on provincial, aboriginal and private lands. We know already that in federal parks, hunting, trapping and development are prohibited. But what changes will Bill C-65 bring about tomorrow morning? It will only make headlines: the Liberal government again shows its concern for the environment Bill C-65 is passed.

Let's take an example. I am a farmer. I have a farm with an access road around a lake and, at one end of my land, I harvest firewood. Next to my house, there is a chicken coop. However, there is a red fox around and when he is hungry, he plays havoc in my chicken coop. I know that the red fox is on the list of species at risk and that I cannot kill it. Should I let the fox destroy my chickens or should I deal with the fox? Tomorrow morning, it is very likely that you'll see the tail of the fox flying from the seat of my son's bicycle.

If the road I use to access my firewood harvesting operation goes around a lake and if beavers have locked the lake by building a dam which, in turn, floods my access road, it's very likely that I'm going to destroy that habitat and, at the same time, the species which affects my farming and firewood harvesting operations.

When harvesting my firewood, it's very likely that I will discover an eagle nest in the wood I have harvested and that the eagle disturbs me. So, it is very likely that, tomorrow morning, you'll find some feathers on the ground because I got rid of the eagle which disturbs my firewood harvesting operations. Will I be fined? Who is going to tell me that this species is endangered? Who is going to look after these endangered species and add them to the list? Who is going to report offences and impose fines? Will this legislation be enforceable if I act this way on provincial, aboriginal or private land?

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[English]

The Vice-Chair (Mrs. Payne): Thank you, Mr. Asselin.

Who wants to start?

[Translation]

Mr. Gertler: That's quite a question, Madam Chair. We learned a lot about Mr. Asselin's operations.

Let me briefly make a couple of comments. We certainly all agree that we need to generally protect the environment to deal with endangered species. What directly hurts threatened species has probably more to do with protecting the land and the habitat than with air or water pollution issues.

As for public education - which nobody can disagree with - it's something we are very familiar with. Indeed, in the Orenstein report, which more or less led us to explore the issue - this is not association policy - , it is suggested that there be some kind of legislation on educating the public and making people aware of those issues. However, we need processes and a budget to implement this type of provision.

On the subject of control and fines, we agree that the bill does not have enough teeth in terms of enforcement. We also agree that its territorial coverage is too limited. We suggest cooperation with the provinces through equivalency orders or administrative agreements, but we do not agree with the limited coverage which seems to be advocated in the bill.

We must be sensitive to provincial jurisdiction, but how can it be indicated? We are convinced that the bill, as it reads now, does not even come close to the jurisdiction limits of the federal government. There are problems even in those areas which are supposed to be covered.

My colleague, Mr. Meschishnick, talked about Crown corporations. In the bill, Crown corporations are covered in a rather fragmented and non-binding way, and our experience shows that Crown corporations claim to be exempt from provincial legislation and would argue that this legislation on threatened species does not apply to them.

Their lobbying of the Ministers' office is rather powerful. It should therefore be explicitly mentioned in the bill that they are not exempt. If not, there will never be any regulations which will bind Crown corporations and could be enforced on the land they control. The two are not exactly the same. It concerns not only the operations of a given Crown corporation at large, but also the management of land belonging to Crown corporations.

Mr. Asselin: What happens regarding the beavers and the dam I destroyed, and the fox and the eagle I killed?

Mr. Gertler: I already used quite a bit of time. I'm going to let my colleagues answer that. I hope you will be prosecuted under every possible federal and provincial legislation.

Mr. Asselin: But who is going to prosecute me? Some volunteer, somewhere?

Mr. Gertler: We need a budget and a legislation with teeth.

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[English]

The Vice-Chair (Mrs. Payne): Mr. Lindgren, did you want to add something to that?

Mr. Lindgren: Actually I did, Madam Chair. I had a few brief remarks in response to the comments from the member.

At the outset, you indicated some concern over what this bill really does, if it is passed as drafted. I share those concerns, because fish and fish habitat are protected through the Fisheries Act already. Some migratory birds and some of their habitat are protected through the Migratory Birds Convention Act already. Species on federal lands such as national parks - they're protected to a limited degree already.

So what does this bill, if passed, do for all the other species? Not very much, and that is why we're suggesting a number of amendments are necessary.

You also raised the general question: who's going to do the public education? Who's going to advise the landowners that they may or may not have some significant habitat on their property? I share Mr. Gertler's comments about the need for public education programs and the need for good landowner contact programs. I see those as a very important supplement to legislation like this. People have to know what their obligations are before you can hold them accountable for their failure to live up to them.

I'm reluctant to get into the beaver dam situation, and the red fox situation, and the eagle nest situation, but I'll tell you, as you know already, there are provisions in the bill as drafted that would allow you to apply for and maybe even receive permission to deal with the problem if you can meet certain criteria.

The problem I have with the exemption procedures in the bill is that they're far too broadly cast and could capture or authorize just about everything. I think that needs to be tightened up a bit. But the point I'm making here, sir, is that there are opportunities to address site-specific problems, without necessarily calling into question the need for strong legislation.

Let me conclude by speaking briefly to the enforcement question. You raised the question of who is going to enforce this. Well, that's a very important question. Is it going to be the federal government? Is it going to be Environment Canada? I don't know. I doubt it, in light of budget restrictions, staffing reductions, and offloading of responsibilities to provinces. I don't really see the feds taking a strong role in enforcement.

Does that mean the provinces are going to do the job? Let me speak to the Ontario experience. I see the Ministry of Natural Resources being downsized. I see major budget reductions there. I'm not sure they could be in a position to comprehensively exercise any enforcement activities or responsibilities that would be delegated to them.

So what does that leave us? That leaves us with the public. That's why I said earlier in my presentation that tools that are available to the public to enforce the law can't be encumbered with unnecessary restrictions, because when push comes to shove and the federal government doesn't act, and the provincial government doesn't act, it has to be open to the people, the members of the public at large, to go to court to do the job. Quite frankly, that's what I do for a living. I represent people who do that.

I'm not saying pass Bill C-65 so I have something to do. I have lots of cases; I turn them down. The point is, the right to sue to protect an endangered species has to be something that is realistically available to the people to ensure that the job gets done.

The Vice-Chair (Mrs. Payne): Thank you, Mr. Lindgren.

Mr. Steckle now, please.

Mr. Steckle: Mr. Lindgren, I've been listening very carefully this morning, because I have to believe that.... There's a career at stake here, I'm sure, a long-term career for all of you, as this thing lives out into the future.

You speak about Canada's obligations under the Rio Convention. How have the partners to the Rio Convention responded to their obligations, and how far short of our obligations are we coming? You're suggesting that perhaps this bill speaks to it but may not address our full obligation to the convention regarding transboundary species and that kind of thing. Perhaps you could respond to that.

Mr. Lindgren: I'll start, but I believe those comments were actually made by my friends from the Canadian Bar Association.

Mr. Steckle: Oh, I'm sorry.

Mr. Lindgren: But I have an opinion on that, and it's reflected in our brief. As was noted earlier, the Rio Convention does oblige signatories to implement legislation to protect rare, threatened or endangered species.

Does this bill satisfy that requirement? In some respects it does, but I think overall it doesn't, because it does not ensure that there's going to be an enforceable and effective national regime that is going to apply equally from coast to coast to coast. For that reason, I think this bill does actually fall short of meeting our obligations under the Rio Convention.

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What other jurisdictions have done I can't really say, because I don't practise law in those other jurisdictions, but as this committee is aware, the federal government in the United States has strong endangered species legislation that's been in force for decades. I'm the first to tell you that there are problems with that legislation, and I'm the first to tell you that we don't necessarily want to incorporate all of that holus-bolus into Canada.

But that gives us a sense of where we are internationally. We haven't even come up to snuff in terms of what the Americans have done over the past few decades.

Perhaps I can pass it along to you, Mr. Gertler.

Mr. Meschishnick: From the point of view of the obligations under the Rio Convention that are found in article 8, it's our view that the obligations clearly include protection of ecosystems, protection of habitat and protection of species.

I could simply read you the provisions out of article 8, but they're quite available. I think the most important are the last two, which talk about the obligation to rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, going on in paragraph (k) to develop and maintain the necessary legislation to do so.

I can't speak very intelligently about what other contracting parties have done to meet those obligations, but in our view, if Bill C-65 has these obligations in mind, it's just falling short of complying with them.

Mr. Steckle: If there is one compelling argument made by all parties to witnesses before this committee, it is the issue of the support given and not given in the legislation to habitat management or protection. What is the American experience relative to habitat management protection in their legislation?

Mr. Lindgren: Habitat has been protected to some degree, and it has certainly spawned a lot of litigation. That's not necessarily in the best interest of the species either, which is why there should be some certainty built into the law and the regulations specifying what can and can't be done to habitat. Frankly, expressing a desire for a legal career, I don't want to spend it protecting endangered species legislation. I'd rather sue the landfills.

I'll pass it to Mr. Gertler if he has any additional comments.

Mr. Gertler: I think the committee might be well served by having a witness from the National Audubon Society or some other U.S. NGO that could give you chapter and verse on this. I won't pretend to be able to do it, but I think it is important to notice that there are these international obligations. Obviously, Canada has to take account of its federal nature in giving effect to those obligations.

On the other hand, we are faced with a situation where there are only four provinces with legislation. We're coming up to the five-year review of Rio, and of those, only the Quebec legislation, even though it hasn't been given much effect.... I guess the red fox is not protected. I'm not sure about the eagle, but I don't think either of them are protected under Quebec's regime as things stand.

But Quebec has the best legislation, at least on paper. The others are quite lacking. So there is a need to move forward, and we submit the Government of Canada has to play a leadership role.

I think it's important to understand that this is not just wildlife legislation. That's one of the key changes in mentality, and that's where the habitat protection aspect comes in. This is biodiversity legislation, and that implies a much more sophisticated view and a much more integrated approach. This kind of pick and choose - this species and that species, this habitat but not that habitat - surely cannot be an effective approach in that perspective.

The Vice-Chair (Mrs. Payne): Thank you very much.

We'll start round two. Mr. DeMarco.

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Mr. DeMarco: I have a comment on the American approach. You may have known that a couple of years ago Newt Gingrich and his friends in the Republican Congress tried to either seriously degrade that legislation or have it entirely removed. At that time the Endangered Species Coalition in the United States did a study of the advanced review provisions of the United States Endangered Species Act whereby, if someone wants to alter the critical habitat of endangered species, they must go through sort of an EA process like what we have here.

They tabulated them, and over 99% of those conflicts were resolved to the satisfaction of both parties. As for the hypothetical situations such as the fox, the eagle and the beaver all happening in one place in one person's backyard, by definition they don't happen very often, because these species are endangered and there are only a few spots where they live. A lot of those urban myths, those hypotheticals, came up in the rhetoric, but when they actually went through and tabulated it there weren't very many cases like that; in fact, less than 1%. Even in those rare cases where they did, there were lots of voluntary measures from local people contributing to compensation funds.

That happened in Ontario this year with a nesting colony of henslow's sparrows on a farm. The farmer wanted to cut his hay but they were nesting in there, and the community contributed to a fund to give him the amount of money he would have got from harvesting that.

There is a prohibition in the Ontario Endangered Species Act similar to the one that would be in the national one, and there the local people banded together for a very unsexy bird, a brown sparrow that no one really sees very often. But you have that support across the population, and that was a rural area.

The Vice-Chair (Mrs. Payne): Thank you very much. Mr. Adams, please.

Mr. Adams (Peterborough): Thank you, Madam Chair. I apologize that I missed some of the early presentations; I had to leave and come back again.

You may have done this, but it has to do with the environmental association's recommendations, in which you include definitions of critical habitat and habitat. It may not be fair to ask you to argue both sides of this matter, but we have had witnesses who have said it would be better not to define habitat and critical habitat. My understanding is that it might be too restrictive, you can't define exactly what is critical - the bed and house fire analogy, that kind of thing.

I wonder if any or all of you would care to address these particular definitions, if you wish, but also the value of including a definition, and perhaps give us some idea why you think these other people suggested it might be better not to include a definition.

Mr. Lindgren: I'll start off the discussion. First of all, I'm fully in support of clear and concise definitions in the bill, particularly for the clauses that really drive the bill. Things like habitat and species have to be defined in one way or another.

The other side may tell you to leave it to them to decide what is habitat. They may ask you to give them maximum flexibility in deciding what this is going to cover. The problem with maximum flexibility is that it creates minimum accountability and minimum predictability about what is caught and what is not. I think it's in everybody's best interest - landowners, the government, the public at large - to know with some particularity what the act applies to and what it doesn't.

What we've tried to do on page 15 of our brief is define some of the key definitions that really drive the bill. We've tried to define them as clearly and, I'll tell you, as broadly as we can to make sure we capture as much of the stuff as we have to capture. It may be necessary to leave open the door to define habitat further through the regulations or something. But I think the statute needs definition. There are no two ways about it.

Mr. Adams: When you say the ``other side'', in this context - and I forget the exact context; I see our researcher's not here - it was someone who was concerned that in fact if you overdefined there would be less protection for the endangered species.

Mr. Lindgren: I'll put on my legal hat and argue the contrary position. I think we need clearer definitions; otherwise we'll always be arguing the slippery slope of what's habitat, what's a species, what's caught, what's not. That does not engender or provide very effective protection at all.

Mr. Adams: Okay.

The Vice-Chair (Mrs. Payne): We have our staff person here in place of -

Mr. Adams: Yes, please.

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Ms Kristen Douglas (Committee Researcher): We do have one researcher still here, Mr. Adams. I know the other researcher asked Mr. Adams to ask this question. That's why he said there was no researcher present.

The context in which the question arose was that we had a witness recently who made the argument that it's not useful to define critical habitat because it's practically impossible to separate critical habitat from non-critical habitat. Particularly for an endangered species, any habitat they would use is critical, and no biologist or other scientist could separate any part of their habitat that could be considered non-critical. So he felt it would be more useful to talk in terms of habitat and not in terms of critical habitat or to define critical habitat as any habitat used by a species at risk.

Could you comment on that?

Mr. Lindgren: It's half of one and six dozen of the other. I don't really care where the definition shows up, or whether it's labelled critical habitat or habitat; the essential point is that it has to be defined and defined broadly to capture everything that the species needs for its life-cycle needs.

Mr. DeMarco: My view on this is that first of all, before we get to the argument about the definition of habitat, we should have consensus that the legislation should protect habitat, and then we'll have a good reason for applying the definition. So assuming we get to this stage and that it would be consistent with the preamble and the objectives of the legislation, I would say that one can define habitat. Just from my notes here it would be something like: the area or type of site where an organism or population naturally occurs or formerly occurred before extirpated and has the potential to be reintroduced.

The idea of a critical habitat, that's where a lot of subjectivity comes in. So for habitat one can look at the Ontario Breeding Bird Atlas and find where that bird breeds, find where it winters and so on, and you have its habitat. But going from that larger bubble to a somewhat narrower critical one is where you're going to have a lot of legal wrangling and subjectivity. I think it if protects habitat it can define it, but getting into various sub-definitions of that may be dangerous.

Mr. Adams: So we have another definition on the record there. I thank you both for that. In subclause 31(1) - and, again, it was a presentation I missed because of the Environmental Law Association - simply because we have a battery of lawyers here, I want to ask you about the use of the word ``take'' or ``taking''. Again, we've heard witnesses who have suggested that this word has caused some problems under the U.S. legislation and that it might be better to use one or more other words such as ``collect'' or whatever. Again, it's a fairly general question, so we can get on the record some more thoughts about that. So it's not CELA's recommendations, which I understand and so on; it is your thoughts on the use of the word ``take''.

Mr. Lindgren: I'll limit myself to that particular issue. For the record, I point out that our suggested rewording for that clause is found on page 27 of our brief. I won't take you to it, but we do use the word ``take'' in that. I think the problem with the word ``take'' in American context is that it carries with it a lot of baggage - baggage having to do with expropriation without compensation. We don't carry that constitutional baggage here in Canada, so I don't see any difficulty with putting the word ``take'' into the federal legislation.

Mr. DeMarco: I share Mr. Lindgren's views. The one change I would make to clause 31 is to include the word ``disturb',' which is found in the Migratory Birds Convention Act regulations. One can cause a bird to leave its nest without actually taking it, killing it, or even harassing it, but just by disturbing it repeatedly. So I would change this clause to include that, but I don't see any problem with the word ``take'' per se.

Mr. Adams: Would anyone else care to comment on it? It simply gives us something on the record about that issue. I note the inclusion of the word ``disturb'' in here, and we have that on the record already.

Mr. Meschishnick: If there were a comment that I would like to make about subclause 31(1), it's not particular to the words that are used but perhaps to point out that it's surely directed, in terms of the words it uses, towards critters - animals. Wildlife includes plants and organisms, and I'm not sure the wording there necessarily takes into consideration all of the protection such as uprooting -

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Mr. Adams: Harvesting or whatever.

Mr. Meschishnick: - that could be included in terms of plants.

Mr. Adams: Thank you. Thank you, Madam Chair.

The Vice-Chair (Mrs. Payne): Thank you very much. Mr. Knutson is next.

Mr. Knutson: Thanks very much. If we can just turn to the constitutional issue - and I'll throw it open - do I take it that in summary your position is that the federal government should provide maximum protection to endangered species as allowed under the Canadian law, and if there is overlapping jurisdiction we should maximize the reach of the federal government? I see people nodding their heads. Is that a fair summary?

Mr. Gertler: I don't know if we put it quite that way. What we've said is that the federal government should enact broad legislation to cover...I should get it right because it's policy of the association. One moment.

It's ``to cover a broad range of species, habitat and territory and remain well within federal jurisdiction''. In the letter the association sent in June to the Minister of the Environment and the Minister of Justice, we set out the view that for endangered species there was in all likelihood federal jurisdiction under the national concerns branch of the peace, order, and good government power.

That being said, we also recognized that beyond the international and interprovincial aspects of that federal power with respect to national concerns - and the international and interprovincial is also covered obviously by the trade and commerce power - there would be controversy.

We therefore went on to say that even coming shy of that full coverage there was federal jurisdiction on the basis of a whole series of particular areas such as fisheries and migratory birds, but also such as Indians and Indian lands, and indeed the criminal law power. Perhaps that along with national concerns is the most under-exploited aspect of this legislation.

Criminal law has certain problems because it doesn't allow for a full and sophisticated regime of administrative measures the way other heads of power do. The approach has to be one that is criminal in nature; however, given that, there is nothing limiting criminal law to being purely punitive. The exercise of the criminal law power can legitimately also have a preventive aspect, and that's where you would even get federal jurisdiction under criminal law to cover both the prevention of harm to those species and to habitat.

The idea here is that if for example we can prevent cruelty to animals as contrary to criminal law, then we can surely prevent their extinction as an extension of that, both on moral grounds and cruelty grounds, not so much on environment as such. That's the whole debate that's been surrounding litigation under CEPA.

Mr. Knutson: I'm going to jump in. On one hand you can give me an opinion that says this is an opinion based on whether you'll win in court, and that's what I would expect a lawyer to do, or legal advice to do.

Mr. Gertler: I hope we do more than that.

Mr. Knutson: But at a minimum you can say the federal government can pass these laws and, notwithstanding that they might be challenged by the provincial governments, the case will work its way through the courts and at the end of the day the federal government would win. On the other hand, if we turn our minds to what's the best, one message we're getting consistently in an age of declining resources, not a lot of money, is that cooperative schemes, using volunteers - notwithstanding that the scientists on COSEWIC are underpaid or whatever - getting maximum volunteer compliance or quasi-voluntary compliance or getting people in this mindset, including provincial ministers and provincial bureaucrats.... If we move into an age where everybody buys into this, and we avoid litigation that's costly and inefficient, we'll do a better job protecting plants and animals.

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Take my latter comments as kind of a starting point. Call them politics or whatever you want. In trying to do what's in the best interests of protecting species in the Canadian federation as it exists today and given what people are - they are who they are - is there a point at which you say that even though the federal government might be within its jurisdiction to pass these laws, it's not going to do the animals or plants much good because it's just going to get us into a whole costly round of litigation that will slow up the legislation?

The other question I want to ask is: are you convinced as you sit there that as a Canadian association, your views represent a consensus of your membership? If I had a group of Alberta lawyers who were expert in environmental law, might they give me a different opinion? Do we have an Alberta lawyer here?

Ms Thomson: The policy that is reflected in the CBA brief has been adopted by the council, which is our highest and most broadly representative governing body. There are about 500 members on the council, representing our 34,000 members. So in that sense, it's more representative than the House of Commons. Those lawyers are from each province and territory. As well, they represent different interest groups or sections and they have a particular expertise across the spectrum of law within Canada.

The resolution that was adopted by the association is attached to the brief as appendix 1.

Mr. Knutson: So does all that mean that you think it represents a consensus?

Ms Thomson: It represents the democratically adopted policies of the Canadian Bar Association.

Mr. Knutson: You think that's a rough consensus?

Ms Thomson: To the extent that one could have a consensus among lawyers, yes.

The Vice-Chair (Mrs. Payne): Very well said, I think.

Mr. Knutson, were you finished or did you have something else?

Mr. Knutson: There was an earlier first half of the question.

Mr. Gertler: I'd be happy to address the first half of the question, Madam Chair.

The Vice-Chair (Mrs. Payne): By all means.

Mr. Gertler: The first thing I should say is that we are here for the national environmental law section of the Canadian Bar Association, and as such, we have to be in favour of the rule of law.

As for what I said earlier about the kind of certainty we're talking about being good not only for environmentalists and species but also for industry, I didn't say that lightly. I think that's something this committee should give serious consideration to so that all of these other means, volunteerism, agreements and goodwill, are all things we can be in favour of, but they shouldn't replace some clear rules.

In terms of the realities of the Canadian federation, experience in general shows that the overlaps are more theoretical than real, and the duplication certainly is more theoretical than real.

I'll explain. Sometimes you can find legislation that essentially covers similar things, but under so much of this legislation - say we're talking specifically about endangered species legislation - there either hasn't been the listing effort - even though the legislation is there, it has not been given any motor, if you like, so it's just a shell at the provincial level - or there's no enforcement effort.

So I guess there is some element of the federal government taking a leadership role. That's not to beat the provinces over the head or be running to the front of the pack and racing for the door with inspectors and enforcement actions all over the country. That's not going to happen. But it should be engaged in a kind of a bootstrapping exercise to try to push this agenda along.

There are serious international obligations. There are only four provinces with legislation. They said Quebec is the only one with even the beginnings of something that's adequate, at least on paper.

No doubt with time these things will be worked out, but the legislation as drafted makes a lot of room. There are some problems with it, and we've pointed them out in our brief in terms of public participation and accountability, but it makes a lot of room for the provincial role. So we can't buy into the idea that a more broad federal coverage under this act would be detrimental.

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In fact, say we were talking about whether it was a migratory species or not, whether this is really a fish habitat or whether you really are on federal land. All of these things will also engender litigation and uncertainty. Maybe a better approach is a more broadly applicable act but with equivalency provisions, which is the way CEPA was originally conceived. Maybe this is better than to say we're just going to try to target the small part of the Canadian territory south of 60 degrees that is completely within federal control.

The Vice-Chair (Mrs. Payne): Dianne Brushett, welcome to the committee.

Mrs. Brushett (Cumberland - Colchester): I'm sorry I was late, but I was at the finance committee.

I have two questions, as the time is passing on. Here's one of them.

You talk specifically in your recommendations about disturbing homes. We've had the broader picture that the home is more than the bed in terms of forest fires, clear-cutting and all of these things. But in Nova Scotia I've seen repeatedly - I say ``repeatedly'' many times, as I represent a rural area - where Natural Resources came in and took the red fox from Mr. Asselin's farm so as to deposit it maybe 200 miles deeper into the forest, where there are no chicken coops. I've seen them take the snowy owl nest from the top of the tree and remove it to a new location so it creates a new home, a new habitat, where it can function efficiently and breed and so on. It was not so far removed.

So I guess if you want to use strong words to say that you can't disturb their homes, we could never function with our provincial and territorial laws and with all the things that occur under those jurisdictions. Clear-cutting is one of those things that has its pros and cons in every jurisdiction.

I beg to hear your explanation. I've seen repeatedly where we've removed animals and relocated them, and they've done better in another habitat. They've been safer. We've taken beavers from a beaver dam and moved them. It comes under Natural Resources. But there isn't a day in the week when you could call somebody to come in to do this under provincial law.

I think people in the rural areas are very protective. They're the greatest protectors of their environment, the nature around them.

The second point, so as not to take your time too much, involves national standards. How could you hope to achieve national standards in identifying every species that may migrate or may change in all the evolutionary processes that we do see in a lot of these areas?

I come from a rural area where we have birdwatching as a very high priority on the ecotourism list. We're involved in these things day to day, so we know what's happening. I don't see how we could ever set national standards in terms of what species might be evolving into another process in its life cycle.

Mr. Lindgren: I'll start, Madam Chair.

Those are two good questions. Let me first turn to the issue of disturbing species or their habitats. The scenario you outlined is precisely the reason why the word ``disturb'' needs to be in the legislation. You need to generally prohibit that type of activity, but allow for limited exceptions to it.

You'll note that Bill C-65 does allow for permits and authorizations to be issued to allow for that kind of relocation if it can be biologically justified and if it can be demonstrated that it's not going to have an impact on the survival of the species. But in order to get to the permit and authorization stage you have to generally prohibit that activity and make the people who want to do that activity come forward to justify it. That's why ``disturb'' needs to be in there.

Turning to the national standards issue, I have to confess that I don't share the concern about how it can be done in practice, because in fact COSEWIC has already done the job for us to a large extent. They've identified the 276 species at risk. Our job is now to make sure this legislation actually does something about it.

Mrs. Brushett: Is what you mean by national standards just identifying a list?

Mr. Lindgren: No, national standards go far beyond that. This includes generally prohibitions in the statute that apply at a minimum from the east coast to the west coast to the Arctic. That's what I perceive to be a national standard. So you not only list the species, you actually protect them. You protect the species, habitat, residence and everything else the species needs to survive and recover.

That can be done. It has been done in other jurisdictions. It's not an impossible task.

Mr. DeMarco: I have one comment on the relocation example. That is quite feasible with a lot of the species that are known as opportunistic species, such as deer, coyotes, foxes and so on, that can live in a lot of different locales. Like humans, they can live in a lot of different habitats. But as for what's happened with endangered species, those are typically species that, through evolution, have narrowed their niche to a very narrow habitat in which they're capable of reproducing or living.

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For instance, an endangered butterfly in Ontario, the karner blue butterfly, has adapted to only live off of lupins. When lupins were essentially eliminated from Ontario, they went too. So if you got a thousand of them and put them in a dandelion patch, they wouldn't be capable of adapting.

So the conflict you outline within the native species is going to happen very rarely, but the relocation is not necessarily going to be as feasible with an endangered species.

Mrs. Brushett: To give you a counter-argument, why couldn't you take that endangered butterfly and generate a field of lupins far removed from your cattle, where they cause problems? So therefore you don't have to have a field of dandelions, but you can generate a field of lupins and put them in a treasured place where they can multiply.

Mr. DeMarco: That's the sort of work that will be done through a recovery plan for that species now that it's -

Mrs. Brushett: I suggest that this is going on now. With all due respect, this is happening very much with Natural Resources, environmentalists, and with many groups in our communities at the present time.

Mr. Meschishnick: Indeed, there may be examples of where it's happening, but in our submission, it's as a result of a good system that has some principles embodied in it. There are some people there who are saying that we have to find alternatives to protect the species. These are examples of what these informal systems are generating.

But the point of this legislation in our view is that it's going to embody that principle across the country. To use your relocation example, clearly that's a better example than having destroyed the species that was in existence, but it was only an example of what would come out of a good system, which this is intended to be. If the species is one that is on a critical list, we are going to find an alternative rather than simply letting the species be destroyed.

On the notion of the national standard, certainly as far as the listing goes, I have only one comment, which is that the listing process is really a scientific one. It's certainly something that I think neither lawyers nor politicians, for that matter, ought to have a lot to do with. Whether it's a national standard or simply a standard that says these are the criteria that we will be using to judge when a species hits one of the two or three thresholds or definitions, it's clearly a scientific one.

Mrs. Brushett: I have just one comment, Madam Chair. Some of the politicians are lawyers and some are scientists.

So I would just give you this final comment. The committee that is intended through this legislation to be composed of scientists, who are those who can develop the criteria, would certainly prioritize those species in this country that have been part of our great heritage and will hopefully be here in the future.

Thank you.

The Vice-Chair (Mrs. Payne): I hesitate to call this meeting to a conclusion, but we have one short question from Mr. Asselin. We'll have a short answer to it, then we'll conclude.

[Translation]

Mr. Asselin: First of all, I think that this bill is a fake. It's a complete waste of effort. It's a political bill, and as a member of the official opposition, I do not wish to be involved in such politics, when it is to the detriment of species at risk.

I hope that Bill C-65, which is supposed to protect species at risk, will protect the Minister when the next Cabinet shuffle comes along, because as far as the situation we are in today, it will have no effect whatsoever.

Let's take the example of a two-bit mayor, a real daydreamer, who has a municipal bylaw passed without ever thinking about providing the necessary budget, staff and equipment. What would be the effect of that on the life and the protection of this municipality's citizens?

This is the problem with Bill C-65. Some people think this can be dealt with through politics and by calling on volunteers. No budget is provided. It will therefore lead to staff and equipment reductions. People will have no respect whatsoever for the legislation and it will therefore be stuffed you know where.

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Whether the legislation is implemented or not, there will be no consequences, because there won't be anybody to enforce it. Therefore, people won't give a dam.

Let's see what happens in ten years from now. Instead of having 20 species at risk on the list, we'll have 50.

[English]

The Vice-Chair (Mrs. Payne): Thank you.

Does anyone want to respond quickly to that comment?

Mr. DeMarco: Budgetary restraints are going to be with us for a long time to come. The best way to strain your budget is to have a preponderance of discretionary language, which means a minister's brief...is this worth listing, is this critical? That's where you're going to need a lot of budget money. You're going to need huge amounts of staff interpreting this, applying it differently in different situations. You're going to have lobbyists saying this is a good time for this to be not so critical, and so on.

Clear language requires fewer resources because there isn't that uncertainty, there isn't that need for a lot of interpretation. If incorporated into this bill, clear language will pay off for the species down the road and the people who want to see them survive, which is 90% of Canadians. It will also pay off in terms of budget.

The Vice-Chair (Mrs. Payne): Thank you.

We have another short intervention from Mr. Adams. And before the members leave we have a housekeeping item that Mr. Knutson wants to bring up.

Mr. Adams: Madam Chair, in my case it was a comment. First of all, I really want to thank the bar association for becoming so involved. Ms Thomson, I appreciated the care with which you answered my colleague on how the opinion was arrived at. I can imagine, with your 34,000 members, the difficulty of that. In recent years the bar association is to be commended for becoming involved, and it is extremely valuable.

Secondly, because we've read your brief and listened to you, we know you understand the strengths and the limitations of what we're trying to do. So do we. I think you also understand the political opportunities that face us and the things we have to do.

Madam Chair, I particularly appreciate the comments about empowering Canadians. I think the time is ripe. Unlike the time when raptors were excluded from migratory birds, the people of Canada are now ready to be empowered. I accept some of the comments of our colleagues about limitations in funding and resources and so on. My view is that the empowerment of Canadians may be one of the best things that come out of this legislation.

Thank you, Madam Chair.

The Vice-Chair (Mrs. Payne): Thank you very much, Mr. Adams.

Again, as Mr. Adams has said, we certainly appreciate your appearing this morning. Your presentations and the interventions you made are certainly most helpful to us. I found this, as I'm sure my colleagues did, a most interesting meeting. We hope the final outcome of this bill will be somewhere close to what you're looking for.

Mr. Knutson.

Mr. Knutson: I move that we put the adoption of a work plan on tomorrow's agenda, specifically the issue of travelling and the proposal from the clerk.

[Translation]

Mr. Asselin: But we are on holidays then.

The clerk of the Committee: It's the last week before the house returns.

[English]

The Vice-Chair (Mrs. Payne): We'll discuss it when we come back tomorrow. It will be on the agenda. Thank you very much, Mr. Knutson.

This meeting is adjourned.

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