[Recorded by Electronic Apparatus]
Thursday, January 30, 1997
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[English]
The Chairman: Good morning to you all. We have a quorum, so we can start.
We have a fairly intense schedule between now and 1 p.m., when we will adjourn to pack and catch a flight. As you know, it is a one-hour trip to the airport. So this morning we will have to be a bit more precise in our time allocations, but it will work out all right.
It is a great pleasure indeed to welcome to the table as a witness the Honourable Stephen Kakfwi, the Minister of Renewable Resources from the Northwest Territories. We welcome you. We are certain you will give us an interesting analysis of the bill, as it stands. You will have fifteen minutes for that, and at ten minutes I will give a gentle signal that you have five minutes to go. After that there will be a good round of questions. I understand that is the approach you prefer because of other commitments. I suppose you will be followed by your officials if they have additional statements to make and for additional questions, if there are members who would want to pose them.
Without further delay, you have the floor, Mr. Kakfwi. Again, welcome to the committee.
Hon. Stephen Kakfwi (Minister of Renewable Resources, Government of the Northwest Territories): Thank you, Mr. Chairman.
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I have with me today Andrew Gamble, Deputy Minister for Resources, Wildlife and Economic Development, and Ron Graf, manager for integrated resource management.
Mr. Chairman, I'd like to thank you for making these last-minute arrangements. The Legislative Assembly of the Northwest Territories is currently in session, and I am required to be there every day, if I can, so I appreciate your flexibility in the arrangements. I'd like to thank you also for the opportunity to speak to the proposed legislation, the Canada Endangered Species Protection Act.
I support the objectives that have moved this federal government to assert jurisdiction to protect endangered species, but at this time I'm not able to conclude that the method chosen, the bill as it now drafted, will achieve the objective it has set out.
Over the years, initiatives to improve conservation of endangered species have always been a cooperative initiative involving all provincial and territorial jurisdictions and the federal government. This commitment was demonstrated by the national accord for the protection of species at risk in Canada, which was agreed to by all jurisdictions in Charlottetown last year. All of us are committed to a national approach for the protection of species at risk to prevent these species from becoming extinct as a consequence of human activity. We agreed to participate in the Canadian Endangered Species Conservation Council to coordinate our activities. We agreed to establish complementary legislation and programs that provide effective protection of species at risk.
I suggest that the fundamental problem presented by the proposed legislation as tabled in Parliament is that it is inconsistent with both the spirit and the intent of the hard work done by all jurisdictions, including the federal government, to establish a cooperative, national approach to protecting the interests of endangered species. The irony here is that the best of intentions have been asserted, but this in turn has given rise to the erosion of the best of plans.
Mr. Chairman, it is my hope that the work of your committee will help to reconnect good intentions with wise plans so that collectively we can continue to move ahead to ensure that the risk to endangered species is reduced. That is, after all, what we should be focusing our energies on.
The Government of the Northwest Territories requests that the standing committee use the draft national accord for the protection of species at risk in Canada as the basis for recommendations for revisions to Bill C-65. As you know, the operative words in that accord are ``coordination'' and ``cooperation''.
We also request that clause 3 of the bill be revised to recognize the primary role of the Government of the Northwest Territories for management of endangered, threatened, and vulnerable wildlife north of 60.
It is also important that you understand that we're not taking a position that there is no place for the federal government to actively involve themselves in addressing endangered species issues in Canada's north. On the contrary, we're content, and do accept, that there is a national interest in having the federal government retain capacity to involve themselves and their financial resources in endangered species matters north of 60, but it would be in those circumstances where it can be shown that northern management systems are not adequately and effectively responding to threats to endangered species.
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Before I go on to discuss how things should be as we build toward the future, I'm going to take a few minutes to provide you with a brief overview of how things are.
The Government of Canada transferred to the Government of the Northwest Territories the responsibility for game management in 1948, through amendment of the Northwest Territories Act. The Department of Resources, Wildlife and Economic Development has the mandate for the management of wildlife resources in the Northwest Territories. Authority for management of wildlife derives from the territorial Wildlife Act.
Over the past half century, the Government of the Northwest Territories has developed a unique wildlife management program suited to the needs of northern aboriginal peoples and the realities of the uniquely northern environment. The majority of our residents are aboriginal and as such they have certain rights, knowledge, values, and expectations that must be incorporated into a wildlife management program. Our government has sought to meet these requirements through the design and delivery of a system that incorporates indigenous knowledge and scientific analysis.
Our decentralized infrastructure and cooperative decision-making mechanisms are very much products of the synthesis of these complementary interests. The Department of Resources, Wildlife and Economic Development has renewable resource officers located in 38 communities, and regional biologists in seven regions. In order to carry out our mandate we have approximately 100 people directly involved in wildlife management.
The officers' role involves enforcement, education, public feedback and delivery of programs to assist local people to utilize wildlife resources in a sustainable manner. We have infrastructure in most communities to support our staff, and we have a solid, professional, well-trained staff dedicated to meeting the wildlife management challenges that face us.
Clause 3 of the proposed legislation states that the federal government will assume management responsibility for those species in the Northwest Territories and Yukon designated by the Committee on the Status of Endangered Wildlife in Canada as extirpated, endangered, threatened or vulnerable.
I urge you to seriously examine what this means for those of us who will be the supposed beneficiaries of those well-intended words. It means that in the Northwest Territories the federal government will take back the authority for management programs for polar bears, listed as vulnerable; wood bison, listed as threatened; three populations of Peary caribou, two listed as endangered and one as threatened; grizzly bears, listed as vulnerable; and wolverine, listed as vulnerable.
Vital work is necessary in relation to each species listed, but the reality is that it is work we are already doing and I believe doing well. Jurisdictional uncertainty will do nothing to assist us. It could in fact create more gaps than it would fill. This in turn has the potential to increase rather than decrease the vulnerability of the species enumerated in the legislation. This bill, if it is passed as is, takes endangered species management from the Government of the Northwest Territories, with 30 years of experience and a great track record, and transfers it to the Government of Canada.
There is a provision in clause 3 that allows management responsibility to be returned to the Government of the Northwest Territories when and if we pass legislation that is equivalent to the federal act. This approach, I believe, is seriously flawed.
I would like to speak about this equivalent legislation, as we have two specific concerns. This provision treats us differently from our provincial counterparts. However, more importantly, we believe it is not really in the best interests of the wildlife.
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The provision insists that the Northwest Territories pass legislation equivalent to federal legislation if we want management responsibility to return to the Government of the Northwest Territories. In our view the word ``equivalent'' is short-sighted and I believe we actually have a difference of opinion on the legal definition of what that means.
What if the Government of the Northwest Territories determines that instead of equivalent legislation, more stringent legislation is required? The dictionary definition of equivalent means equal - not more and not less. Legal definitions and lawyers, I suggest, would have an opportunity to differ, but the dictionary breaks it down to the most common denominator, and that's what it says.
The national accord for the protection of species at risk in Canada called for jurisdictions to pass complementary legislation, not equivalent. In our view, complementary legislation would be more acceptable because in addition to recognizing federal priorities it would allow each jurisdiction to reflect its own unique circumstances and objectives. A country as diverse as Canada demands that degree of flexibility. Our situation in the Arctic, for example, is fundamentally different from that of other regions of Canada.
During the last thirty years we have been very successful in protecting and managing species at risk using the NWT Wildlife Act. The human pressure on wildlife has not been as great as in other parts of Canada and the world. However, in the spirit of cooperation symbolized by the accord, I'm prepared to move ahead within two years with the development of legislation that is specifically designed for protection of species at risk. Preparatory work will begin immediately with our management partners.
I should point out to the committee that it is a requirement by law to consult with the wildlife management boards that are set up through federal legislation, through land claims legislation, and that is one of the reasons why it would take at least two years, if not more, to develop legislation. But when we're done with it, it would be very good legislation, because it would be understood, it would be supported, it would be a cooperative effort and one the people who use and depend on the wildlife at the community level will be completely in support of.
Over the years, and through extensive consultation, our government, with the people of the communities, has developed and implemented wildlife management and protection programs that have achieved great success and have in fact earned and gained international acclaim. I'll give you some examples of our success with several species that are at risk to illustrate what we are accomplishing, because we have consistently placed priority on endangered species.
In 1984 we released a management plan for polar bears. The plan recognized the value of the traditional knowledge of local and aboriginal people. Combining traditional knowledge with good scientific research, the plan worked towards establishing sustainable yields. We also built consensus, to secure the commitment of everyone involved. Today, because of the involvement of local people and the high quality of research, management agreements are in place for all thirty communities which hunt polar bears, as well as agreements with hunting organizations from other jurisdictions. What we have done is based on finding the right balance, with emphasis on protection of all twelve polar bear populations.
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Our polar bear management program is a good model of cooperation and has been closely examined by other countries for adaptation to local species and circumstances. In fact, we recently received an award from Safari Club International for wildlife conservation. It says:
- In recognition of outstanding achievement in the management and conservation of wildlife
through the protection of natural habitats and the application of management policies and
programs which ensure that wildlife will forever flourish as a vital renewable resource.
This program has rescued the subspecies from apparent extinction. In 1988 wood bison was down-listed to ``threatened''. The process of down-listing involved scientific scrutiny of our management program at the national and international levels. Today our government is working with the Deninu K'ue First Nation on field breeding programs to ensure the long-term viability of disease-free wood bison. This program is the only one of its kind in Canada. We're building upon success in initiatives that, with respect, I believe the Government of Canada at one time abandoned. We don't intend to allow that success to be put at risk.
Our commitment to endangered species is demonstrated by our ongoing efforts to rescue Peary caribou from Bathurst Island. This is an area where we are gladly working with the federal government to achieve a common purpose. It requires good faith. I do not believe it requires legislation. Bathurst Island is suffering from its third consecutive bad winter. Early winter rain covers the feed with a layer of ice, which prevents the caribou from getting to it. Our government, with the assistance of local hunters and the Canadian Armed Forces, undertook a rescue mission in the late fall to ensure that some breeding stock survived. Although bad weather made it impossible to complete the rescue, we continue to plan recovery efforts in cooperation with the Nunavut Wildlife Management Board and other parties. Doug Young, the Minister of Defence, is to be thanked for his prompt response and extensive cooperation.
Currently we're working with aboriginal groups, environmental organizations and industry to research the possible effect the proposed mining activity in the central Arctic will have on grizzly bears and wolverines. This research will be used to develop wildlife management programs in the west Kitikmeot and north Slave areas, where intensive mineral exploration and development is under way. The data will also be critical in assessing scientific or specific development proposals in the future.
I think you will agree that this is a solid record of achievement. I believe it is even more impressive when you realize that these programs have been developed and implemented without this government having recognized authority over land and water. We are, if I may say so, proud of the fact that we have consistently gone beyond jurisdictional limitations to get the job done.
Management and recovery programs for species at risk are an integral part of a multimillion-dollar wildlife management program in the Northwest Territories. Between $1 million and $2 million annually is spent on research directly related to the species under discussion. The Government of the Northwest Territories also supports these programs through extensive physical and administrative infrastructure that has taken 50 years to establish.
In addition to government resources in Yellowknife, buildings, vehicles, equipment and staff, all dedicated to protecting and managing wildlife, are found in all communities across the Northwest Territories. What I advocate is getting the best use out of those resources, and I believe we do that.
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What I am suggesting to you is that you take a course of action that will continue through a cooperative effort to make the best use of existing expertise, existing resources that are allocated to the job at task.
Aboriginal northerners, as you know, have always had a special relationship with wildlife because it has meant our survival. The value we place on traditional knowledge and local involvement in our government has resulted in a system of community and regional wildlife management boards.
The boards are composed of people whose future depends on adequate resources. They have local knowledge and are supported by some of the most capable scientists in the world. This means that there's flexibility to address unique circumstances that exist between regions and communities, that management activities respect traditional values while applying the latest science available.
Board members have dedicated an extraordinary amount of time and effort to ensure responsible management and protection of our wildlife. Working together over the years, we have developed trust and respect for one another, which contributes substantially to the success of the programs we implement together. That balance that has been achieved ought not to be compromised, not even by the best of intentions.
Mr. Chairman, my final comments today have to do with the potential for the proposed legislation to infringe on rights that have been established by the federal government in land claims agreements, even though this legislation would be legally subordinate to the northern land claims.
The land claims agreements contain provisions stating that beneficiaries' harvesting rights shall be subject to the principles of conservation. I have a concern that this legislation may create artificial principles inconsistent with the realities of where we live and how we live. Ultimately this may impair the rights that aboriginal people have through land claims to harvest wildlife and to participate in wildlife management decisions. At the very least, I believe the proposed wording is ambiguous and could lead to disputes over interpretation of legislation.
Any new legislation must clearly state that control over endangered wildlife remains with the land claimant groups. The people of the Northwest Territories depend on wildlife resources as the foundation for social, cultural, and economic well-being. We have worked hard to find innovative ways to protect and manage these resources and will continue to depend on them for years to come. I believe we have a proud legacy and a great track record.
In the best interests of wildlife, we recommend that this legislation be revised in the spirit of the accord agreed to in Charlottetown and that the people of the Northwest Territories remain the primary manager of issues and programs relevant to endangered, threatened, and vulnerable species. We agree that the federal government should be involved with the provinces and territories in setting national standards and monitoring the success of programs.
I welcome federal expertise and financial resources to the table. Important work conducted over the past few years by the Canadian Polar Commission and by many scientific agencies have demonstrated that the people of the north face a current reality and future uncertainty as a result of contaminants that are left in the Arctic by the federal government through transient deposits by the ocean and atmosphere. We can't control those influences without external help, but we can and are effectively managing our own affairs when it comes to meeting the challenges of reducing threats to endangered species.
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In closing, I leave you with this thought. After you finish your review of the bill, when you are developing your recommendations I ask you to make sure you do not put all wildlife at risk by arbitrarily shifting the responsibility for management and protection away from the people of the Northwest Territories. We are capable and committed, as the evidence before you will clearly illustrate.
I ask you to try to help make sure we are not diverted from what we are doing, from what I believe is the right path to take.
Thank you.
The Chairman: Thank you, Mr. Kakfwi. I can assure you that this committee will, as you put it in your opening remarks, do whatever is in its power to reconnect good intentions to wise plans. We understand what you mean by that. You can be assured that we will attempt to do everything that is within our power.
It is my duty to put on record a letter that just arrived from Jack Anawak, who informs us that he is unable to be at the hearing today because he was held up by a major traffic accident on his way to the airport yesterday and missed the flight. He sends his regrets and asks me to pass them on to the presenters of the Government of the Northwest Territories and all those present.
We will now, without delay, start with Mr. Forseth, who will be followed by Mr. Steckle.
Mr. Forseth, the floor is yours for one round of brief questions.
Mr. Forseth (New Westminster - Burnaby): Do you have a copy of the bill in front of you?
Mr. Kakfwi: Yes.
Mr. Forseth: Perhaps you could turn to page 5, because what I've heard is that you have a concern largely about clause 3. Do you have any specific wording to suggest that would improve the bill? You've talked in general about your concerns, but can you get right down to it and even say how a particular line could be worded in a way that would ameliorate your concerns?
Mr. Kakfwi: Mr. Chairman, the fact is, as I understand it, that the provincial, territorial, and federal officials have been working on this over the last few years. Up until this spring we thought we had the wording that reflected the commitments made by all ministers in the accord. It took what we considered to be a complementary, coordinated, cooperative approach to the legislation. It allowed the Government of the Northwest Territories to continue to take the primary role in dealing with endangered species and it allowed the federal government to move in if it felt we were doing a less than adequate job.
So the wording is actually there with the officials. I understand that the wording in this section was changed to say that the federal government will basically have jurisdiction over all crown lands. As you know, in the Northwest Territories the entire territory, which is about 1.5 million square miles, is considered crown land.
So whether it's blatant or not, through this legislation the federal government will take back jurisdiction that is currently held by this government.
The specific wording that is there is with the officials. It's always been there with them.
Mr. Forseth: I would have thought that the act represents present reality in a legal sense. There may be agreements, but constitutionally the act represents what the situation really is.
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Mr. Kakfwi: I have no doubt people draft bills with the best of intentions, but we always do it with what we have available to us, and sometimes things are overlooked when we try to take a blanket approach in a country as huge and diverse as Canada. The fact is that through the Prime Minister the Government of Canada has committed to do everything it can to continue to transfer responsibility from Ottawa to the Government of the Northwest Territories. We haven't had much success in following that up, although the political commitments have continued to be made in the last two years.
This bill does something completely the reverse of that commitment by the Prime Minister. Whether it is inadvertent or not - I don't think it is - the federal government will be taking back management responsibilities for endangered species in the Northwest Territories, and in the Yukon, for that matter.
Our concern here is that as far as the jurisdiction of the Northwest Territories is concerned, there is an underlying assumption that we're not doing a good job. At best, even if we are doing a good job, some people are oblivious to it. So we try to illustrate for you some examples of how intense our commitment is to the management of wildlife in the north. We draw attention to that clause, because that is the clause that is creating the difficulty for us.
First of all, we know we're doing a good job and we want you to be aware of that. We want you to accept that and to compliment us, but also to support us in allowing us to continue to do that good work. If you feel it is politically necessary, then we'll agree. There should always be a way to catch a negligent or deficient government. If in the future for some reason we are not able to meet the expectations of the federal government, then there should be a clause in there that says the federal government reserves the right to assume jurisdiction. We don't have any problem with that.
Mr. Forseth: Okay, that's fine.
The Chairman: Mr. Steckle.
Mr. Steckle (Huron - Bruce): To the group of presenters, and particularly the honourable minister, I found your presentation very interesting. The spirit in which you presented your presentation this morning was a spirit of seeking coordination and cooperation. I think that's also the goal this committee has in reaching a final conclusion on this legislation.
I would like you to cite to this committee, for the benefit...perhaps using polar bears as an example of where they were ten years ago, where they are today, and whether we are reaching a point where they can be upgraded in status. For the last number of days, in listening to various presenters, we have heard the term ``traditional knowledge'' versus scientific research knowledge. Do you find yourselves coming in conflict over where you believe you're at? Are you arriving at the same conclusion on where the numbers are and the management practices? Are both sides coming to the same conclusions, or is there a conflict from time to time over what traditional knowledge would lead us to believe are the real facts against what the scientific people are telling us on these issues?
Those are two concerns I have personally. I believe there's a lot of merit in traditional knowledge. I personally believe that. I just want you to comment on that.
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Mr. Kakfwi: Our approach to management of wildlife is premised on the principle of cooperation and the fact that the people who depend most on the wildlife are the people who have lived the longest with wildlife, the people who have the most knowledge at the local level with wildlife. The values the people who depend on wildlife have in their culture, language, and spiritual beliefs must be an integral part of any decisions regarding the use of those species.
Of course there are differences, but we carry into this arena a commitment that we're a team, and we bring expertise of government; we bring with us an open mind, and we bring with us a commitment to respect the values, traditions, and the knowledge of the people at the community level. Where there are differences, there's the spirit to resolve the differences and to search for plans and management strategies to get beyond those.
So there have never really been situations where we've come to an impasse and somebody has had to take out the big-stick approach. There's always a way to resolve it. Our whole government is premised on that. As you know, we don't have a party system. We operate on a consensus system. We have eight ministers, and the majority of the legislature.... We have initiatives for which we have to get the entire legislature onside. We don't have a majority to be able to do the things that other governments do, so everything we do in the north is reflected by that.
Thank you.
Mr. Steckle: Would you comment on the polar bear, as an example, on its status? Is there an imminent thought of upgrading it from its current status? Where are we at? You might use another example, perhaps the wolverine, but I cited the polar bear as an example.
Mr. Kakfwi: Mr. Graf will respond.
Mr. Ron Graf (Manager, Integrated Resource Management, Government of the Northwest Territories): The polar bear is generally classed as vulnerable because it's a top predator, not because the populations are in trouble because of human activities.
The quotas that are established for polar bears are sustainable. The models we have used to reach the percentages were a result of long years of work with international scientists.
The process that's used for management of the polar bear now has evolved over the last 20 years, I would say. We worked past the stage of management plans that originated in Yellowknife and Edmonton, to the point now where all the communities that hunt a particular population of polar bears - and that could be anywhere from two to eight communities - will sit down at the table, bringing in their best hunters and their knowledgeable people, and with our scientists, through that process, they will draft a management plan just for that population.
The agreements are signed by the local community, hunters and trappers associations, by the regional boards, and by the government. Those are reviewed every five years. We started this in the late 1980s, and it's that process, I think, that is taking us a long way. It's the process that was actually begun by some of the gentlemen here with me today, with the native people in Alaska. It's one of the things that are standing strongly with the American government in their review of our polar bear program, because of the possibility of being able to have hides go into the United States.
I believe that process is one of the best for trying to integrate scientific knowledge and traditional knowledge - that, and at the resource board meetings themselves.
The Chairman: Thank you.
Madame Kraft Sloan, the parliamentary secretary to the Minister of the Environment.
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Mrs. Kraft Sloan (York - Simcoe): Thank you very much.
Mr. Minister, you are to be commended for both your conservation efforts in the north and the way you operate your government. Some members of this committee have had the opportunity to borrow your legislature for a couple of meetings. It's very impressive to see the building but also to see the way the seating arrangement is laid out. It's laid out in a circle, unlike the Parliament of Canada, which is set up in a very confrontational manner. However, the opposition parties who sit on this committee are working in a very good spirit of cooperation.
We are very pleased to have you here today. We thank you very much for the way in which you presented your brief this morning.
I want to turn to page 7 in your brief, the issue around land claim agreements. You talked about some ambiguities or inconsistencies. I wonder if you can perhaps point out some examples for the committee. If you have some thoughts on recommendations to deal with those issues, I would really appreciate hearing that from you.
Mr. Kakfwi: When the federal government negotiated land claims agreements, particularly in the Northwest Territories, there was a very heavy emphasis by the aboriginal peoples on being involved, on having guaranteed - at the constitutional level, that's what it is - and recognized their right to manage wildlife.
While the boards are constitutionally entrenched institutions, which the federal government has in fact set up through the legislation to recognize the right of aboriginal people to play a significant role in the management of all species, any type of legislation that is drafted, whether by the federal government or our government, has to go through an intensive consultation process. I think the consultation in part has to assure people that there are no ambiguities, with no surprises later, and that it means exactly what we agreed it would mean. From hastily drafted legislation, or legislation that does not take the time to make sure it's clearly understood by people at the community level, there will arise ambiguities, which could lead to a breakdown in the cooperative effort required, the premise on which these boards operate.
I think other groups have raised the ambiguities with you as well. Mr. Graf can point out some specific concerns we have in regard to the text.
The Chairman: Mr. Graf.
Mr. Graf: I have a couple of quick points. I'm sure some of the other members from the co-management boards will have more illustrations.
Several of the boards have the legislated right to approve endangered species lists. The process whereby that will fit into this bill isn't addressed. There are concerns about the representation on the COSEWIC board - or boards, whatever it is to be. The recovery plans are required to be reviewed and approved by the boards. Perhaps I can spend one second talking about process.
If an item is taken to one of the major boards to be reviewed, they will accept it at a board meeting, review it, go to their community organizations to discuss it, and then come back to the board to make a decision. That takes time. And based on the recovery plans, time limits, and timeframes, and with the use of the word ``must'' - it ``must'' include all of these items - it's going to be almost impossible to fulfil that.
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The Chairman: This concludes the round of questions, Mr. Minister. Again, we thank you for your appearance. We will certainly keep in mind your words in our deliberations next week and in following weeks. We wish you a safe trip back.
Mr. Kakfwi: Thank you, Mr. Chairman.
I would like to leave some additional information for yourself, Mr. Chairman, and other members. We have copies of some of our publications, for instance the Mackenzie wood bison management plan, which we came out with in 1983, and publications on polar bears, their life history and known distribution, polar bears up to 1981. We have another one from 1987 on the bison management plan for the Mackenzie wood bison. We have some publications on Peary caribou and a copy of an agreement that will illustrate for you how we work and how our agreements come up for polar bear management plans. This one is specifically for the Lancaster Sound polar bear population. We did it in 1986.
So there is some additional information for those of you who want to discover more of what we're actually doing right now, as we speak about it. Thank you.
The Chairman: I certainly appreciate that. Thank you.
Now we have Larry Carpenter and Peter Clarkson. Mr. Carpenter, please introduce yourself and your officials and go ahead.
Mr. Larry Carpenter (Chair, Inuvialuit Game Council): Thank you, Mr. Chairman. First of all I would like to introduce some of the people with me today. We have Andy Carpenter, who is the chair of the Wildlife Management Advisory Committee for the Northwest Territories; Richard Binder, who is the resource person for the Inuvialuit Game Council; and Don Dowler, who is the vice-vhairman for the Fisheries Joint Management Committee. I would also like to mention that Ron Graf sits on the Wildlife Management Advisory Council for the Northwest Territories.
To start, I would like to thank the committee for the opportunity to present our submission today. We welcome the introduction of the federal bill concerning endangered species and the recognized role that agencies such as the Canadian Wildlife Service have played in its realization.
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The Inuvialuit number approximately 5,000 people, living in six communities around the Beaufort Sea and the western Canadian Arctic. They concluded a comprehensive land claim agreement with Canada in 1984. The Inuvialuit Final Agreement is a constitutionally protected land claim agreement, and applies across a settlement area of approximately one million square kilometres of land and water in the western Arctic.
Under the IFA, wildlife and the environment throughout the settlement region are managed jointly by the governments of Canada, the Northwest Territories, the Yukon, and the Inuvialuit Game Council, which represents the collective interests of the Inuvialuit in wildlife and environmental matters, and by five joint management boards - the Fisheries Joint Management Committee, the Wildlife Management Advisory Council for the Northwest Territories, the Wildlife Management Advisory Council for the Yukon North Slope, the Environmental Impact Screening Committee, and the Environmental Impact Review Board.
Within their settlement region, the Inuvialuit have outright surface title to 80,000 square kilometres of land. They have also established and supported an extensive series of protected areas - three national parks, one territorial park, five bird sanctuaries, along with national landmarks and special conservation areas, in total comprising 60,000 square kilometres or 18% of the land mass in the settlement region.
The IFA established a rigorous and comprehensive environmental screening and review process for orderly development and environmental protection. Throughout all of their settlement region, the Inuvialuit have sustainably harvested wildlife for generations. Unlike the vast majority of Canadians, wildlife for the Inuvialuit is a part of everyday life, livelihood and culture.
The Inuvialuit and the joint management bodies that our land claim agreement established have major and critical interests in the proposed Canada Endangered Species Protection Act. We are supportive, in principle, of an act designed to protect endangered species, but by virtue of the management and harvesting rights established in the Inuvialuit Final Agreement, we are of the view that this act will more adversely affect the rights and interests of the Inuvialuit than most other Canadians.
Our chief concern with the proposed act is that there is inadequate recognition of Inuvialuit harvesting and management rights and the roles and functions of the institutions that were created through the Inuvialuit Final Agreement for the management of wildlife. The result is the restriction of these rights and the entitlements that they carry.
We are also concerned that there is not a proper balance between the protection of individual populations of a species and their habitat.
Finally, we are concerned that there is a potential for the misuse of the act by those who are opposed to the sustainable use of wildlife.
With the changes that are going to be outlined, we feel that the proposed Canada Endangered Species Protection Act could satisfy our concerns and become a workable instrument for the conservation of wildlife in Canada. At the outset, we wish to endorse the views expressed to you in the submissions of the Nunavut Wildlife Management Advisory Board and the Inuit Tapirisat of Canada.
Subclause 2(2) sets out a non-derogation clause regarding aboriginal and treaty rights. We support the inclusion of this subclause, but it does not ensure adequate protection of Inuvialuit wildlife harvesting rights and the management arrangements established under the final agreement - in part to protect these harvesting rights.
In this bill, the wildlife management boards are assigned a role that is restrictive of the responsibilities they hold pursuant to the IFA. In the proposed legislation they have a limited consultative role only, and only with regards to agreements between federal and territorial governments under subclause 3(5) and the preparation of recovery plans under paragraph 39(a).
The IFA establishes a more extensive role and responsibilities for the Inuvialuit in functions and decisions affecting Arctic wildlife and its environment. The proposed legislation should formally recognize advice from the IFA's joint management bodies into such matters as the designation of species, prohibitions, and the development and implementation of recovery plans.
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Inuvialuit has the right to harvest wildlife, subject only to conservation and public safety. This right to harvest includes the right to sell game to other Inuvialuit and to sell the non-edible parts of game to non-Inuvialuit.
The prohibition should be changed to explicitly recognize this right of the Inuvialuit, and other aboriginal people with such rights under land claims agreements, to the sustainable use of living resources. If under a recovery plan for a threatened or endangered species provisions for harvesting are included, the act should not contain provisions precluding the full use of the individual of a species being harvested by Inuvialuit.
With respect to the protection of habitat as opposed to merely residences, we applaud the recognition in the letter of December 13, 1996, from the Honourable Sergio Marchi, Minister of the Environment, for the need to ensure sufficient habitat is protected within an ecosystem for the survival of a species population. The need for the protection of habitat to ensure a species' survival has long been recognized as a basic principle of wildlife management in the IFA.
Clause 32 limits the destruction of the habitat of endangered or threatened species to its residence only. Such a limitation fails to address basic requirements for the survival of a species. We recommend that clause 32 should be expanded to include that critical habitat which is deemed necessary for the survival of the species in question.
Under subclause 36(4), concerning exemptions for the possession of an individual of an endangered or a threatened species, we propose that a new section be added, explicitly including aboriginal peoples or claims beneficiaries. While the non-derogation clause under paragraph 36(1)(b) of the proposed act provides for such protection, this addition would provide clarification for policy-makers and those assigned to enforce this act.
The purpose of an act concerning endangered species should not be to designate and maintain a long list of species; it should be to assist in the recovery of these species. A major component of this recovery is the protection and restoration of their habitats.
The ultimate intent of such legislation is the delisting of as many species as possible. This would not only be a sign of a healthy environment, but would also provide incentives and rewards for the successful implementation of a well-designed recovery plan. To this end, it is encouraging to see the Department of Fisheries and Oceans cited in the act as one of the departments responsible for the development of recovery plans.
Within the Inuvialuit settlement region, the responsibility for the design and implementation of recovery plans should be at the regional level. To be successful, these plans must involve the wildlife management boards, the territorial government managers, and most importantly, the harvesters themselves.
The efforts of these regional partners have already produced management plans and initiatives for a number of species, such as the Inuvialuit Beluga management plan, the Inuvialuit Inupiat polar bear management agreement, and the North American waterfowl management plan, which have received national and international recognition for their success in species management and the meaningful involvement of local resource managers and users.
Under clause 19 of the proposed act, any person can apply to COSEWIC to request that a species be designated or reclassified or that the designation be revoked. We are concerned that this proposed act could be used against the principles of sustainable use, and that animal rights organizations could seek designations based not on sound ecological principles, but on the philosophy that no wild animal should be harvested.
We are concerned that if passed into law, this provision may be used as an instrument to undermine our legitimate interests and our constitutionally protected rights. Such requests could impose significant cost burdens on both the limited resources allocated to COSEWIC for its work and those of our own organizations.
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Inuit livelihoods have been undermined by the actions of various animal rights groups. Most notably, the collapse of the sealing industry, vital to Inuit, resulted not from a species being taken in a manner that threatened its survival in any way, but by a concerted campaign designed to prevent sustainable harvesting. We do not want such groups to be given new tools in the form of domestic conservation legislation.
We are concerned that CESPA authorizes COSEWIC to rely solely upon status reports on the species provided by the individual asking for a designation. COSEWIC should rely on the best possible sources of scientific and traditional knowledge and should, if necessary, go outside of its own membership for a balance of fully informed opinions. Further, COSEWIC should notify the appropriate wildlife co-management bodies immediately upon receiving an application for a designation of a species with all or part of its range in the Arctic.
While we recognize that a minister should exercise some discretion in using regional criteria when deciding membership on COSEWIC, we recommend a minimum of two members should either be from the Arctic region or have proven knowledge of and experience in Arctic issues. The joint management processes established under the Inuvialuit Final Agreement have had ten years' experience with working with diverse interests. This experience has shown them time and time again that decisions made in the absence of people knowledgeable of the region and its issues ultimately lead to less than optimal results.
We have been informed that there's a possibility of the current COSEWIC list being incorporated into regulations under the act. A number of species in some stocks or populations currently on the list are quite controversial to the Inuvialuit. Some listed populations, such as the bowhead, are currently being harvested by the Inuvialuit, with government sanction. Yet this stock is listed as endangered by COSEWIC. Under the proposed act, were the list to be incorporated, it is our understanding that the Inuvialuit would no longer be able to harvest the bowhead.
We have a number of questions relating to the possibility of the COSEWIC list being incorporated. First, what will the process be of such an incorporation? What criteria for listing or delisting will be developed? Will they be consistent with the present COSEWIC criteria? Listed species are supposed to be reviewed every ten years. The bowhead whale, for example, was listed in 1980 and has not been reviewed since. Will an assessment of such species occur before the list is incorporated into the act?
There are questions of considerable uncertainty with regard to some of these species, but there is not at this time substantial agreement among biologists and knowledgeable Inuvialuit. The unamended incorporation of the list into this act would be an unwarranted intrusion into matters that are being dealt with effectively under the Inuvialuit co-management process. It also would be in direct violation of the IFA, which requires wildlife management to be based on the principles of conservation so as to prevent arbitrary or capricious restriction of Inuvialuit harvesting rights.
We recommend that the committee request that a comprehensive review, with Inuvialuit participation, of the species on the current COSEWIC list be completed before its incorporation into the act.
Subclause 30(2) calls for the giving of notice of intent to amend the list under the proposed act. In last year's legislative proposal, the Governor in Council also had to provide reasons why such amendments were to be made. This has been dropped from the proposed act. We feel strongly that this requirement to provide reason should be added, as it would add to the transparency of the listing or delisting process.
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We are pleased with the notification requirement set out in clause 49 - more specifically, that an authority whose project is required to have environmental assessment under the Canadian Environmental Assessment Act.... Under the IFA there is an Environmental Impact Review Board, which operates in parallel to the boards formed under CEAA. We recommend that the language that recognizes this parallel role of the Inuvialuit Environmental Impact Review Board and the environmental assessments established under land claim agreements be included in clause 49.
In conclusion, we are supportive of federal endangered species legislation. However, the proposed legislation needs revision to better reflect the legal obligations, rights and objectives of the Inuvialuit Final Agreement and other northern land claim settlements. Without such changes there will be many opportunities for misunderstanding or misinterpretation on the part of those charged with its implementation and enforcement.
One of the general purposes of the IFA and other land claims agreements in northern Canada is improved cooperation in wildlife and environmental management. The proposed legislation needs to better reflect this objective and the legal requirements that support it.
I'd like to thank the committee for considering our comments today. We'll be submitting detailed written comments to the committee within the next week.
Thanks again.
The Chairman: Thank you, Mr. Carpenter. Those were most interesting remarks. We'll certainly keep them in mind and work on them where we can.
Mr. Clarkson, please.
Mr. Peter Clarkson (Executive Director, Gwich'in Renewable Resources Board): Thank you, Mr. Chair, and good morning, everyone.
The Gwich'in Renewable Resource Board is another co-management board located in the Northwest Territories. The chairperson of this board, Robert Charlie, regrets that he is not able to be here to make this presentation himself. However, work commitments and family commitments have not allowed him to travel down to Edmonton to make the presentation.
I would like to start by thanking the standing committee for the opportunity to present some information at the hearing process. I would also like to thank the Department of the Environment and the Canadian Wildlife Service specifically for their role and the amount of work they've put into this proposed act and the amount of time they've spent consulting with the various groups.
The Gwich'in board was the first board in Canada consulted on the proposed act...in January of 1995 in Aklavik. At that time staff said that then minister Copps wanted to get this act into place in the next six months. The board thought, ``Good luck''. Thanks to some good sense we're here two years later discussing improvements to this proposed act.
I'd like to give you a bit of background on the Gwich'in Renewable Resource Board and where the Gwich'in settlement area is. It's located around the communities of Inuvik, Fort McPherson, Aklavik and Tsiigehtchic, what used to be Arctic Red River. It's along the Mackenzie River and the Mackenzie Delta, just south of our neighbours, the Inuvialuit land claims area.
The Gwich'in Renewable Resource Board, established subsequent to the Gwich'in comprehensive land claims agreement, was set up so that the aboriginal people in the area of the Gwich'in could sit at the table with the associated government departments that had the mandate for renewable resource management. This co-management board gives the aboriginal people a say at the table in the management of the resources on which they have been dependent for centuries. It brings together in a cooperative spirit a management system that, as we've seen throughout the territories, has worked and will continue to work well if it is included, if that system is recognized and the proper authority is given to the boards in such acts as this one.
Specifically, in the land claims act the Gwich'in Renewable Resource Board is given powers to:
- a) establish policies and propose regulations in respect of:
- which includes Gwich'in and non-Gwich'in - and to:
c) approve plans for the management and protection of particular wildlife populations, including transplanted wildlife populations and endangered species, and particular wildlife habitats including conservation areas, territorial parks and national parks in the settlement;
d) approve the designation of conservation areas and endangered species.
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It is these clauses and the powers in the land claims act that give the board the authority to be a major part of an act such as the Canada Endangered Species Protection Act.
Although the Gwich'in Renewable Resource Board supports the national initiative to put in place an endangered species act, we feel the act in its present form does not recognize the true spirit of co-management and does not recognize the legal authority that has been given under the land claims act - and not only with our act, but with other acts throughout the Northwest Territories and Yukon.
In respect of your time, and also for clarity, what we have done.... We have twelve major concerns with the act, but I'm not going to touch on all twelve of them. You can go through the submission and read them yourselves. What I would like to do is touch on a few of them. In terms of how we set this up, they're in the same order as would be found within Bill C-65. We've identified the clause with which we feel there's a problem, and we've also recommended a solution to that clause so that as the members go through clause by clause we have specific recommendations that would assist them in improving the existing bill.
I'd like to start with concern one: the responsibility for conservation of wildlife in Canada, as shared by various levels of government in this country. It is important that we work together in this regard. It is true that the responsibility is shared by various levels of government, but in the land claim settlement areas it is also shared by the co-management boards. It is that difference that we feel needs to be acknowledged right in the preamble.
We're recommending that this clause be reworded so that the responsibility of conservation of wildlife in Canada is shared by the various levels of government in this country, including aboriginal land claim co-management boards. It is important to work together in this regard. Having that clause in there will give recognition, as is duly indicated in the land claim agreements.
Moving to concern three, aboriginal and treaty rights, we feel the existing act certainly recognizes them, but it should be strengthened in two ways. The first is by adding, under that subclause on page 5, ``including existing land claim agreements and the decision-making powers of co-management boards.''
We would also like to add an additional section that is in place in another proposed act, Bill C-80, the Mackenzie Valley Resource Management Act. That additional subclause would say:
2(a) Where there is any inconsistency or conflict between this Act and a land claim agreement or an Act giving effect to a land claim agreement, the agreement or the Act prevails over this Act to the extent of any inconsistency or conflict.
With that specifically in there, it would make all of the land claim groups feel a lot more comfortable. It would also outline to the various government agencies and to the public that the land claim co-management boards do play a role in wildlife management throughout northern Canada.
One of our main concerns is concern four, the non-application for provisions in the territories, including the Northwest Territories and the Yukon. As Mr. Kakfwi expressed this morning, the GNWT - specifically, the Department of Resources, Wildlife and Economic Development - has done a good job in managing wildlife in the Northwest Territories. They have been a partner in the co-management agreements, and have acted in good faith in that partnership and in that co-management. We recommend that the GNWT department retain that authority, mandate, and jurisdiction in the Northwest Territories, and also in the Yukon.
I guess this puts the boards in a very interesting position. Because the boards have the authority to approve designation of a species on the list, if this clause remained in the act - where the authorities would lose the mandate - the boards would be in a compromising position. They would have to decide whether to approve the listing of a species and in a sense further endanger it by having the management turned over to the federal government - Environment Canada - or to not approve listing it and to work closely with the GNWT to ensure that species is protected and brought out of that listing situation.
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Because the board has the legal authority to approve listing, they would be in that position of compromise. We'd like to avoid that. So we recommend that the GNWT be given the same responsibility as the provincial governments for management of species at risk, and also be encouraged to establish comparable legislation in, we said, five years. Mr. Kakfwi said this morning that he would do it in two years. Further to that, if the GNWT should retain that responsibility, they would only lose it when Environment Canada could demonstrate that they weren't doing a good job with endangered species.
Our concern five relates to the application of ``consultation'' on page six. That subclause specifically states:
- Before making the agreement, the Minister must consult any wildlife management board
established under aboriginal land claim legislation if the Minister considers that the order will
directly affect the board.
On prevention and recovery, under clause 5, on page 7, it says:
- The purposes of this Act are to prevent wildlife species from being extirpated or becoming
extinct and to provide for the recovery [plans].
- We feel this is a good intention, but when you get to that level it is very costly and sometimes not
possible to protect the species if we have to wait until they are going to be extirpated or extinct.
We'd like to change this clause to read: ``The purposes of this Act are to prevent species from
becoming threatened, endangered, extirpated or extinct''. In that way, it gives the management
agencies some responsibility to ensure that species don't become threatened or endangered.
Further to this, on COSEWIC, we think traditional knowledge and scientific knowledge should be included, not scientific knowledge or traditional knowledge. Again, it's not that there is a conflict or that these two are opposing each other. We feel they work together very closely in most cases, and they should both be included. And again with that clause, local or traditional knowledge tends to be very location-specific, so the minister should have the flexibility to have a rotating position and to assign members from that area to COSEWIC in order that we ensure local traditional knowledge is included.
Our concern nine is on prohibition of damage to or destruction of residence. As Mr. Carpenter indicated, that protection of a residence was not sufficient in section 32:
- No person shall damage or destroy the residence of an individual of a listed endangered or
threatened species.
It's very difficult to identify the residence of a caribou herd. The residence that caribou herd has is its calving grounds, its winter feeding grounds, the places where it spends time to stay out of the bugs on the north coast in the summertime. There is no specific residence. What there is in that case is several critical habitats. If these habitats aren't protected for a species that is threatened or endangered, in a sense that species isn't protected.
We would also like, in other parts of the bill where we're discussing residence, that critical habitat be given consideration there also. It gives us the impression that these animals are living in some kind of little townhouses or something. That's certainly not the case.
Our eleventh concern is about agreements and permits. Again, the responsibility as it exists now in the bill and proposed act is that the minister has that authority. We would just like to amend that to ``Subject to terms of the applicable land claim agreements, the responsible minister may make an agreement with a person''; and likewise for any protection action on that.
In conclusion, the Gwich'in Renewable Resource Board supports the development of an endangered species act, but the present draft needs to be amended to ensure wildlife co-management boards established by aboriginal land claim agreements are given proper recognition and authority. The GRRB, like other co-management boards throughout the north, is committed to ensuring that it fulfils its responsibility for protection of wildlife in Canada's north. In all cases 50% of the members of these boards are aboriginal people. Those people are community people and most of them have other jobs, but they all have ties to the land, and their families have ties to the land, and all of them have spent their entire lives living in the north. So there's a deep commitment there, and combined with the knowledge and the management ability of the various departments we feel the land claims co-management boards should be given this proper recognition.
Thank you for your time and your consideration. We look forward to improvements in this bill, because we do feel it is important. We're willing to work with the committee and the department to ensure those improvements are made. Thank you.
The Chairman: All right. Both submissions are excellent and very helpful. Now let's see what questions we have.
Mr. Steckle.
Mr. Steckle: I think the way you've presented your report and your presentation to us this morning has been very helpful, in that you have included not only your comments but the recommended changes you would like to see in the bill. They are going to be very helpful as we go into clause-by-clause, making changes where we feel appropriate.
The Chairman: Mrs. Kraft Sloan, please.
Mrs. Kraft Sloan: I want to compliment both of you on your briefs. They are excellent and they will be very useful.
About the amendments on the purpose of the bill, where your recommendations have looked at adding ``threatened and endangered'', do you feel this is going to affect other clauses of the bill, on recovery plans and acting on species that are vulnerable?
Mr. Clarkson: If it does affect them we feel it would be in a positive way, in that it will be much easier to get a heads-up on something that there may present a problem. Certainly the people of Newfoundland, if they had been told ten years ago that their cod populations were in trouble and they should cut back, would appreciate that now. We feel likewise with the other species, if we can get a heads-up from the co-management boards and the agencies to prevent species from going so far down the road that we have to implement massive recovery plans and dump a lot of money into it and go out and try to catch wildlife to put them in a breeding situation...that's a very expensive management option, and with today's tight fiscal constraints we would like to avoid that. If we can approach this in the early stages it's a lot more manageable and a lot more cost-effective.
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Mrs. Kraft Sloan: Are there any other comments in regard to that particular question?
Given the fact that we have had submissions from some industry groups and private landowners who are very concerned about different aspects of the legislation, do you think that if we included ``vulnerable'' in the category for recovery plans and implementation it would increase their anxiety? Do you have any thoughts about that?
Mr. Clarkson: I think it could go both ways. It could increase their anxiety if they really hadn't thought about it, but it could also lessen their anxiety in that by approaching the species when it's vulnerable or threatened, you have a lot more mitigation and management options. When you get down to the extirpated level, you don't have many management options left. You basically have to shut everything down. There's less room to move.
If we can identify things at the early stages, we have a lot more management options and a lot more mitigation options. Companies could have activity during certain times of the year that aren't critical. They could adjust their work schedules and adjust areas slightly. It's much easier to deal with a population when there are more numbers. And people would be a lot more willing to allow development activity then than they would be when we get down to the last known fifty of a species. Nobody's going to tolerate anything then.
Mrs. Kraft Sloan: Do you think they would be concerned because we are expanding the number of species? Obviously, there will be more species included. Do you think they would feel that because there are more species involved their likelihood of having to participate in a recovery plan is greater?
Mr. Clarkson: I would have to look at the bill, but I think the recovery plan kicks in long before a species is endangered. It does kick in in the early stages, so we just felt that the purpose should also include it. I don't think we're adding any additional work. By including it in the purpose it complements a lot of the other clauses in the bill.
Mrs. Kraft Sloan: Yes. I guess my thought is that if you're going to make those additions you would be including species that are vulnerable as well.
Mr. Clarkson: Yes.
Mrs. Kraft Sloan: Okay. Thank you.
The Chairman: Mr. Taylor.
Mr. Taylor (The Battlefords - Meadow Lake): Thank you very much, Mr. Chair.
I'm a little concerned about the conflict with regard to COSEWIC in the listing process. Both of you have talked about adding northern representation, in particular, representation with traditional community knowledge and whatnot. Mr. Carpenter talked about a conflict with the existing COSEWIC list and the current state of endangerment in the Northwest Territories.
We've heard a lot of representation over the last little while about how the listing process should be removed from the political process and how it should be strictly in the hands of COSEWIC.
Given that there's a bit of conflict with the existing list - this question is particularly forMr. Carpenter, but I'd like to hear Mr. Clarkson's remarks as well - do you think that with the changes to the COSEWIC membership your concerns about the existing list could be corrected and that in fact the COSEWIC listing could become the operable framework in the future, with the politics taken out of it?
Mr. L. Carpenter: I think it's possible if we get people who know the area and know the wildlife species. I mentioned the bowhead because two different bowhead populations are being hunted. The eastern Arctic bowhead, which is considered endangered, is a lot different from the bowhead we get that come from the western Arctic. There already is a quota established in Alaska for those bowhead.
You'd know it.
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Mr. Don Dowler (Vice-Chair, Fisheries Joint Management Committee): It's sixty something now.
Mr. L. Carpenter: But having them listed just as bowheads is one of our concerns. It affects all of us, instead of listing the two different populations. What we want is someone who understands the different populations in the area. We feel our people from the north, even a couple of people, would be best to put that in.
Mr. Taylor: Mr. Clarkson, do you have any comment?
Mr. Clarkson: Yes.
If the proposed amendments were included in the act, when it came to looking at a revised COSEWIC list, the co-management boards would have the opportunity to approve which species were going to be on it, or as Mr. Carpenter has said, to make additional qualifications for a population in one part of Canada to be on the list, not necessarily the entire population.
We have to remember the general public in some cases isn't that well informed. Belugas in the St. Lawrence aren't the same belugas that we have in the Mackenzie. There is a big difference, and it's a big country. By allowing the co-management boards their rightful place in this act, we would be able to ensure that the rights of the people in the land claims areas would be protected and that they would be happy with the list.
Mr. Taylor: Thank you very much.
The Chairman: Thank you.
Mr. Carpenter, you tackled clause 32 in your brief and suggested it should be expanded to include critical habitat. Can you let us have some of your thoughts as to what critical habitat is, in your opinion? How would you tackle the term ``critical''?
Mr. L. Carpenter: Critical habitat or core habitat really to us is the area where.... I will use the caribou as an example. They go to a certain area to do their breeding and raise their calves. To us that would be critical habitat, whereas their whole habitat is the whole range. A few caribou of say the Bluenose herd may be in one area at one time; they'll be spread all over. Yet critical habitat is the area they go to for their calving and raising their young.
The Chairman: So would you say critical habitat varies from species to species and from region to region, and do you feel COSEWIC is in a position to determine that?
Mr. L. Carpenter: I agree each species would be different. I'll use geese as an example. Their habitat is very big. They come all the way from down in Mexico and nest on Banks Island. To us their nesting area there would be the critical habitat. They're hunted all the way from Mexico to our region.
The Chairman: So, for the monarch butterfly, for instance, the critical habitat could extend hundreds of miles, because of the requirement of that species. Is that correct?
Mr. L. Carpenter: I wouldn't know.
The Chairman: Mr. Clarkson, do you have any comments to make on critical habitat?
Mr. Clarkson: Yes.
Whether it's COSEWIC or the agencies and co-management boards that develop the recovery plan, critical habitat can be identified. It is going to vary by species and by region. In some cases the critical habitat may be a nesting grounds; in some cases it may be a species's wintering grounds, when the species is most vulnerable to weather and other conditions. Those types of details could be worked out, but both of us have concerns that listing the residence does not protect the species.
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If we want to protect the Prime Minister or the President, we don't just protect his house; we have to ensure there's protection wherever that person goes, if they have critical habitat. It's the same for animals. They may have their nest in a certain spot, but the food isn't delivered to them. They need other habitat, which needs to be protected. And whether that critical habitat is on federal land or in some other place, as do all Canadians, we want to ensure the habitat of those endangered or threatened species is protected.
The Chairman: Thank you.
Are there any further questions? No?
We thank you very much for both reports. They're extremely helpful and we'll certainly deliberate on them. We wish you a happy return to your respective bases.
We will adjourn these committee hearings for just 10 minutes.
Thank you very much.
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The Chairman: Would Mr. Gibson and Ms Francis come to the table, please.
Welcome to the committee. Who would like to go first? Mr. Gibson.
Mr. Dale Gibson (Individual Presentation): Mr. Chairman and members of the committee, thank you very much for the invitation to speak to you. I hope my remarks will be very brief, because the issue I'm addressing is in one sense very small, in that I think it can be discussed quickly; in another sense, it's very large.
My name is Dale Gibson. I'm a professor of constitutional law and have been for a long time. At the moment I'm only a part-time professor of constitutional law because I'm also practising constitutional law with a firm that concentrates in that area.
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I've written on the topic of the environment and the constitution in a number of settings over a long period of time. The most recent opportunity I had to do that was at the request of the Sierra Legal Defence Fund, which asked me in 1994 to do a study of the extent to which the Parliament of Canada has constitutional jurisdiction to deal with the topic that is covered by Bill C-65, endangered species. I have provided the committee, as an appendix to my notes, a copy of that study I made in 1994.
The 1994 study identified three very major areas of constitutional jurisdiction for the Parliament of Canada. These were the famous ``peace, order and good government'' powers, which empower Parliament to deal with matters of national concern, sea-coast and inland fisheries - which is a very major environmental power of the Government of Canada - and the criminal law power, which is even more extensive in that it covers the environment and just about everything else one might want to attach criminal consequences to.
The legislation we're looking at today appears to me to draw on all three of those sources of constitutional jurisdiction, but as I'm going to suggest in a moment, not as broadly as the Constitution would permit.
My study also looked at a number of smaller areas of constitutional jurisdiction - aboriginal matters, agricultural matters, and so on - and it looked at mechanisms for federal-provincial cooperation, neither of which I'm going to address today.
As far as purely federal constitutional jurisdiction is concerned, my conclusion was that just about anything the Parliament of Canada feels is desirable to do by way of protecting endangered species is within its constitutional jurisdiction to do. I know that advice does not totally coincide with advice I understand the Government of Canada has had from the Department of Justice. That's one of the reasons I'm here, to suggest that if in fact the Government of Canada has been relying upon a narrow view of its constitutional jurisdiction, there is another side of that story and I'm here briefly to tell it.
The main conclusions I reached in the 1994 study are referred to in the paragraph quoted at the top of page 2 of my notes. I'd like to read that to you. It's rather compact and compressed, and I want to be sure I don't miss anything.
There is a persuasive argument to be made that the Parliament of Canada has sufficient competence under the national facet of its peace, order and good government power, including its treaty power, however interpreted, to exercise jurisdiction over all aspects of endangered species protection, both direct and necessarily incidental, regardless of the nature of the species or its location. Even if that argument should fail - and there is a contrary point of view in some respect - it is nevertheless indisputable that federal authorities have such jurisdiction over all fish and aquatic life forms; all species inhabiting, for at least part of their life cycles, property that is federally owned or federally controlled, whether beyond the geographic bounds of the provinces or on federal enclaves within the provinces; all species that move across provincial or national boundaries or whose survival depends on transboundary measures; all protections embodied in criminal law; statistical studies of endangered species and related matters; and finally, at least some threats caused by agricultural activities.
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The totality of these federal powers, I concluded, is so sweeping as to leave very few, if any, gaps in the ability of the Government of Canada to act for the protection of endangered species in Canada.
Since that study in 1994, legislation is now before Parliament, and when I look at Bill C-65 I find that it falls far short of exercising all of the potential constitutional jurisdiction the Government of Canada possesses. Two of the most obvious shortcomings, in my reading of the legislation, are the restriction of several of the key measures to federal lands and the limitation of habitat protection to so-called residences of wildlife species.
In order to identify those shortcomings, it was necessary to wander through the enchanted forest of the drafting of this legislation, which wasn't an easy task. So in paragraphs 7 and 8 of my presentation I attempt to simplify what seems to me to be the key provisions.
I confess I'm not looking at the entire act here. I'm looking at what I call the teeth of the act or the prohibition provisions of the legislation, in order to find out just how broad or narrow the focus is. My conclusion is that in terms of teeth or prohibitions, the act restricts itself first of all to a group of general prohibitions that apply regardless of ministerial discretion. These are in clauses 30 to 32 and apply only to aquatic species and treaty-protected migratory birds, as well as other species on federal lands.
The second group of prohibitions - the discretionary ones about which the minister may make regulations - can apply off federal lands, but only if those species, as I read the legislation, migrate or range internationally, and only after provincial consultation. I'm not complaining about provincial consultation. That just happens to be one of the restrictions. The key restriction clearly is the necessity for migrating or ranging internationally.
The third point I want to make concerning the teeth is that the teeth that relate to habitat appear to me to apply only to the residences of wildlife species. So what's left out? In paragraph 8 I note some of the things that appear to have been left out. The general prohibitions do not apply to species that are off federal lands unless they happen to be aquatic or treaty-protected migratory birds. The discretionary ministerial prohibitions do not apply to species that migrate interprovincially, or between provinces and territories, or species that don't migrate at all. The habitat protections don't apply beyond the residence provisions.
Because I was informed that there have been narrow interpretations given of Parliament's constitutional jurisdiction, I was concerned that these restrictions may have resulted from undue jurisdictional modesty on the part of Parliament not wanting to go beyond what it has the constitutional power to do. If that is the motivation for these restrictions, I'm here to say that in my view that opinion is mistaken.
In paragraphs 10 and 11 of my notes, I make these points. It would be possible to extend the prohibitions I've been talking about to all of the omitted species by simply wiping out the restrictions, because in my view the criminal law power is absolutely sufficient to cover all of those areas. If there were any doubt whatsoever, the peace, order and good government power is available where you have migration over borders, whether they are internal Canadian borders or international borders.
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As far as residences and the restriction of habitat protection to residences are concerned, my view is that you could, with no constitutional difficulty, extend the protection to all habitat or, as our previous speaker suggested, to all critical habitat, without running into any kind of constitutional problem, because there is a principle known as the necessarily incidental doctrine, which permits Parliament or a legislature that has jurisdiction over a particular topic to do everything that is necessarily incidental to implementing that general power. If you have the jurisdiction to protect a species, the doctrine of necessarily incidental would clearly cover the power to protect any habitat critical to the survival of that species.
Mr. Chair, my conclusion is in paragraph 13. Bill C-65 contains much that is valid and valuable.
Let me just pause there to say that people like me often come before you and speak only in negative terms. I don't want to do that. I didn't feel it was my job to congratulate Parliament on the many good things that are in the legislation, but clearly there are.
However, the scope of the bill's protections is more limited than I and many other Canadians had hoped to see. If this narrowness of focus stems from unwillingness to protect endangered species more fully or from a reluctance to ruffle provincial feathers, the only recourse will be to await the verdict of the voters at the next election.
If, however, the proposed Canada Endangered Species Protection Act is so modest in scope because its drafters thought that the Parliament of Canada was constitutionally constrained from going further than it does, the Government of Canada should get a second constitutional opinion.
Thank you.
The Chairman: Thank you. Professor Gibson, I wish it were true that it was all undue modesty.
Some hon. members: Oh, oh!
The Chairman: Madam Francis, would you like to start?
Ms Wendy Francis (Individual Presentation): Thank you very much, Mr. Chairman and members of the committee. I'm very pleased to have the opportunity to provide my advice on this very important piece of legislation.
Just so the committee knows, I'm here in my personal capacity. I have training as an environmental lawyer and a master's degree in environmental law, but I am not practising law at the moment. I am, in fact, working for a conservation organization, although I am not appearing on their behalf.
The perspective I am bringing to this presentation comes from my own belief that the problem of endangered species is one of the most profound and serious problems we are facing in our struggles to live on the earth and to live within its biological capacities. Once endangered species are gone, there is nothing we can do to restore them. Therefore, having strong endangered species legislation is justifiable in these extreme circumstances and should perhaps outweigh many other considerations. There is such a finality to the loss of a species from the planet.
The elements of such effective endangered species legislation are pretty well known. Endangered species have to be identified. It must be made illegal to kill or hunt or harm them. Finally, it must be illegal to disturb or destroy their habitat.
What I'm looking to see in Canada is a complement of legislation whereby we have all three of those elements present across the country. In other words, I'm looking for consistent protection for endangered species everywhere in Canada. And what I'm concerned about with the approach that's been taken through this legislation and through the national accord is that we are in fact not doing that.
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We are going to end up with a patchwork of legislation where in some jurisdictions endangered species will receive adequate protection, and in other jurisdictions they simply will not. I'm afraid that Alberta is one of those jurisdictions.
In my paper I have briefly touched on the issue of constitutional authority for Parliament to make laws for the protection of endangered species. Mr. Gibson has done a much more thorough job of that, so I would only point out that I agree with him and believe Parliament has at the very minimum, under the peace, order and good government power, the authority to legislate for the protection of endangered species all across Canada, regardless of what lands they are found on.
I base this view on the findings of the Supreme Court of Canada that matters of the environment are within the constitutional jurisdiction of both levels of government, and also on the finding that the issue of pollution has been found by the Supreme Court to be of such a national concern that it is validly within Parliament's jurisdiction. Surely, if pollution is that serious then the question of endangered species is a serious issue of enough national concern that Parliament is justified in legislating in relation to it.
It appears that the approach to this legislation has been quite timid in relation to the jurisdiction Parliament has. I suspect it's the result of other matters taking precedence over the priority I've suggested should be given to endangered species protection matters, such as inter-jurisdictional harmony, avoiding challenges to the Supreme Court, and so on. I would urge the committee and the members of Parliament to be a bit more bold in this matter because it is so serious. The priority should be to do what is right and necessary in order to protect endangered species.
One area Mr. Gibson has also referred to where Parliament appears to have been unduly faint-hearted is in relation to transboundary species. In many other subject matters Parliament has taken jurisdiction over interprovincial and international matters. I've used the example of international pipelines as an area that's totally regulated by the federal government. So I have some difficulty in understanding why transboundary animals don't fall into that same kind of category as being exclusively within Parliament's jurisdiction.
If that is the case, as Mr. Gibson has said, Parliament could validly enact legislation that completely protects transboundary endangered species and their habitat, even though that might incidentally trod on matters of provincial jurisdiction.
In my paper I touch on some other issues in relation to the legislation that I think could be improved. I believe you've heard submissions before regarding the listing of species. The employment of COSEWIC to identify endangered species or species at risk is proper, but the way the act is drafted now, species don't get on the list of endangered species unless the government decides to do that. I think that's the wrong sort of approach.
I can appreciate that government may decide not to afford the protection of the act to a particular list of species, and that might be for economic reasons, political reasons or other valid reasons. Perhaps there's not much that can be done in regard to a particular species, but I don't think you should mix up the process of listing and the process of deciding whether or not the act should apply to a particular listed species. The existence of an endangered species is a question of scientific fact, I suggest, so it should not be muddied with a political decision on whether or not the act applies.
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In my view the lack of protection for the habitat of endangered species is a serious flaw in the act. Habitat destruction and loss - habitat alteration - is understood to be the most significant cause of species decline. Again, the draft Endangered Species Protection Act has taken a rather timid approach to the jurisdiction that Parliament could exercise over habitat.
Based on Mr. Gibson's comments, I would suggest Parliament could in fact protect the habitat of endangered species everywhere in Canada. If, for political reasons, that can't be done in this legislation, at the very least the protection of habitat for aquatic species, migratory birds, and transboundary species could be significantly strengthened in the legislation.
Currently habitat protection can only occur either under an emergency order or under a recovery plan, and the adoption of recovery plans is discretionary. So there's a very weak protection for habitat there.
As I've suggested, there needs to be assurance that there is consistent protection for endangered species across Canada. I refer to this as a seamless web of protection, so we know that in every jurisdiction, endangered species are receiving the same level of legal protection.
The act provides an example of how this might work. In clauses 3 and 4, the minister can order that a provision of the act does not apply in the Yukon Territory or the Northwest Territories, but before doing that, the minister must agree that there is an equivalent provision in place in the laws of that territory. That same kind of drafting could apply to exempt the provisions of the act from a province where laws having similar force and effect are in place. That would encourage the provinces to take positive action to provide the same level of protection.
I would like to refer to what's happening in Alberta as an example of where we are going to see this patchwork of legislation that does not provide a similar level of protection. In 1996, just about a year ago, Alberta amended its Wildlife Act, which is the act that governs the management of wildlife species in the province, hunting, and that sort of thing. It created several sections dealing with endangered species. They're relatively simple, and I have summarized them on page 9 of my presentation.
Essentially, all of the provisions are discretionary. The only thing the minister must do is establish a committee to advise him or her about endangered species. Everything else that happens under the Alberta act is discretionary. There is no legal protection for endangered species, there's no prohibition against killing them or hunting them, there's no requirement to list endangered species, and there's no requirement to protect habitat.
It is a provision that depends entirely on the strength and goodwill of the minister of the day and provides no definitive legal protection for endangered species. And even though that provision was passed by the legislature last March, it has not been proclaimed yet, so none of the steps that need to be taken to establish the committee, etc., have occurred.
In Alberta, as in all jurisdictions in Canada, we do have problems with endangered species. Under the Wildlife Act we have currently identified 12 species that are endangered. We have two systems for listing endangered species. We have 17 species listed on the red list; that's an alert that species are either endangered or about to become endangered. So we do definitely have a problem, and the provincial government, in my view, has been surprisingly inactive in this regard.
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So in Alberta, without strong federal endangered species legislation, there is very little that might be done to protect endangered species.
On the last few pages of my paper I've addressed a few somewhat more minor concerns about the legislation.
I'm very concerned about the reference to residences and that residences of species that are considered under the act to fall under federal jurisdiction will be protected. Well, the concept of residence won't apply to all endangered species. The concept of having a nest or a den doesn't apply to many large mammals, which are certainly some of the most vulnerable species. They're on the move all the time and they don't sleep in the same place more than once, so the concept of residence doesn't give them any protection at all.
In relation to how COSEWIC starts the process of listing endangered species, doing status reports, and making recommendations for listing, COSEWIC, as we know, has been in existence in Canada for decades, and I believe something like 256 species have been classified already by COSEWIC. One of the things that jumped out at me when I first read the act is that the act makes no reference to what happens to the list that already exists. As it's currently drafted, on day one that the act is in force, there will be zero endangered species. There needs to be some transitional provision that brings in the list that's already been created.
I gather there's been quite a bit of discussion and concern expressed about the cause of action that is created in the bill. I haven't addressed that in my written submission, but I have given the matter some thought and would offer the following comments.
The right to bring a cause of action arises only where the act is not being enforced by the government, so presumably that in and of itself will limit the opportunities for bringing a cause of action. If the government is doing a good job of enforcing the legislation, the need or opportunity for bringing causes of action will be small.
I question the motives of those who are concerned about this clause, because by opposing the right to bring an action, they could be interpreted as saying they don't want the act to be enforced, which obviously we wouldn't want to see.
I'll summarize things that could be done to improve the legislation, going from the easiest things to do to the hardest things to do.
It seems to me it would be relatively easy and would not offend the principle of cooperation established by the national accord for the legislation to include full automatic protection for critical habitat of migratory birds, aquatic species, and species found on federal land. In that regard I want to particularly emphasize national parks - areas where federal governments clearly have exclusive jurisdiction, areas that are set up specifically to provide for conservation.
The second level where changes could be made, again relatively easily by Parliament, is full protection for transboundary species and their critical habitat, wherever they are found.
The third change I would recommend, but the one that might be the most difficult given political realities, is a comprehensive endangered species act that provides mandatory protection for critical habitat and applies all across Canada, except in jurisdictions that have enacted equivalent legislation.
I would urge the committee to consider very carefully the purpose of the Endangered Species Protection Act. I'm sure you're quite familiar with it, but I have spelled it out because it's important to remind ourselves of what we're doing here. The purpose is to prevent wildlife species from being extirpated or becoming extinct and to provide for the recovery of wildlife species that are extirpated, endangered or threatened as a result of human activity.
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I'm afraid that as drafted the legislation will not do that. There are so many gaps in the web of protection that needs to be in place all across Canada. I would ask the committee to think about that very carefully, to think about the finality of extinction and the priority that should be accorded to taking steps to prevent extinction. So I urge the committee and Parliament to be strong and bold in its work.
Thank you very much for the opportunity to present.
The Chairman: Thank you, Ms Francis.
Mr. Forseth, followed by Mr. Knutson.
Mr. Forseth: Thank you.
I agree with you when you say, on page 25, the totality of these federal powers are so sweeping as to leave very few, if any, gaps in the ability of the Government of Canada to act for the protection of all endangered species in Canada. I agree with you, but we must remember that what is possible may not always be wise in a confederation.
We know also that your colleagues are very much aware and are preoccupied with the appreciation of what is politically possible over what is ideal in the construction of law.
I'm also from the Reform Party caucus, and of course I have a mind to, generally, wherever possible, the principle to devolve to the lowest practical and feasible level, both for operational administration and for political accountability. But I think an informed choice was made by the government here, fully aware of your submission.
I think there's another reality here, and it's about money or the lack of money, which is clearly declared on page 1a of the bill, where it says:
- the appropriation of public revenue under the circumstances, in the manner, and for the
purposes set out in a measure
Mr. Gibson: Thank you very much, Mr. Forseth.
It is true that it's not always wise to do that which you have the power to do. My chief purpose in being here is to ensure that there be no illusions about what is possible and what is not, because I have heard the excuse put up that the act is limited because it isn't within federal jurisdiction. If there are other reasons, then that's beyond my field of expertise. As a citizen, I have opinions, but I won't go further.
But I do wish to say this about your comments concerning the lowest possible level. I share that view. In fact, I'm in the court of appeal of Alberta right now on behalf of local school boards in litigation that is stressing our view that there is in the Constitution an implicit guarantee for a certain reasonable level of autonomy for local government. So I'm absolutely sympathetic with the view you put.
In the larger study, though, the 1994 study I've provided you with, I make a suggestion of how you might be able to marry those two perhaps apparently inconsistent ideas, and it's this. If the Parliament of Canada establishes lowest common denominator standards, national standards for the whole country, and then does as Ms Francis suggests and says this will only be applicable in provinces or areas where there isn't as good or better protection, then I think you've done the best thing. You've left local things to the local people, but you've ensured that the Parliament of Canada does not turn its back on what is a national and an international need. I think you can marry them.
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Mr. Forseth: Thank you.
The Chairman: Mr. Knutson is next, followed by Madam Kraft Sloan and then the chair.
Mr. Knutson (Elgin - Norfolk): Thank you very much, Mr. Chairman. To start with, I'd like to echo Mr. Forseth's comments. I'm not sure that it's legalities that are driving the constitutional issue more so than -
Mr. Gibson: If that's the case, I'm delighted.
Mr. Knutson: I have been told informally by departmental officials that we expect a challenge from the provinces on this bill even in its present form, so perhaps you need to talk to the provinces about allowing the federal government to do its job.
If I can, I'd like to ask both of you to turn your attention to clause 60, the citizens' action clause. We received evidence yesterday from an administrative lawyer, and while I can't repeat verbatim what she said, I'll try to capture the gist of it.
First, she said that if a person applies to the minister for investigation against a forestry company, let's say, and the minister investigates and finds there's no reason for an investigation, that citizen can still go to court. Because there's no process for a preliminary hearing or a preliminary review on the reasonableness of the minister's investigation and decision, that citizen can still drag the forest company - or the petroleum company or whoever - into what would de facto be a full-blown hearing. She said that the language doesn't provide enough protection and that at a minimum the language needs to be improved to prevent a full-blown hearing when that's not the intent of the act.
Secondly, she said the rules of judicial review that we have in administrative law would apply and provide enough protection in any event. Can you comment on that?
Ms Francis: Yes. I have a couple of comments. I don't know whether they will answer those questions completely.
Certainly in Alberta where an action is brought that is truly frivolous or vexatious or where there are no reasonable grounds for the action, which I think is the situation you're suggesting, there is a process of summary judgment where, without having a full-blown hearing and simply on the basis of the pleadings that have been filed, there can be an initial hearing of whether or not there is enough substance in the matter to go ahead. A step that can prevent a full hearing in cases that are truly frivolous -
Mr. Knutson: Let's assume it's not -
Ms Francis: - is built into the procedure in Alberta.
Mr. Knutson: So it's easy to sort out. As lawyers, we probably all agree that it's easy to sort out the truly frivolous or vexatious ones, but a debate over reasonableness might be a little more complex.
The point was that if we're having a debate over reasonableness, the person or the environmental group bringing the action would be given an opportunity to present the full case, which de facto would drag the forest company or the petroleum company or whoever into a full-blown hearing. The point was that the requirement for reasonableness doesn't really protect them from having to go to court to defend their actions. The language isn't strong enough to prevent that.
Ms Francis: From my perspective, if there is a reasonable case to be made that an offence was committed, I'm not sure why the company should be protected from having to defend itself.
Mr. Knutson: It's not so much that there's a reasonable case to be made, but simply that there is a case to be made. Perhaps it's above vexatious or frivolous but is not quite reasonable.
Ms Francis: Perhaps it's somewhere in-between.
Mr. Knutson: Yes. Those are the ones they're worried about.
Let me turn to another point.
Ms Francis: With regard to the question of judicial review, yes, judicial review is available in certain cases for the decisions of governments, but there are limits to judicial review. One of them is the ability to obtain standing. There are others. I'm just not sure whether that achieves the same purpose that this provision does.
Mr. Knutson: Professor Gibson.
Mr. Gibson: I confess that I have not prepared myself on clause 60, so I'll just add a thought off the top of my head, without any purported expertise.
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My understanding of having this provision in the legislation is that it's needed because there is not an adequate enforcement mechanism provided by government. If in fact there were a strong prosecution process by the Government of Canada, or whatever the relevant government is, then the natural screening that takes place when governments prosecute would be in place, and I think your problem might be dealt with. But when everything's left to the private sector, I think the risk you're concerned about is necessarily going to rise. You lose the natural screening that exists in the crown prosecutor's discretion to proceed or not.
Mr. Knutson: I think that's the point of the companies. This is really private prosecutions through the back door.
Mr. Gibson: My point is simply that you need one or the other. You need an effective enforcement mechanism. If there isn't the money to provide for public sector prosecution, then it seems to me you're inevitably driven to private sector prosecution, raising the sorts of concerns you're worried about.
Mr. Knutson: Let me change the subject. The other point the companies made yesterday was that if they had gone through hearings on an environmental assessment - which being new to the committee I'm not an expert on by any means - received their permits provincially or federally, whatever the case may be, they would think that if there was an environmental assessment involved it should provide comfort to them that they would not be challenged later, halfway into their project, under the Endangered Species Act. As a starting point, that seemed to make some sense to me. They were looking for some language to connect this bill to other environmental assessments.
Ms Francis: Advanced review.
Mr. Knutson: Does that make sense to you?
Ms Francis: I believe I understand the question. My concern would be whether or not the environmental assessment process itself had adequately addressed the question of endangered species that might be encountered during the course of the project.
Mr. Knutson: Do they, generally? I have no idea because I'm new to the area.
Ms Francis: Environmental assessments can identify the potential for encountering endangered species on a project, but if you're looking at, for example, a pipeline project, an assessment will not walk all 550 kilometres of the proposed pipeline route. It will say it is likely that the following endangered species will be encountered during the course of construction, but it's not place-specific.
I could conceive of a situation where an environmental assessment is done, the project is approved, and in the course of constructing the project you come across a habitat, a residence, or a population of endangered species that perhaps might not have been anticipated. So I'm not sure if there's that complete overlap of protection there.
Mr. Knutson: Professor Gibson, do you have anything to add?
Mr. Gibson: I'm afraid this is too much into the real world for a professor to comment on. I have no experience with environmental statements.
Mr. Knutson: Thank you. I have nothing further.
The Chairman: Thank you.
Madam Kraft Sloan.
Mrs. Kraft Sloan: Thank you very much.
I sincerely apologize for not being here earlier. Unfortunately, the three hours in time difference from other people I have to try to communicate with has been very difficult - they're on the other side of the country. I will, however, take a look at your recommendations very closely, Professor Gibson.
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On the other submission, however, the advice we were given was that COSEWIC would be proceeding with the listing process as it currently proceeds with listing. So I'm very interested in your interpretation that it would have a restriction on the listing because of this legislation. I wonder if you could go over again how you feel clause 3 would restrict the overall listing process of COSEWIC.
Ms Francis: There are actually two points. If you read clause 3 carefully, particularly subclause 3(2), which says that clauses 30 and 32 don't apply except in relation to aquatic species, migratory species, and species found on federal land, clause 30 is the listing provision. So you could interpret that as saying you cannot even list species as endangered unless they are within the area of federal jurisdiction as it's been laid out in the act. That's one weakness.
The other one is that the way the act is drafted, COSEWIC makes the recommendations as to what should be designated and classified, but it is the regulation that creates the list, and that's under clause 30. So the Governor in Council could receive the recommendation that a certain species be listed but choose not to make the regulation, and therefore the species wouldn't appear on the official list of endangered species.
Mrs. Kraft Sloan: Yes, I understand. From my experience in sitting on the committee, I'm not aware of any other group bringing this point across that the listing could be restricted by COSEWIC. I understand the issue around Governor in Council making the final decision on listing. That argument has certainly been brought forward many times.
I would like to ask the researchers whether anyone else has raised this.
Ms Kristen Douglas (Committee Researcher): I'm not sure whether it's ever been discussed at a meeting, but there are other briefs where witnesses have said that the inclusion of clause 30 in subclause 3(2) must be a mistake and should be taken out, because it's not a prohibition, but it's treated as a prohibition. So the issue has been raised but not really discussed.
Mrs. Kraft Sloan: Okay, good. Thank you very much.
The Chairman: Mr. Taylor, followed by the chair.
Mr. Taylor: I have one quick question and comment.
Professor Gibson, in your biography I notice you worked with the Government of the Yukon and with the Royal Commission on Aboriginal Affairs. I was wondering if you've had an opportunity to look at the arguments presented by the Yukon and the Government of the Northwest Territories relating to the resource boards and the land claims agreements, and whether or not those matters, as they've discussed them, fit into the constitutional framework you've outlined here - the federal powers of cooperation, etc. Could you explain or expand, please?
Mr. Gibson: I now regret that I dodged the issue of the territories in my presentation. There's a little footnote there that points out that in trying to focus on what was of chief concern to me, I did not carefully examine the provisions that apply to the territories. So I'm not really able to add any useful comment about that.
I've heard and read about some of the submissions of the territories and many of them made a lot of sense to me. But the particular concern I wanted to bring to the committee is a narrow one in a certain sense. It's narrow in that I wanted to be absolutely sure there's no doubt about the potential constitutional jurisdiction of the Parliament of Canada. I did not go beyond that to those other mechanisms, though undoubtedly there's lots to be done to improve them.
Mr. Taylor: Thank you.
The Chairman: Ms Francis and Dr. Gibson, if Eugene Forsey were in this room he would have applauded you with enthusiasm, for reasons you well know.
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I must hasten to assure you, as I did earlier, that it was not undue modesty that has led to the drafting of this bill. Modesty is not one of the major characteristics of politicians, as you probably know. My colleagues have already hinted, directly or indirectly, why it is done this way.
There is a prevailing view that it is necessary to weaken federalism in order to accommodate or please two provinces and through that route ensure the continuity of the federation. With a few others, I voted against Meech and against Charlottetown, and against any measure that weakened federalism. I think the more you weaken federalism, the more you are on a slippery road, and that is not a desirable road to follow politically. However, our Minister of Intergovernmental Affairs believes the contrary, and we have to let him prove that his remedy is the correct one.
The point that you have brought forward this morning is not a narrow one, at least in my view. It is an all-encompassing one that I think all members of the committee welcome, at least because it is extremely instructive in the way you have put it. Also, Ms Francis's presentation is extremely instructive as well.
May I ask you this. Do you think it is technically, if not politically, correct to proceed on an assumption with this bill because, once adopted, it will be followed by a number of pieces of mirror legislation at the provincial level, and that those pieces of legislation will complement what is missing in federal powers in this particular legislation, thus arriving at a sum total, let us say, of legislative statutory measures that will achieve the goal that was not achieved through a weak federal approach in the first place? Do you think that is technically and otherwise possible and realistic? Could I have your comments, please?
Mr. Gibson: First, on your point about weakening federalism, let's remember that federalism doesn't necessarily need an overbearing federal government. Quite the contrary, federalism involves a proper balance between provincial responsibilities, local responsibilities, and central responsibilities. My image of federalism is one in which, as Mr. Forseth says, everything that is proper to be done is done at the local level. But my image of federalism includes the notion that it is the overall responsibility of the Parliament of Canada to make sure that no balls get dropped in that process. Therefore, it seems to me that it is entirely consistent with federalism for the Parliament of Canada to establish what I call lowest common denominator standards for the country, hoping that the provinces will improve upon them. Without that lowest common denominator, that fall-back position, there is a danger that inconsistencies from one province to another - perhaps gaps in the protection provided - will embarrass Canada internationally and will endanger some very sensitive species.
Your question, Mr. Chairman, had to do with whether or not the picture can be completed once provincial legislation comes into play. One would hope that it would. My view is that it's necessary to have the assurance that this will be the case.
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Just let me point to a couple of areas where it would be very difficult for the provinces to deal. One has to do with matters relating to Canada's international obligations. In my understanding of constitutional law, Canada's international obligations are obligations of the Government of Canada. If one of the provinces does not comply with Canada's international obligations, the whole country suffers.
I'm only picking two out of several that could be picked, but another difficulty with simply leaving it to provincial happenstance is that there are some problems that the provinces can't deal with, even if you have provincial governments that are consistent and conscientious.
There's a case referred to in my larger study - the interprovincial cooperatives case - that had to do with pollution in the Saskatchewan River system flowing into Manitoba from the other prairie provinces and the Wabigoon River system carrying pollution into Manitoba from Ontario. In that case, the Supreme Court of Canada ruled that it is beyond the ability of provinces to deal with those kinds of interprovincial problems.
Now where we have species that move across provincial or territorial-provincial boundaries, we have those kinds of interjurisdictional problems that no single province can deal with. The Supreme Court of Canada has said they are a federal responsibility. My suggestion, therefore, is that you need a marriage of those federal responsibilities, with the federal Parliament doing that which only it can do - that is, to provide the backup and fill the gaps - while calling upon the provinces to improve from their points of view and based on their local expertise.
Ms Francis: Mr. Chairman, I'd like to answer your question on a basis that's a bit closer to home in terms of Alberta.
I have described the provisions of endangered species protection in Alberta in the Wildlife Act. I've spoken to Minister Lund's office several times regarding this matter, and the position given is that they've done everything they need to do to comply with the national accord, based on these discretionary provisions in the Wildlife Act that don't provide habitat protection. I've had absolutely no assurance or comfort from that office that they are prepared to make any changes to how they see their role in protecting endangered species in Alberta. I'm therefore afraid that I can't be optimistic that in the short term, at least in this jurisdiction, we're going to see anything that approaches what is required.
The Chairman: We appreciate very much your appearance and your good advice and comments, and we thank you very much.
Mr. Gibson: Thank you very much.
Ms Francis: Thank you, sir.
The Chairman: Would Cliff Wallis and Richard Merry, Harvey Scott and Doctor Neraasen come forward, please. These would be the witnesses from Cottonwood Consultants Ltd., Operation Grassland Community, Edmonton Friends of the North Environmental Society, EcoCity Society, Island Lake Cow-Calf Operators, and Ducks Unlimited. Please take a chair at the table.
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To allow for a meaningful question-and-answer period and in consideration of the number of groups that are here and that the time we have is limited because we have to leave this room at 1 p.m., I would propose that your oral submissions, in addition to what you have written, be of ten minutes. At about eight minutes I will alert you that you have a couple of minutes to go. Is that all right with you? We will try at least.
Who would like to be the first speaker? Is that the Cottonwood Consultants Ltd.? Would you like to go first, Mr. Wallis, followed in the same order as on the paper? So you are the first and Ducks Unlimited is the last. Is that all right with you?
Mr. Cliff Wallis (President, Cottonwood Consultants Ltd.): Thanks. I won't read my whole paper. I'll let you look at it afterwards.
I do want to thank you for allowing me to present to you today, and I would like to congratulate Canada for taking the initiative. It has brought attention to what I think is a serious problem in Canada, and I urge you to strengthen further the legislation that's before you.
I have participated in many environmental assessments as an environmental consultant since the early 1970s - many environmental studies, rare and endangered species. Despite many voluntary processes, stakeholder reviews, and environmental assessments, I've seen the steady degradation and loss of both the habitats and the species, primarily in the boreal forests, prairies, and foothills in Alberta and elsewhere. I don't think voluntary approaches alone are going to do it, and we need a stronger stick as well as some carrots out there.
We seldom lose habitat in one fell swoop; it's that nibbling away that gets us into trouble over time. I would like to support a lot of the recommendations you've probably heard over the last couple of days and in other submissions, particularly from the Canadian Nature Federation and the Canadian Endangered Species Coalition.
I won't go into those, but I would like to add one area particularly that I think really needs some attention besides really strong habitat protection, and that is the concept of an endangered species recovery fund. We need a pot of money that is clearly identified that allows for both research and habitat acquisition. Without that, regardless of who's in control, federal or provincial, things are just not going to happen. People might say, well, this is going to cost us big bucks, but in fact the opposite is true. Restoring species once you have put them in danger, or restoring their habitat, is what costs lots of money. Right now they're spending hundreds of millions of dollars in Florida to try to restore species, and that's on an annual basis over the next 10 years, straightening out some of the engineering products that were put in that have endangered many species down there.
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If we would just protect the existing habitats right now, we could have a lot of economic activity still going on and it would be relatively inexpensive. For example, in Alberta, it has been estimated that it would only cost in total about $500 million to secure all the provincially, nationally, and internationally significant environmental areas within the prairies and the parklands, and that's where a lot of the rare and threatened species are.
When you look at the agricultural subsidies that are going in every year to that region, a fraction of that money spent annually to help secure the habitat...it wouldn't kick the ranchers off the land; it would just say that one of the other priorities we place out there is protecting habitat. We need those compensation mechanisms, and that's why I suggest adding into the act something that legislates a fund that we can draw upon.
I think another reason we need that is to draw attention away from what has been an unjust characterization in the U.S. Endangered Species Act; that is, it stops development. That is just plain false. If anybody has done the research on that they'll find, for example, that in the first 10 years it was enacted there were about 50,000 projects that had implications for endangered species and only 1% of them were affected by the legislation. Of that 1%, 90% went ahead anyway, with conditions, perhaps, or some measures that would help protect the endangered species. So a lot of the paranoia about people is just that, it's paranoia; it's not reality. The Endangered Species Act in the U.S. is a lot stronger than the one we're looking at here today.
We also need to use that money to build the research, as I mentioned earlier, and I think the concept you may have heard yesterday of a national biological survey or service, revamping what we've lost. The National Museums of Canada, which is one of the major repositories of biological information in the way of plant specimens, for example, and the Canadian Wildlife Service need to be revamped. I think we've lost a lot of good people, we've lost a lot of momentum there, and we need to build back those agencies and give them a mission.
We know very little still about the biology of this country. We know quite a bit about grizzly bears. We know very little about non-vascular plants, insects, and a whole host of other species that are important parts of the ecosystem. As we're finding, they are very important parts of the ecosystem, because actually a lot of other species depend on them.
One example of that is the Richardson's ground squirrel, in Alberta, which wasn't even considered wildlife before, but the fact that it was exterminated, eliminated from a lot of native habitat, made other species at risk. Ever since the 1930s we've seen some problems. Areas that used to be really abundant with Richardson's ground squirrels in the native grasslands, in fact, along the U.S. border, which were considered the highest densities of those species in the 1800s when the early explorers went through, have virtually no ground squirrels today. You see hundreds of abandoned ferruginous hawk nests, for example, that are not being used because that food supply is not there. So we need to build back up and understand what is happening to the whole system, not just individual species.
I think revamping the Wildlife Service and the National Museums would be a major step. I don't know if you can write that into the act, but it is something as a policy or a direction for the government that would supplement what is needed in the act, and that is the recovery fund.
Also, as a last point, I would point out there is a December 1996 opinion poll on endangered species, which I have attached as a separate document to your package. You will notice there is strong support for a strong federal role. This poll was commissioned by the Canadian Endangered Species Coalition. There was 73% support for mandatory listing, based on recommendations of scientific experts, not politicians, and 73% support for mandatory habitat protection - and that support is equal in both rural and urban areas, so this is not an ``us versus them'' situation.
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There is 84% support for legislation to apply to all lands, not just federal lands, and there's 75% support for the federal government to play the primary role in protecting cross-border species. I think that gives you some comfort in knowing where people fit across this country.
Once again, thank you for allowing me to make this presentation. I certainly am open for questions regarding my background in environmental assessments and endangered species.
Thank you.
The Chairman: Thank you. You made it in seven minutes and 27 seconds, a record time. We appreciate that.
Would David Scobie take the floor, please?
Mr. Andy von Busse (Senior Vice-President, Alberta Fish and Game Association): I'm Andy von Busse with the Alberta Fish and Game Association. Operation Grassland Community is one of our habitat programs.
Our association has been around since 1908. We have 15,000 members. We've been very much involved in fish, wildlife, and habitat aspects for many years, working with governments, private individuals, companies, and organizations such as the World Wildlife Fund and the Nature Conservancy of Canada to enhance populations and habitats. We also work pretty closely with the field staff and the regional staff of Environment Protection of Alberta, and we have a good rapport with them. We feel things are working out fairly well in most instances.
Our association has purchased, leased, or placed conservation easements on tens of thousands of acres over the past number of years. We now have over 186,000 acres under some form of disposition. We also have outright ownership of over 10,000 acres of critical habitat area. I want to point out these are all privately funded, and the funds are coming from hunters and anglers.
I'm giving you that background so you understand that we live this stuff. We're not esoteric or philosophical about it. We do the on-the-ground work. Real money is spent and there is real activity by tens of thousands of volunteers.
When the accord came out in September 1996 we were pretty supportive of it. We felt the impacts were positive and we really expected the legislation to reflect that.
We have some concerns with what hit the ground. We certainly feel there's an Americanization of the way endangered species are handled. The concern we have is that we're going to have courts making decisions and not scientific evidence making decisions, and the rules the courts have are different from the rules science has. That has happened in the States; we're seriously concerned that will happen here.
We have some concerns on the idea of habitat region as outlined in clause 33 of the act. To give an example, wolves and grizzly bears are certainly endangered and probably extirpated in much of the range in Montana. Grizzlies are in fact increasing in population in Alberta, though there are certainly some pockets where they have problems, and there's no question wolves have a healthy and stable population here. If Montana in the U.S. decides to take a particular line of action, certainly our concern is that clause 33 could kick in and that action would be imposed, not based on scientific fact, on the situation here in Alberta.
We have concerns about the changing role of COSEWIC. There is provincial, federal, and territorial input at this point. As a matter of fact the accord agreed that COSEWIC would continue as a function of the ministers' council. That has changed; it is now a federal undertaking. We have concerns that the provincial input will be lost.
To summarize, we really support the idea of endangered species legislation. It's required, it's needed, and there's mass support of it. But we do have some concerns on specific aspects of it. We'd like the committee to seriously consider those changes and the long-term effects they would have on the on-the-ground stuff. We're not talking about the philosophical situations, but about what happens on the ground in actuality, when you're dealing with that landowner, that industry, or that commercial entity. What happens there?
As Dave Scobie will explain, our program works very well. I'll turn it over to Dave Scobie.
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Mr. David Scobie (Project Coordinator, Operation Grassland Community): Good morning. I'm Dave Scobie. I'm the project coordinator for Operation Grassland Community, which includes Operation Burrowing Owl. I'll be referring to the brief that has the flow chart on the front.
An Operation Grassland Community representative was an invited guest of Environment Canada at the tabling of the Canada Endangered Species Protection Act in Ottawa. This invitation was in recognition of Operation Burrowing Owl and the excellent work that a non-government group such as the Alberta Fish and Game Association is already doing for species at risk.
I currently am an invited guest on the burrowing owl recovery team as well as the loggerhead shrike recovery team. These relationships allow us to work really closely with a lot of the research scientists and at the same time implement a lot of the items identified within the different respective recovery plans.
In my brief I present a case study and history of the burrowing owl; it's a quick summary of what we know of what's going on with the burrowing owl right now. On page 2 there's the history of Operation Burrowing Owl, how it got started, and who currently manages it. At the bottom of page 2 I mention that by 1995 we had over 500 farm and ranch families involved in the Operation Burrowing Owl program in Alberta and Saskatchewan.
Since 1990 the Alberta Fish and Game Association has administered the Operation Burrowing Owl program in Alberta. Recognizing that the habitat that's protected for the burrowing owl in these voluntary habitat protection agreements benefited many other species besides the burrowing owl, we expanded in 1994 to a multi-species program, and we now call it Operation Grassland Community.
Operation Grassland Community currently has 226 members conserving over 25,000 hectares, or 60,000 acres, of habitat for different grassland species, primarily the burrowing owl.
Some people may criticize Operation Burrowing Owl and say it hasn't been effective given the continued decline of the burrowing owl across Canada. We strongly disagree with these criticisms and would emphasize that the alarming decline in the burrowing owl population is a very complex ecological and international issue.
The OBO program has done much to raise the awareness of the burrowing owl. Many Canadians are now aware of the owl and its plight. Voluntary programs are a very necessary part of any type of conservation effort.
On page 3 I talk about enabling other federal departments. I'll leave that for you to read.
To complement what Cliff was talking about, on page 4 I give some different ideas for how funding could be raised to help implement some of the programs and research needed to understand more about the biology and ecology of the prairies.
On page 5, under the concerns with the proposed bill, the most important thing - and I've heard this emphasized over and over - is the cooperative nature of addressing endangered species.
The integrity of the Operation Grassland Community program is based on gaining the trust and respect of landholders. We would hope this legislation would take into account and acknowledge the effort and concerns of the farm and ranch families who own or manage the land where species at risk are found, such as those involved in the Operation Burrowing Owl program. This legislation should enable programs like this to continue with their good work and should also recognize the good stewardship programs and efforts of individuals out there right now.
I'll leave the rest of it for you to peruse. On page 7 we present a point-form summary of some of our concerns.
With that I'll turn it over to Andrea.
Ms Andrea Moen (Legal Counsel, Operation Grassland Community): My role today is to focus on one main point with respect to the legislation.
As you've heard, Operation Grassland supports the federal legislation in concept. The one main point is that of the endangered species protection action. It is the view of this organization that this could in fact militate against the cooperation that has been established between the various groups in the Operation Grassland efforts.
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First, before I zero right in on clause 60, the existing law permits two citizens' actions: judicial review of ministers' actions if they're not doing what they're supposed to do, and private informations where a citizen can in fact go to court and lay a private information that the justice system then picks up and carries through on. In my practice I have personally observed both of these being handled very effectively by private citizens' groups, which has had a pretty immense influence on what government does.
Let's look at clause 60. First of all, it's a civil process. It commences with a statement of claim. You go through a discovery process and a defence, which is a very long process. Then you get to trial. At trial one of the issues is whether the minister has acted reasonably. The process that's been established in this legislation makes it a very long way to go to get the answer to that question.
The proof in the civil action is on a balance of probability. The proof the minister has to meet in reviewing whether there has been an alleged offence is proof beyond a reasonable doubt. That's the standard. Those two systems of proof are mixed up in this legislation.
Now let's take a look at a suggestion that I heard earlier.
The Chairman: I'd like to draw your attention to the fact that you are already into eleven minutes -
Ms Moen: All right. I am just about finished, sir.
The Chairman: Carry on.
Ms Moen: Clause 60 does not provide for a review of the minister's action before the citizen action commences. If that were the case, a court would decide whether the minister had acted reasonably. If the court decided he had acted unreasonably, presumably the minister would then follow the law and a citizen action would not be necessary.
I think you need to take a very close look at this clause from a practical, on-the-ground perspective, with lawyers who are used to practising in this area and who know what happens in reality as opposed to what I think you want to happen.
Finally, we have not had this kind of system in Canada before.
Yesterday, sir, I heard your remarks at the end of the presentation from the Alberta Forest Products Association, when you suggested that the Canadian Environmental Protection Act had such a system. I then reviewed that act. It does not. However, an amending act that includes this kind of a system was tabled in Parliament on December 10. Federally, we've not had this kind of action available before and we have no practical experience with it.
Thank you.
The Chairman: Thank you. I can assure you that there is no amending act to the Canadian Environmental Protection Act that was tabled in the House of Commons on December 10. The bill has not yet seen the light of day, so I don't know what legislation you are referring to.
As for the citizens' actions through the CEPA legislation, it has been used by only two citizens so far.
However, I would be glad to look at your information related to December 10 just to understand the legislation you're referring to.
By the way, I welcome your comments.
Now we will turn to the Edmonton Friends of the North environmental society.
Mr. Richard Merry (Individual Presentation): Thank you. I'd like to hand out the copies of my brief.
The Chairman: Yes, please.
Ms Moen, I've just been informed that you are correct. Amendments were tabled in the House on December 10. I did not know that. I'm sorry.
Ms Moen: Yes, sir. I will provide you with the computer research I did this morning.
The Chairman: Thank you.
Mr. Merry: Good morning. I want to start by thanking all those who have brought this bill to its present status and expressing my hope that the public will stand by it and strengthen it. I'm really speaking on behalf of anybody who wants to strengthen this legislation. I have worked with Edmonton Friends of the North and with EcoCity, although I'm not officially representing either one of those groups.
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I've provided a copy for you of what I have with me. I'm sorry about the formatting, although voluntary work with an ancient technology does slow one down once in awhile. In any case, I think it's readable.
I understand I have fifteen minutes for my presentation. I hope so.
The Chairman: No. You now have nine minutes.
Mr. Merry: All right. I'm just going to go through some major points. The pages are numbered, and I have used some symbols - asterisks and hyphens and so on - to represent progressively specific information.
Beginning with habitat loss and species decline, in my view the weakness of Bill C-65 is that it does not adequately protect the habitat of species at risk. If we do not protect the habitat of species we cannot protect the species itself. The importance of this connection is widely espoused.
I'll just mention a number of facts and figures. I'm sure you've seen quite a few of them. I want to draw attention to the first one: 130 of 12,910 bird and mammal species have become extinct since 1600. The rate has been estimated to be increasing exponentially above the normal rate, which is 1% per 2000 years. Habitat destruction is the primary cause of this rise in the rate of species extinction.
In Canada in 1989, a scientific study of a large Alberta FMA, which I'll mention later, predicted that 229 of 309 land and water vertebrates would be negatively affected by logging - and 13% of these were already listed as rare or as threatened.
On the second page is a summary of my main points. This may be as inclusive as I want it to be. There are four main points.
First, designation of critical habitat has been subject to much controversy, at least in the U.S. Bill C-65 does not assure us that designation or the application of this concept will not be strongly swayed by political and private interests.
Second, words dealing with habitat, critical habitat, and residence are unclear in some cases and very restrictive in others.
Third, legal protection for non-migratory and non-aquatic species and their habitats is weak. The national accord is a good beginning, but again, it is not legally binding on the provinces.
Fourth, as I see it, the requirement for public involvement is another weakness.
I've picked out specific points in specific clauses, beginning with clause 2. In the definitions, the concept of habitat is used many times. It should be defined. I think that has been pointed out previously. For example, habitat is a broader concept than residence.
On page 3, I show an example of how this could cause confusion, and I'm not trying to underestimate the expertise of COSEWIC. In Canada's boreal forests, many birds nest in the cavities of dead aspen but return to the older growth stands of white spruce for protection from predators and cold. The birds' habitat is thus seen to include both old growth aspen and white spruce, but the white spruce stand might not be considered critical habitat. I'm not guaranteeing it, but it's the sort of thing that I understand could happen according to the legislation that I've read and the U.S. court cases I've read about.
Habitat destruction as opposed to critical habitat destruction or residence destruction is widely cited as the primary cause of species decline, so I'm asking again that habitat be distinguished from critical habitat. The definition of critical habitat should consider closely the enormous controversy in non-designation that has accompanied use of this concept. It is my understanding that only one out of five endangered species has received critical habitat designation in the U.S. over a period of twenty years.
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In 1978, of 2,000 listing proposals, 5% were listed, but only 1% received critical habitat protection. Now that may be a little bit out of date, but that's still quite low.
The definition of residence, again, is vague. I don't know what is meant by ``other similar areas''. I don't know if it refers to just residences as nesting grounds and so on, or if it refers to food gathering, hunting, migration, and hibernation. In sum, the difference between these three terms should be made clear in the act.
On page 4, application, clause 3 - this is my major contention here, and I think it's been made before, that Bill C-65 does not deal with enough Canadian wildlife species.
Protection of 60% of Canadian territories seems a good beginning. Only 30% to 40% of endangered and threatened species are eligible for habitat protection.
I've given supporting details in the point following the hyphen. Forty-eight percent of Canada's land is forested, yet only 10% to 20% of federal lands covered by Bill C-65 are forested, so a maximum of 12% of Canada's forested land is dealt with by the bill. Many species, especially non-migratory, non-aquatic species, are found in the forested areas - for example the woodland caribou, the grizzly, the wood bison, and so on.
On page 5, while the bill I think makes a good effort to legally protect habitat, with the national accord committing to complementary legislation and programs, I think there's good reason, particularly for us here in Alberta, to be skeptical about these promises being lived up to by the provinces. I know there are many good programs in place and there is some legislation, but I just want to bring your attention to some of the points mentioned underneath this skepticism.
The second one is that the accord specifies legal protection for threatened or endangered species, but only protection for the habitat, so the accord does not get legal as far as the provinces are concerned.
The second point further down mentions that the provincial record in cooperating with federal legislation is not good. I would bring to mind the Oldman Dam, the Wood Buffalo situation, ALPAC, the Temagami forest in Ontario, and the James Bay hydro project. I'm not really well studied on these, but I understand there were reversals of federal decisions.
The exclusion of the FMA in ALPAC is an example where the EIA review board report recommended postponing the mill, and this was reversed, of course. Public input mechanisms into that whole process are, as far as I'm concerned, quite weak. When you get to the forest management planning stage they're even weaker still.
FMAs, 20-year FMAs -
The Chairman: Excuse me for interrupting. You have two minutes to go.
Mr. Merry: Okay. I was told I had 15 minutes, before I came.
The Chairman: I'm sorry. I had to make an adjustment because the number of witnesses increased.
Mr. Merry: All right.
There are a bunch of examples that I give, suggesting that some more effort is needed, particularly in the accord, to get the provinces on side. I've given some specific suggestions.
Under clause 5, the purposes: on page 6 I say that it should include vulnerable species, not just threatened, endangered, and further up the list.
On page 7 I say that there should be some mention of ecology in the COSEWIC membership requirements - for certain COSEWIC expertise. I don't know why it's not mentioned. Ecology is very important to this process.
We're on page 8 - designation and reclassification of species. The word ``important'' is very vague, very general, and should be scrapped.
I'd like to get to the prohibitions at least, which is an important area - clauses 31 to 33.
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Before I do that, I've mentioned that public input under clause 30 should include much stronger measures. We need to have active educational programs, not just listing in the public registry. I've been an educator over the last 20 years and I have some idea that you have to follow up, particularly where people aren't really that motivated. But I know there are a lot of motivated people in Canada who just want to have a little more push, let us say.
On the prohibitions and the points I'm trying to bring out on page 9, vulnerable species should be listed. A number of them will clearly be downgraded if we don't do this. We should also extend prohibitions to critical habitat, not just residences. Residence is far too narrow. I don't know how you can put into place emergency situations requiring critical habitat designations when they're not required under prohibitions. I don't think I have to be a lawyer to see that.
Disturbance should be added to this. It is well documented that disturbance is very important to preserving species. It should be added to the prohibition section.
I've mentioned emergency orders. On page 11 I go into the fact that exemptions are too broad. Powerful interests and industrial interests will clearly take advantage of this, in my opinion, and they have in the past. More focus needs to be put on this. I believe the environmental impact assessment section, clause 49, takes up only half a page, while another 20 pages talk about enforcement, which does not really deal with habitat at all.
To sum up, my focus has been on habitat. I know it's been gone over by many other people, but I guess I feel the same way.
I want to thank you very much for this opportunity to come before you.
The Chairman: Thank you, Mr. Merry, for your cooperation and this comprehensive analysis.
Mr. Scott is next.
Mr. Harvey Scott (Chair, Crooked Creek Land Conservancy): My name is Harvey Scott. I farm northwest of Athabasca with my wife. I'm officially her farm hand and have been for a number of years. My day job for about 25 years was teaching outdoor and environmental education here at the University of Alberta to teachers, recreational leaders, wilderness guides, and so on.
Like many of the honourable members, I'm delighted that you have tabled this legislation. I think it's an important step in the right direction, and I would like to make some suggestions on behalf of fellow farmers and rural landowners in my part of Alberta that may strengthen and make the act more effective and cost-effective, particularly what I call user-friendly.
I'm the chair of a land conservancy group called the Crooked Creek Conservancy. We are engaged not only with our own lands in pursuing conservation easements and other forms of set-asides, but we're also involved in helping make other people aware of existing tax deductions through information and encouragement. I really appreciate the recent one your government put through, the ecological land gifting program, which is very important. Previously, we've had other ways of setting aside and protecting land, and we appreciate those things very much.
In Alberta, a conservation easement act has currently been passed. Various groups are testing it to see how effective it is and whether it is a perpetual kind of conservation set-aside.
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I'm also chair and part of an informal collection of cow-calf beef operators in the Island Lake area northwest of Athabasca, between there and Smith in the Big Bend area. We've been concerned about things like sour gas impact on our herds and on wildlife as well. Although I'm not speaking formally on behalf of Island Lake Cow-Calf Operators this morning, I want to let you know there are many rural people and farmers in this province who strongly support the protection of wildlife and wildlife habitat.
I don't think that's in contradiction to anything that's been said here this morning, although some large, powerful agricultural special interest groups previously may have given the impression that there's mass fear out there among farmers that all of our property rights will be taken away by this legislation. I don't find that to be the case.
I will come back and speak to private property rights toward the end.
We see this as an important step in the right direction. Our suggestions here attempt to address the things that could be improved. First and foremost, there will be no wildlife and there will be continued loss of wildlife in species if there's no habitat protection. Currently there are a variety of provincial, federal, and territorial means for protecting wildlife habitat and wildlife, but they need significant enthusiasm and energy, limited funding and coordination. I think it is crucial for the endangered species council to get significant and energetic leadership from the federal minister.
In all of these areas, as we devolve and revisit our form of federalism, it's crucial that we continue to have strong federal facilitation and leadership. Not all provinces will immediately buy into this sort of program. Sadly, I think my own province is a case in point. It does have some limited legislation and some excellent biologists. It has some willing members, but I'm not sure that environmental education has reached everyone in our government.
Again, I think it's crucial that we continue to have a strong cooperative program through the council. I'm delighted that our minister apparently has agreed to the accord. I don't think he's signed on yet, but apparently he's agreed. I know through Bill C-42, our wildlife act, that there have been some amendments. Again, I don't believe they're strong enough. So I support this.
In order to make this act much more effective and cost-effective for groups like mine and other citizens who want to really help protect wildlife, you need to give it some energy, and some funding energy. I take Mr. Forseth's point very well, but I think this can be much more cost-effective if you put some energy, and financial energy, behind it in the form of facilitating and driving habitat protection. The kinds of programs Andy and other people here have spoken about are good examples of how farmers and other rural landowners have done their share in the past. We're doing our share. We're prepared to commit lands and set-asides in conjunction with fish and game associations, and in other ways.
Wildlife Habitat Canada is a good example of a program that was excellent but is underfunded. It may be dead now - I haven't heard much about it recently. There's the permanent cover program. These things are all important. You can't expect farmers and ranchers to set aside their lands or back away from land rights unless you can give them incentives and some compensation. These don't have to be expensive. Tax deductions are excellent ways. It remains to be seen how the conservation easement tax deduction program works out, but that could be very powerful if it gets facilitated. It's the same thing with the ecological land-giving program announced last year. This could be very powerful.
This bill, which I think is strong on the enforcement and punishment side, needs to be balanced and strengthened with positive action to encourage citizens to voluntarily - and if necessary otherwise with compensation - set aside the habitat. Those are the areas of this bill that need strengthening.
The Natural Resources Act of 1930 and other legislation firmly put the province in control of resources. Notwithstanding that, this act and the federal leadership in it has to be strong enough to encourage perhaps reluctant ministers of the environment in this and other provinces to get on board and participate fully and energetically. I believe they will with that sort of help.
I've mentioned ministerial leadership. Again, with all due respect to Mr. Forseth's point, there's a great hesitation now among federal politicians to be proactive, preventative, and enthusiastic about working with provincial and territorial governments to accomplish these sorts of important things.
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Along with others here, I believe there should be a strong national standard of care for wildlife, and not just endangered wildlife. At present, with the way this bill is written, there could be a strong level of care on certain federally controlled lands and on those in certain provinces that have bought in, but in others those species will have little or no protection. I think it's your responsibility to make sure the act will provide that sort of strength.
I think COSEWIC and listing have been covered well. It should be a scientific process that moves through expeditiously and in a timely way to the initiation of the programs. I would agree with the first nations speakers of yesterday that some traditional wisdom people should be included in those COSEWIC committees. I'm not sure whether they are or not, but certainly there are a lot of native elders who understand the spiritual importance of nature. They need to be included here in the same way, for example, that inshore fishermen may have something to contribute. It's my personal view that we wouldn't have such a cod fishery problem, or perhaps a salmon fishery problem, if inshore fishermen had had input into what was happening with the cod stocks.
I'm kind of a scientist, I respect science, and I think that's the fundamental of the COSEWIC process, but you have to look at the other kinds of traditional wisdom that could be there - people who live on the land, be they trappers, natives or otherwise; and people who work with their hands in farming or fishing. Inshore fishermen can tell you a lot more about what's happening to the habitat than a person riding around in a huge, steel-hulled, bottom-dragger boat.
In contrast to what I sensed from some of my farming colleagues who spoke yesterday, I feel the enforcement program is generally pretty sound. We're talking about species that will disappear and never be around again, barring some sort of marvellous creation or evolutionary process. So I think you need to have strong prohibitions. You need to have strong enforcement personnel in place. Sadly, in this and other provinces, we're having huge cutbacks in wildlife enforcement personnel, and I think that's one area that we can't afford. You wouldn't cut back on police forces, would you? Would you cut back on human safety and standards of care? So why cut back on...?
The Chairman: I must alert you to the fact that you have one minute to go.
Mr. Scott: Well, I'm not sure whether I'm getting professorial or evangelical, or both.
The Chairman: You're doing very well.
Mr. Scott: Anyway, you can perhaps sense my commitment to this kind of thing.
I think you may consider that, more and more, governments are asking private citizens and private public interest groups to do a lot of the monitoring and reporting. I would suggest that if you really want them to do this, you have to give them the tools to do it. First of all, you have to give them real access to information. Your act excludes all those trade secrets and other sorts of things that we need in order to really understand what's going on.
Secondly, we need something like whistle-blower protection. That's missing here, and it's missing in much of Canadian legislation. If you really want private citizens, as employees, to first of all directly confront their employers and then take an action if necessary, you'd better protect them. We don't have that sort of protection in this country.
Let me close by saying that I think this is a very important step. I congratulate you on it. Have courage. Take a strong federal leadership position, and certainly there will be a lot of provinces that will get on board, including our own here.
Your act needs to address this strong sense of punishment. This is what I think some of the groups were speaking to you about yesterday: retribution. I think everybody fears an Edward Abbey outbreak here in Canada - he was the one who organized the monkeywrenching - but that isn't going to be the case. I think that citizens, ranchers and so on, can feel confident that they can protect their lands and have their own rights, but we do need this sort of legislation.
I would suggest that in various, probably subtle, facilitative, enabling ways, you make sure that the resources are going to be there so that people like Andy and others can come to me as a farmer and tell me that I have a most vital wetland that they think I should consider setting aside. They would be able to tell me that they have a few dollars to compensate me; that rather than plowing it with my four-wheel drive tractor they can set it aside. I think you need to put that sort of positive action into the bill, because it's currently missing.
Thank you.
The Chairman: Thank you for your very helpful suggestions, some of which are new to us. We'll certainly examine them.
We now turn to Ducks Unlimited, I suppose, as represented by Mr. Neraasen.
Mr. Terry Neraasen (Chief Biologist, Ducks Unlimited Canada): Yes, I'm Terry Neraasen. I'm here from Ducks Unlimited Canada.
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First of all, thank you very much for permitting me to speak to you today at such short notice. I won't go into the details of why it was such short notice, but thank you very much, Mr. Chairman and members of the committee.
For those of you who are unfamiliar with DU, Ducks Unlimited is a national conservation organization. Habitat is our game, and we've been active in Canada since 1938 and have about 13,000 land parcels of various kinds, wetlands and uplands, under management, comprising about 2.8 million acres of habitat. So our focus is habitat, and I think my comments will be somewhat similar to Mr. Scott's in that regard.
Ducks Unlimited is as concerned as anybody about the decline of a number of wildlife species and the number of species that are becoming at risk. The list continues to grow. We agree that legislation and special efforts are required in such cases.
We have participated in the initial review of the legislative proposal, and we're supportive of that proposal and are on record, because it dealt with federal lands; it very clearly established in legislation the science-based listing and recovery processes; it emphasized cooperative approaches to conservation of threatened and endangered species, but presumably others as well; and we thought it provided a very good framework for the federal government to provide leadership in the area of conservation.
Ducks Unlimited believes the primary focus of efforts to safeguard wildlife in Canada, whether they're threatened or not, has to be on the conserving and improvement, if possible, of habitat in the broad sense, important habitat to a variety of species, and that the focus should be on preventative measures, much as a couple of the other speakers have indicated. We really think we have to get ahead of the game and approach conservation of wildlife species on the basis of large-scale habitat programs that are aimed at fixing what's broken in the ecosystems.
In terms of application of the legislation to federal land, it's our understanding that clause 33, which deals with transboundary migrants and so on, may very well apply to private land, and although that a priori is not a concern of Ducks Unlimited, it is of concern to private landowners, some more than others. We know that the Canadian Cattlemen's Association, for instance, and the Canadian Federation of Agriculture have expressed some concern here.
Ducks Unlimited's concern in that regard is, if the enforcement measures and so on associated with the legislation cause private landowners to not want to deal with conservation organizations like Ducks Unlimited, who will be coming to them and saying we'd like to help them improve their land, not only for agriculture but for wildlife, and perhaps create habitat or improve habitat that may then be occupied by or perhaps is occupied by what may be species at risk, we are concerned that if their perception of the act is such that they will be very nervous about doing that, in the programs we have in place and in the partnerships such as the North American waterfowl management plan, heritage marsh programs in many of the provinces, programs like the Atlantic coastal action program, those kinds of things, private landowners will be very reluctant to deal with us, and the impetus and the good that our programs do will be blunted.
That's the major concern we have with that particular clause and its application to private lands. If that clause is aimed at very specific situations - and it's not very clear in the legislation - then perhaps those could be much more clearly spelled out to allay the fears of private landowners. It may very well be that it's a rare circumstance where this will apply. If that's the case, let's have it laid out very clearly so they are less concerned.
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In terms of science-based listing and recovery processes, we applaud the formal establishment of COSEWIC, the focus on the use of the best available information, and the focus on good science.
We feel the committee should be charged with very clearly delineating what will be considered adequate information from a scientific perspective, including some of the things we heard this morning about local knowledge or traditional knowledge, but with the focus on good science. COSEWIC should provide the framework within which everybody works and the basic standards so we all know what we're talking about.
Unfortunately, many of the species that are of concern are of concern perhaps because we have very little information about their status. An example of a species that has just been de-listed is Baird's sparrow. With proper timing of fairly extensive surveys, we determined that in fact there are a lot more of those around than thought earlier. That may very well be the case with a lot of other species as well.
We also recommend that COSEWIC be asked to outline a strategy to complete adequate status reports on the species currently on the list and perhaps on others of some concern.
Finally, duties of COSEWIC should perhaps include acting in an advisory capacity, if that's not already laid out there, in preparation of recovery plans. Consequently, credentials of members of COSEWIC would necessarily involve experience and expertise in habitat management and habitat and landscape ecology. Although regional representation is important, we believe the fundamental credentials for members of COSEWIC should be that they have expertise in the areas of habitat, ecology, and population biology, and particularly familiarity with the species with which they'll be concerned.
Clauses 19, 22, and 23 in the legislation deal with applications for designation, classification, reclassification, and so on. There needs to be a clarification of the quality or adequacy of the information that's required for COSEWIC to consider those applications. Perhaps COSEWIC could also function to provide for these sorts of submissions standards that would perhaps be short of the full-blown status reports but would provide a good, solid basis for consideration of those applications.
The key here is we really have to focus on good, sound scientific information. Sometimes the best available information isn't very good. The credibility of the entire process in the minds of the public, the people affected, and the stakeholders will depend very much on the logic and the fairness of the entire process, and good, sound information will go a long way to making sure it's fair and logical.
The Chairman: Excuse me for interrupting, Mr. Neraasen. You have one minute.
Mr. Neraasen: Okay. Thank you. I'll make two last points.
One, because major habitat programs are extremely important, if possible this legislation should include a much greater emphasis on broad-scale habitat programs that protect in a cooperative way, with all stakeholders, including organizations like ours, private landowners, governments, and so on. They should be aimed at preventative measures.
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Let's not just focus on site-specific, individual problems. Attacking the overall malaise of ecosystem degradation rather than the symptoms, which just happen to be declining species, is an approach that holds great promise, but it is not a short-term thing. It will take staff and resources.
I echo a couple of the other speakers today in that I don't see a lot in the act that provides for substantial funding and staff resources to administer the legislation itself or to carry out the programs of recovery, or if major habitat programs are included, to provide for them. We have a concern that very good programs - ongoing ones such as the North American waterfowl management plan, for instance, and others - may suffer because of dilution of resources to take care of new things.
We strongly urge that resources be aimed at this program and that it be focused much more on preventative measures and less on fixing problems after they've become major.
Thank you very much.
The Chairman: Thank you.
We wouldn't be here fixing if we had started preventing a long time ago, as your organization has.
Mr. Forseth to start, followed by Mr. Steckle.
Mr. Forseth: I don't have any questions.
The Chairman: Okay.
Mr. Steckle.
Mr. Steckle: I want to thank each one of you for appearing this morning. I realize that for some of you your presentations may have been limited much more than you had wanted to, but I think we get the general message.
Interestingly enough, in this presentation this morning a number of you have focused on the funding aspects. Being somewhat involved with Ducks Unlimited myself, I can tell you I know they raise huge sums of money. The first speaker this morning, Mr. Wallis, alluded to the fact that perhaps some of the moneys out of the agriculture budget could be used. Well, I would suggest he not propagate that view very widely, particularly in this part of the country, and not in Ontario either.
It's pointed out in the listing of the poll that was done that rural people, like their urban counterparts, also support environmental protection and the protection of species. We're all involved, in rural Canada perhaps even more so, because they're so close to the kinds of things we're trying to do. But to ask these people to specifically fund from an agriculture budget - and that may have been an aside to what you really intended to say - would be akin to saying ``You should fund it all''. There are many other ways in which rural Canada, agriculture particularly, is going to be asked to support programs that will be put forward.
Being an outdoorsman and a hunter myself, I can never understand why we have not allowed those body parts that are now being destroyed, because it's illegal to use them for any other purposes.... Why can't we have a central depository or some collection body that can take those body parts and add value to our causes by returning them back into the very things we're trying to do? I realize this is a controversial thing, but every body part that is taken from a legal specimen hunted on a legal licence is a legal entity.
Mr. von Busse: I can answer that.
That certainly is a topic many people have talked about. The concern that we, the Fish and Game Association, would have on that issue is once you create a legal market, you're going to create a black market, and once you create a black market, you're going to lose control of situations. That's why we're concerned about bear galls and game ranching.
We would be very much opposed to creating a legal market for animal parts.
Mr. Steckle: As I understand it, there is a legal market for some of these products already in the world, but it's illegal for us to sell into that market, because in many cases they're not taken legally in the first place.
Mr. von Busse: That's exactly the point; you'd be counter-productive. You're trying to save species and habitats. If you create a monetary incentive and a market for the body parts, you're going to lose control of wildlife management. You're going to have increased poaching and the same problem they have in some parts of the States.
We would be completely opposed to that, and I would venture to say most wildlife federations across Canada would have the same viewpoint.
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Mr. Steckle: You've answered the question, and I guess if you feel that way, I can accept that. I have never been able to address that in my mind, because there's a legal entity to the very product that I would see going back in with some added value, for the purposes of conservation.
I guess you answered my question, but I really enter into the spirit of Mr. Scott this morning, who had a fairly balanced view of what we've done in terms of this legislation. I trust that you will continue on in the spirit that you had this morning, in encouraging the further enhancement of our wildlife protection.
Mr. Scott: Could I respond to that? What I didn't say, of course, in my ramble, and being a little short of time, was that I think that not only in education but in the law - as the Law Reform Commission of Canada pointed out a few years ago - we need to be revisiting and rethinking our laws, and moving from a purely human-centred kind of law to a more earth-centred kind of law, so that all of these questions, such as the one you raised, be looked at from that point of view and others.
I know that sounds philosophical, but I don't really believe it is. I believe that you people - your constituents, your grassroots constituents - are not only human beings, but they're all these other creatures that live there. I'm sure you feel that way; that's why you volunteered or got volunteered for this committee. But when you make your decisions, it seems to me you have to remember that your voters, indirectly, are all of these native plants and animals that live in your constituency, and that they have, in a sense, rights - not in the sense that a logician or a philosopher would say, but in a much more important sense, of creation or evolution or whatever. Thank you.
Mr. Wallis: If I could just clarify my comments on the agricultural.... It wasn't the intent to take it away from the agricultural community; it was to redirect the funding back to them for habitat conservation. That's not a new idea. Wildlife Habitat Canada has been very strong on that, and a number of agricultural organizations have strongly supported that. Rather than paying for growing low-value crops, we might as well grow high-value wildlife habitat.
Mr. Neraasen: If I might add to that, I agree that rural people are very supportive of wildlife conservation. As an example of that, the vast majority of cooperators that we have are agriculturalists - landowners out on the land. So they do care. They do clearly need to be compensated if parts of their livelihood are taken away for reasons that we all agree with - for protection of endangered species.
Things like the conservation reserve program in the U.S. are a good example of what was just indicated with regard to the economic benefits. Funds paid to landowners in the U.S. to retire crop land are paid directly by the Department of Agriculture. The cost is essentially less for them to retire that land for a period of 10 years than the previous input costs and subsidies and so on that were paid as they produced crops. So you don't have to become a pauper to protect the wildlife habitat.
The Chairman: Thank you, Mr. Steckle.
Mrs. Kraft Sloan.
Mrs. Kraft Sloan: Thank you.
I'm rather inspired by your remarks, Mr. Scott. To refer back to some of the comments that you just recently made, in the preamble of the bill it states that ``wildlife, in all its forms, has value in and of itself''. I think that is a very important concept to remember, a very important principle to remember. We were chastized by an earlier witness for including this in our preamble but perhaps not necessarily reflecting it within the content of some of the sections of the bill. He told us that a statement that an organism has intrinsic value is a statement of an ethical principle and gives rise to ethical duties and obligations for those who adopt the ethical principle.
I think no one can deny that what underlies and gives rise to our material and cultural wealth is our natural wealth, and that we are not separate from nature but are indeed part of nature, and nature is in us. I want to thank you for bringing that to the committee's attention yet again.
Mr. Scott: Having spent 25 to 30 years in the outdoor environmental education game, many times I think I've failed. Notwithstanding that, I think the paradigm, the world view, is gradually shifting. While we may be frustrated by the speed at which it happens - and it's true, your ethical statement isn't operationalized as strongly as I would like in the legislation, and I would encourage you to do much more of that - I guess we all have to move in that direction.
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Whether we are citizens who, because of lack of government personnel, are going to have to take a poacher to task, because poachers don't tend to self-report.... One of the great mythologies of current sort of ``regovernmenting philosophy'' is that people will self-report. It isn't happening in this province, except very, very late. I don't know of poachers who...and I come from a long line of poachers. I mean, two or three generations ago that was the way people made a living. They don't now.
But people don't report, so we need citizen enforcement, like it or not. It's a responsibility of citizenship. So I welcome that part of it, even though some of my farmer colleagues yesterday obviously didn't appreciate that part of it. I think it's a necessary part, until everybody's on board about environmental protection.
Mrs. Kraft Sloan: Thank you.
The Chairman: Thank you.
I have a brief question, which perhaps I might address to the Grassland Community people. In the past three days and a half, the group that has expressed more concern and hesitancy about the legislation is the one that is engaged in cattle growing. They are people who are out there in the field, of course, every day. Their involvement is extremely important; their positive cooperation and support is extremely important to make the legislation work.
I imagine there are constantly, frequently, daily conversations between you people and cattle growers. But I was wondering whether there is a formal arrangement for a dialogue between you and them, by way of regular meetings where you hammer out different views, where you plan together so as to develop a kind of mutual understanding of the issues, and hopefully leading also to some joint action in the field of endangered species protection. Is that an ongoing process?
Mr. Scobie: We've been working closely with the Cattle Commission for years, because as far as the burrowing owl is concerned, the owl's habitat requires the grass being grazed by grazing mammals. Right now on the prairie the only thing we have to supplement that is with cattle, so we worked really closely with the Cattle Commission on promoting responsible grazing. I know the Cattle Commission and NAWMP have been involved in looking at biodiversity of birds in different grazing regimes - the benefits of things like late season grazing and rotational grazing patterns.
In 1993 the Canadian Cattlemen's Association had their annual meeting in Calgary. They had a silent auction that was a fund-raiser that helped fund this video on the burrowing owl, which I will leave for the committee to review. It was done in 1993, so it's a little dated. It talks about the owl being threatened, and as we know, it's now endangered. But these consultations and working with the Cattle Commission are ongoing.
The Chairman: It would certainly be helpful if that consultation process and dialogue were to be intensified in the months and years ahead in order to ensure that the legislation also has support.
Let me, then, at this point in time -
Mr. von Busse: If I can make a comment to do with what you've just said, I absolutely agree that partnerships are the way of the future, and certainly our association recognizes that. We work together with a large number of different groups.
That being said, we have some concerns, as I expressed earlier, about some of the thrusts of the legislation. A lot of the speakers today said we have to base it on good science. Some of the clauses in the legislation walk away from that, and it's going to be a matter of who has the best lawyer rather than who has the best science. I think we have to be careful in that if the legislation is enacted the way it's proposed right now, that is what we're going to end up with, and we are concerned about that. Some of those partnerships that we've worked with in the past may not be quite as willing to continue working like that. That's an important issue.
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On funding, it's not so much that many of us want to see more. Government funding is not a reality. It's not going to happen at the federal level, nor is it going to happen at the provincial level. It's just not there. That means we have to work in partnership, and it means we have to ensure the legislation we put in place helps us work that way, rather than in a litigious manner.
The Chairman: Fine. I think we all agree on that.
We are now concluding our sittings. This is our fourth day of consultations. They started Monday morning in Vancouver. We're now going back to our respective ridings that stretch from Newfoundland to British Columbia. We'll make good use of your input. You can be assured of that. This committee will reconvene in Ottawa on Monday afternoon.
We thank you very much for your appearance and for advice.
This committee meeting now stands adjourned. Thank you.