ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, May 1, 2001

• 0913

[English]

The Chair (Hon. Charles Caccia (Davenport, Lib.)): Bonjour, mesdames et monsieurs. Welcome to the guests today. We have a quorum. There are a couple of announcements that I will leave for later, when other colleagues will be able to join us.

Let us start with our witnesses today. From Nunavut we have Michael d'Eça. He's alone because the other witness was held up by bad weather or some mechanical problems, I understand.

Mr. d'Eça.

Mr. Michael d'Eça (Legal Advisor, Nunavut Wildlife Management Board): Mr. Chairman, the NWMB member, Okalik Eegeesiak, actually did make it into town but she's ill. She called me this morning and sent her regrets that she's not able to come.

The Chair: Thank you.

From Nunavut Tunngavik we welcome John Merritt, and from the Yukon Fish and Wildlife Management Board, Gerry Couture.

Welcome back to the committee, glad to see you.

Who would like to go first with their statement?

Mr. Couture.

Mr. Gerry Couture (Yukon Fish and Wildlife Management Board): Thank you, Mr. Chairman, members of the committee.

The members of my board and our chair in particular, Doug Urquhart, would like to thank the committee for the opportunity to address you on this legislation. I believe the clerk has circulated a copy of our brief, which is exactly that—a brief summary of where the Yukon Fish and Wildlife Management Board stands on this legislation. I'd just like to go over it and leave time for the members to ask questions.

• 0915

First of all, you'll note that on the first page of the brief there's a disclaimer. There is a reason for this disclaimer. Too often when we speak to people from outside the Yukon, people assume that the board speaks for first nations in the Yukon. They assume also that the board speaks also for the Government of Yukon, and that is not so.

The board is formed by the Umbrella Final Agreement. That is the mandating authority. It's an implementation board. It does not speak for first nation governments, especially in light of legislation that may affect aboriginal or treaty rights. Nor does it speak for the Government of Yukon, although it is central in providing advice to the Government of Yukon in areas such as this.

That said, I'd like to outline the background of the Umbrella Final Agreement mainly because of a sense of frustration that sometimes occurs in Yukon when dealing with people from outside of Yukon who don't understand what the agreement means. I'd just like to review some of the provisions of the agreement in relation to species at risk.

The first point to remember is that the agreement entered into by Canada and the Yukon is paramount to federal, territorial, or municipal law to the extent that there is any inconsistency or disagreement between that law and the agreement. That is the basis upon which we make this submission.

The second point is that the agreement gives to the wildlife management system in Yukon a holistic, land-based, environmentally sensitive approach that comes from essentially the incorporation of first nation ethics into the wildlife management system.

Thirdly, the agreement sets up a community-based framework for wildlife management, and that's complete with the appointed entities such as the board, local renewable resource councils—that is one for each first nation traditional territory—and the salmon subcommittee. These are given specific powers to make recommendations on fish, wildlife, and their habitat from the point of view of management. They are described as the primary instruments for fish and wildlife management in the case of the board and councils and the main instrument in the case of the salmon subcommittee. Further, the agreement specifies that any minister charged with any legislation affecting fish and wildlife must consult with the board before introduction of that legislation.

Specifically in relation to species at risk, the minister is required to consult with and obtain a recommendation from the board before declaring a species to be of national interest. In addition, the board is empowered to make recommendations on the need for content and timing of all fish and wildlife management plans for those species. Also, local renewable resource councils are empowered to make recommendations to the board on local concerns relating to those species.

So without going into greater legal detail—there is much more detail in the agreement—we can say that the legal framework for dealing with species at risk exists in the Umbrella Final Agreement in Yukon.

More important, however, than the legal details are the processes that have evolved. During the past few years as we've implemented those agreements, the board, the councils, first nations governments and the Government of Yukon have developed a consultative community-based process for developing and implementing wildlife management plans, including plans for species that might be deemed at risk.

• 0920

The process is proactive. It deals with both community and territorial concerns and works very hard to ensure the incorporation of traditional and local knowledge into planning and decision-making. There are examples of how far that process has evolved.

In one traditional territory, for instance, in the integrated wildlife management plan for that territory, there are provisions for the protection of a certain species of butterfly that local people had concerns about, because they saw people coming in to collect it, and they saw habitat being eroded by development activities. Certainly butterflies were not contemplated when the Umbrella Final Agreement was signed. Nonetheless, the processes have evolved to incorporate taking those things into account.

The second example is one that's relatively well known. That is the existence of a complete, locally developed management plan for wood bison, which is presently listed by COSEWIC as threatened in Yukon. This was a population brought into Yukon in support of a national recovery program. Nonetheless, local Yukoners have taken over the management of this population and have done a complete management plan that works in our area.

Most recently, in response to the concerns of first nation people and with funding provided by the Yukon Fish and Wildlife Enhancement Trust and the Government of Yukon, the board has commissioned a new assessment of Squanga whitefish, presently considered vulnerable by COSEWIC or of special concern. This assessment is being done on the ground—or in the water—with full participation of those people who have traditional and local knowledge of the species. It's designed not only to reassess the species but also to make recommendations on a management plan for it.

In short, there exists in Yukon under the provisions of the agreement, and as a result of its implementation, a system that's sensitive to and capable of dealing with species at risk.

With that short summary in mind, we offer the following comments on Bill C-5.

First of all, the board recognizes the need for federal legislation in this field in order to set national standards for dealing with species at risk and to carry out Canada's international commitments and indeed its obligations to the world at large. We acknowledge also the federal government's determination and initiative in moving to put this legislation into place.

Further, we recognize the difficulty of crafting federal legislation in a field that many jurisdictions may feel intrudes into their powers. We in Yukon are especially sensitive here in that the federal government manages most of the land in Yukon, and thus this legislation has the potential to intrude into Yukon to a much greater degree than in the provinces. Nonetheless, we believe the consultative and cooperative approach embodied in the legislation makes it a positive step forward. We feel it could be made to work.

Now, we know and we've heard that some Canadians obviously feel the legislation is too weak. Others feel it's so strong it will obstruct economic development. In our estimation, it achieves a balance that's typically Canadian. It makes those compromises, and will allow us to effectively deal with the problem of species at risk without undue effects on our economic development. Part of the reason that we're favourably disposed towards the legislation comes from the consultative approach taken by Environment Canada during the development of the legislation.

Too often we in Yukon feel left out when federal legislation is passed that will affect us. I think the Department of the Environment in this case has set a new standard for the level of consultation extended to land claims entities in the development of this legislation. One of the major frustrations in Yukon by land claims entities in dealing with the federal government is that, to use a saying that is common in Yukon, it seems almost that Ottawa signed the agreement in a fit of absence of mind and then went back to doing things the normal way.

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In this case a new benchmark has been set, and we congratulate the Department of the Environment on its consultative process. Nonetheless, we believe the legislation can be improved, specifically by acknowledging the two points I've brought out. The first is to acknowledge that the processes in Yukon are capable of dealing with species at risk and will be effective in dealing with species at risk. So we submit that a change in the preambular statement that recognizes the roles of aboriginal peoples and the wildlife management board could be made to specifically recognize that the processes coming out of those agreements should be acknowledged.

There's a reason for that, and it has to do especially with the effective inclusion of traditional and local knowledge in assessments, recovery strategies, and action plans. It is our feeling that even with the inclusion of a traditional knowledge working group in COSEWIC, that forum poses real difficulty for the effective application of traditional knowledge. We believe it's a useful addition to COSEWIC, but we believe traditional knowledge can best be incorporated into assessments, recovery strategies, and action plans at the grassroots level.

It would be extremely difficult for an elder from a first nation to work in a forum like COSEWIC. On the other hand, working in his own hometown before members of his own community, we feel that person can give the knowledge, and those given the mandate for management can incorporate that knowledge into assessments and action plans in a much better way than a rather high-level scientific group can.

So we feel the incorporation of processes from the land claims agreement will allow that to happen effectively, as opposed to procedures at a very high scientific level. We've seen the difficulty of that incorporation at the high scientific level in a forum that is extremely unfriendly to first nations people.

Second, we believe the bill is deficient in that it doesn't provide the resources necessary for entities set up under the land claims agreement to carry out all the functions that are included in this legislation. The implementation legislation for the land claims agreement is limited. Granted, the species directly named in the agreement are limited, but this legislation will require wildlife management entities under the land claims agreement to do more work. We feel it's incumbent upon the Government of Canada to pay at least the net incremental increase in costs associated with that, incurred by the wildlife management board under this legislation.

That said, where are we going in Yukon for species at risk legislation? From the point of view of our board, we've been very influential in moving the Government of Yukon to sign the national accord on species at risk, and we've also successfully pushed the Government of Yukon to put the introduction of species at risk legislation into its legislative calendar. In fact, we hope that legislation will be completed within the next 18 months. It's our intention to work closely with the Government of Yukon to ensure that this territorial bill allows us in Yukon to fully meet our obligations to Canada and the world when dealing with species at risk, and we seriously hope you'll consider the two modifications we recommend, because that will make it much more effective.

Thank you.

The Chair: Thank you, Mr. Couture.

Mr. Merritt, go ahead.

• 0930

Mr. John Merritt (Legislative Counsel, Nunavut Tunngavik Incorporated): First of all, I'd like to start by thanking the chair and the members for inviting the Nunavut Tunngavik to make a presentation today.

I'd like to begin by saying that our president, Paul Quassa, sends his regrets. He was expected to give this presentation but was unable to leave Iqaluit last night due to mechanical problems with the aircraft.

Nunavut Tunngavik has worked closely with the Nunavut Wildlife Management Board in developing a presentation, also with Inuit Tapirisat of Canada, and we in fact have put together 15 recommendations. Those recommendations are set out in the longer brief that we've made available to the committee. I hope that has been, or will soon be, circulated. Rather than go through the longer brief with you today, I would propose just to make a briefer presentation emphasizing three particular recommendations that Nunavut Tunngavik would like to see adopted by the committee.

I'd like to say first a few words on what Nunavut Tunngavik Incorporated is. It is a not-for-profit corporation created as the successor to the organization that negotiated the Nunavut Land Claims Agreement on behalf of the Inuit of Nunavut. That agreement was signed and ratified in 1993. Nunavut Tunngavik was established primarily to be the Inuit party to implement that Nunavut Land Claims Agreement, to ensure that the rights and benefits flowing to Inuit through that agreement were secured and defended.

Nunavut Tunngavik Incorporated also has a broader mandate to represent the Inuit of Nunavut in matters unrelated to the Nunavut Land Claims Agreement, matters that would advance their rights and benefits as an aboriginal people.

The Nunavut Land Claims Agreement is a land claims agreement within the meaning of section 35 of the Constitution. It has rules of interpretation, both within its four corners and also in its ratification legislation. Those rules of interpretation say that if there is any inconsistency or conflict between the agreements, or its ratifying legislation and any other federal laws, the agreement and the ratifying legislation prevail to the extent of any conflict or inconsistencies.

The territory most directly affected by the Nunavut Land Claims Agreement is the Nunavut settlement area. That area is defined in the agreement itself and that comprises, for most purposes, the territory of Nunavut. There are some slight differences in offshore areas.

The settlement area encompasses an area that's 1.9 million square kilometres, including the marine areas, the Arctic Archipelago, and the 12-mile territorial sea adjacent to Nunavut. In addition, approximately 43% of Canada's ocean coastline is found within the Nunavut settlement area, something like 104,000 kilometres out of a total of 243,000 kilometres. Consequently, a significant part of Canada's overall territorial sea and internal waters fall within the marine areas covered by the Nunavut Land Claims Agreement.

Now I would turn to the three specific recommendations. The first recommendation is set out in greater length in our longer brief. By that recommendation, we're asking the standing committee to return the wording of the non-derogation clause, now found in clause 3 of the bill, to a more traditional wording that's been in place in federal statutes since 1985.

Nunavut Tunngavik Incorporated and, I think it's fair to say, other aboriginal peoples have not been happy with the new language that's been developed in relation to this section by the Department of Justice. The original formulation of this non-derogation provision, which you find in older legislation, has never been litigated in the Federal Court or the Federal Court of Appeal of the Supreme Court of Canada. Nonetheless, it's been subject to variation in wording as a consequence of what appears to be a shifting policy approach by the Department of Justice.

There are two comments that should be made in relation to this change in wording. The first comment is that this evolution of the wording of what's supposed to be a provision that gives aboriginal people more security and greater predictability by way of their rights has been taking place without active consultation with aboriginal peoples. So there's a certain irony that a provision that's intended to assure aboriginal people is nonetheless shifting without their involvement in its negotiation. That's not an acceptable process from Nunavut Tunngavik Incorporated's point of view.

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The second and I guess more substantive point is that the new wording of this non-derogation clause, from our analysis, is not as effective. The earlier formulation of this provision is found in older federal legislation adopted in the wake of the constitutional changes in 1982. The earlier formulation made it quite clear that various laws were not intended to take away from aboriginal rights. The newer formulation seems to be intended to track case law and to essentially reserve to the Department of Justice any kind of discretion Parliament may have in fact to infringe on aboriginal rights.

From our point of view, the more appropriate formulation is one that says on its face that Parliament, in adopting a new law, is not intending to take away from anyone's aboriginal or treaty rights. We invite the committee to consider returning to that earlier formulation.

I should point out that the earlier formulation was used as recently as the Firearms Act—I think that was 1995. So the early formulation had a much longer history and a much longer staying power than what we see now as new wording that the Department of Justice seems to be favouring.

The second recommendation I would raise with you is also set out as recommendation 3 in our longer brief. This recommendation is that two subsections be added to the COSEWIC provisions concerning the subcommittee specializing in aboriginal traditional knowledge.

We base our recommendation on the fact that those additions are necessary in order to fully comply with the minister's documented intentions, which themselves arise from national and international commitments made by Canada.

There are two recommendations we put forward. The first is the addition of subclause 18(3), which would read:

Membership on the subcommittee specializing in aboriginal traditional knowledge shall be determined on the basis of each candidate's traditional knowledge expertise by those wildlife management boards and aboriginal governments and organizations that the minister considers appropriate.

A companion subclause 18(4) would read:

The members of the subcommittee specializing in aboriginal traditional knowledge must choose from among their membership an individual to preside over the subcommittee, and the minister shall appoint that individual as a member of COSEWIC, if he or she is not already a member.

In a letter sent to the president of Inuit Tapirisat of Canada during the winter of 2000 concerning the proposed Species at Risk Act, the environment minister wrote:

COSEWIC must set up a committee specializing in aboriginal traditional knowledge. Membership on this committee would be determined largely by aboriginal peoples themselves and the chair of the committee would be elected from among its members and appointed by the Minister of the Environment as a full voting member of COSEWIC.

There's a complete copy of that letter attached to our longer brief.

At the moment, the minister's commitment is not reflected in the wording of the proposed act, in our assessment. As currently written, the bill does not require that aboriginal peoples themselves determine the subcommittee's membership. It does not require that any member of COSEWIC possess aboriginal traditional knowledge and it does not require the minister to appoint the individual elected by the subcommittee members as the chair to sit as a member of COSEWIC.

As I said, the minister's commitment is itself a reflection of long-standing, but as yet unrealized, national and international obligations on the part of Canada. Those obligations arose as a result of Canada's support for an involvement in the Convention on Biological Diversity adopted in Rio de Janeiro in 1992. The Rio convention is a leading example of the emerging international law of sustainable development. It recognizes both in its preamble and in several of its provisions the tremendous importance of the role of aboriginal people's traditional knowledge in biodiversity conservation and the sustainable use of biological resources.

In conjunction with its international leadership role, Canada has also developed a national strategy for the conservation and sustainable use of biological diversity. The biodiversity strategy states that traditional knowledge can provide an excellent basis for developing conservation and sustainable use policies and programs. All too often, however, traditional knowledge is inappropriately used or disregarded by policy-makers, scientists, resource planners, and managers.

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Given the minister's clear intentions, as well as Canada's commitments under the Rio convention and its own biodiversity strategy, appropriate and non-ambiguous provisions such as those suggested by NTI, Nunavut Tunngavik Incorporated, should be added to clause 18 of the bill.

Finally, the third recommendation I bring to your attention today is recommendation 4 in our longer brief. We are suggesting that in order to be in conformity with the Constitution, the minister should be required, under subclause 27(2) of the bill, to apply the relevant provisions of applicable aboriginal treaties and land claims agreements before making a recommendation to the Governor in Council with respect to the listing of a wildlife species at risk.

One of the most important and certainly the most fundamental of the decision-making authorities of the Nunavut Wildlife Management Board, and that's the board set up by the Nunavut Land Claims Agreement, with respect to species at risk, is its jurisdiction to approve the designation of rare, threatened, and endangered species in the Nunavut settlement area. This clearly means that for species of populations located in the Nunavut settlement area and classified as being at risk, that classification must be reviewed and be subject to the formal approval decision by the Nunavut Wildlife Management Board.

In recent letters to the Nunavut Wildlife Management Board and to the Inuit Tapirisat of Canada, the assistant deputy minister of the environmental conservation service wrote:

Under the Nunavut Land Claims Agreement, the NWMB would forward its approval of an applicable species status to the Minister who would then either accept or reject (or vary in some cases) the NWMB's decision.

According to the Nunavut Land Claims Agreement, the minister would then proceed to do all things necessary to implement the decision as accepted or varied. In these cases the Governor in Council could not modify the decision reached by the minister and the Nunavut Wildlife Management Board as far as it applied to the Nunavut settlement area. Therefore, under the circumstances of subclause 27(2), the minister must do more than just consult with the Nunavut Wildlife Management Board before making a recommendation to the Governor in Council.

In light of the primacy of constitutionally protected aboriginal treaties and land claims agreements over other legislation, there should be an accurate reflection in the act of the comprehensive authority set out in land claims agreements and treaties that apply to the protection of species at risk. The wording change recommended by Nunavut Tunngavik Incorporated for paragraph 27(2)(c) attempts to do that.

Finally, in concluding, I want to emphasize that Nunavut Tunngavik Incorporated applauds Canada's overall commitment to conserve biodiversity and to use biological resources sustainably. The Inuit of Nunavut therefore support the eventual enactment by Parliament of the Species at Risk Act.

However, as I hope has been evident in some of the comments I've made as part of this presentation, the present version of Bill C-5 is flawed in some respects and should be improved. It lacks an appropriate recognition of the application of land claims agreements and of the unique circumstances of aboriginal peoples in a number of critical areas addressed by the proposed legislation.

I would finish, Mr. Chairman, by thanking you for this opportunity and of course inviting you and other members to pose any questions that time might permit in the course of the discussions this morning.

Thanks very much.

The Chair: Thank you, Mr. Merritt.

We'll start right away with a round of four minutes each and possibly a second round.

Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance): Thank you.

Under the Nunavut Land Claims Agreement, or NLCA, Inuit have the right to harvest any stock or population of wildlife in the Nunavut settlement area up to the full level of their economic, social, and cultural needs unless the Nunavut Wildlife Management Board, one of the institutions created by the government, establishes a harvest limit on a particular stock or population. Inuit also have the free and unrestricted right to access for the purposes of harvesting all lands, water, and marine areas within the Nunavut settlement area, including lands, water, marine areas on crown lands, within parks and conservation areas. Again, this is subject to the terms of the Nunavut Land Claims Agreement.

So I'm asking, will the provisions of Bill C-5 really facilitate cooperation between the NWMB, the board, and the federal wildlife officials? I think you've made some reference to that already.

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Second, are there adequate provisions in the bill to ensure that really there are no gaps of level of government or overlap duplication? We have a lot of people who are living off country food. Then we have all these bureaucrats running around and we have a whole new legislative regime coming down. I want some comment from you about what you have already alluded to, this whole sense of cooperation, and try to get it from the theoretical to the practical.

Mr. John Merritt: There were a number of aspects to your question. I hope I got all of them.

Mr. d'Eça, of course, will be talking a little bit more from the perspective of Nunavut Wildlife Management Board, so he undoubtedly will be speaking to some of the points you've raised in his presentation. I won't try to comment on the relationship between the Nunavut Wildlife Management Board and the federal government under the bill in any detail.

The legal position Nunavut Tunngavik takes is that in the event there is any conflict, our agreement prevails. But we've also been very conscious that it's important that additional legislation enacted by Parliament since 1993 accurately track the land claims agreement. Otherwise, if we have apparent inconsistencies or conflicts, those who have to administer these laws undoubtedly will be somewhat confused. We've made the point that we don't want every wildlife officer to have to become a constitutional law expert and carry around competing pieces of legislation in the land claims agreement. To go back to your point about efficiency, that's not an efficient way to run things.

We prefer that any additional legislation that comes along be consciously developed so as to avoid conflicts, so that later laws complement and reinforce the overall understandings and agreements reached in the land claims agreement.

By way of your question on concerns about duplication of administration or inefficiencies of that kind, I don't think Nunavut Tunngavik thinks this bill would lead to those kinds of problems. Nunavut is effectively 20% of Canada, a larger proportion if you start to look at marine areas. It's a very big area. We have a single management board. That management board deals with species both on-shore and off. It's an integrated board; it deals with species under the jurisdiction of fisheries as well as the territorial wildlife department. It runs a fairly lean operation. From our point of view, the addition of legislation that provides some additional security for habitat protection should reinforce the beneficial aspects of the regime that was first established in 1993.

Insofar as this legislation can be fine-tuned to bring it into closer conformity with the land claims agreement, we think the overall effect will be positive.

I hope that answers some of your questions.

Mr. Paul Forseth: Michael d'Eça, do you have an answer?

Mr. Michael d'Eça: Actually, I would be echoing a lot of what John just said, and I think Gerry would as well.

The position is that subject to certain changes that we're calling for in the act, and we give a full rationale for them, if the act recognizes and reflects the processes that have already been agreed to between the crown and Inuit in the Nunavut Land Claims Agreement, we think that, on the ground, things should go quite smoothly. It has to be integrated properly and the reader of the act must be aware of the processes under the land claims agreement. But if that should happen we're relatively confident that it will be a smooth process.

Mr. Paul Forseth: I have another question.

Specifically, Mr. Couture, you say in your brief:

We believe that the Bill would be improved by an explicit reference to the processes developed under land claims agreement.

This could be done very easily by a simple addition to the preambular statement which recognizes the roles of aboriginal peoples and wildlife management boards.

Then you make this statement:

...the roles of the aboriginal peoples of Canada and of wildlife management boards established under land claims agreements and the processes developed under those agreements in the conservation of wildlife in this country are essential.

I'm wondering, in some respects that is a very simple statement. But why do you feel that it has to be put in the legislation? Obviously, you are seeing something that I'm not, so help me out on this one.

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Mr. Gerry Couture: I think the answer is in your original question to my colleagues. That's where efficiency and simplicity lie. If this legislation allows us to use our processes in developing assessments, recovery strategies and action plans, if we don't have imposed upon us separate federal processes, but we are allowed to use our processes as they exist, then we don't get the duplication. We get the inclusion at the grassroots level of that traditional and local knowledge, where, in our experience, it is most effective, it is best interpreted, because the people who have it are part of the planning assessment or action exercise.

That's why we would like to see a specific reference to the processes that have been developed under the land claims agreement. This would prevent federal bureaucrats or federal conservation officers coming in with another set of processes to impose on top of those. We believe the land claims agreement incorporates that, because it even incorporates the idea that we must pronounce upon any listing or any management plan. So why not use our processes and not duplicate them? That's why we'd like to see them incorporated.

The Chair: Thank you, Mr. Forseth.

Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Before I start, I'm not sure if Mr. d'Eça is going to be making a statement. If he is, perhaps we should let him do that first.

The Chair: There was a misunderstanding on my part that the brief submitted to us was a brief on behalf of both organizations. Judging from a comment made by Mr. Merritt a moment ago, he was expecting Mr. d'Eça to cover the other recommendations. I don't know at this stage whether you want to cover them all, since they are in print before us. If you could summarize them, I think there would be more time for questions.

Mr. Michael d'Eça: I didn't quite catch that, Mr. Chairman.

The Chair: If you could summarize the balance of your recommendations, rather than taking up another 15 minutes, it would leave more time for questions by the committee members, since I thought that Mr. Merritt covered the broad scope of the submission you intend to make.

Mr. Michael d'Eça: Mr. Chairman, I wonder if I could take five or ten minutes to concentrate on just one or two recommendations. I'd rather not summarize, because it can get somewhat detailed. It's better, I think, for me to lay out for the committee a couple of points and leave time for questions.

The Chair: All right. Is that agreeable to the committee? Please go ahead.

Mr. Michael d'Eça: Thank you.

I understand that you have a copy of our full submissions, or I hope you do, from the Nunavut Wildlife Management Board.

The Chair: Yes, we do.

Mr. Michael d'Eça: I'll refer to that board as the NWMB today. To give you a quick background on its jurisdiction, it's an institution of public government, an independent administrative body established by the Nunavut Land Claims Agreement. It is the main instrument of wildlife management and the main regulator of access to wildlife within the Nunavut settlement area.

Within that extensive wildlife management jurisdiction this board has exclusive decision-making authority with respect to establishing, modifying, or removing quotas and other restrictions on all wildlife harvesting in the Nunavut settlement area. That's subject to review by the appropriate minister. The minister can accept, reject, or vary an NWMB decision, but he or she is constrained by the terms of the Nunavut Land Claims Agreement. The board also has a key role to play in the assessment, protection, recovery, and general management of species at risk.

I want to talk for a minute or two about the principles of conservation that underlie the Nunavut Land Claims Agreement, certainly the wildlife management sections. Inuit are an integral part of the ecological systems within which they live, and their relationship to the environment and to the wildlife with which they share their Arctic home, it's not an exaggeration to say, is profound. In negotiating this land claim, Inuit put the protection and management of the land and marine environment above all else. About 70% of the land claim is concerned with environmental protection and conservation.

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I'll quickly read to you the comprehensive principles of conservation, and again say that they underlie all NWMB decisions with respect to the environment. As set out in the Nunavut Land Claims Agreement, those principles encompass, first, the maintenance of the natural balance of ecological systems within the Nunavut settlement area; second, the protection of wildlife habitat; third, the maintenance of vital, healthy wildlife populations capable of sustaining harvesting needs; and finally, the restoration and revitalization of depleted populations of wildlife and wildlife habitat.

I'll turn now to a couple of recommendations, Mr. Chairman. The first one is actually dealt with in recommendation 5 of the NWMB's written submissions, and it has to do with the play between federal and territorial jurisdiction. In the short period between the death of Bill C-33 last October and the introduction of Bill C-5 in February, the Department of the Environment made a number of changes to the proposed act. In our estimation, one of the significant ones has to do with the matter of federal and territorial jurisdiction. They deleted Bill C-33's clause 84 and added four new subclauses, 53(5) and (6), and 71(5) and (6).

I won't go into a long analysis, but under the previous clause 84, before recommending that the Governor in Council make an order applying recovery strategies, action plans, and management plans to species in lands within Canada's territories, the minister had to satisfy three preconditions—consult the appropriate territorial minister; if the species is in a land claims area, consult the appropriate wildlife management board; and be of the opinion that the laws of the territory did not protect the species. Under Bill C-5, clauses 53, 59 and 71, we have only two preconditions—namely, consult the territorial minister and consult where appropriate the wildlife management board. So dropped is “be of the opinion that the laws of the territory did not protect the species”.

Based on the devolution of powers from the federal Parliament to the three territories, over the years each of the territorial governments has enjoyed extensive and growing legislative and management powers over its territory. Those powers include the authority to enact legislation to protect species at risk and their habitats, as well as to manage those species and their habitats.

Mr. Couture mentioned that in the Yukon they're working towards species at risk legislation. In the Nunavut territory it's the same thing. The Department of Sustainable Development, which we refer to as DSD, in cooperation with NTI and the NWMB, is currently in the process of thoroughly revising and modernizing its wildlife act. That process includes the development of comprehensive protections for species at risk and their habitats. That may be through separate legislation, or perhaps it will be incorporated into the act itself.

The Department of Sustainable Development has an extensive involvement in the territory of Nunavut. Since it took over jurisdiction in 1999 from the former Northwest Territories department, it's increased the capacity to manage wildlife and habitat, and I think overall the residents of Nunavut have been well served by DSD. At the same time, the Department of the Environment presently has insufficient capacity within Nunavut to even begin to replace DSD in the protection of terrestrial species at risk and their critical habitats.

So if you're going to make that change, you have to realize it is a profound change and will take considerable time, effort, and funding to accomplish. The NWMB simply questions why the department would contemplate taking on such a task, except under the circumstances where the laws of the territory did not protect the species or the habitat.

In our view, the most sensible approach is to look back to Bill C-33, to make clear in the federal act that the threshold for federal intrusion into territorial jurisdiction will be maintained at an appropriately high level and will only be crossed if the minister is of the opinion that the laws of the territory don't protect species at risk or their critical habitats.

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In terms of what you do in Bill C-5 to do that, it's straightforward. You add a subclause that says that the minister must “be of the opinion that the laws of the territory do not protect the species”. Or in the case of clause 59, which deals with habitat, you add a subclause saying “be of the opinion that the laws of the territory do not protect critical habitat”.

Mr. Chairman, I don't want to take up too much more time, and I want to leave time for questions. I could end there if you want, but I would prefer to make one more recommendation.

This is dealt with in recommendation 13 of the NWMB's written submissions. There are two parts to it. The first part has to do with emergency orders. Again, this is one of the changes that took place in that short period between the end of Bill C-33 and the introduction of Bill C-5. In subclause 83(3)—an important subclause to us, as I'll explain—emergency orders were removed from the list of clauses and subclauses under SARA that do not apply in land claims areas.

There remains a list of ten exempted provisions in subclause 83(3). These clauses and subclauses set out a series of prohibitions with respect to listed endangered or threatened species. To give examples: forbidding the killing, harming, or possessing of individuals of such species, and forbidding the damaging or destroying of their residences or critical habitats.

Under subclause 83(3), that list of prohibitions does not apply in land claims areas. I hasten to add that the purpose of exempting all these sensible and necessary prohibitions in land claims areas is not to permit the killing of species at risk and the destruction of their residences and habitats in those areas. Rather, it is to recognize and respect the effective and comprehensive protection measures already in place under land claims agreements.

If you look at and analyse clauses 80 to 82 as they're presently written, an emergency order of indefinite duration can now be made to provide for the protection of wildlife species in Nunavut without any reference to or input from the NWMB, it being the main instrument of wildlife management and the main regulator of access to wildlife in Nunavut. No input is required either in the making of or repealing of that order.

I can tell you quite clearly that this arrangement is contrary to the terms of the land claims agreement. The terms of the land claim fully address emergency circumstances. There's a particular section of the land claim, section 5.3.24, under which the minister can make and implement a reasonable interim decision with respect to a wildlife species if he or she is faced with urgent and unusual circumstances—in other words, emergency circumstances.

The NWMB under that provision must then conduct a full review as soon as practicable thereafter. Following its review, it must either confirm the minister's interim decision or make its own decision. As I mentioned earlier, that of course would be subject to the minister's authority to accept, reject, or bury that decision, but in accordance with the terms of the land claim.

Turning back to Bill C-5, the emergency circumstances as envisioned in Bill C-5 are properly addressed in the land claim. In clause 81 of Bill C-5, the Nunavut Land Claims Agreement Act offers “equivalent measures” to protect the species. So in light of two considerations—first, the primacy of constitutionally protected land claim agreements over other legislation, and second, the purpose and content of section 5.3.24—the NWMB recommends to the standing committee that the emergency orders be restored as they were in Bill C-33 to the list of exceptions for land claims agreements under subclause 83(3).

I think it goes back to the question from the member. It's to avoid misunderstandings, duplications, and problems that you want to set this out appropriately in the legislation.

Mr. Chairman, the second part of my concern over subclause 83(3)—and I'll end with this—is another last-minute change by the department. In the clause under Bill C-33 there was a reference to activities in accordance with regulatory or conservation measures for wildlife species. That was shortened to activities in accordance with conservation measures for wildlife species.

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The NWMB has no objection to the removal of the term “regulatory” from that phrase, but it's now concerned with the remaining phrase, “conservation measures”. That could be interpreted to mean decisions whose only purpose is to conserve, and as a result, only activities carried out under the authority of such decisions could be exempted from the act's prohibitions.

An NWMB decision to reduce the harvest of a threatened species—I'll give you the example of Peary caribou in the high Arctic—would likely be universally characterized as a conservation measure. But it's not nearly so clear that an NWMB decision to maintain, or even slightly increase, the harvest would meet the narrow interpretation standard that is at least available under the present wording of subclause 83(3).

I've already talked about the principles of conservation under the claim. In actual fact, in order to be in compliance with the Nunavut land claims agreement, each and every harvesting activity must be carried out in accordance with the terms of the land claim and in full compliance with the land claim's strict principles of conservation. I read them out to you a few minutes ago, and they're reproduced on page 4 of the NWMB's written submission.

If the NWMB were to make a decision to permit a community to harvest a particular number of Peary caribou, that decision would have to be made in compliance with the principles of conservation. In addition, it would have to be accepted by the minister prior to implementation. In his or her review of the NWMB's decision, the minister would also have to be in compliance with the land claim's strict principles of conservation.

The problem with the current wording of subclause 83(3) is that it would allow such an NWMB decision to be characterized as something other than a conservation measure, even though it would have met the rigorous conservation standards of the land claim. Therefore, in order to avoid the possibility of those kinds of interpretation problems in the future, the NWMB recommends that the standing committee substitute the phrase “conservation standards” for “conservation measures” in subclause 83(3). With that, I think we'd avoid these potential future problems.

In conclusion, Mr. Chairman, those are just two recommendations out of fifteen. The board invites you to carefully review its recommendations. It has set out full rationales for what it's suggesting.

I should tell you that the board does support the government's commitment to protect species at risk and their critical habitats. It supports the enactment of the Species at Risk Act, but subject to an appropriate recognition within the act of the application of land claims agreements and of the unique circumstances of aboriginal peoples.

I'd be happy to answer any further questions, and certainly, if the committee should have any further or follow-up work that it would like the NWMB to do or to report back on, the board would be happy to do that as well.

Thank you very much.

The Chair: Thank you, Mr. d'Eça.

While you were taking us through these last recommendations, one couldn't help wondering whether there was any consultation between the Department of the Environment, or the Department of Justice, and your board when these changes were made.

Mr. Michael d'Eça: No, there were no consultations at all. The only thing that was done was that, just before the bill was introduced, we were invited to a session with the Department of the Environment to go over a number of the changes that had already been made, just to sort of give us a heads-up on it. But there was no consultation. You're just handed the changes. We were certainly grateful for the opportunity to have that heads-up, but it wasn't a session in which we could make any difference or even fully grasp to ask the right questions at that point in time about the changes that had been made.

The Chair: Thank you.

Mr. Comartin, please.

Mr. Joe Comartin: Thank you, Mr. Chair.

I'm not sure if Mr. Couture, Mr. d'Eça, or Mr. Merritt will want to respond to this one.

When COSEWIC was here, their representatives were adamant—I think it's fair to use that characterization—that at the time of the assessment of whatever species they were considering, that land claims or...I think I'm making this too broad. Generally, the concerns of the aboriginal communities would not be taken into account at that stage but simply at a further stage when protection and recovery plans were being considered. I'd like your comments on how you feel about that.

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Again, just to be fair to COSEWIC and their representatives, it seems to me that what they were saying was, “We're doing something that's purely scientific here. These other concerns of the aboriginal community with regard to the land claim are more in the social, economic, and political realm, and we should not be required to get into that.”

I think I'm characterizing their position fairly, and I'd like your response to that, if you are in agreement or disagreement. If you're in disagreement, I'd like to know what your position is.

Mr. Gerry Couture: We would be in complete disagreement. In fact, we would suggest that traditional and local knowledge is on a par with, and as important as, the scientific knowledge. That is why we insist that processes be at the grassroots level, where that knowledge can be effectively applied. The way you have characterized COSEWIC's input, that is putting it completely backwards to the way we see the process working.

In that vein, right at this moment COSEWIC is in contact with our board developing protocols as to how they will interact with the board. Part of what we are saying is that, in doing the assessment, you must take into consideration that knowledge of aboriginal people, which is just as important as your scientific knowledge and is complementary to it.

Mr. Joe Comartin: Let me interrupt you for a minute, Mr. Couture. As I understand COSEWIC's position, they did give us information that they were in the process of attempting to set up that subcommittee, that it would be some time before it was done, and that traditional knowledge would be taken into account in the assessment. I don't think they're doing it as extensively as they would like to be able to be doing it. That really wasn't the thrust of my question.

Their position is that they're going to take into account considerations around land claims and other concerns of the aboriginal communities, outside of traditional knowledge. But they saw the other concerns as being more in the social, political, and economic realm, and it wasn't for them to take those into account. The legislation as now drafted in part requires them to take that into account. That's really the point I was driving at, not traditional knowledge, because I think they're going down the road of taking it into account.

I think Mr. d'Eça wants to comment.

Mr. Michael d'Eça: I saw COSEWIC's Bill C-33 submission, and I suspect it's the same point they're making here. I believe what they're referring to is subclause 15(3), which says:

COSEWIC must take into account any applicable provisions of treaty and land claims agreements when carrying out its functions.

I really do believe that it's a misunderstanding on COSEWIC's part. They have the best of intentions. What they're concerned about is having to take into account considerations other than the health of a species and whether or not it's at risk. At that stage of the process they don't want to be worried about all these other kinds of considerations.

But that's not what this provision is saying. I think Mr. Couture had it. COSEWIC is catching on to what this means by now contacting the boards, and we are working out a process. But up until now there has been very little contact between COSEWIC and the boards.

I know that just the other day the NWMB received a notice from the RENEW people that asked them for their opinion on the management plan for Peary caribou. They were asked to check a box saying “good” or another box saying “not good”

That kind of relationship doesn't even approach what is required under a land claim. The Nunavut land claim requires that the NWMB approve the designation of rare, threatened, and endangered species. First of all, that's a good thing. It has to follow those very strict principles of conservation. That's going to be good for species at risk in the Nunavut area. It's good for COSEWIC, and it's good for the federal government.

This provision is simply saying that COSEWIC must be aware of and take into account the fact that the NWMB in the Nunavut settlement area approves the designation of rare, threatened, and endangered species. It must comply with the principles of conservation, and it has a relationship with the minister in terms of the minister accepting, rejecting, or varying its decisions, again according to the principles of conservation. That's what this provision is getting at.

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It's not saying that they have to look at an economic development provision in the land claim and therefore they can't say that the species is at risk. It talks about applicable provisions of the treaty and land claims agreements. I think that given an opportunity to explain that to COSEWIC, it would quiet a lot of their fears around this provision. They really shouldn't have them. It's not asking them to take into account irrelevant considerations. It's going to strengthen the protection of species at risk.

Mr. Joe Comartin: Mr. Merritt, did you want to add anything to that?

Mr. John Merritt: The only thing I would add is that, if anything, subclause 15(3) is too mild. It says that the land claims agreements should be taken into account. Given that these are constitutionally protected treaties, I think the members of this committee should be respecting and conforming to those agreements.

As my colleagues have said, these agreements have conservation built into them. It's not a matter of being pulled in a direction in which you don't want to go. Those agreements were negotiated over many years to give primacy to conservation. They shouldn't be seen as rival or hostile things. If that means people serving on a committee have to read a land claim agreement before making a decision in the area affected by that agreement, that's a good thing.

Our experience as an organization has been that when the train leaves the station, it's very hard to get it back. When you get people committed to decision-making and then they're reminded to take something else into account, for understandable reasons they often are very reluctant to then change their first set of thoughts. Then we spend a lot of time trying to undo things that would have been best avoided.

If anything, then, I think this subclause should be strengthened, certainly not taken out.

Mr. Joe Comartin: Do you have any specific suggestions, Mr. d'Eça or Mr. Merritt, on how to strengthen it or on how to make clear to COSEWIC what you see as the requirements under this subclause?

Mr. John Merritt: I'm of course making it up on the spot, but I think it would be useful to have some language that essentially reminded COSEWIC members to make their decisions conform to land claims agreements.

It's frustrating to be in an organization that represents a land claims group, because, of course, under general law one shouldn't be having to say these things. One shouldn't have a Constitution-protected treaty and then a whole series of follow-up laws to remind people to respect the law. But we live in a world where if we don't have things in neon lights in documents, which officials charged with more specific responsibilities have to actually read and absorb, people tend to see these agreements as secondary, superficial, or resting in some kind of legal limbo, and that's a very unfortunate thing for us.

That's one reason this and other committees have heard from our organization on non-derogation clauses. We take these things very seriously. Our experience is that unless this obligation to respect agreements is made paramount and given an adequate profile, it tends to be seen as something that can be put to one side.

I hope that answers your questions.

The Chair: Thank you, Mr. Comartin.

Mr. Couture, very briefly, please.

Mr. Gerry Couture: I'd just like to add that this is the frustration I was referring to when I made the comment that it's almost as if Ottawa signed the agreements in a fit of an absence of mind and then went back to doing things the way they did before. This is a very real frustration in the territories, especially in the Yukon.

I would agree with my colleagues that the neon lights are necessary. We generally tend to take the yellow book out and beat people over the head with it. It's quite a thick book, and it's effective sometimes, but your arm gets tired. Yes, we are frustrated by the fit of an absence of mind, especially on the part of senior bureaucrats, in the application of the agreements.

The Chair: You're not alone.

We welcome this morning the presence of Senator Watt.

Senator, would you like to ask a question?

Senator Charlie Watt (Inkerman, Lib.): If you wouldn't mind, yes, I would like to ask a question.

The Chair: You will be followed by Mr. Laliberte. Please go ahead.

Senator Charlie Watt: First of all, welcome. I think I understood your presentation and what you're concerned about.

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With regard to a non-derogation clause, if I understood correctly this is not necessarily, at this point, following the traditional way that they have always provided a non-derogation clause, and you would like this matter to be reinstated to the normal proceeding.

At the same time, I think you were also emphasizing the fact that, when they have a dialogue with the Government of Canada or negotiate with the Government of Canada, the instrument that was set up to be used is a constitutionally protected instrument. Therefore, you would like the Government of Canada to not reinvent the wheel but to follow those procedures that were already set out, because those matters and the life of the people in the north were already taken into consideration when those instruments were put in place.

But what I'd like to do right now is to get back to the more practical concern. I understand those instruments are very important to you, in terms of implementing the land claims agreement. I fully realize that. But there is a practical side also. What I mean by practical side concerns the matters that are about to be put on the endangered species list. Some of those species are very heavily depended upon in terms of the livelihood of our people, whether it be in the Yukon, Nunavut, or Nunavik.

Let me just take one particular species as an example, which is part of the intent to be under the endangered species list. That is the Beluga. I think the Beluga is pretty heavily used for livelihood, survival, and economics, even though it's not being used for commercial purposes. But for subsistence purposes it is very heavily depended upon by all three different regions—Inuvialuit, Nunavut, and Quebec, including Labrador, I believe.

Do you have any comment to make with regard to to that one species that I'm talking about now? From what I understand, there was not enough scientific data collected to be able to put it under the endangered species list.

I'm just going by the experience that I have in terms of how the fisheries and oceans department conducted their studies over the last few years in Ungava, the Hudson Bay coast, and Hudson Strait. What they've basically been saying is that, due to the lack of availability of funds to do the aerial survey and count the Belugas within those various regions, they feel that the studies undertaken eight years ago are no longer acceptable. In other words, there has not been any follow-up for eight years, since the scientific communities collected that information. They're basically saying that the Belugas are slowly diminishing in Ungava Bay, and there are reductions on the Hudson Bay coast. They seem to be claiming that it's because they are overharvested.

Traditional knowledge doesn't necessarily say that they are overharvested. Traditional knowledge seems to be leaning more towards the fact that there's more noise around the coastal area. For that reason, the Belugas have shifted their migration routes into different patterns, rather than keeping to their traditional patterns that they have had over a long-term period in the past.

What is your concern for that particular sector, since it's going to be taking something away from the people without being compensated? That is the case if we are not successful in taking that particular species off the list. What are you looking for? The people are very heavily dependent upon it for economic purposes. You know how much red meat costs. Whatever food that is available for people in the stores is very, very expensive. That particular species is very important, not only for diet purposes but also for livelihood, because you can transform that piece of species into many different categories in terms of the survival of our people.

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So what's happening now? I think the question is clear in that area.

The Chair: Thank you, sir.

Mr. Michael d'Eça: I can talk a little bit about the experience in Nunavut.

Of course, the bottom line is the protection of the species. In order to do that, you have to know how many of that species are there, and you're right, the research that's been done was done quite some time ago. We know that in Nunavut there were many concerns with it. It's hard to count whales. You can't see them under the ice, or submerged, so the NWMB recently did a tour of narwhal and beluga hunting communities. It's about to set out some recommendations and decisions with respect to that tour.

One thing it's calling for is renewed surveys, up-to-date surveys, to be done. That's going to cost money. The NWMB will put money in. It's asking the Department of Fisheries and Oceans to also put money in. At the same time, it wants to do a proper study of Inuit Qaujimajatuqangit, Inuit traditional knowledge, to see what are the conclusions of Inuit from their acute observations over many years.

Once you have a full picture of the number of animals that are available, then you have to set harvesting rates that are sustainable. The NWMB is very interested in a new form of management system known as community-based management, where it goes to the communities and works in partnership with the communities to decide, given the numbers we have, what is the proper number of animals that can be taken to make sure that they maintain their numbers.

In conclusion, you have to do up-to-date science and that does cost money. You have to also include, as we see in the Species at Risk Act, the proper study of Inuit traditional knowledge as well. Putting those together they will complement one another, and you'll have a much stronger idea of the number of animals available. Then you can make the hard decisions that have to be made in cooperation with the communities.

The Chair: Thank you, Senator Watt.

We now have Mr. Laliberte, followed by Madam Redman, and by the chair.

Mr. Rick Laliberte (Churchill River, Lib.): Thank you, gentlemen, for enlightening us on the differences between Bill C-33 and Bill C-5. I hadn't seen those changes. I was new to this process.

I want to take you back to the section before COSEWIC was created, since COSEWIC is the Committee on the Status of Endangered Wildlife. There's also a paragraph in subclause 7(1) that deals with the Canadian Endangered Species Conservation Council.

Where do you see that role, or how do you see that role, under that composition? Is there adequate representation of all the entities defined under the Constitution in section 35? Do you think there's a comfortable representation of jurisdictions in section 35 in this conservation council?

We've been saying that up to now aboriginal traditional knowledge will be included in a subcommittee with COSEWIC, but that's aboriginal traditional knowledge. Section 35 is a whole different jurisdictional issue. Should section 35 representation be embodied in the conservation council and the roles of the conservation council, which seems to have a lot of discretionary powers?

I don't know whether you want to comment on that, or whether you've looked at the role of the council.

Mr. John Merritt: Insofar as the council was redesigned to include a more predictable set of viewpoints from aboriginal peoples, then I think from NTI's point of view, we would say that would be a better council. It would be a more effective council.

Nunavut Tunngavik might have somewhat fewer concerns on that point than some aboriginal peoples in the country, given that the Government of Nunavut has a very large Inuit constituency, and so it's more likely that concerns of Nunavut Inuit would indirectly find their way onto that council.

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However, that's of course only a limited qualification to the point you're making, and insofar as there was a way of ensuring the council operated with the viewpoints of not just ministers but also aboriginal peoples, then from our point of view it would be a better council.

We don't have a specific recommendation to give you on that, but certainly if that change were to be made, it would be one that NTI would view as appropriate and beneficial.

Mr. Michael d'Eça: Just to add a little bit to that, tomorrow I believe you meet with the national aboriginal organizations, and I think you'll certainly receive some recommendations with respect to this council of ministers.

Connected to the development of the act, as Mr. Couture mentioned, there have been a lot of discussions between aboriginal peoples, wildlife management boards, and the department. The department and what's known as the aboriginal working group, an ad hoc coalition of many different aboriginal organizations, have been meeting over the last year or so, trying to iron out some concerns outside of the legislation. There is a project underway to put together a political accord between representatives of the crown and representatives of aboriginal peoples.

Certainly it would be much better to have something in the legislation with respect to the particular point you're making, but I know the accord will try to address this matter so that there is a relationship between that council and groups protected under section 35, but again I say, this is a fallback position. What would be preferable would be an accounting for those people, as you mentioned, within the council of ministers.

The Chair: Thank you.

Mr. Couture, a brief intervention.

Mr. Gerry Couture: I would echo that in the sense that—and you will remember that at the beginning of my statement I made a disclaimer—we as a management board don't speak just for aboriginal people, we speak for our status under the land claims agreement. We're conscious also that aboriginal people have aspirations in this field that may be somewhat different from what the board might have, and the process Michael mentioned is one that I believe will have some effect on the conservation council.

Among aboriginal groups out there, there is definitely a feeling that there is some necessity for representation or a relationship with that council, because that council deals with the political questions of listing species, and that's where the political problems can be solved. We as boards are dealing with our functions as the boards.

The Chair: Thank you.

Madame Redman, please.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chairperson.

Mr. Couture, you referred earlier to the species at risk legislation process in some ways having raised the bar for consultation. Can you outline for us how the wildlife management boards were involved?

The fact that aboriginal and traditional knowledge is included in this legislation for species at risk is something that I believe isn't reflected anywhere else in legislation throughout the world. Can you outline for us the process that has included you?

Mr. Gerry Couture: Briefly, yes, and I guess the reason I—and we—make that statement is the contrast with other federal agencies. We work closely with the Department of Indian and Northern Affairs usually, and with the Department of Fisheries and Oceans.

This was the first time our board was extended the opportunity to be in on some of the initial discussions in the drafting, in bringing up the concerns that led to the drafting of the legislation. We were given full briefings and then invited to the workshops to begin the discussions on this legislation immediately after Bill C-65, when Bill C-65 became Bill C-33. All of a sudden we found ourselves involved to the point where they brought us here to Ottawa, brought representatives to Ottawa. This has not occurred with any other federal agency, and other federal agencies regularly make legislation that affects us—the Department of Indian and Northern Affairs specifically. To give you an example, the Department of the Environment invited us into the development of this.

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There is a chapter in the Umbrella Final Agreement, chapter 17, that deals with forestry, which is under the auspices of the Department of Indian and Northern Affairs. That has not yet been devolved to the Yukon. In that case, chapter 17 lays out very clearly what the process for developing timber harvesting agreements and so on should be, who should be involved in the process, and who should lead the process. To date, the Department of Indian and Northern Affairs has contented itself with bringing in outside experts who've never read the agreement, to try to develop these, almost resulting in revolt in the Yukon on the part of land claims bodies, first nations bodies, and local non-government organizations, who see the land claims agreement as the governing agreement.

This is the first time that a federal entity has given us this much chance to speak on a piece of legislation that's going to affect us. That's why I say they've raised the bar—not that it's high enough yet; it has still been signed in a fit of absence of mind, as far as we're concerned, when we're dealing with federal agencies.

Mrs. Karen Redman: Mr. d'Eça, I realize that an awful lot has been talked about on COSEWIC and the relationship between management boards in incorporating aboriginal traditional knowledge. What efforts are currently underway to put that in place as part of the COSEWIC specialist group?

Mr. Michael d'Eça: There's a process now underway to design this subcommittee, because, as has been pointed out, it's going to require some very creative thinking. Traditional knowledge tends to be locally based, yet you're going to have kind of a central committee. How does that committee deal with beluga in the far north, owls on the west coast, or another creature down on the east coast where the Mi'kmaq live? So it has to be designed carefully.

I think it's moving too slowly. The process is too tightly controlled by the Department of the Environment. Proper budgets should be put in place to make this a priority item and have direct and leading input from aboriginal peoples to design this committee properly, and hopefully in time for the legislation when it comes into force. We believe the committee will not be set up in time.

One of our recommendations deals with this matter, because 30 days after COSEWIC comes into being, it has to have all its assessments done, and all the species that are on schedule 1 either get assessed and reclassified or get rolled over.

The traditional knowledge subcommittee is not going to be in place, let alone be ready to deal with the many numbers of species that require a traditional knowledge input, and something has to be done about that. There's still some time to get a move on to make this a priority item, and I don't believe it is being made a priority item by the department.

Certainly efforts are underway, but they're kind of back-burner, and I predict we're going to run into problems, especially at the front end of the implementation of this act. We recommend certain wording changes to take account of the inevitable problems that we're going to have at the beginning.

So let's get that traditional knowledge subcommittee up and running so it can produce the appropriate input with respect to traditional knowledge and these species that require that input before an assessment is done by COSEWIC.

Mrs. Karen Redman: Thank you.

The Chair: Thank you.

Now it's my turn.

Your recommendations are certainly very well elaborated upon, and we will give them very close attention as to the ways and means to implement them.

There is one in particular, recommendation 6, that I find particularly interesting. Could you perhaps give us the benefit of your political thinking that leads you to replace the permissive with the mandatory approach? This is a theme that has emerged in relation to many other clauses throughout the entire bill.

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Mr. John Merritt: This recommendation is the one that relates to clause 57. It would add a reference to the inclusion of aboriginal peoples and wildlife management boards in the consultation process. I refer to the process a minister would go through in establishing codes of practices, national standards, or guidelines with respect to the protection of critical habitat areas.

I suppose it's fair to say that the intent here is similar to the intent of some other recommendations. It relates to management decisions that are of obvious importance to aboriginal peoples and to the management boards that have been mandated to work with aboriginal peoples and governments under land claims agreements. These decisions should be the result of a reaching-out process to include aboriginal peoples at the front end rather than the result of exclusionary processes. The latter push aboriginal peoples into responding and reacting to things that are not adequately based on a thorough appreciation of their viewpoint on these issues, and I think that thought—

The Chair: Excuse me, Mr. Merritt.

You have introduced the subject of aboriginal people and the boards, and the recommendation you make is to shift “may” to “shall”, which becomes the operative word for the entire clause. Therefore, I would be interested to know why you feel that it should become mandatory rather than stay in the permissive form it is now.

Mr. John Merritt: I appreciate your point. I hadn't seen the focus you were putting on that.

I'd like to go back to the Nunavut Land Claims Agreement and other land claims agreements. Despite possible misapprehensions on this point, I think the emphasis in these agreements has been very much to introduce a more rational, predictable way of doing business in a number of areas of shared concern and mutual interest to both aboriginal peoples and government. As has been mentioned by Mr. d'Eça here, I think, these agreements have quite elaborate detail, and there's a real effort to depoliticize a lot of the important decision-making that has to take place.

What you'll see in this recommendation and others is that Nunavut Tunngavik Incorporated is hopeful of a well-designed scheme, one that will have a lot of design rigour and predictability to it. If legislation is going to embody a commitment to general principles about addressing vacuums in public policy-making—if we have, for example, an absence of standards and guidelines—then ministers carrying out their work should feel an obligation, not just have the discretion, to come up with these things.

Now, it's important when these things are developed that the appropriate people be consulted and that they participate. Nunavut Tunngavik has in a number of areas tried to convert aspects of legislation that reserve huge amounts of discretion for government ministers into schemes that are a little more directive, building new approaches to decision-making in which everyone can feel some level of confidence.

I think it goes back to the question the senator raised with regard to guaranteeing that we're going to have decision-making that isn't vulnerable to day-to-day pressures and unforeseen events. People in the north often feel—you've heard this from my colleague from the Yukon—that they're in a vulnerable position, where they only read about events after the fact. Rather than leave things to others who may surprise us, our organization firmly believes that legislation should, wherever possible, stipulate that certain things are guaranteed as opposed to just possible.

The Chair: Your answer leads me then to ask you for your opinion on a question that has also been debated in committee—namely, cabinet listing versus scientific listing. As you know, the record of listing species by cabinet at the provincial level has been very poor. They have left some 70% of the proposed species unprotected, so to speak.

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What is your view as to the final decision that should be made in relation to this bill? Should things stay the way they are in the bill right now, should there be a cabinet veto option, if you like, or should scientific listing be the only standard? What are your thoughts?

Mr. John Merritt: With your permission, Mr. Chairman, I might ask my colleague from the wildlife management board to speak to that.

Mr. Michael d'Eça: Mr. Chairman, of course this is a raging debate among many groups and probably within the committee itself. As a matter of fact, this was an attempt to recognize that the minister and the department's approach was directed to cooperation among jurisdictions and the public and to voluntary efforts. That seems to be the preferred approach the department and the minister want to take in an attempt to balance things in terms of having mandatory standards. But there are larger issues—for instance, should COSEWIC be the one that defines the list, and should habitat protection be out-and-out mandatory?

I think I can say on behalf of the NWMB that they are confident that within the Nunavut settlement area, if its jurisdiction is upheld and respected and the principles of conservation followed, habitat will be protected. We know that whether you have COSEWIC or cabinet finalizing the list, the NWMB has a constitutionally protected role in the designation of rare, threatened, and endangered species. From the perspective of Nunavut, its approach has been to make sure the bill respects and reflects the provisions in the land claims agreement.

Looking at the larger issue—and I've recently had conversations with the Sierra Legal Defence Fund and others who are advocating another position—I think the NWMB would be very open to stronger provisions dealing with mandatory protection or even to a provision that COSEWIC have a stronger role. However, this would be only—I repeat, only—if within the Nunavut area there is full, appropriate respect for the processes the Nunavut public have so much confidence in.

The same, I think, would apply to other land claims areas. That's the bottom line for those areas, that legislation should reflect what's in the land claims agreements, because this is already set out there quite clearly. The mandate, the legal requirement, is to protect critical habitat, to protect species, and to make sure that they recover where they have been depleted.

I hope that answers your question.

The Chair: It does partially. What would be your view if you were to look at the picture south of 60?

Mr. Michael d'Eça: South of 60? Just to get more specific, are you talking about COSEWIC being the decision-maker?

The Chair: I'm referring to the options of scientific listing, cabinet listing, and cabinet veto.

Mr. Michael d'Eça: I would tend to recommend maintaining the cabinet veto. The evidence, as you point out, is very strong. It's kind of damning evidence about what's happened in provincial jurisdictions with respect to what species get on the list. That is a major concern, and certainly if there were an effort to address that, I would—

The Chair: That's fair enough.

Mr. Michael d'Eça: Again, I'm really speaking from a personal point of view rather than for the NWMB when I say that the cabinet veto, while strengthening the non-political nature of designation, appears to make sense, given the evidence.

The Chair: Thank you.

The final question will probably be addressed to Mr. Couture, because his paper is very heavily predicated on the umbrella agreement.

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Could you briefly tell us why the governments under the umbrella agreement have not yet acted on their commitments in the 1997 accord?

Mr. Gerry Couture: In actual fact, they have—one, in the signature of the accord, and two, they've put the development of legislation on their list for this coming year.

The Chair: Yes, that's my point. They haven't yet passed legislation, three years later. How come?

Mr. Gerry Couture: It's simply the fact of getting it onto the legislative calendar and doing the work, as we understand it.

The Chair: Why is it so difficult?

Mr. Gerry Couture: Because it meant a whole opening up and amending of the Wildlife Act, and it was decided, as we understand it—and again, I don't speak for the Government of Yukon—that the whole act would be opened up in an orderly fashion. The first part is taking place as we speak. The second part, which is the species at risk legislation, will be within about eight months, and we expect that will be finished within eighteen months.

The Chair: So that will be a total of five years from the time the umbrella agreement was signed.

Mr. Gerry Couture: But not since the accord was signed.

The Chair: Was it signed? Was it signed in 1997?

Mr. Gerry Couture: No, the accord was signed only a year and a half ago by Yukon, on the recommendation of the board.

The Chair: All right.

Mr. Gerry Couture: We had to thump our minister and encourage Yukon to sign this.

The Chair: Thank you, Mr. Couture.

We have time for a quick second round.

Mr. Forseth, one question.

Mr. Paul Forseth: In recommendation number 8 you say:

Accordingly, as subsection 64(1) is presently written, Inuit will simply not be entitled to the same compensation benefits as other Canadian citizens under the Act. Such an arrangement is contrary both to the NLCA and to the equality rights guaranteed by the Canadian Charter of Rights and Freedoms. The recommended addition of subsection 64(1) serves to effectively close the likely-inadvertent loophole.

Why is that so? The issue of compensation certainly has been before this committee an awful lot, and it's all left to the regulations. A variety of recommendations have been around that point. But can you convince me that this is indeed necessary and that we do indeed have a loophole here?

The Chair: Do you have a brief answer, please?

Mr. Michael d'Eça: I think I can convince you. If you look at subclause 64(1), the present compensation provision, it says “The Minister may...provide compensation to any person for losses suffered as a result of”, and then it sets out clauses 58, 60, 61, or an emergency order, which is clause 80. If you look at subclause 83(3), you'll find that “subsections...58(1), 60(1) and 61(1) do not apply to a person who is engaging in activities” in accordance with conservation measures, or what we would say are standards, for wildlife species under a land claims agreement.

So clauses 58, 60, or 61 don't apply in land claims areas, because there are different processes going on there. That's why we say we think it's an inadvertent loophole. They have this provision, but they didn't take account of the fact that under subclause 83(3) they've exempted clauses 58, 60, and 61 from applying to people who are carrying out activities in a land claims area.

This is one of the recommendations that, if we'd had more time, I would have walked through with the committee. We're saying at least some conservation measures or standards for wildlife species under a land claims agreement will be applied to protect critical habitat in that land claims area, and at least some people engaging in those activities will find themselves suffering losses as a result of an extraordinary impact of the application of those conservation measures or standards.

So off the top of my head, to give you an example, let's say someone has a trapline in an area in Nunavut and the NWMB puts in place measures such that this person cannot trap along the line they've had in their family for generations, and it has an extraordinary impact on them. That extraordinary impact is not as a result of the application of clauses 58, 60, 61, or an emergency order. It's as a result of the application of wildlife standards or wildlife measures in the land claims area.

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The intent of the legislation, I'm sure, is to capture those people. We say if it isn't, then you have big problems, because it's discrimination. It just doesn't make sense that it's not meant to apply to those people.

The Chair: Thank you, Mr. Forseth.

Mr. Comartin, do you have a question?

Mr. Joe Comartin: No, thank you.

The Chair: Mr. Laliberte, do you have a brief question?

Mr. Rick Laliberte: I wanted to ask if any of your wildlife management boards are involved in recovery plans now.

Mr. Michael d'Eça: I'm sure Gerry may want to respond to this as well.

The processes in SARA very much mirror what's going on anyway. We have management plans; we have recovery processes; we have put plans in place to help recovery of species—Peary caribou, certainly bowhead whales. A number of species and polar bears are threatened. We have very specific measures in place to protect and help them to recover.

They're not necessarily referred to as recovery strategies, but we believe, once the act comes into play, we're going to have to bring these things together. We have to make sure that if what's already going on meets the requirements of a recovery strategy, then that's the process that will proceed. This sort of thing is very much going on in the Nunavut territory.

Mr. Gerry Couture: Likewise, I mentioned the wood buffalo recovery program in Yukon. That's a program that came out under RENEW, which by the way was developed from the ideas of a director of wildlife from the Yukon. We've done local wildlife planning for wood buffalo, which are on the list. But our land claim agreement forces us to go deeper than species; it goes into individual populations. We have recovery programs going on now for three separate populations of caribou, one of which is international population. We've made non-formal, yet cooperative, agreements with the State of Alaska—which manages a good part of the territory those caribou migrate into—in order to develop management plans.

The whole sense of the land claims agreements is proactive from that point of view. Indeed, if the species is one that provides a harvest and it goes below the level to provide a harvest—which may not even end up being on the list, as far as COSEWIC goes—under the Umbrella Final Agreement, there is a requirement for the Government of Yukon, the board, and the first nations governments to recover that population to where it will provide a proper harvest. You should see the agreements as proactive in this field, as leading SARA.

The Chair: Thank you, Mr. Laliberte.

I have two brief announcements before we conclude. One, for those of you who, like me, missed the presentation and the discussion with Professor Dale Gibson of the University of Alberta, the transcript is available. It makes terrific reading, and I recommend it to everybody, even to those who were present as a way of refreshing the memory.

Second, the OECD, the Organisation for Economic Development, in Paris is inviting parliamentarians to attend a three-day conference at the OECD from May 14-16. The event has an impressive array of speakers. There is a copy of the letter in front of you. It was distributed at the beginning of the meeting. It is of enormous importance to anyone who is interested in sustainable development and the new economy. Tomorrow we could discuss whether anyone, and who, would like to attend. It would certainly be very good for Canadian parliamentarians to be active there. A budgetary allocation would be required. This committee could pass the necessary motion, if necessary.

What is needed, of course, is an indication of interest by anyone who wishes to attend. Therefore, you have time to mull it over, absorb the context of the letter, and get further information by word of mouth—from me, if you like—and take this matter close to your agenda and to your heart, because it is a unique opportunity.

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Having said that, on behalf of all the members of the committee, Mr. Couture, Mr. Merritt, Mr. d'Eça, we want to thank you very much for your appearance, for the suggestions and recommendations you have made, for the answers you have given us, and for bringing a better understanding of the north and of the interests of the people you represent to the members of this committee.

Thank you very much indeed.

This meeting stands adjourned.