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 29, 2001

• 0913

[English]

The Chair (Hon. Charles Caccia (Davenport, Lib.)): Good morning to you all, and welcome to our witnesses.

We are in the final week of hearing the witnesses. Today we have quite an interesting list of people from various parts of the country. As witnesses, you have been chosen by respective members, as you probably know, and we look forward to your statement and to a good question and answer period. We have a quorum.

I would like to thank those members, present and absent, who have assisted us with names for the two round tables. As you know, the round tables are intended to clarify at least two important issues. One is the stewardship and compensation and the other one is the issue of habitat protection.

The clerk has been able to put together two things for a good type of discussion that will take place in the weeks ahead preceding the summer recess. It is good that we complete that exercise before the summer, while the iron is still warm, while our knowledge of the issues is still fresh, so that the summer can be devoted, by those of you who wish, to preparing amendments, so that in the fall, when we resume, we can start with that particular phase of the work related to this bill.

I would like to stress also the fact that there is an additional piece of legislation soon waiting for us, and that is the assessment act, which is presently in the House for second reading and which will engage our attention and efforts as soon as we're finished with this.

Also, the new Commissioner of the Environment and Sustainable Development has expressed a keen interest to meet with the committee. She will produce a report in September, apparently. That report may require attention by this committee as well, because it's usually loaded with dynamite, particularly for the opposition parties. Therefore, you will want to have time in the fall to do all these things.

• 0915

In addition to this item related to round tables, there is another item related to the legal opinion provided by the Department of Justice to Environment Canada. Some members of the committee have indicated an interest in seeing that opinion. In order to obtain it, a motion is required, which if adopted, would then ask Environment Canada to produce that opinion. It is, I'm told, the client that has the power and not the Department of Justice to produce such an opinion. Therefore, the clerk will circulate a motion, which requires the usual 24-hour cool-off period, and which tomorrow could be the object of a brief discussion and a decision by this committee.

At this point, before we call on the witnesses, may I ask whether there are any questions or comments?

Madam Kraft Sloan, please.

Mrs. Karen Kraft Sloan (York North, Lib.): Mr. Chair, I would like to know who has confirmed for the round table, because it's not clear that all of them are going to attend.

The Chair: The clerk can answer that question.

The Clerk of the Committee: I can tell you who can make it. Dr. Schindler can't make it, and Dr. Pearse is very iffy, and the Métis National Council can come in a pinch. The others have not said they couldn't make it.

The Chair: Thank you. Any further questions?

Madam Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Dr. Schindler cannot, but the other professors or doctors under science have confirmed. Is that correct?

The Clerk: Yes.

Ms. Aileen Carroll: Sorry.

The Chair: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Just for the record, Mr. Chair, I think it's really important that the committee have an opportunity to participate fully in discussions around witnesses in committee itself. Through this process, we have been finding names of witnesses appearing on lists without proper notification. We have had different policies as to who will be invited and what the representation is. I think it's really important that when we take a look at the next piece of legislation, or whatever study comes before committee, that we look at a process that's acceptable to members around this table for making decisions around witnesses and the scheduling of committee meetings.

The Chair: Well, if I recall correctly, we discussed in March that we would have round tables before the summer. So I think that was sufficient elaboration of that theme. I'm sure the clerk has given information about a composition of...actually he has received that information from members. So if there was not adequate notification, I will be very glad to sit down with the clerk and see how the system can improve.

Are there any further points or questions? If not, we will deal tomorrow with the Department of Justice opinion, and we will proceed now with the witnesses—some of whom are in the room, I suppose.

Would you please come forward to the table, those of you who are sitting in the back? We will start with Mr. Nightingale, I presume, from the Vancouver Aquarium Marine Science Centre.

• 0920

Welcome to the committee. If you could make a brief presentation so that we can proceed with the others, then we'll have a round of questions, or possibly two, depending on the time that remains available between now and 11 o'clock.

Mr. Nightingale, you have the floor.

Mr. John Nightingale (President, Vancouver Aquarium Marine Science Centre): Thank you, and I would like to thank the committee for the opportunity to make a presentation this morning.

I came to Canada in 1973 from the U.S. to lead the Vancouver aquarium. I came to Canada in part because of the amazing natural beauty, the diversity, the wildlife, and the relatively unspoiled nature in Canada. The unbelievable flora and fauna that this country enjoys is one reason why we need a species at risk bill protecting both plants and animals in Canada.

This legislation is necessary. It's one that I heartily endorse and, as of last June, it took on new meaning for me when I became a Canadian citizen. So I'm appearing this morning wearing three hats—not all of them apparent. One is as a private citizen. I'm a biologist, a dual citizen, and I am passionate about leaving our natural heritage intact for my great, great, great grandchildren.

Second, I'm the president of the Vancouver Aquarium Marine Science Centre, which is Canada's Pacific national aquarium by government proclamation.

Third, I'm a board member and representing the Canadian Association of Zoos and Aquariums, which is the professional association of Canada's 24 best zoos and aquariums.

I'm going to combine the testimony from the Vancouver Aquarium Marine Science Centre and the Canadian Association of Zoos and Aquariums this morning in my brief notes.

I had an unusual opportunity as a graduate student in the early 1970s at the University of Washington. As a biologist, I had followed the precursors to the 1973 U.S. Endangered Species Act—the 1966 Endangered Species Act and the 1968 Species Conservation Act. I had become aware that there's a crossover between biology and politics.

I had the unusual opportunity to work with some of the staff from Senator Warren Magnuson's office. Maggie, as he was known affectionately, was one of the prime movers behind the U.S. Endangered Species Act. One evening we ended up sitting on a bunch of desks in the university's administrative office in the faculty of fisheries. I learned more, I think, in one evening of an hour and a half of talking with the senator about several different subjects than I had ever known before. Really, that talk is at the root of how I feel today.

I think Bill C-5 is something that we all need in Canada, and both I, personally, and the organizations I'm speaking for today heartily endorse its passage at the top level. Is it perfect? I don't think so. Is it workable? It certainly is. Does it provide us a framework to move productively forward in a more collaborative effort across Canada with landowners, business, NGOs, school children, ordinary citizens? I think it does give us that framework.

We have a different government system in Canada. That's obvious to everyone, certainly to the members of this committee more than to myself. I don't believe that a U.S.-style act is either possible or workable in Canada. I also don't believe it's particularly workable to the degree it could be in the U.S. As this committee well knows and I think has heard from other witnesses, it's a very prescriptive-type act: if this happens, then here are the remedies. It does not reach out and engage the American public. It creates an adversarial atmosphere around sustainability and preserving endangered species, and I don't believe those are productive avenues over the long term.

I've come to believe, after 20 years of working in zoos and aquariums, that public understanding—beginning with awareness, going through curiosity to some learning—engagement of people on a large scale, is the best hope we have of handing our great grandchildren a country somewhat like we know today in terms of natural history, our flora, our fauna, its productivity.

• 0925

We live in a very rich country, and it's going to take the participation of many Canadians working together to foster that in the future. The thing I like about Bill C-5 is that it is not unduly prescriptive. It opens the doors for collaboration. It does provide a framework for defining and working with endangered and threatened and species at risk so that, properly implemented over the next few years, it will let a wide variety of Canadian businesses and organizations work together to try to achieve the conservation goals.

Both the Vancouver Aquarium and the Canadian Association of Zoos and Aquariums believe that Bill C-5 should be enacted, and as quickly as possible. We believe that, because we don't think preserving our natural heritage can be achieved by legislation alone. Long-term sustainability can only occur through increasing the public desire—or public will—and public involvement in the issues.

The term I use is systemic collaboration. We need to build a system where we think, to work back and forth across problems with each other. There are some serious issues, some serious debates, some trade-offs between development and protection, between economy and jobs and sustainable environment.

Our work with the Canadian public, and every poll I've seen, shows that people know that. People know that things are not perfect. But there's a real willingness and a desire for people to get involved. Canadians, in my experience—and I'm a sample of one—more than people in the U.S. have a desire to have their say and get involved. They want to know what's going on. They want to know that those in charge are doing what they should be doing, and in this case everyone we've talked with and I believe all the polling data I've seen show that Canadians believe we need this framework for dealing with endangered and threatened species.

We do, like everyone else, I suppose, have two or three suggestions for strengthening the act. First is that the COSEWIC process of listing species needs to be above reproach, and it currently is not. I have two staff members sitting on various committees. From what they've told me, it is clear that various members of the committee have exerted undue influence, whether they're from an industry association or from a governmental department.

The selection of COSEWIC committees, the evaluative work they do, the listing of their outputs, needs to be above reproach, because that's the very basis of protecting endangered species. If the species is really at risk in some way, we all want to know about it. Appropriate action can only be taken if that turns out to be true and not an artifact of some biased consideration.

I think, secondly, that the Species at Risk Act should be considered a work in progress. In the U.S. there were two precursor acts before the main Endangered Species Act. There have been five reauthorizations since then. Each time, the basic fundamental framework of the Endangered Species Act has remained untouched, but there have been major changes in its implementation and the definitions.

I think it's likely that this committee and Parliament could debate for five years and never pass a perfect act, and that's because, to some degree, we have to learn by doing—by implementing. I think that over the first couple of years or first five years of beginning to implement the provisions of the Species at Risk Act we're going to learn things that cause us to want to change provisions in that act.

I would like to see a formal five-year review written hard and fast into the act. I think it's going to be needed to come back to a group like this to have a formal assessment of how well the act is working for Canadian flora and fauna.

• 0930

One of the suggestions we'd like to make for helping to keep both the COSEWIC process and the administration of species at risk above reproach is to ask the committee to consider including the establishment of an office of species at risk, or an office of sustainable natural heritage, to administer the functional implementation of the act, a separate office reporting directly to Parliament—to all of Parliament, not just to the government of the day.

We also suggest asking that the head of that small administrative group stand up and report yearly and directly to Parliament to say, here's what we've been doing, here's what has worked, here's what hasn't worked, here's where we need changes; and that the office be given a mandate, say in year four, to come back to this committee with the proposed changes, and with the proposed formal review in year five.

So in conclusion, both the Vancouver Aquarium and the 24-member Canadian Association of Zoos and Aquariums, strongly endorse Bill C-5. It gives us a good framework; it gives us something to work with. And the pledge from all of us is to work with Environment Canada, the other federal agencies, and an independent office if that is established, to do our best to help the whole country through the implementation.

The Chair: Thank you very much, Mr. Nightingale.

The next one on the list is Ms. Cleverley from Toronto. We're very glad you were able to make it. Would you like to make a statement?

Ms. Pheobe Cleverley (President, Toronto Field Naturalist): Thank you.

This is a new experience for me. I'm the president of the Toronto Field Naturalist, but I'm not here representing any formal position of our club. I appreciate the opportunity to come here. I'm certainly very much devoted, as Mr. Nightingale is, to the cause. I welcome this bill, that it's finally coming into some form that will, presumably, be moved into action.

I am a field naturalist, which means I'm more used to being out tramping around in the bush with a Tilley hat on, with my binoculars, and my library on my back, looking at birds and plants and so on, so I'm not really used to making a speech, particularly in this situation.

But I have read the act and feel that one of the good things about sending this out to people like me is that we realize how complicated the issue is; there are so many threads to be brought together. Sometimes I think those of us who are not involved closely have a simplistic view of how we would like things to be done. But I appreciate, as Mr. Nightingale said, the different aspects that have been brought together.

I think we saw that also in Ontario with the round table consultations that went on, bringing in industry rather than always confronting it, as environmentalists are inclined to do; bringing in aboriginal people with their on-site experience of what has happened to our country as it has become more populated and more industrialized; and bringing in the people in government and the people out in the field.

All of these threads need to come together in order to make a fabric that is strong enough to deal with the current situation, because I think we all realize that we have many species that are threatened. The categories are all given and they do change, but the general trend is that our wild species are diminishing in numbers and in variety. We certainly see that in the field.

• 0935

So I would like to support what Mr. Nightingale has said, and I think the notion of a very definitely outlined reporting procedure is an excellent plan.

What I think I have gathered from my colleagues is that the words sound very nice, they sound just fine, but when you get down to the actual enforcement and carrying out of what we have written here, we want to be sure it's not just words. Certainly, I think it's a good idea to educate, encourage, and work with, but there needs to be enforcement of what we have here. It's here. I think it can be done. But it needs to be carried through, and we need to have enough people in the field who can observe and carry through the enforcement clauses in the act.

That's one of the things I would emphasize, that this is not to be just something that reads nicely—which it does—but it should be carried through with sufficient funding and sufficient personnel who are properly trained in the field.

I think very often governments tend not to listen to the people who are out there doing the work. I would hope this government would listen to the people who are actually in the field. My understanding was that COSEWIC was pretty good in that regard, so I'm a little bit enlightened by your comments that even there we sometimes have people who are biased in one direction or another.

The Chair: Aren't we all in some way?

Ms. Phoebe Cleverley: Of course, we are, yes. I certainly am, for the preservation of the environment. Again, I probably have more grandchildren already on site than you, so I'm looking at it as a senior who wants to hand on what I remember from my childhood as closely as possible in this growing industrial society.

This morning over breakfast I was looking at a piece by Andy Kenney in Seasons, the Federation of Ontario Naturalists' very fine magazine, about fragmented woodlands and what that does to endangered species. We need to have very strong legislation to protect the habitat. For example, if you have a woodlot that's divided by a road, the road may not itself take up very much space, but it fragments the woodlot, so the interior species that live in the interior of the forest are no longer able to live there. We get more edge species, and those species tend to be predatory or counterproductive for the species that would be living in the inner part of the forest.

It's all very complex, and we don't always realize all the ramifications of development, which include, for instance, the runoff from the rains. Instead of sinking into the ground, it pours into the creeks, and they swoosh down and take away from the banks, and so on. We see this when we're out walking.

I think the habitat protection is extremely important, and I would like to be sure it is supported by the actual carrying out of the act in the field.

I think I'm here partly just to contribute support for the best that this can be and to learn, so I'm not going to take any more of your time, unless you have anything you want to ask me to speak about.

The Chair: Thank you very much, Ms. Cleverley. We'll come around with questions later on.

Next is Mr. Kure. The floor is yours for a brief statement. Go ahead.

Mr. Colin Kure (Individual Presentation): Thank you, Mr. Chairman.

I'm here as a member of the general public in the western part of this country. We have a deep concern for the flora and fauna of this country.

• 0940

I would like to thank the committee members for this opportunity to speak.

My wife Diana and I and our two sons and four grandchildren all live in or near the Red Deer River Valley in west central Alberta. We're a 40-minute drive from the Rocky Mountains. My grandchildren are the sixth generation of Kures to be on that land. We have a 1,200-acre mixed farm, and we spend a great deal of our free time just appreciating the area we live in.

All of our grandparents came to this area early in the century, and many of us have been involved with hunting, fishing, and conservation efforts from the beginning. My grandad was the founding member of the Alberta Fish and Game Association.

Due to the product nature of our area and good land stewardship by most of the residents in the parkland region, land values are some of the highest in the country. The diversity of habitat in our area and its value appear to be one of the priorities for both long-time residents and newcomers alike. Our neighbours and ourselves have for some time recognized the high intrinsic value in natural habitat retention and the wildlife. As a consequence, there have been several voluntary group initiatives taken to further conservation. Some of the projects I've been involved with personally are parkland stewardship programs, watershed workshops, environment planning, an environment farm planning steering committee, and a fish and game and environment and agriculture committee. I'm now sitting on a Red Deer River basin review group.

I've also been involved with the cumulative impact assessment group on the eastern slopes of the Rockies. All of these initiatives have more recently been embraced by the general public. But one of the emerging issues I feel in Canada, and probably mainly in our area on the eastern slopes, is the profound effect that the huge increase in tourism and recreation on both public and private lands is going to have. This is by and large being promoted by the instant information of the day, the media, and recreation equipment manufacturers. I don't know if the new bill will address this sufficiently.

This detrimental effect from the large number of people will be most felt in the public, or green, areas of our province. It is a feeling in some sectors that the general public must take a greater amount of personal responsibility for resource protection rather than having governments legislate more regulations and mandatory stipulations on civil freedoms.

As far as the new legislation applies to species protection, most of us would like to see a consultative process with compensation where deemed necessary. Where deemed necessary, I would specify, should be based on scientific evidence, not political pressure. Although some regulation is needed, heavy-handed arbitrary enforcement of environmental regulations can be very intimidating and could be counterproductive to a collaborative approach to this problem of habitat retention. With the right approach to producers and operators on both public land and private farm land, I feel we can accomplish a great deal to protect the various wild species of flora and fauna.

• 0945

In order that everyone be involved with reaching a successful result here, it may be well to work with the existing area and local groups and agencies. I know in our part of the country, in the last five years at least, there have been many groups that have been looking at habitat retention and environmental protection in the public. In the past in this country there has been a lack of communication between various government departments, both federally and provincially, to say nothing of interdepartmental communication. To overcome this, I think we need a good information relay between jurisdictions and the public as well. It would expedite a worthwhile approach to protecting species.

Some of the federal departments that already exist in our area such as PFRA, Wildlife Habitat Canada, and the Department of Fisheries and Oceans Canada, could all be worked into this species at risk effort. I believe there are at present a lot of good, knowledgeable people in the area, and if we would work collaboratively I believe things could be very positive in the environment sector.

Thank you, Mr. Chairman.

The Chair: Thank you, Mr. Kure. We are indebted to Mr. Mills for your being here and we welcome the input and the experience you're bringing to this room.

Mr. O'Ferrall, would you like to go next?

Mr. Brian K. O'Ferrall (Individual Presentation): Thank you, Mr. Chairman.

My name is Brian O'Ferrall. I wish to thank the committee members for hearing from me and to particularly thank Mr. Eugene Morawski, whom I haven't met, for assisting me in getting here today.

I am a lawyer and have been a partner in a large law firm in Calgary for about the past 20 years. My practice consists of representing landowners, oil companies, and environmental groups in connection with oil and gas projects, coal mines, pipelines, power lines, forest projects, highways, etc. I am the past president of the Environmental Law Centre and one of the original board members of the Environmental Law Centre based in Edmonton, which was one of the first environmental law centres in the country. I'm also the past president of the Alberta Expropriation Association.

The aspect of the Species at Risk Act I'm proposing to speak to is that dealing with the issue of compensation. As this committee is aware, subclause 61(1), among other sections, of the Species at Risk Act prohibits—in other words, it's a prohibition—the destruction of critical habitat of listed threatened or endangered species. Subclause 64(1) states that the minister may provide for compensation to any person for any losses suffered as a result of an extraordinary impact of the application of that prohibition. The compensation model that has been urged by Dr. Pearse and others is an expropriation model, and I think that's a good idea.

I'm one of a group of perhaps no more than a handful of lawyers and appraisers who have literally done thousands of expropriations. We have expropriation and expropriation compensation experience that exists nowhere else in Canada. It's not because we're particularly good or anything like that. The reason is that each year in Alberta there are at least 20,000 expropriations, or land acquisitions under the threat of expropriation, both on freehold land and crown land. Most of these acquisitions or takings are small, partial takings, only taking a portion of the interest in the land and sometimes the only impact is a temporary loss of use.

• 0950

So it's with that background that I made my submissions to this committee and I won't repeat them. I understand that they've been handed to the committee. What I would do, though, is highlight them briefly.

In paragraph 1 I deal with the legislation. One of the things that I don't think has come out yet in some of the submissions is that it is the prohibition in the statute, the prohibition against destroying critical habitat of a listed or threatened species, that attracts compensation. It's not the so-called regulatory restrictions; it's the prohibition.

In paragraphs 2, 3, and 4, I deal with what constitutes an expropriation. It has been defined by our Supreme Court of Canada. It does not always involve the taking of land or even of all of the interests in a portion of land. But it always involves the taking of some interest in land.

If you have expropriation and where expropriation is in place, generally speaking, there's a scheme that I deal with in paragraphs 5, 6, 7, and 8 of my submission. That scheme usually involves a procedure for the expropriation itself, including, usually, a right to question the taking. That would not be a right the landowner would have once, of course, a threatened species or an endangered species was identified. Of course, a landowner would have to accept that.

Secondly, the landowner would have to accept that the prohibition might apply to his land, but he may, if the models elsewhere are followed, have a right to question the taking, in other words, question whether or not the land the people have identified as having critical habitat indeed was the correct land. Do they need to take more or less? Is it required? Will it achieve the objectives of the Species At Risk Act? This is an independent inquiry process that takes place to determine whether or not the expropriation is necessary. The independent inquiry officer simply makes a recommendation. In the end it has to be the minister who decides.

But this independent inquiry process, which we have in Alberta, at least requires the person who is making the decision to be accountable for that decision, if only before an independent inquiry officer who has no more authority than the moral authority to make a recommendation. But it also gives the landowner his day in court.

This process does not have to be elaborate. They take no more than 30 to 90 days in Alberta. They needn't take place if a landowner doesn't question it; it can then be dispensed with. They're not always exercised. In those 20,000 expropriations I talk about there might be a handful of expropriation inquiries in a years. Nor do they need to be expensive. We've kept the cost down. They don't involve lawyers necessarily. They just involve the landowner and the oil company.

If you're going to adopt an expropriation model, there has to be a procedure as well, not only for the taking, but there has to be a procedure for compensation. That procedure involves nothing more than the giving of notice, the provision of some sort of plan to the landowner to show what is being taken, and a description of the interests that are being taken, the taking of possession, or the imposing of the prohibition or the imposing of the restriction.

Then there must be principles of compensation. They are usually set forth in the statute, and they're set forth in my paper.

• 0955

There's also precedent in this country for compensation where no land or interest is taken but where something has the impact of devaluing land. I set forth examples of that in the paper. For example, under the Aeronautics Act, which is a federal piece of legislation, there are procedures to recover compensation for the restrictions that airports put on your land.

I believe the right to claim compensation should be enshrined in the statute or the regulations, but not necessarily the right to compensation. We have a lot of takings in the province of Alberta that attract very little compensation. The landowner, the company, and the municipality know that going in. These don't always have to lead to complicated processes, nor do they always have to lead to costly burdens and costs, in this case on the public purse, for these restrictions.

I don't believe, and I state it in the paper, that this compensation should be limited to extraordinary impacts. One of the successes of our system and the thing that ensures the cooperation of people is that even the little takings get some attention. They don't attract much compensation, but they get some attention. If you have only the cases that involve extraordinary impacts, I can tell you every one of my clients who comes in is going to be one of those with extraordinary impacts.

I take issue with Dr. Pearse in a couple of ways. That's in paragraphs 11 and 12, and I'll be brief on this.

My view is that the availability of adequate compensation is the incentive to cooperate. It's certainly the incentive to cooperate. We have a reasonable cooperation, notwithstanding these 20,000 takings a year, between our energy industries and the rural community of the province of Alberta. The reason for that, among others, is that we have this process in place that provides for compensation. I say that compensation is the incentive to cooperate.

It's not a failure when you have to compensate. Dr. Pearse seems to have an idea that it's a failure when you have to compensate a landowner. No. All that's failed there when you have to have a compensation determination is a failure to agree on what that compensation might be in a voluntary arrangement.

There's a final point I wanted to make, because I don't think it's been made before. It may have been; I haven't read all of the transcripts. Dr. Pearse argues, I think quite properly, that providing compensation to those whose land is simply impacted by a land use restriction ought to be done cautiously because it's unusual—and it is—and because it has implications for municipalities and other levels of government that may wish to impose necessary restrictions on the use of land; i.e., in zoning.

But I would point out that there are federal statutes that do provide for compensation for zoning. I would also point out that where municipalities do that, it's for the purposes of enhancing everybody's land, including the person whose land is zoned. In other words, all our lands are benefited by zoning restrictions, but not all our lands will be benefited by the restrictions that are in the Species at Risk Act.

Thank you very much.

The Chair: Thank you, Mr. O'Ferrall. It was very interesting.

Now we have a good list of interventions, starting with Mr. Forseth,

[Translation]

followed by Mr. Bigras, Mr. Reed, Ms. Carroll, Ms. Scherrer, Mr. Laliberte.

[English]

Mr. Forseth, five minutes, please.

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

Mr. Nightingale, welcome.

You have a lot of experience in developing community connections, developing support from the community for what you want to do. In the future we may have some advocates on one side and theoretically some objectors who feel they want to slow things down in the actions of the act. Then we have most citizens in the middle, who may read something in the newspapers, see a clip on television, and just really wonder what's going on.

• 1000

I wonder if you can give us some advice, in view of your experience of gathering community support. Is there any clause in the bill that needs to be improved to better reconcile perhaps what I'm trying to describe in the future as maybe developing opposing interests? I guess I'm saying that where there's good will, an awful lot can be accomplished, regardless of what the law is or how poor the law is. We know that an awful lot of good is going on out there right now, without an endangered species bill. So we want to look specifically at whether there are any clauses or missing sections that really need to be fixed in order to improve this building of general will so we get something done regardless of what the regulations are.

Mr. John Nightingale: Thank you. I'm neither a lawyer nor a lawmaker. I'm a biologist.

I think there are two observations. One is that in my experience, Canadians believe generally in fairness and openness. So I think the point about the process of scientific evaluation of a species in the first place, the COSEWIC process, needs to be put above reproach. Probably the mechanism for doing that is one of the clauses in the bill to ensure that once scientists have looked at the landscape and said that a species and its habitat are an issue for concern or protection or endangerment, that it's true. I don't think that at the top level anybody's going to disagree with the need for a species at risk act. Where the disagreement always comes is when it's my land that's being restricted. I think issues like compensation are important to address clearly in the act.

It would take a little thought, but the issue of direct public communication, of openness—the appearance of openness, as appearance is often more the problem than true openness.... I'm not sure exactly, without spending a fair bit of time—and I'm certainly willing to do that. I'd be willing to make some suggestions and recommendations around direct public communication between the implementers of the act and the broader Canadian general public.

We're finding that there are advocates and there are people who are more along the lines of teachers and explainers. That's the way our aquarium approaches things. We try to stay away from this is bad and this is good. We try to say to people, well, you actually have a choice here: if we do this set of actions, certain things happen; on the other hand, if we do a different set of actions, there's a different outcome. Once people understand what the trade-offs are, people are very good at weighing the balances.

I think that could be strengthened in the act. I can't suggest to you today, sitting here, the wording or which particular clause, but I know that both our institution and CAZA as a whole.... We talk to around 12 million Canadians a year in our institutions, and we find them all interested in wildlife, in our natural heritage in Canada. So we'd volunteer to do some work if that's the desire of the committee.

Mr. Paul Forseth: Thank you.

I'd like to address a question to Mr. Brian O'Ferrall. Your submission here is certainly one of the best that I've seen. Certainly from our perspective, you've hit on the principle we've been trying to go at, that adequate compensation is the incentive to cooperate. That was part of what I was getting at about community cooperation, getting beyond the regulations and the law.

We have received a promise from the minister that the formulas—the devil's in the details—the formulas for regulation or compensation are going to be in the regulations, which will come afterwards. I've advocated to the minister that at least we ought to have some kind of a clear principle in the bill that would give a signal as to what's going to come afterwards. You've hit upon this, that this is somewhat lacking. I wonder if you could just expand a little bit about how perhaps the bill could outline a direction and theme for the regulations that will come later.

• 1005

Mr. Brian O'Ferrall: Well, when I first started doing expropriation work, a lot of the federal pipelines were taken under the Railway Act, and the Railway Act had a very simple scheme for compensation: it said that if there was an expropriation under the Railway Act, the compensation would be “fair and reasonable” to the landowner. On the basis of just that short phrase, “fair and reasonable”, jurisprudence developed where I think that compensation to the landowner was indeed.... In any given case we always complain: if I'm the landowner, I never got enough, and if I'm the company or the taker, I paid too much.

You don't need much in the legislation, other than not to put in the legislation—of course the politicians may have decided otherwise—not to put in phrases such as “extraordinary impacts”. That's going to be great for us lawyers. We're going to have fun with that one, because we're going to be litigating till we're blue in the face about what is an “extraordinary impact”. Why wouldn't we just get on with the job and say the compensation will be “fair and reasonable”, and then in the regulations other people can assist in putting together the mechanisms that will permit that fair and reasonable compensation to be determined?

Mr. Paul Forseth: Okay. In a summary statement, then, you could say that there was a lot we could learn from the jurisprudence that's already been worked on under general compensation expropriation law, and that perhaps some kind of phrase in reference to that jurisprudence would be helpful in the bill, as far as the principle.

Mr. Brian O'Ferrall: Yes. There are two ways you can go. You can have this Railway Act sort of approach, that the compensation shall be “fair and reasonable”, as we used to have in the old days, or you can have what a lot of expropriation statutes have, a recipe for compensation: “The board shall consider market value of land, disturbance damages, injurious effects, businesses losses” and all of that. You can provide a recipe, or you can just say the compensation will be fair and reasonable.

Maybe I'm getting a little long in the tooth, but I prefer the “fair and reasonable”, because it allows for flexibility over time, changes of circumstances, changes of conditions. And nobody can have any doubt about what was intended when you say that the compensation to the landowner who suffers losses as a result of the imposition of a prohibition will get fair and reasonable compensation.

[Translation]

The Chair: Mr. Bigras, you have five minutes.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Thank you, Mr. Chairman. Thank you all for coming here before the committee.

I would like to go back to what Ms. Cleverley said. Mr. Chairman, I would say that Ms. Cleverley brought us back to common sense. This is a debate we often have. We had a debate under the review of the Canadian Environmental Protection Act, the CEPA. Ms. Cleverley told us that we can have the best legislation, what is important is its implementation. Mr. Chairman, a good indicator is in the budget that a government decides to allocate to the protection of the environment.

As we all know, and I sincerely believe this, a good part of conservation is in the work that voluntary organizations such as yours and the NGO are really doing in the field, We know that Minister Martin announced in his budget for the year 2000, $90 million over three years in order to protect threatened species. My question is as follows. Do you think that under the announcements and under the present budget, with the funds which have been allocated up to now, and based on the implementation of the legislation before us, we could have an adequate, optimum and serious protection of threatened species within the present wording of this bill? So, do you think that the funding is adequate and that we are going to have an optimum implementation of the act? Now, my question is addressed to all the witnesses.

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[English]

Ms. Phoebe Cleverley: I'm afraid that because there have been such severe cutbacks in the past, both federal and provincial, in the environment field, we are not just proceeding, but we are catching up on what has been cut back. I'm not a financial expert by any means, but it sounds to me pretty niggardly, and we need to give this a higher priority. I would like to see the cabinet and the finance minister give this a higher priority.

[Translation]

Mr. Bernard Bigras: That is all, Mr. Chairman. If anyone could answer...

[English]

The Chair: Is there anyone else who wishes to comment?

Mr. John Nightingale: I agree. I think that ultimately, it's going to take more money than is now allocated. The simple administration of the Endangered Species Act, outside any state or compensation issues at all in the U.S., is over $120 million a year. We certainly don't need to spend that much money, nor should we, with the more common-sense approach embodied in Bill C-5, but I do think it's going to take more funding than has been allocated so far.

The Chair: Is there any further comment?

[Translation]

Thank you, Mr. Bigras.

[English]

Mr. Reed, for the next five minutes.

Mr. Julian Reed (Halton, Lib.): Thanks, Mr. Chairman.

Mr. Nightingale, you're proposing some changes to this bill, and I think nearly all the witnesses who have been before us over these weeks have proposed alterations to the bill to suit particular interests. I wonder if you would mind commenting on the general tone of the bill and how you feel about its presentation to this point overall. In the end it's not going to be perfect for everybody, but we have to make an attempt to bring in certain fundamentals. One of them is raising national consciousness over the need for the protection of endangered species. How do you feel about it generally?

Mr. John Nightingale: In general, I think we ought to pass this bill tomorrow. It isn't perfect. We will need to change it as we go forward and learn through its implementation over the next four or five years, but it's a good framework. It's a common-sense framework, in my opinion. As I said, this committee could work on it for the next two years and it still wouldn't be perfect, because we're never going to get to perfect. The bill provides the framework for a lot of people across Canada, from business, from NGOs, from government, to work together. I think that's its strength. If we're going to have success in Canada, it is going to be through building a common body, a common public will to work together, so that many of the shortcomings in the bill can be remedied by increased public will.

I'm not entirely sold on the argument that compensation is the only motivator. I think the Canadian public has said very clearly that none of us wants written on their tombstone “We screwed up Canada for the future”. There is that motivator in there as well. Of course, the devil is in the details, it does come down to issues like compensation, but the framework of the bill is a good one, particularly compared with the much more prescriptive Endangered Species Act. I didn't see us changing the Constitution in this bill, so we can't have a U.S.-style act even if we wanted one. We have politicians at the head of each ministry or department, so things do stand the political test right at the beginning in Canada, as opposed to the sort of circular system in the U.S.

• 1015

I think the framework is a good one, and it gives us the framework we can work with.

Mr. Julian Reed: Thank you very much.

Ms. Cleverley, you are representing a section of urban Canada, and one of the areas of consciousness or responsibility has to be urban Canada. It has concerned me greatly, because there seems to be a perception somehow that species are out there somewhere, on the land. They're either grizzly bears or they're spotted owls or something else. But in fact, more than half of the endangered species are aquatic, and every time you flush a toilet, you contribute to the degradation of Lake Ontario, if you live in metropolitan Toronto. So how can you help us bring the message to urban Canada that they have a responsibility, the politicians, the municipalities, and so on, when they make decisions about increasing the amount of sewage effluent that goes into the lake—or whatever goes into the sewers? They are contributing to those many species that are at risk in the lake. How do we get that message to urban Canadians?

Ms. Phoebe Cleverley: In Toronto there are many organizations working towards this, and they are very active in educating the public. I came back to Toronto from Vancouver in 1988, and I would say that in those 13 years there's been a huge development in both non-governmental organizations and such things as the works department, the parks department, etc. My experience is pretty well limited to the city and its environs.

For instance, there is an excellent brochure on cutting down water consumption, using less water, and draining the downpipe into the ground, instead of shushing it off into the rivers. There is a very active educational program going on, and they're working terribly hard on the sewers—I know because they're always digging up the roads—and they are trying to improve matters. There is good planning, there are good educational services. I don't know whether there's anything in this act that can cover that; I don't think this is what this act is doing. But people are becoming more conscious, and I could name you probably ten organizations on my fingers that are working towards this. We even have a tree advocate on the Toronto council.

Mr. Julian Reed: I live in one of these hyper-growth areas at the moment, where subdivisions are going in one after the other. If I'm away for three days, the landscape has changed. Yet there is no conscious push to change the way we demand water, the way we utilize water, the way we get rid of waste, and so on. There's been no change. The engineering today is the same as it was 30 years ago. The only change in new subdivisions has been putting collection ponds in for run-off, to supposedly recharge the groundwater. But that's all. And there are thousands of homes—I'm taking about the riding I serve.

Ms. Phoebe Cleverley: Which is?

Mr. Julian Reed: Halton. I've met with my municipal people on this subject, but I don't know how to motivate that change. I think it has to come from citizens.

Ms. Phoebe Cleverley: I don't think I can solve that problem for you. There certainly is a huge groundswell of public support for environmental protection—witness Richmond Hill and the Oakridges moraine and the huge support that has come through there. There is an active South Peel naturalist organization. I'm not sure just what would be active in Halton. I know that Oakville has people who are active in the environmental movement. As far as the developers go, most of them are not on side with these conservation measures.

• 1020

I don't know that it's particularly relevant at the moment to continue this line of thought, but I'd be happy to talk with you afterwards. It all impacts the environment, of course, and it's all one piece, but I think what we're discussing here is this bill and what it can do. If it's specified that this is habitat, then we could get some support for your protection from development.

Mr. Julian Reed: Thanks.

The Chair: Thank you, Mr. Reed.

Next is Madam Carroll, followed by Madam Scherrer, Mr. Laliberte, and Madam Kraft Sloan.

Ms. Aileen Carroll: Thank you, Mr. Chair.

I would like to address my question to Mr. O'Ferrall. I'll try to put forward my concerns as concisely as possible. Mr. O'Ferrall, because you practise law and because your specialty is expropriation law, in which you have considerable experience, I have some concern that you are predisposed to consider compensation as has been provided for in SARA within that framework. Frequently, it's difficult to pull ourselves out of what we do everyday and to see the macro. But if ever there was an onus on the part of any profession to see the macro, it is on us as public policy-makers, particularly at the federal level.

My concern is that in dealing with stewardship and what is intended in this bill to trigger cooperation on the part of Canadians to participate in recovery strategies, I sense, sir, even in reading carefully what you've written, that you are scooping that up into your experiential base of compensation. I have a concern about that. That is not to indicate on my part a bias against the legal mind, insofar as I sleep with one lawyer and have mothered another. I would like you to comment on whether or not you are seeing all of what has been brought forward in this bill under stewardship and the areas for cooperation as I've defined them.

As has been mentioned by other witnesses today, I think that in enacting legislation we have to understand the great need to have the citizens of this country participate on a voluntary level with a comprehension of the stewardship needs for all of us as we try to move along and reclaim the ecology we have damaged.

I fear that very strict legalistic approach you bring. I brought that point up with the representatives of the Federation of Canadian Municipalities, who said to us, we want fair market value for every bit of encroachment this bill may be perceived to entail. As a former municipal politician, I think of all of the things I did with regard to land use planning that did not encompass any compensation for the citizens of my city, nor was there any thought on their part that we should give compensation. We were acting in the public interest in conjunction with them. So I have a concern there.

I'd like you to respond to me. If I have time, I would very much like to speak with you about what I think is the precedent in common law for dealing with compensation or not. Thank you.

Mr. Brian O'Ferrall: The bill says that the minister may provide for compensation. After reading that I said, what models for compensation could we use? If your husband and your son are lawyers, another model might be the—

Ms. Aileen Carroll: It's my daughter.

Mr. Brian O'Ferrall: I'm sorry. I have three and I'm going to be in trouble.

We could take a tortious model for compensation, the kinds of compensation the courts award in automobile crashes. The other approach we could take is the conservancy approach, which is taken in some other pieces of legislation. If you're talking compensation, the models for compensation are limited. They're either what the courts do, the tortious contractual breach type of compensation, or the compensation that might be available in environmental conservancy legislation, where there might be some analogies.

• 1025

The only other model of compensation I can think of, which we use to some extent and which municipalities are going to be able to use under this new brownfield legislation in Ontario, is where you provide tax incentives and tax relief. I'm talking about contaminated properties, but that's the model. You provide limitations on liability. You provide something instead. But it all boils down to if you're asking somebody, that is, the landowner, to bear a disproportionate share of the burden of this legislation, assuming it is a burden, then he ought to be compensated. It may be that he's not. In other words, I'm not sure that every restriction you place on land is going to attract compensation.

Sorry, I was a little long-winded.

Ms. Aileen Carroll: No, that's good. I was, too, because sometimes you need to introduce your point of departure.

Do I have any more time?

The Chair: Yes.

Ms. Aileen Carroll: I'm going to leave both of us on the record for that.

I think you're coming from a very narrow perspective. You say that adequate compensation as the incentive to cooperate means we cannot expect any landowner to participate in recovery strategies, and that landowners are not interested in the stewardship funding but only in compensation. think I have a more optimistic view.

I wanted to bring your attention to someone else's writing.

Implicit in the common laws response to environmental problems, is the principle that private property rights should be unrestrained by government, provided that their exercise does not cause injury to one's neighbour. ...the philosophy of private property rights does not address the realities of ecological interactions. The common law provided little guidance for addressing the aesthetic blight brought on by increasing urban populations, the threats to health and safety caused by toxic chemicals and substances, and the damage caused to our lands, rivers and streams through unsound soil management and forestry practices.

I'm going to ask you as a lawyer to consider a precedent and just see where I'm coming from. The philosophy here is reflected in a case in British Columbia of recent date.

The B.C. government had denied a permit to the plaintiff to develop its mineral claims in Strathcona Recreational Area, a park in the Clayoquot Sound region of Vancouver Island. In holding that the denial of the permit amounted to an expropriation of the plaintiff's property rights requiring the payment of compensation, Southin. J.A. stated, “With the rights and wrongs, in a moral sense, of the decision not to permit the development of lands within the Park, we have, as judges, no proper concern.”

I'd ask you to comment on that.

Mr. Brian O'Ferrall: There are a couple of things. One is in terms of how best to protect the environment. Long before the NGOs ever came along; long before the Environmental Law Centre, of which I was a member, came along; and long before the Pembina Institute came along, do you know who was protecting the environment in the province of Alberta against the oil industry and other industries? It was the landowner, and it was his private property rights that he invoked to protect the environment. However, we have moved on from that position.

Nobody is entitled to a permit. Let's say Mr. Kure is the owner of the land. As a municipal councillor, after all of your hearings and zonings and all of that, you now give him the right to do something with his land. This is what the municipality has done without compensating, and I take your point about zoning and all of that—

Ms. Aileen Carroll: For his use with no compensation.

Mr. Brian O'Ferrall: That's right. But now you've restricted his use and you've said that one of the things he can do is farm that land. Then along comes the Species at Risk Act, and it says he can't farm that land. You've already given him the permit. You've zoned his land and you've said that he could farm it because you've zoned it agriculture. Then you came along with a Species at Risk Act and said, now you can't farm it because to farm it would be to destroy or endanger critical habitat.

• 1030

Now you need to compensate him, as opposed to the people who want to mine out on Clayoquot Sound. They need a permit to mine. They don't have a permit. The authorities or the politicians, whoever it was, denied the permit. There's no remedy. But once you've given the man his permit, and then you take it away with a piece of legislation like this, I say compensation detracts.

The Chair: Thank you. On to our second round, if we have the time.

[Translation]

Ms. Scherrer, please.

Ms. Hélène Scherrer (Louis-Hébert, Lib.): First I am going to address myself to Mr. Nightingale. I must say that I share your philosophy that it would be better to invest much more in promotion and information to ensure that species at risk are well respected. I do not believe, and you probably do not either, that some people, Canadian people, are going to start attacking viciously those species. Those who are doing it now would probably do it anyway, even if a legislation was there. I think those people are a little marginal anyway.

I continue to think that we should also put huge amounts of money in public information and promotion, but I am still convinced - and you probably are too - that it takes anyway a certain framework to enable us for example to make a list and to put in place some measures and a methodology to ensure that we protect and that we reinvest in species which are at risk now.

My question arises mainly from one thing you said at the very beginning of your presentation. You were saying that it was very important to have a selection committee for the list which is open because you had knowledge that within that committee for example, there are people which were not—this is what you seemed to be saying—quite honest in their approach. First I would like you to elaborate a little bit on this. How comes in the first place that you think those people were not quite honest and secondly, how do you see an open selection process of the members who are going to make that selection?

[English]

Mr. John Nightingale: I don't know if I can exactly recommend a selection process structure this morning. But I do believe it was one of the reasons leading us to recommend almost a separate office, or at least the consideration of such a recommendation.

What happens of course is that, as someone said earlier, we're all biased. We all bring our own jobs, our own views, to anything we do. So if you represent a federal department, or a provincial department, or a trade association, and you come to a COSEWIC meeting where a particular species or habitat is being discussed, you're very likely to bring your biases with you.

Now they may only be that. They may simply be accidental biases, or you may have been told by your boss the position you should be taking or what you should be doing. This is what we'd like to try to eliminate. The core of a consideration should be open, above board, fair, and accurate, because if the basic output of a COSEWIC committee can't be trusted, the whole remainder of the act is questionable.

So establishing...in the case of one of the committees I know the chairman was the issue. The chairman essentially did not retain control of the committee meeting. It got out of control in terms of the undue influence of one or two different people who hijacked the agenda of the discussion. It might even be best if those chairs weren't biologists, because good chairs chairing meetings they know something about can often be fairer, keeping control of the process and keeping undue influence out of it.

It is worth looking at the exact structure of COSEWIC itself, how it and its subcommittees are formed, and how much this structure is enshrined in the act as either principle or detail and how much is regulatory and put forward. So between now and the time when you actually propose amendments and mark up the bill, it's worth having some really focused discussions about the best way to keep the very root of this whole process above reproach.

• 1035

[Translation]

Ms. Hélène Scherrer: Mr. O'Ferrall, I have a short question for you. One of the criticisms which were made by some witnesses in previous presentations was that the number of players, the provincial ministers, the different departments, all kinds of players, would make the implementation of such a legislation terribly complicated.

When you talk to us about compensation this morning you add even more players. I would like you to react at large to the following: do you believe that this legislation, as it is now, will be easily workable, especially as far as compensation is concerned?

[English]

Mr. Brian O'Ferrall: It's an ambitious piece of legislation. I was interested in Mr. Nightingale's comments, because not only is it interesting, but it's also a huge piece of legislation involving a great deal of consultation with a great many people: aboriginals; local governments; territorial governments; land owners; even, and of course obviously, the scientists who truly can advise us about where to focus our concern. It is complicated.

Again—and I confess my bias, I have this expropriation background—we have similar circumstances in Alberta. For example, when we propose major mines and things such as these, we have the federal government there. I did an irrigation project in southern Alberta recently: I had the federal government there in the fisheries department; I had the navigable waters people; I had the federal and municipal Departments of the Environment; I had aboriginals. But if you get some sort of a committee or hearing or tribunal—something on an appointed date with preparation time and notice given and all of that—where people come in and give their evidence in a process not unlike that of this committee, if you appoint the right people, you can eventually come to the right decisions.

I complain every time I go in front of one of these tribunals. I come out the day after, when I've either lost or won, elated or dejected, thinking the tribunal doesn't have a brain in its head. But the one thing I have noticed over time is that when I look back at the decisions made by tribunals, I say “By God, probably the best decision was made, weighing everything in.” The tribunal wasn't listening to me that day, but I'm only a mere lawyer advocating on behalf of one client.

So it can be done, but it's ambitious and it's going to be complicated, I agree.

The Chair: Merci.

Mr. Laliberte, followed by Madam Kraft Sloan and the Chair.

Mr. Rick Laliberte (Churchill River, Lib.): Thank you, Mr. Chair.

The opening statements by Mr. Nightingale have set the tone. On the third point you raised about creating an office of sustainable development or conservation, if you look at the act...I go back to a section that seems to have a very important role, but it's not expounded upon. It's subclause 7(1), the Canadian Endangered Species Conservation Council. Everyone focuses on COSEWIC, with the listing, and the scientific, aboriginal, and ecological knowledge—and that's fine. But the role of the Endangered Species Conservation Council is “to provide general direction on the activities of COSEWIC, the preparation of recovery strategies and the preparation and implementation of action plans”. That's everything—everything in this act falls under this council and no one seems to focus on it.

We need a definition of “competent minister”. We have competent ministers: for the Minister of Canadian Heritage it's parks; for the Minister of Fisheries and Oceans it's aquatic life; the Minister of the Environment is responsible for anything falling between the cracks. We need leadership here. We need one focal point, one agency. You've given this committee a challenge.

The landowner issue you raised is going to be a major one in the future. Let's be cognizant of defensive driving—keeping our ears and eyes open—as we move this vehicle forward, as opposed to simply driving it offensively into the future. Let's have someone who will have the mind to take this vehicle and drive it into the future.

Right now we're trying to create a vehicle with no driver. We have three drivers who will be bickering and fighting over the issues. And there's also one minister missing—the Indian and Northern Affairs minister—who has huge responsibilities in the territorial governments, plus on reserves. This fourth minister should be involved.

• 1040

But they should be all in the back seat. Someone should be on their own in the front seat driving us into the future.

Perhaps you could comment on this.

Mr. John Nightingale: It's part of engaging and empowering the Canadian public. It's across all political parties: no political party wants to see our natural heritage run into the ground, wants to see species go extinct. If you create it almost as an office or a commission—and I'm not an expert in governmental organization—

Mr. Rick Laliberte: Neither am I.

Mr. John Nightingale: —there has to be a mechanism for doing this that signals to the Canadian public the importance of this issue, an issue of such importance that it's being watched over by all of Parliament, not just by the particular government of the day or by two or three ministers.

So you start this signal at the top, from Parliament, saying this is a vital issue for the whole country. We're going to watch this council. We're going to have it report back to us yearly. We have set up a clear authority—it may be a council with governance or advisory groups, whatever mechanism works best.

How do we structure it and signal with it that we give weight to these issues. Also, frankly, if we're going to have a political debate about a particular recovery plan or issue, then let's have it. Let's get it out on the table, have the political debate, the trade-offs, the compensation, what it does for the country, what the local impact is. Let's get on with it, as opposed to what often happens in the U.S., where it disappears into the bureaucracy and into the courts forever, and ultimately it is a political decision that may remain unmade until the next election.

Mr. Rick Laliberte: Well, interestingly enough, I read an article on the plane last night on how the evaluations or assessments of our cottage properties are going sky-high because of international interests on some of our pristine properties on lakeshores and beachfronts.

Now you have to take the national view. You're going to have regional, provincial, territorial, and corporate interests, all bringing different values to these interests. You have to have a national perspective. You have to be equal and fair, and the Canadian council in subclause 7(1) has to be.... That's the working model. That's the one with the brains to take this act into the future.

All these other issues are fine, but each issue is going to be unique and extraordinary, and someone is going to have to filter them through and be fair-minded through it all. If you pop it on different ministries, because of different species, and then different political regimes at different times of our political history, it's going to be all over the place. And five years of review is going to be a big task at hand. The council should be organic and able to go with the flow of the developments in protecting our species.

Mr. John Nightingale: I agree.

The Chair: Thank you.

You agree, Mr. Nightingale.

Mr. John Nightingale: I do.

The Chair: Thank you.

Madam Kraft Sloan, please.

Mrs. Karen Kraft Sloan: Thank you, Mr. Chair.

I would like to address my questions to Ms. Cleverley and Mr. Nightingale. Both of you are very supportive of the legislation as it is currently drafted, and certainly you've brought some of your concerns forward as well.

I wanted to take a look at the area of mandatory critical habitat protection. Dr. David Schindler, an eminent Canadian ecologist, has referred to Bill C-5 as a “Novocaine bill”. One reason he calls it this is because, in the previous legislation, it was mandatory to protect critical habitat under federal jurisdiction. In this legislation, habitat protection is not mandatory, it's discretionary, and I wonder what your thoughts might be on this.

Mr. John Nightingale: Oh boy. Habitat is the root of protecting a species. Without question, you can't protect a species unless you protect its home, where it breeds, where it feeds, its social interactions, and its migratory pathways.

• 1045

There are probably two ways of protecting habitat. One is the way the U.S. act does, which is very prescriptive. Of course, the U.S. act applies first and foremost to U.S. federal property, which is a much greater proportion of the country than Canadian federal property. It governs directly the action of federal departments and their ability to impact or take habitat, or alter habitat, before it gets into private land holdings. We have a relatively smaller amount of that kind of federal action in Canada compared to, say, the provincial action.

I can't see a way, without creating a gazillion dollars worth of work for every lawyer in Canada, to actually lay out a formula for mandatory habitat protection, except to say in the bill that a principle is that habitat will be protected.

The other way to do it is if, on a case-by-case basis, you explain to people that if we want to keep Oregon spotted frogs, or whatever the particular species is; here is what needs to happen in terms of habitat, and the public will create the essence of mandatory habitat protection.

The onus is on building a case and communicating the case for a particular species. In doing so, of course, you trigger all the arguments, that if we do that we'll lose jobs, or we'll lose development, and of course the debate will rage back and forth and settle out somewhere.

Whether a council, a commission, or a hearing body ultimately hears that, as long as it's an open and transparent process and you put it to local people, or on a national scale, if we're going to keep this species we have to protect that habitat, it becomes a choice, and the decision will centre out where it should be.

I just can't see a way to do it prescriptively in Canada, point by point, in an act where you can call out the exact kinds of habitat protection that will occur under certain instances.

Mrs. Karen Kraft Sloan: I guess the point is that there is a recovery planning process, and that's where you get into the identification of things that have to be done. When the previous act, Bill C-65, came out of committee and went into Parliament at report stage, it had a section that said critical habitat protection on federal lands was mandatory. We also have provincial legislation in this country.

Across this country, 79% of Canadians say that mandatory habitat protection is an essential ingredient. Countless witnesses, scientists, and conservationists, as well as people from industry, have said that critical habitat protection, at a very minimum on federal lands, is essential to having a decent piece of legislation; and 74% of Canadians in rural communities support mandatory habitat protection.

Mr. John Nightingale: On the principle level, I agree with you completely, I think you have to protect habitat. If the bill can establish that principle, so the details are developed through a regulatory framework that can change over time, with the application of a body of jurisprudence that will evolve on the issue, that's terrific. I'm basically agreeing with you.

Mrs. Karen Kraft Sloan: We're not differing; you're just expressing yourself a little differently.

Mr. John Nightingale: If it comes down to that particular point being a deal breaker, in terms of whether the bill is passed or not, I'd take it the way it is rather than have no bill at all. But I would much rather see stronger habitat protection enshrined.

Mrs. Karen Kraft Sloan: Thank you.

Ms. Cleverley, do you have some comments?

Ms. Phoebe Cleverley: I wouldn't be true to my confrere if I didn't agree with him on that. I have a bias toward doing it in a cooperative, open, and fair manner, as Mr. Nightingale has also said. But certainly the preponderance of opinion among people who are out in the field is that we need to have mandatory protection for habitat. It needs to be worked out, and I think it's very important to get this bill into effect. I would give support to the protection of habitat being mandatory.

• 1050

Mrs. Karen Kraft Sloan: Thank you.

Mr. O'Ferrall, I would like to congratulate you for putting your bias out in front there. It's not that we want to get hung up on your bias, but we often have witnesses come forward who aren't so clear about what their backgrounds and intent are. I think your expertise in this area is an important contribution.

I have some areas I would like some clarification on, just so I understand you, as well. In item two in your brief, you say there is a definition of expropriation, as defined by the Supreme Court of Canada. Then in item three you talk about expropriation as being the compulsory acquisition of land, or an interest therein. Is this the definition in the Supreme Court of Canada case, B.C. v. Tener, 1985, or is there another definition?

Mr. Brian O'Ferrall: The Supreme Court of Canada, in the case Ms. Carroll mentioned here, obviously found that there wasn't an expropriation, where there was a denial of a permit or licence. The Supreme Court of Canada, in the Queen and Tener, was careful, in terms of their definition, because they understood that this was a real problem. Essentially, their definition was a wholesale taking.

No title went to the British Columbia government in the Wells Grey Provincial Park expansion, but the mining company that had had a mining claim there since 1937 was told it couldn't mine. That's the distinction. Take the case of the company that was denied a permit on Clayoquot Sound. They're not entitled to the permit—if it's not in the public interest, they ought not to be cutting or mining or whatever the situation might be—but once they get that authority, if the effect of a subsequent statute, like SARA, is to take away that right, there's been an expropriation. I think that's what the Supreme Court in the Queen and Tener essentially holds.

Mrs. Karen Kraft Sloan: But you're talking about a wholesale taking; you're not talking about the limitation or restriction of activity in a certain part of a land area, where they normally would have been able to operate their entire operation.

Mr. Brian O'Ferrall: There was no taking in the Queen and Tener. The company still had the mining right. The problem was that they couldn't exercise it because of the expansion.

Mrs. Karen Kraft Sloan: They couldn't exercise the entire mining right.

Mr. Brian O'Ferrall: That's right.

Mrs. Karen Kraft Sloan: A representative of the Environmental Law Centre came before this committee and expressed some grave concern as to the ambiguous nature of the particular clause referring to compensation in this legislation, with the idea of the kind of impact it may have on future legislation. It's important for us to understand what expropriation means and what restriction means. We're dealing with a bit of a continuum here as well.

So is expropriation any level of restriction, or is there a degree of restriction?

Mr. Brian O'Ferrall: You're not going to get an answer to that question. We've been debating that for all the years I've been practising law. I'll go in and argue that a restriction is so bad that it constitutes an expropriation, and the other side, which is usually a municipality or a governmental authority, will simply say, “We're exercising the rights that were conferred upon us by legislation”.

You're never going to get an answer to that question, but be aware there is a problem there. The significance of the Queen versus Tener, the Casamiro Mines case, and all those cases that have come out of B.C. in recent years is they've gone a lot further toward finding that wholesale—not to use your words, but to use mine—restrictions do constitute an expropriation.

Mrs. Karen Kraft Sloan: Yes. I know a lot of people on this committee wouldn't disagree with you on that, and I think that's the understanding we have to look toward.

Thank you.

The Chair: Thank you, Madam Kraft Sloan.

I have the vague impression that Madam Carroll would like to make a brief intervention. Please keep it short because I would like to ask a question of Mr. O'Ferrall, too.

Please, go ahead.

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Ms. Aileen Carroll: I think that's been a good exchange, just to further define....

I think we see and the legislation views the expropriation as occurring in 0.01% of the cases. It's not seen as something that's going to greatly change the legal landscape of where governments have gone in the past.

The point I was just trying to get to before is that in the latter part of the 20th century governments have moved forward with regulation. But I think it curtails the exercise of private property rights in the interest of society as a whole, and that notwithstanding the regulation on the exercise of private property rights, legislatures and courts have traditionally accepted the premise that the exercise of private property rights in Canada vis-à-vis the United States, where it's completely different, must be constrained for the public good. The concept of the public good means without always paying money, without always having compensation, whether under the ambit of expropriation or otherwise. We have to consider that we all have to invest in the public good and not trigger the jurisprudence or the courts or those kinds of definitions. That's the onus we have to keep in front of us.

But I do thank you. Thank you, Mr. Chair.

The Chair: Could we let Mr. O'Ferrall comment? Briefly, please.

Mr. Brian O'Ferrall: I guess a couple of things I would say is that if it's only 0.1% and you want buy-in—

Ms. Aileen Carroll: [Inaudible—Editor]

Mr. Brian O'Ferrall: No, no, let's assume it's small. I think you might be right. Then surely you want to put those protections in place in order to get buy-in by a huge portion of the population of this country that is living every day on the lands where the habitat exists. In other words, if this is not a big issue, then let's make sure it's handled fairly for those when it does become an issue.

Ms. Aileen Carroll: But I think it's going to be an issue for a very small percentage, and Mr. Kure and his ranch and farm are not going to be impacted. If something occurs with regard to an endangered species in the habitat that is on part of his land, there are many responses available here, working together in stewardship and the money that would be put forward to trigger that, before you get this created image that he's just going to be shut down in his profession. I'm saying I think that is wrong. That spins it out wrong.

Thank you.

The Chair: All right. We can see that this is becoming an interesting exchange more and more. Thank you.

Mr. O'Ferrall, would you like to comment on this? The conclusion that I gather from your paper, which is very concise and very lucid, is that you believe cooperation can only be obtained through compensation, that there is a precondition to obtain cooperation, and that is the question of a monetary settlement that is satisfactory.

Now, the whole act is predicated on a vast array of measures under the general heading of stewardship, which is intended to achieve cooperation, in order to I suspect reduce to a very minimum situations that will require compensation. And this is why I agree with Dr. Pearse, whereas as you don't agree with him in item 11 when he says that “an adequate scheme of compensation will lessen the incentive to cooperate”. Why do you come to that conclusion?

Mr. Brian O'Ferrall: Let me say this. It's concise, and as a result of that you sacrifice words. But adequate compensation is the incentive to cooperate, and it really is, where a particular landowner is being asked to bear an unreasonable or an unfair share. I agree we all have to bear the price of this legislation. But where the landowner is being asked, and you have papers on that, to bear a share over and above what is reasonable in the circumstances, then the availability of adequate compensation, or the ability to seek it even if you don't get it—in other words, even if some tribunal decides you haven't suffered the loss that you say you've suffered—I think is the incentive, because that's human behaviour.

You have to understand I'm not speaking to those stewardship provisions. I'm speaking to the prohibition against destroying critical habitat. If I get that prohibition put against me, the only incentive I now have to cooperate is compensation. Because we've gone past stewardship now, I now have a prohibition against me, or a prohibition against the use of my land, or a prohibition against the destruction of that critical habitat.

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What you have to understand is those who have spoken to you on this issue are speaking to you on a very narrow aspect of the legislation, and that is the aspect of the legislation that says compensation will be available when that prohibition impacts you—and they say in the legislation—extraordinarily.

The Chair: And this is why you are warning us that the use of extraordinary would lead to acrobatic legal exercises, and that it should be replaced by...what did you say?

Mr. Brian O'Ferrall: I think just fair and reasonable compensation.

What we have found in the province of Alberta is we've had trouble with this compensation legislation. It does—what I call—make liars out of farmers, because we set up a bunch of rules that we have to meet in order to get compensation, and so we go in there and we enhance and exaggerate our losses. This legislation invites it. The minute you start talking extraordinary, well, I'll find a way to show you that it's extraordinary.

The Chair: Well, it's a great pity that we have to relinquish the room to our colleagues. I apologize to them for the delay.

On behalf of the members of the committee, to you all, many thanks for a very interesting exchange. We look forward to hearing from you again.

The meeting is adjourned.