ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, May 30, 2001

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[English]

The Vice-Chair (Mrs. Karen Kraft Sloan (York North, Lib.)): I apologize to the witnesses. I was just informed at 3 p.m. that the chair would be unable to attend. He is in the House right now, and unfortunately I was tied up in other business as well, so I apologize for making you wait.

The normal procedure is ten minutes of presentations per witness, and then we'll go to questions from the members.

We'll be going in the order on the agenda, so we'll start with Mr. McGuinness from the Fisheries Council of Canada.

Thank you.

Mr. Patrick McGuinness (Vice-President, Fisheries Council of Canada): Thank you very much, Madam Chair.

The Fisheries Council of Canada is a federation of provincial fisheries associations in Atlantic Canada and Ontario, plus we have direct membership in British Columbia and Nunavut. In addition to that, we have a number of fleets in Atlantic Canada that are members of our association—basically, the deep sea fleets of the groundfish fleet, the shrimp fleet, and the scallop fleet.

I will give just a short overview of our comments and then go into specific paragraphs where we would propose amendments. As an overview, our main message is that the Fisheries Council of Canada supports Bill C-5. Second, we caution the committee not to make any substantive directional changes to the bill.

The bill has been over five years in the making and represents a delicate balance of interests. During the five years, the Fisheries Council has noted a significant evolution of thought and approach to the protection of species at risk. We hope the committee does not ignore these advances and turn the debate to the acrimonious tone that surrounded a previous bill on species at risk, namely Bill C-65.

In our view, the current bill represents two significant advances. It recognizes that Canada is a federation and that a key element to the protection of wildlife is that the various levels of jurisdiction need to be working together, and there needs to be a formal process for that dialogue to emerge. As such, we fully support the creation of the National Accord for the Protection of Species at Risk in Canada and the leadership role given to the new Canadian Endangered Species Conservation Council, comprised of federal, provincial, and territorial ministers responsible for wildlife.

The bill also recognizes that rural and coastal Canadians, as well as resource industries such as fisheries, must be part of the solution. This bill tends to engender a partnership, not an adversarial relationship, with these constituents, so we can support what we have.

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In terms of specific comments, I'll just go through the various items. In subclause 2(1), “Interpretation”, under “habitat”, the definition of fisheries habitat is quite comprehensive. It includes the migration of the species and any other areas on which aquatic species depend directly or indirectly. This recognizes the migratory nature of most aquatic species, both geographically and vertically, through the water column.

I draw that interpretation to your attention because some groups that will come before this committee will call for automatic habitat prohibitions for listing of species as endangered or threatened, but that is really not manageable for aquatic species. Basically, the definition of aquatic includes the whole ocean.

As the bill envisages it, any specific habitat measures should be left to be developed and identified in the ensuing action plan, particularly for fisheries.

The other interpretation I draw your attention to in subclause 2(1) is “residence”. Residence, in terms of a specific dwelling place such as a den, nest or whatever, is fairly appropriate to terrestrial species, but as you can appreciate, in terms of fish and most aquatic species, it is really not applicable. I recognize it is very difficult to develop wording that suits both terrestrial and aquatic species, so in some areas it's very specific to terrestrial. But if you act solely with respect to terrestrial, it has amazing implications on the aquatic area.

On subclause 2(4), with respect to matters pertaining specifically to aquatic species, we recommend that the Governor in Council, on the recommendation of the Minister of Environment, with the concurrence of the Minister of Fisheries and Oceans, make regulations. In other words, we're saying we have a Minister of Fisheries and Oceans, and he should be fully responsible for his mandate, in terms of the conservation of fish resources, including issues with respect to endangered species.

If that's his mandate and there are to be regulations put forward by the Minister of the Environment, it should be done not only through consultations with the Minister of Fisheries and Oceans, but with his concurrence. In other words, if it's to be effective, the Minister of Fisheries and Oceans and his department must be fully committed to any government initiative regarding the fisheries.

Our recommendation is that the wording, “after consultation with” be amended to read “and with the concurrence of the Minister of Fisheries and Oceans regarding aquatic species”.

Our next comment is on paragraph 15(1)(e), the functions of COSEWIC, the Committee on the Status of Endangered Wildlife in Canada. We're suggesting that paragraph 15(1)(e) be deleted. The bottom line is we feel that the functions and mission of COSEWIC are well described in paragraphs (a) through (d) in that subclause. COSEWIC, in our view, has no further advisory or service function beyond those established in paragraphs 15(1)(a) through 15(1)(d). I think you will find that even the chairman of COSEWIC will agree with that.

Basically, paragraph 15(1)(e) takes COSEWIC out of the science realm. It should be a purely science-based operation, and giving it provisions whereby it would provide advice and perform any other functions gives it a tinge of being somewhat politically inspired. It will undermine, to outside viewers, the mandate and focus of the scientific issue.

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Our next comment is on subclause 15(2), where it talks about “the best available information, including scientific knowledge, community knowledge and aboriginal traditional knowledge”. We would like to see “sectoral knowledge” added to that wording.

What we're finding in the fisheries, with the reduction of money for the Department of Fisheries and Oceans science, is that as an industry we are taking on much more of the role of developing scientific information with respect to the marine species. In terms of being able to provide data, sectoral knowledge is very important.

As such, one of our main recommendations is it is important that the marine species subcommittee of COSEWIC develop a mechanism whereby sectoral knowledge, data, or investigations can input into the deliberations, so the final decisions are made on the basis of best information and knowledge.

Our next comment is on the composition and qualifications of the members of COSEWIC, subclauses 16(1) and 16(2). In our view, these provisions represent a significant improvement over the current arrangements, wherein three non-government environmental organizations are given the privilege to appoint members to COSEWIC. It's essential that all constituents, whether they're resource industries, coastal communities, or whatever, are comfortable that COSEWIC is a scientific, non-biased forum.

We're not saying don't appoint individuals from environmental groups, but we're saying it should be done by the minister, through consultation with the federal and provincial ministers, and if that person is from an environmental organization, they should have the scientific credibilities required and not be simply a lobbyist for a particular point of view.

On the listing of wildlife species at risk, in subclause 27(1), it is essential for the continuing support of the Fisheries Council of Canada that the actual listing decision be a Governor in Council decision and not simply a scientific decision based on the population profile of the species.

A listing results in regulatory action that may bring significant economic and social consequences to industries and communities, as well as legal sanctions and penalties and financial and manpower impacts on governments. So in view of these potential consequences, it should be evident that governments should be charged with the responsibility of making these final decisions, not a collection of species experts.

Our next comment is on paragraph 27(2)(b). Here again, where it says, “consult the competent minister or ministers”, we're saying it should read “consult the competent minister or ministers, and have the concurrence of the Minister of Fisheries and Oceans regarding aquatic species”.

On subclause 28(3), on applications for assessment of imminent threat, we have a similar type of comment about adding “with the concurrence of the Minister of Fisheries and Oceans regarding aquatic species”.

Our next comment is on clause 40, the recovery of endangered, threatened, and extirpated species. In terms of the termination of feasibility, our view is that this clause is flawed. Currently, it says that the minister, in preparing the recovery strategy, must determine whether the recovery is technically and biologically feasible. A number of years ago, in the regulatory reform legislation Parliament passed, the government committed itself to a process wherein new proposed regulations must be subjected to a three-pronged analysis; that is, you have to assess the costs and benefits, report on the probable impacts on user groups, and determine whether there are alternatives to regulation.

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So what we'd say is that in clause 40, as is, to imply that that recovery strategy is only subject to technical and biological assessment is misleading. It is misleading because if regulations are in fact going to be proposed in terms of an action plan or whatever, they must go through regulatory review, which requires that three-pronged analysis.

So our recommendation here is that you need additional wording to reflect the requirements of cost-benefit analysis, user-impact assessments, and alternatives to regulations investigations.

Our next comment is with respect to action plans under subclause 49(2). Herein what we're saying again is that the action plans in terms of aquatics and marines have to be with the concurrence of the Minister of Fisheries and Oceans regarding aquatic species, because in fact if there are regulations and so forth they will be undertaken under the Fisheries Act.

Our next comment is on subclause 74(1), which is under “Agreements and Permits”. What we're saying here is that this permitting power...the retention of subclause 74(1) is absolutely essential for the continuing support—

The Vice-Chair (Mrs. Karen Kraft Sloan): It would be extremely helpful if you could make a summary. Thank you very much.

Mr. Patrick McGuinness: Okay.

In terms of paragraphs that are absolutely essential for our support, they are subclause 74(1), paragraph 74(2)(c), clause 75, clause 77, paragraph 83(1)(b), subclause 83(4), 83(5)(g), clause 100, and basically clause 135, the extension. In that sense, one of our major concerns with the species bill was the fact that it would put excessive implications, both manpower and financial, on the Fisheries and Oceans Canada's science resource, which they don't have. They're having a difficult time having to deal with the commercial fishery species and we think this provision of extension in those types of circumstances is very important.

In summary, it's been a long time coming forward with this bill. We've gone through three bills. The Fisheries Council of Canada supports the bill as presented, but we must say there are certain essential elements in that bill that are currently there and that we need for support. We look forward to working with Environment Canada, Fisheries and Oceans Canada, environmental groups, and communities to make it into effective legislation.

Thank you very much.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you very much, Mr. McGuinness.

Next we have Mr. Rideout, who is the president of the Canadian Aquaculture Industry Alliance.

Mr. Rideout, please.

Mr. David Rideout (President, Canadian Aquaculture Industry Alliance): Thank you, Madam Chairman.

The Canadian Aquaculture Industry Alliance is pleased to have this opportunity to provide our comments on Bill C-5, the Species at Risk Act.

This important piece of legislation represents an essential component for ensuring biological diversity in a sustainability agenda for our country.

I would like to first highlight for the committee that the Canadian Aquaculture Industry Alliance is a not-for-profit national industry association headquartered in Ottawa. It represents the interests of Canadian aquaculture operators, feed companies, and suppliers, as well as provincial finfish and shellfish aquaculture associations.

Member associations include the New Brunswick Professional Shellfish Growers, the New Brunswick Salmon Growers Association, the P.E.I. Aquaculture Alliance, the Aquaculture Association of Nova Scotia, the Newfoundland Aquaculture Industry Association, the Aquaculture Association of Canada, the B.C. Shellfish Growers Association, the B.C. Salmon Farmers Association, the Ontario Aquaculture Association, and the Syndicat professionnel de l'Association des Aquaculteurs du Québec.

The Canadian aquaculture industry is a vibrant and exciting industry with current farm-gate value in excess of $600 million, which represents 25% of the landed value of fish in Canada. There are over 14,000 people employed in the industry, including professions such as veterinarians, feed technicians, divers, researchers, vessel operators, and fish husbandry experts. Our industry exists primarily in coastal and rural Canada and it is a major net contributor to the Canadian economy. In recent years we have seen 10% to 20% market growth per year.

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The Canadian Aquaculture Industry Alliance is an association of associations and it is focused on a bottom-up approach. We strive to develop partnerships with decision-makers and to work with all stakeholders to resolve issues. As an example, we have developed, in conjunction with our international partners, principles for cooperation between the North Atlantic salmon farming industry and the North Atlantic Salmon Conservation Organization. This has culminated in the development of a liaison group that has recently concluded international guidelines for codes of containment.

Similarly, we have developed principles for cooperation between the Canadian Aquaculture Industry Alliance and the Atlantic Salmon Federation. The federation made a presentation to this committee on May 16, 2001, and the Canadian Aquaculture Industry Alliance supports many of the recommendations put forward by the federation. There are some areas where we feel additional consideration must be given. In this regard, we look to the scope of the bill and not just to salmon.

We accept the idea of geographically distinct stocks, but we feel it could create difficulties if a clear and concise definition is not provided on what exactly this means. To a scientist on COSEWIC, it may mean one thing, but for a decision-maker or regulatory enforcer, it could mean something quite different. Misinterpretation can lead to ad hoc approaches.

In addition, there's been significant tinkering with wild stocks through extensive enhancement programs. While some enhancement programs have been successful, it could be argued that this approach has not been as successful as envisioned, and indeed may have reduced the robustness of wild stocks.

Some of Canada's past approaches have neglected the risk management framework advocated by the Canadian Aquaculture Industry Alliance, which we are hopeful will be used in the new introductions and transfers code that is being developed for the Canadian Council of Fisheries and Aquaculture Ministers.

We believe there needs to be a clear statement of support for the accountability structure suggested in the draft bill. We firmly believe that while the science associated with the listing of species should be made by an arm's-length body such as COSEWIC, there needs to be public accountability for the final decisions. In this respect, having that decision rest with the Governor in Council is appropriate.

We agree with the Atlantic Salmon Federation that COSEWIC is the appropriate arm's-length body for recommending the listing of species. However, we strongly suggest that when COSEWIC is looking to recommend the listing of a species, consideration be made to bringing additional scientists with expertise on that species into the discussion. The more open and transparent the COSEWIC process, the better chance of public understanding of the recommendation.

Once a recovery action plan is seen to be necessary, it will also be important to include relevant stakeholders and relevant scientists in the recovery plan discussions.

There are several terms that will require definitions so as to remove any uncertainty respecting enforcement of the proposed bill. They are: “kill', “harm”, “harass”, “capture”, and “take an individual” in subclause 32(1); “possess” and “collect” in subclause 32(2); “cost-effective measures” in clause 38; and “technically and biologically feasible” in clause 40.

We believe that the restoration of species at risk requires a holistic approach that recognizes the technologies that currently exist and stimulates a focus on the research necessary to develop new technologies. The draft legislation will require sufficient supporting dollars to effectively implement restoration action plans.

In the aquatic environment, we in the aquaculture industry believe we have been improving effective technologies that can be used to assist the recovery of both finfish and shellfish species. Living gene pools in aquaculture facilities is one technique that the industry is using to assist with Gulf of Maine salmon recovery, for example.

Our industry has learned much about preventative medicine and the use of techniques such as vaccinations. We understand the importance of biosecurity and containing and treating all blood water from our salmon operations, as an example. However, we do not see the same concern respecting other elements of our aquatic environment, specifically, the lack of firm requirements respecting ballast water, the movement of live fish for food, an unregulated aquaria industry, and the allowance of live bait in the recreational fishery are all issues that will require attention if we are to ensure that preventative measures are taken to protect not only threatened stocks but also those stocks that are now seen to be healthy.

Further, our industry is working hard to bring to life a comprehensive aquatic animal health program so that protection already afforded to terrestrial animals, such as we have seen with raccoon rabies, BSE, and hoof-and-mouth disease actions, can also be found in the aquatic environment.

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I would be remiss if I did not highlight our concern with the proposal for an exemption of by-catch from the application of the proposed bill—here I'm referring to the Species at Risk Act guide. The uncontrolled disposal of a by-catch is one of the unknowns that could be a contributing feature to the depletion of inner Bay of Fundy stocks of Atlantic salmon, amongst others. Exempting this important element of the overall management of fishery resources has appeal because of the difficulty to monitor and control by-catch. In our view, this is not an excuse. A significant and well-funded recovery plan will have no effect if the by-catch of species is the culprit.

I had the privilege of attending the national round table on the environment and economy discussion with Minister Martin last week on economic indicators for environmental sustainability. This is an important initiative that is supported by the aquaculture industry. We recognize that the state of our environment, where we operate, is inextricably linked to aquaculture industry performance.

I'd like to end with a compelling point raised by Minister Martin in his speech:

...understanding how ecological functions contribute to economic activity is an essential part of managing responsibly for future generations. Indeed, experience has shown that the failure to properly account for the use of natural capital results more often than not in its being depleted in ways that threaten the sustainability of future growth.

In the aquaculture industry our farmers raise their animals in an aquatic environment, and we understand what effects an unhealthy environment can have on those animals. Failure to properly focus on this results in diminished economic activity in coastal and rural Canada. We clearly understand the importance of protecting the environment for future generations, and that is why implementing an effective Species at Risk Act, with appropriate accountability structures, will move the yardsticks forward for a more sustainable future.

Thank you.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you very much, Mr. Rideout.

Our next witnesses are Louise White and Mark Butler from the Ecology Action Centre.

Ms. White, will you be speaking, or will it be Mr. Butler?

Mr. Mark Butler (Marine Coordinator, Ecology Action Centre): I shall. Thank you. Merci, mesdames et messieurs. Actually, Louise is going to be presenting. Louise is a volunteer, and along with some other volunteers, she has looked at the implications of this act for marine plants, animals, and ecosystems, and for organizations like ourselves and those who make their living off the water.

Ecology Action Centre is 30 years old this year. We have approximately 600 members across Nova Scotia. Committees do much of the work of the Ecology Action Centre, and the goal of the marine issues committee is to promote marine conservation and sustainable ocean-based livelihoods. Many of our members have a science background or have some experience in marine industries. Among the projects we've been engaged in is a salt marsh restoration project, and we organized the first international symposium on deep sea corals. We just recently organized an international workshop on marine invasive species, a topic I see has come up several times already.

I have a general plea before Louise begins. We hope this bill won't tie up me and representatives from other industries in meetings for five years, consume a lot of taxpayers' money, but do little for the leatherback turtle, the right whale, the piping plover, or other species at risk.

I turn it over to Louise.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you, Mr. Butler.

Madam White.

Ms. Louise White (Volunteer, Ecology Action Centre): Our main purpose in being here is to convince the committee to make recommendations that will enhance the ability of Bill C-5, SARA, to protect marine species at risk. We also have grave concerns about more general sections of the proposed bill, but we leave those details to be found in our written brief. I'll start by briefly outlining the context for our approach.

Conservation and marine species present some unique problems that differ from those of terrestrial species. This comes from fundamental differences in types of habitat and how marine ecosystems function. In sheer numbers of species, probably nothing can surpass the terrestrial insects. However, marine habitat harbours more different kinds of species and more species unique to a particular habitat than either terrestrial or freshwater aquatic habitat. Unfortunately, we know very little about this biodiversity. We also know relatively little about the biology and life cycle of most marine species, and even how marine ecosystems function. This lack of knowledge means there is more uncertainty in the conservation and preservation of marine species than there is with most terrestrial species.

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We also doubt the ability of DFO to conserve and protect marine species. Although ocean and fisheries management is DFO's mandate, conservation was part of their approach until the passing of the Oceans Act. Consequently, there's no corporate memory on which that department can draw for marine conservation. Until recently, DFO has primarily focused its research on commercially exploited species and has taken a single species approach to management.

Finally, although many of our recommendations were made from the perspective of protecting marine species, many terrestrial and freshwater aquatic species would benefit from our recommendations as well.

Clause 2 is on definitions. The definition for residences is a critical definition, because protection of residences is one of the two major prohibitions of the act. Although some relatively sedentary marine species may have residences, the majority of free-swimming marine species are unlikely to have a residence as defined in the bill. This means that clause 33 of the bill would not apply to many marine species. We recommend that the definition of residences be modified to include spawning, rearing, and nursery areas for aquatic species, provided they can be defined as a discrete area in time and space.

The intent of the major prohibition against damaging or destroying the residences of species at risk is to protect the physical structures or areas used for breeding or hibernating. However, breeding areas of aquatic species fall within the definition of habitat. Consequently, the breeding habitat of marine species is not protected by prohibition, but must rely on the uncertainties of a recovery plan. By this I mean that habitat can only be protected after being defined as critical in a recovery plan. The definition of habitat should treat terrestrial, marine, and freshwater aquatic species equally. We recommend that the definition of habitat be modified to exclude spawning grounds and rearing or nursery areas for aquatic species, provided, and only provided, they are included in the definition for residences. As well, migratory habitat should be part of the definition of habitat for all species.

The definition for sedentary organisms has an unfortunate reference to harvestable stages. This definition appears to be based upon the species having market potential. The term “harvestable” is not meaningful for a species that's not commercially exploited. We recommend that the phrase “at the harvestable stage” be deleted from subclause 4(2) or that the word “harvestable” be replaced with a biologically meaningful term such as “adult”. In this way all sedentary organisms would have the potential to be protected by SARA.

Although we applaud the inclusion of the multi-species or ecosystem approach in developing the recovery strategy for species at risk, it's not clear under what circumstances these approaches would be considered. The response from Minister Anderson, as quoted in our written brief, was quite different from that of a COSEWIC scientist on what a multispecies or ecosystem approach would be. To avoid confusion, we recommend that the multispecies or ecosystem approach mentioned in subclause 41(3) be defined. The definition must be scientifically based to provide some consistency in how and when it's applied. For example, its use could rely upon recommendations made by COSEWIC.

The proposed act indicates that habitat protection will be discretionary, even within federal jurisdiction. Most marine species inhabit waters that are wholly under federal jurisdiction. We recommend that protection of critical habitat be part of the general prohibitions, clauses 32 and 33 of the bill, or that subclauses 58(1) and (2) be amended to make habitat protection mandatory, at least in areas of federal jurisdiction.

The marine species that are most likely to benefit from habitat protection are the marine invertebrates found at the bottom of the ocean. These, unfortunately, live far from human eyes and they tend to be unknown. An example would be the deep sea coral beds in Canadian waters. Coral species create underwater forests, which are probably important fish habitat. This is similar to corals in subtropical regions of the world. Until recently, the presence of northern coral species was largely unknown to Canadian scientists. But last year, the Ecology Action Centre held the first international symposium on this group of animals.

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We have also documented interviews with Canadian fishermen, indicating that draggers regard corals as nuisances. Some fishermen avoid coral areas, while others purposely clear out large quantities of corals to reduce the chances of getting them in their nets in future. On the other hand, some bottom longline fishermen regard deep-sea corals as important habitats for the fish species they seek.

While habitat protection by way of SARA, or marine protected areas established under the Oceans Act, may benefit sedentary marine invertebrates, for many marine species, other measures to address threats to survival would be more important than habitat protection.

Among the greatest threats are those from the fishing industry. Current fisheries management still focuses primarily on a single-species approach, with no effort made to minimize the impact of fishing activities on non-target species. For example, most fisheries techniques catch unwanted species, and this injured or dead by-catch is discarded. Other methods, such as dragging, destroy sea-floor habitats—the severity of disturbance depends on the bottom type.

We urge that the action plan mentioned in subclause 49(1) be amended to include the threats to species survival identified in the recovery strategy. Currently, the action plan only addresses protection of critical habitat.

Sea turtles provide an excellent example of these threats from the fishing industry. Two species of sea turtles are relatively common in Canada's oceans, the leatherback turtle, which is the largest marine turtle, and the smaller loggerhead. Only the leatherback is listed by COSEWIC, while the U.S. Fish and Wildlife Service lists all sea turtles as endangered. The main cause of injury or mortality to turtles in Canada appears to be encounters with fishing gear and the ingestion of plastics and other marine debris.

Information from the DFO observer program indicates that surface longlining for swordfish and tuna catches the most turtles. Estimates of the total number of turtles caught range from 2,500 per year on up. Although very few turtles are dead when they're hauled back to the boat, their survival after release is not known, and mortality may be as high as 20% or 30%.

We'd like to see measures put in place to reduce the catching of turtles. These could include changes in fishing practices: changing the depth at which gear is set, for example; substituting different gear, such as harpoons; and having seasonal closed areas around identified migration routes and feeding grounds. We support measures that eliminate or significantly reduce by-catch, but still allow fishermen to fish.

Habitat degradation—in the form of contaminants, invasive species, climate change, and physical changes such as sedimentation—most often arises outside a protected habitat, so habitat protection requires some control over preventing activities outside its boundaries. There are provisions for such protection on federal lands in the act, but not for marine regions under federal jurisdiction.

Subclause 59(3) provides for regulations to protect critical habitat and prohibit activities that may adversely affect it. But this only applies to federal lands. We urge that subclause 59(1) be modified so that subclause 59(3) also applies to protection of critical habitat in the exclusive economic zone of Canada and on the continental shelf.

Regarding exceptions to prohibitions, we are very concerned about the granting of permits for activities that can affect species at risk, when the activity is “incidental to the carrying out of the activity”. That's paragraph 74(2)(c). We think it's not appropriate to consider by-catch as “incidental” to fishing activity. There are methods and techniques currently available for minimizing by-catch. If restrictions were put on this type of catch, it would promote the development of less destructive and wasteful fishing methods and practices.

The Vice-Chair (Mrs. Karen Kraft Sloan): If you could summarize in about a minute or so, that would be very helpful. Thank you.

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Ms. Louise White: We recommend that the term “incidental” be properly defined.

Another concern is subclause 83(1), which provides that the act's prohibitions and requirements do not apply to persons engaging in activities considered necessary for the protection of public safety and health and national security. We disagree that this requires a blanket exemption. For example, underwater testing of explosives by the Department of National Defence can negatively impact whales, other marine mammals, and fish, within a wide radius. Negative impacts could be decreased by choosing a time of year when they're not present.

We recommend that the general exceptions in subclause 83(1) be amended at least so that they're limited only to emergency measures. Routine or planned activities should still be subject to an assessment process to consider how to mitigate their impact on species at risk.

We also believe that SARA must support biodiversity initiatives. Many marine species are unknown taxonomically, or there's little information on their biology. These species have little chance of being evaluated under the listing process and consequently are unlikely to be protected under SARA.

A quick example: I'm currently compiling a list of marine fish species—

The Vice-Chair (Mrs. Karen Kraft Sloan): Excuse me, Madam White, you're a little bit over your time.

Ms. Louise White: Can I just finish my sentence?

The Vice-Chair (Mrs. Karen Kraft Sloan): That would be great.

Ms. Louise White: I'm currently compiling a list of marine fish species for the Scotian Shelf. So far my list contains over 500 species, and yet DFO monitors fewer than 200 fish species.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you very much.

Elizabeth May from the Sierra Club of Canada.

Ms. Elizabeth May (Species at Risk Working Group): Thank you, Madam Chair.

I'm presenting today amidst aquaculture, fisheries, and our friends from the Ecology Action Centre. I'll admit right away that my brief is neither fish nor fowl. I plan to speak to some clean-up points. As you may recall, the Species at Risk Working Group presented to the committee on March 29.

I'm picking up on two specific areas of concern of the Species at Risk Working Group. I won't bother reintroducing them to you—I think you're familiar with the industry-environmental collaboration with which the Sierra Club has been working. Just to emphasize again, we are not dropping our other points of concern. We remain concerned about the need to improve habitat protection, about education and public stewardship programs, and about some of the compensation points we support.

We also support the Ecology Action Centre, and our brief had already pointed out the need to tighten exemption provisions. Some of you may not be familiar with the Ecology Action Centre, so permit me to just say that its work in this area has been superb. In particular, its work on B.C. corals has been world-class. It has drawn attention to this important ecosystem, about which very few people were even aware.

The two main points I'll be addressing this afternoon are pretty critical. I'm going to focus on them narrowly, and I'll try not to cover too much too quickly.

We've been concerned about the draft SARA ever since we first saw it in December 1999. A number of constitutional law experts brought to our attention the fact that there were problems with the bill's structure. I want to start by saying very clearly that the federal government has all the jurisdiction it needs to do the job that SARA has set out for itself. I'm not contesting for one minute that the federal government has all the constitutional authority it needs.

The difficulty that was identified for us—and the written brief identifies the constitutional law experts we consulted—is the way the bill approaches the exercise of criminal law powers to protect species at risk. We think this can be fixed fairly simply, and in ways that not only strengthen the bill's constitutionality but improve its impact on conservation, which is foremost in our minds. Let me just quickly explain where the concern lies and how we think we can fix it.

The prohibitions section is perhaps the foundation of the whole act. It's a very good section. As you may remember, the federal government launched into species at risk legislation back in the time of Bill C-65, when the whole question of federal competency in areas of environmental legislation had something of a shadow cast over it by the fact that the Supreme Court of Canada had heard the arguments on the Hydro-Québec case that related to the constitutionality of CEPA, but had not yet adjudicated on those arguments.

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In the fall of 1997, the constitutional issues were resolved by a very clear Supreme Court decision. As you'll recall, it said that the federal government had the criminal law powers to regulate toxic chemicals, as CEPA does. This was very good news for the Species at Risk Act—and it certainly should have given comfort to justice department lawyers—because it gave the federal government the clear authority it needed to legislate across Canada to protect species at risk.

My brief goes into some more history about Bill C-65. Lacking that confidence, the justice department focused on the narrowest possible element of federal jurisdiction: who owns the land. From there, they were prepared to cobble one or two bits onto federal land ownership: fisheries species, migratory birds, and species that crossed international boundaries. But this was as far as they were prepared to go.

So the good news was that by the time SARA was being drafted, there was clear scope for an effective approach to the protection of species at risk. The Supreme Court also gave clear guidance that if you wanted to use criminal law powers to do something in the environmental field, you had to be careful that what you did looked like a general prohibition rather than a regulation.

In our brief we explain the difference. A prohibition is “Thou shalt not do” whatever. A regulation, on the other hand, is “Thou shalt not, except on Tuesdays and Thursdays after six, on weekends and holidays”. Once you start mucking about with a prohibition, it looks more like a regulation.

In our view, a perfect prohibition is found in subclause 32(1):

No person shall kill, harm, harass, capture or take an individual of a wildlife species that is listed as an extirpated species, an endangered species or a threatened species.

Similarly, clause 33 is a clear prohibition—no constitutional problem arises. Unfortunately, then you come to subclause 34(1) and clause 35, which we fear undermine the constitutionality of clauses 32 and 33. By retreating from a full statement of an unimpeded prohibition against the killing, harming, etc., of a species at risk anywhere in Canada, the bill appears to suggest that only areas of federal land ownership, outside territories, aquatic species, or migratory birds are proper areas for federal protection. The prohibitions suddenly shrink to a scope smaller than Bill C-65's, as transboundary species are excluded.

Clause 34 further undermines the prohibition in clause 32 by adding highly discretionary mechanisms in the so-called safety net provisions of subclauses (2) to (4). Having retreated from the normal exercise of federal powers, clause 34 wants to selectively reassert federal power in areas the bill itself suggests may be purely provincial—which I don't believe they are, by the way.

Let me stress again: no other piece of federal legislation has ever been structured in this way. You can look in health, you can look in policing or security or transport; there's never been a prohibition using criminal law powers, which then retreats and reasserts itself selectively.

It's clear that a number of constitutional law scholars disagree. Obviously, the justice department lawyers must believe that the bill is constitutional. Clause 32 is broadly worded, and they may feel the breadth of that section is strong enough to insulate the rest of the convoluted and complex structure, which is so novel and untested. Well, other constitutional experts don't agree with the Department of Justice, and I think it's a matter for the committee to investigate.

Why are subclause 34(1) and clause 35 included at all? This is a critical question. Having said clearly in clause 32 that there's a prohibition against killing, why back off?

We haven't been able to get an answer to this question. But beyond the constitutional effect, the conservation result is absurd. It means that after this bill is passed, the vast majority of species at risk in Canada could be deliberately and wilfully shot without violating the act.

Now, the foundation for everything in the bill is in the scope of the prohibitions, which are terribly hobbled by this strange formulation. Contrast this with other exercises of criminal law power. The Criminal Code operates across Canada without any section that ties itself to operating only on federal land. I'll use section 402 as an example. It makes it an offence to wilfully cause unnecessary pain, suffering or injury to an animal or bird. No jurisdiction has ever complained about its application. It's a normal exercise of criminal law powers.

• 1625

We recognize that in the hierarchy of legal protections for species protecting habitat poses greater constitutional difficulties. The jurisdiction for federal action may exist under peace, order, and good government. Personally, I'd like to believe it would, although some of my other colleagues within SARWG might not. But asserting that power to protect habitat would be a bold move and constitutionally doubtful. SARWG therefore has focused on expanding mandatory habitat protection on federal lands and in areas of federal jurisdiction.

But there is no need for such caution when prohibiting direct killing. There really is no logical explanation for the odd retreat found in clauses 34 and 35. It is not, and I want to stress this, necessary to bolster the safety net. Far more constitutionally sound would be the kind of equivalency agreement approach that is used in CEPA, which has now withstood a test before the Supreme Court of Canada. The federal government could delegate authority over species within a jurisdiction to any province or territory based on equivalency and then reassert federal authority if the provincial or territorial government failed to live up to its obligations under the agreement.

How can we protect species across Canada no matter where they are found? I honestly hope and believe these kinds of changes are possible, and I really urge you and beg you to find a way to look at this. I do believe the minister could agree that this is important. Fortunately, the solution to what I believe is the constitutional and conservation nightmare of the weird scope of Bill C-5 can be resolved very simply. By ensuring the prohibitions apply across Canada, the act is strengthened constitutionally while simultaneously vastly improving the protection of species. Nothing is lost in the scheme of the act. Provincial and territorial jurisdictions are not as politically hostile to extending prohibitions as they are to some other aspects of the act. Many provincial wildlife managers originally told the Species at Risk Working Group that they'd expected the bill to prohibit the direct killing of species after CEPA came out. They were prepared for that. The impacts on a province or territory are minor.

We also know that of course the large and overwhelming reason that species are at risk is not direct killing but loss of habitat. So it might be asked if the main issue is habitat, why bother to prohibit direct, intentional killing if that's not the problem? But the failure to prohibit the direct, intentional killing of a species at risk or the destruction of their residence anywhere in Canada will leave the majority of species outside the protection of the act.

I put forward a future hypothetical that there's a land developer building a mall and they're going to drain a wetland in southern British Columbia, and there is no legislation to protect a species within that. If at least there's a legal prohibition against the killing of that species or destruction of their residence, there's some way that people can go to court and say, look, this act is about to be violated. We have a reason to get an injunction. At least the species are within the act in some way if the prohibitions apply across Canada.

With this one change, the SARA would move substantially toward a national act working to protect species wherever they are found. Without this one change, all your work, and that of the department and so many others, could be for naught, if the Supreme Court of Canada finds the odd structure of the act has undermined its constitutionality. This is a critical central point. I don't think it's come up except incidentally in the testimony of Dale Gibson, which is why I have stressed this so much today.

My last point is very specific. It's a small and narrow point, and I believe departmental officials and people within the system, so called, are really aware that this needs to be changed. But I want to make sure that members of the committee are aware of it. It's an aspect of the previous brief that SARWG has tabled, but we've become aware of more significant implications of the intersection between the Species At Risk Act and the Canadian Environmental Assessment Act. Clause 137 amends the Canadian Environmental Assessment Act definition of environmental effect. We believe their intention was just to include species at risk. Unfortunately, it has the effect of undermining the operations of CEAA and placing species at risk in a very unfortunate position within environmental assessment.

• 1630

If you look at clause 137 and then put it in its proper place within CEAA, you'll find that species at risk are to be considered as part of an environmental effect but only if the environmental effect is indirect. So just to read from CEAA's definition, this is the second level. Environmental effects are generally those broad effects on any part of the environment, but this clause is “any change that the project may cause in the environment, including any effect of any such change”. The jurisprudence that's building up around this language within the definition of environmental effect in CEAA is such that those categories of things found in this amendment, such as socio-economic conditions, physical-cultural heritage, archaeological finds, and then listed wildlife species, are only to be considered in terms of indirect effects the project may have upon them. So you can directly kill them without triggering an environmental assessment of what they're doing.

I think it's a drafting mistake, and our recommendation from the Species at Risk Working Group is that for now clause 137 be deleted and that during the amendment process of CEAA, perhaps with time for a subcommittee of the regulatory advisory committee to the Canadian Environmental Assessment Agency, there might be an opportunity to work on the right way to ensure that SARA is fully integrated into CEAA.

With that, I want to thank you very much.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you very much, Madame May.

It looks as though our witness from the Canadian Council of Professional Fish Harvesters was not able to attend. So we will have as our final witness for this session, from Memorial University, Dr. Montevecchi. I believe we had some discussion about some of your work, Dr. Montevecchi, so your name precedes you. Thank you, and please go ahead.

Professor William A. Montevecchi (Professor, Biopsychology Program, Memorial University of Newfoundland): Thank you very much, Madam Chair, and I thank the committee for the opportunity to be here.

Eugene, I think I'll just do one of those overheads. I'll save one diagram I'd like to show people. I had it in, but I'll wait. Thank you very much. Sorry for that.

I'm a university professor, so I think the kinds of issues I'd like to address besides environmental ones will be about scientific independence and the importance of that in this process for SARA and the importance of scientific independence in general for Canadians.

The Vice-Chair (Mrs. Karen Kraft Sloan): I'm sorry, Dr. Montevecchi, we have a point of order here. I do apologize.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): I apologize to the witnesses. Madam Chair, I'm reading from some of the body language of my colleagues that they may be leaving. Yesterday we had notice of motion for today. Again, I apologize to the witnesses for interrupting. This has nothing to do with what you're saying. But if we're going to lose quorum in a few minutes, I'm wondering if we could deal with the motion from yesterday now.

The Vice-Chair (Mrs. Karen Kraft Sloan): Dr. Montevecchi, you've been waiting to be our last witness, but if you don't mind waiting a few more minutes, because we have a situation where a member is going to have to leave shortly, we'll then go ahead.

Mr. Gar Knutson: I'd like to move that Environment Canada be requested to table before the committee the legal opinion prepared by Justice Canada regarding the constitutional basis for federal species at risk legislation and referred to by Environment Canada officials as the legal advice that was the foundation for Bill C-5, the Species at Risk Act, and its predecessor, Bill C-33, and that the legal opinion be tabled no later than June 15, 2001.

The Vice-Chair (Mrs. Karen Kraft Sloan): And Madame Carroll seconds that.

Madame Redman.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Madam Chair. I wasn't here yesterday when this motion was tabled so I would seek a point of clarification if I could.

The Vice-Chair (Mrs. Karen Kraft Sloan): Sure.

Mrs. Karen Redman: My understanding was that there was interest from this committee, and indeed some willingness on their part, to have the Department of Justice appear as witnesses. I'm wondering why we're having the motion asking for their legal opinion to be tabled as opposed to having real, live bodies here so that we could then enter into a dialogue with them.

The Vice-Chair (Mrs. Karen Kraft Sloan): Mr. Knutson.

Mr. Gar Knutson: As the parliamentary secretary knows, we've asked Environment Canada to waive the conventional so-called client-solicitor privilege. My expectation is that unless it's waived, and it hasn't been, even though a request went in some months ago to Madame Brown of the department, Justice Canada will simply, if we get into specifics, put themselves in the role of the lawyer and they won't speak to us as openly as we might want them to.

• 1635

So the fact that they're coming is, to me, not as significant as the fact that Environment Canada hasn't gotten back to us...Mr. Herron's request that we have a full and open and frank discussion around this.

The Vice-Chair (Mrs. Karen Kraft Sloan): Is there any other discussion?

(Motion agreed to)

The Vice-Chair (Mrs. Karen Kraft Sloan): Go ahead, Dr. Montevecchi.

Prof. William Montevecchi: Thank you, Madam Chair, and thank you, committee, for the opportunity.

I'm a university professor, so the issues I will address with regard to the SARA legislation relate in general to scientific independence and its importance for the SARA legislation and for Canadians in general. I actually picked six issues, but I think I'll just quickly talk about the first three. The six issues are accountability; scientific independence and expertise on COSEWIC; scientific listing of species; mandatory, not discretionary, habitat protection; population process extinctions; and multi-species and ecosystem approaches.

The first three, then, deal primarily with independent scientific input, that this not be impeded. On April 24, Dr. Geoffrey Scudder appeared before the committee and presented information. He tabled a letter from the Atlantic regional director of the Canadian Wildlife Service that disbanded three recovery teams in eastern Canada, that disbanded them without consultation with any non-federal government employees. It disbanded them immediately and it also referred to the appointment of chairs for those committees, that they be from the Canadian Wildlife Service.

On the basis of Dr. Scudder's presentation and a motion from the committee, Minister Anderson answered the next day that this was an inappropriate action and would be dealt with. I want to thank the committee for that but also point out the seriousness of this kind of matter and why we should be so concerned about it. The minister did thank the committee for bringing the matter to his attention. I'd like to just table a letter that I had sent to the minister—I don't know if it ever got here—about three weeks before and that actually brought the matter to his attention. So I would like to table that.

The response I got from Minister Anderson on May 4, and also a subsequent response, which I think has gone a long way to help resolve the immediate issue, from the regional director of Environment Canada in Atlantic Canada, Mr. Bangay, has helped, and has reconstituted the recovery team.

But within the bill in general, I think we really need to look at this under the recovery strategy, clauses 37 to 56. The minister referred to what happened as a technical matter, as not following due process. Unless we have due process in the legislation, I think it could happen again and again. It happens all the time.

As one final point on this particular issue, I think it's telling that it's Dr. Geoffrey Scudder from British Columbia who brought this matter to the committee's attention and not a federal government employee, who, if he or she had wanted to do so, probably wouldn't have been able to. I think that's really very telling. I mean, it has to be a Dr. Geoffrey Scudder, or me, or somebody who is a university professor, or an NGO.

At any rate, I think that says a lot about why we need independent input. What it actually means is that if he had not done that, you simply wouldn't have known about this. You simply would not have known. And you should know. It's the process to protect species in Canada.

With respect to independent scientific representation on COSEWIC, you've heard it before from others, and I would support it, that 50% or more of COSEWIC should be non-government scientists and that scientific expertise be vetted through an independent organization like the Royal Society of Canada. This would be in clause 16 of the bill.

• 1640

That kind of position, that kind of statement, is completely consistent with an Industry Canada publication on the framework of science and technology advice. How do we do that as we proceed with actions from the federal government? It's also consistent with a Royal Society of Canada publication on genetically modified foods and on the importance of having independent scientific input.

Personally, I really can't say too much about this, because I'm convinced it's really a fundamental tenet of our democracy to have independent input, and not necessarily just scientific. I think it's critical, and I think we're really threatened with this all the time.

I know from being here previously, and you know much better than I do, the problems that scientists within Health Canada and DFO have had to independently make statements when they disagree with the position of the minister or of the department.

Perhaps I could show you one diagram, just to make an argument that I think contrasts with the first two presentations today. From this flow chart I want to draw an analogy that points to why scientific listing is so important, although I'm sure I'll flaw some of this argument along the way.

If we consider a health problem, I think we can think of species at risk as an environmental health problem. Were we to put this in the context of water or something like that, how would we go about determining that we have a problem, and who would be responsible for the determinations and the treatment? If we use a model like this, which is sort of a medical model that looks at symptoms, diagnosis, prognosis, treatment plans, assessment, revision of the treatment plan, back to a feedback loop to rediagnose, and hopefully recovery, then I think it's really clear—or at least to me, and I hope you'll agree—that we indicate endangered species through the different symptoms we see in the environment. Those symptoms, be they historic population decline or habitat loss, are essentially scientific assessments, certainly not political assessments. Diagnosis, which in this case with regard to the SARA legislation is simply the status and listing of species, is again solely a scientific exercise.

Were we to put this in the context of water, it wouldn't be a political decision to determine if water was polluted, how water was polluted, and the different types of pollution that might be there. That has to be a decision of health professionals. In the case of endangered species legislation, I think this has to be a decision of biological and ecological professionals.

Again, prognosis and predictions for potential recovery are scientific assessments. But what you'll see loaded in the middle of the diagram, which is really the most important part, is probably the hardest part. I do think it is the hardest part. It's the political part and the treatment plan. That's where decisions have to be made—social decisions, economic decisions, and the really hard things, the really tough compromises that may have to be made, that scientists will make input on but won't have the responsibility to make. I think that really is the political part of the process. Reassessment goes back to science, and again, the treatment plans go back to political decision-makers.

I want to point out, and you're probably aware of this from Stewart Elgie's presentation, that where there has been political listing in the few provincial jurisdictions that have endangered species legislation, they've essentially failed. Nova Scotia actually has mandatory scientific listing based on scientific criteria where mandatory kicks in. So we would hope that the federal legislation would be at least as strong as the provincial.

I could go on about some other environmental issues, but I think I'll just leave it there. Those were the main points I wanted to make about scientific independence. Thank you very much.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you very much, Dr. Montevecchi. That was very helpful.

• 1645

I have on the list Mr. Forseth and Mr. Comartin—and Mr. Caccia, would you like to assume your position in the chair? You're going to have fun on the sidelines today. Very good.

Mr. Charles Caccia (Davenport, Lib.): There's a lot of self-discipline in my five minutes.

The Vice-Chair (Mrs. Karen Kraft Sloan): Maybe what we'll do is limit the chair to three minutes.

Actually, I think we'll give the chair extra minutes, because he never gets the opportunity.

Mr. Forseth, please.

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

There was an interesting observation from the Fisheries Council, which talked about a number of sections in the bill that require the concurrence of the Minister of Fisheries and Oceans rather than just the consultation. I would like that to be expanded upon.

There must be some context behind that and perhaps some experience, and maybe even some scenarios that you could describe to bolster the point that you really feel this is particularly critical.

Mr. Patrick McGuinness: Thank you very much.

Our point is simply that we do have a Minister of Fisheries and Oceans, it's federal land in terms of the definition in this act, and he is in fact responsible for the conservation of the resources, including endangered species, and so forth.

So our comment was simply that, on these issues, the Department of Fisheries, the Minister of Fisheries, is consistently in contact with the industry and with coastal communities, and we feel it would be more effective and efficient if we as an industry and the coastal communities in Atlantic Canada, in British Columbia, and in inland waters can continue that type of dialogue with the minister and get on with focusing with respect to endangered species.

We have already been doing a lot of work in endangered species in the sense of working on terms of recovery plans for the right whales. When the United States identified harbour porpoises as an endangered species, we as an industry and coastal communities in New Brunswick and the environment groups got together and brought forward an action plan, a recovery program. This was before Bill C-65, and in fact it worked quite well.

So all we're concerned about, to a certain extent, is duplications and inefficiencies and the fact that we feel that if in fact we're going to have effective recovery plans and action plans, and these action plans and recovery plans in the legislation that are already going to be given to the Minister of Fisheries and Oceans to implement—if you don't have that up-front concurrence that the listing is appropriate, then you'll have conflicts within the administrations and conflicts between the industry and communities on the listing. So I think it would be much better for basically getting on with the job.

Thank you.

Mr. Paul Forseth: Well, that's a nice answer. Perhaps you're being a little bit gentle. I've certainly heard of things such as raw power. Who gets to finally decide?

There are stories of departmental rivalries, of sub-working groups within various departments and across departments who won't talk to each other. They come from different disciplines, and they actually hate each other and call each other down. They do various things to screw each other up, as far as not getting money and all kinds of other things. So I wonder if you had some of that background to say that we need to have a bill and a law that works, and that we need to have government departments that have expertise, from different traditions and different loyalties, to really work together. The history so far is that a lot of those barriers and fences aren't down; they are still up.

Mr. Patrick McGuinness: One of the other concerns is that COSEWIC is still a rather new group on the block, and we're still not totally confident in terms of their ability to adequately assess species at risk with respect to aquatic species.

• 1650

As the bill rolls out—and to address the point that the bill is subject to review under clause 129 in five years, at this point in time, because of the newness of the bill and because of its potential implication in terms of the impact on coastal communities, and also with respect to the uncertainty about the operation of COSEWIC, particularly with respect to aquatic species, we feel there has to be a particular check and balance in that process. The check and balance in that process would be that any listing would be with the concurrence of the Minister of Fisheries and Oceans.

The Vice-Chair (Mrs. Karen Kraft Sloan): I would encourage other witnesses to respond.

Madame May.

Ms. Elizabeth May: Thank you, Madam Chair.

I think Mr. Forseth's point is well taken. We certainly see examples of interference. I hate to say this, but the Department of Fisheries and Oceans staff have been unhelpful on the species at risk file. I think the decision to continue to postpone the assessment of the northern cod stocks within the COSEWIC process can be laid directly at the door of DFO for blocking that scientific process for a number of years. Had we had the northern cod listed as a vulnerable or threatened species, we would have reached different decisions that could have protected an economic resource as well as an important biological one.

So our recommendation from the Species at Risk Working Group to this very point of having the Minister of Heritage, the Minister of Fisheries, and the Minister of the Environment all co-running the act was to make it more straightforward and work better by having the Minister of the Environment solely responsible under the act—which I know is not the implication of what Mr. McGuinness wanted, but I just raise it again. We would prefer to see this act solely the responsibility of one minister for its swift and sensible application.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you.

Dr. Montevecchi.

Prof. William Montevecchi: I want to concur with Mr. Forseth as well. I have those concerns. I think there's a real paradox that faces us.

We hear so much about Canadian jurisdiction over terrestrial territory being 4% or 5%. In fact, as you know, the jurisdiction over the marine area is 100%, essentially. I think it's a striking paradox that we have less protection in the marine areas than in the terrestrial areas, even though we have complete jurisdiction. That's really telling. I think we have a long way to go, and I think you have to keep asking those questions, for sure.

The Vice-Chair (Mrs. Karen Kraft Sloan): Mr. Butler.

Mr. Mark Butler: I can only speak to our experience with one endangered species, the leatherback turtle. We tried for several years to get data on by-catching by the surface longline fishery. The only way we were finally able to get it was through an access to information request. So we couldn't even get the data from DFO to assess the situation.

A group like the fisheries management branch has a lot of power in DFO. They are very powerful, and we have very little confidence, as Louise said in her brief, that DFO really understands what conservation of endangered species means.

The Vice-Chair (Mrs. Karen Kraft Sloan): Madame White or Mr. Rideout, do you have comments at this time?

Mr. David Rideout: No.

The Vice-Chair (Mrs. Karen Kraft Sloan): Okay, thank you very much.

Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Dr. Montevecchi, can you bring us up to date? Have the three committees gotten back together regarding the recovery plans?

Prof. William Montevecchi: It's my understanding that's the case.

In our particular case, with the harlequin duck, I would note that the minister did write to me after the species was doubly downlisted. So technically we don't need a recovery team any more. I don't know about the timing, but I'm actually grateful for the letter from Mr. Bangay, who is the director of Environment Canada in Atlantic Canada.

I think they've certainly gone a way to correct the situation. But to really correct the situation, it should not happen, and it should be clear where the responsibilities lie for these kinds of things. There's so much grey material outside of the legislation. I find it really comforting to get as much in the legislation as you can.

It's hard to know who's responsible. It's hard to know if this person even had the authority to do what he did. I don't think he did, but it's hard to track it down. Again, I'm grateful for the efforts of this committee, and if this committee hadn't done that, I'm sure that wouldn't have happened.

Mr. Joe Comartin: Do I still have time?

• 1655

Ms. May, on clauses 34 and 35, I'm not clear. Are you suggesting we delete clauses 34 and 35? Do you have, perhaps to save time, a specific proposal as to how we deal with it?

Ms. Elizabeth May: There are a number of ways to improve the bill and improve its constitutionality. Certainly subclause 34(1) should be deleted. It says we don't really believe what we said on having national prohibitions against killing endangered species, extirpated, threatened species, or species at risk.

The subsequent formulation of the safety net could go a couple of different ways. One could be to leave it as is with some wording changes. It would be consistent with the fact that you have prohibited the killing across the country. Leave in place the option for a Minister of Environment to go to Governor in Council to request specific regulations that go into areas of habitat protection and other areas. It would be constitutionally preferable to the way it is now. By merely ensuring the prohibitions apply nationally, you've removed one of the arguments that will be used against you in the Supreme Court of Canada. By saying you haven't really protected species across Canada, it's not a true prohibition.

Safer, from a constitutional point of view, would be to repeat something we've done before, which is to use equivalency agreements. It's very consistent with the rest of the bill and the reliance on the council of ministers. It's a consistent approach and it also relies on cooperation. Each agreement with each province is voluntarily entered into and negotiated. Everyone is clear about what's going on. It would be safer constitutionally.

If you wanted to tinker with the bill in the least amount possible, get rid of subclauses 34(1) and 35(1). Find ways to make the subsequent involvement of Governor in Council with the minister and all the discretionary operation consistent with full prohibitions.

Mr. Joe Comartin: I have one more comment, Mr. Butler. Peter Stoffer told me to say hi.

That's all, Madam Chair. Thank you.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you, Mr. Comartin.

Next is our honourable chair, Mr. Caccia.

I'm sorry, there's another comment. I apologize. Mr. McGuinness.

Mr. Patrick McGuinness: I wanted to comment on Elizabeth's suggestions with respect to clauses 33 and 35. Her suggestions are not a problem for the fisheries industry because we are a federal land.... We'd have no problem with what she's proposing.

I think it has to be said in context. Bill C-33 is dramatically different from Bill C-65. There's a reason for that, and the reason was in my opening. The magic about Bill C-33 is it's trying to build partnerships—partnerships with provinces, industry, and NGOs.

There's an important type of development that happened between Bill C-65 and the current bill. It was the national accord. The national accord brought together federal, provincial, and territorial ministers who would work in concert to bring about an effective species at risk system in Canada. Each jurisdiction undertook to look at the situation and identify gaps in their particular legislation. As a result, your Minister of Environment looks at the federal landscape and finds there's a gap. The gaps are being filled by Bill C-33. The gap is you have a responsibility, in terms of introducing these pieces of legislation, with respect to where you have jurisdiction, just as Alberta and British Columbia, under the national accord, will have obligations to mirror the “thou shalt not kill” type of provision.

I think it is a bit misleading to say, because of these qualifications, there is by definition a gap. By definition, the gap has to be closed through the national accord.

As I said in my opening, let's not bring us back to the acrimonious debates that surrounded Bill C-65. Let's recognize we are a federation. Coastal Canadians and resource industries are part of the solution. We're not part of the problem. To try to bring in these draconian, if you will, federal types of action will only cause a backlash with respect to a number of parties that really have to be part of the system. We want a system in Canada. We simply don't want federal government legislation.

• 1700

The Vice-Chair (Ms. Karen Kraft Sloan): Madam May.

Ms. Elizabeth May: Thank you for allowing me, Madam Chair, to respond.

First of all, I think the national accord predated the introduction of Bill C-65. It was the summer of 1996. Bill C-65 was introduced on, memorably, Hallowe'en in the fall of 1996.

I have not said the formulation of clauses 32, 33, 34, and 35 leave us with a gap. I'm very concerned they leave us with an act that is constitutionally vulnerable.

We know at least one province has said it will challenge the act. All the promotional material that went with SARA explained the criminal law power was the head of power being used. If you're using criminal law power, you can't do so in a discretionary fashion that suggests regulation. That's my main point.

In terms of prohibitions applying across Canada, it's hardly draconian. I didn't mention it orally. You give me a chance now to make this point.

We're prepared to go so far as to say, particularly in response to the concerns of resource user groups and landowners, make it a mens rea offence, if that's what it takes to make sure species at risk protection against direct killing applies across Canada. In terms of prosecutorial discretion, I personally don't see people being prosecuted for accidental killing anyway.

I know for a lot of landowners the thought of having to hire a lawyer, go into a court, and say they have the defence of due diligence makes them feel they're dead before they start. They don't want to meet lawyers. I don't really blame them, as a lawyer myself.

If one can't see this is a very appropriate criminal law power to prohibit the direct killing of any species wherever it is in Canada, make it a mens rea offence. The number of times it actually intrudes on anyone's life or jurisdiction is likely to be very rare. It sets a foundation for everything else in the act. It says firmly we know federal criminal law power allows us to prohibit the direct killing of these species. It's the foundation on which we build everything else we do in the act towards their recovery, and so on.

The Vice-Chair (Ms. Karen Kraft Sloan): Thank you very much, Madam May. I think a lot of the points you're bringing forward today were echoed by Mr. Gibson when he was before the committee.

Mr. Caccia, please.

Mr. Charles Caccia: Thank you, Madam Chair.

I would like to address the brief by the Fisheries Council of Canada, but would like to first ask a minute question of Mr. McGuinness before analysing some of the statements in the report. Namely, on page 5, isn't there a mistake in his submission? Does he refer, under “extension”, to subclause 130.(5) rather than to subclause 129.(5)?

Mr. Patrick McGuinness: You're absolutely right, there is a mistake. It should be subclause 130.(5) with respect to extensions.

Mr. Charles Caccia: Thank you.

Madam Chair, that is not the only mistake in the entire brief. This brief is outrageous, as far as I'm concerned.

The Fisheries Council has been witness to the devastation of the cod fishery without taking any significant action when it had to be brought to a moratorium in 1992.

The Fisheries Council has the nerve to come here before us to say Bill C-65 was acrimonious in tone. Madam Chair, if anything, the bill, if it differs from the present bill, had some muscle and more teeth than this bill. It certainly was not acrimonious. It articulated in a stronger fashion the public interest and the federal presence. That is what it did. To hear Mr. McGuinness come here and preach to us about the tone of Bill C-65 makes my blood boil.

Mr. McGuinness believes we should rely on provincial participation and cooperation. Madam Chair, that is a very nice thought, and we all believe that in theory. The fact is that in practice the provinces' record is very weak, except perhaps for Nova Scotia.

• 1705

We have looked at the politically accepted COSEWIC list, province by province, and we find that in some cases the percentage of the list approved politically is not higher than 20% of that proposed by the scientific community.

Would Mr. McGuinness like to comment on that? What is he going to tell us here in his brief—that we should rely on the provinces even when they don't deliver? Does he want to perpetuate the consistent role of this council, which is really in many respects the author of the devastation of our fisheries? We don't know what the next species will be on the line after cod, but we can guess, judging from the practices the Fisheries Council wishes to protect.

I'm not expecting a reply from you now. I haven't finished.

Some hon. members: Oh, oh!

Mr. Patrick McGuinness: I was trying to stop you.

Mr. Charles Caccia: Mr. McGuinness, you're pleased with the term “residence” because it does not apply to most aquatic species. Well, I have news for you, because I hope it will apply to spawning grounds, and if it doesn't then we fail miserably, don't you think?

Then Mr. McGuinness comes forward with the regulations. He feels, Madame Chair, that the Minister of the Environment should come forward with the concurrence of the Minister of Fisheries and Oceans, thus weakening further the bill. I find it already weak, because, as it is written now, the poor Minister of the Environment can only come forward, as it is spelled out here in subclause 2(4), after consultation, which is plenty.

We know that the Minister of Fisheries and Oceans is under pressure from industry. Oh no, but that is not good enough for Mr. McGuinness. He wants the Minister of the Environment only to move forward with the concurrence. Well, Mr. McGuinness, that is certainly not on as far as some of us around here, so don't go home with the impression that you scored highly on that item.

Then Mr. McGuinness goes on: of course in the light of the fine record that we have seen in fisheries, on page 3, he doesn't believe in species experts. Oh no, that is too dangerous. He believes in politicians. Evidently he hasn't seen the record of the provinces I was referring to a moment ago. Would he still believe in the competency of politicians in setting the scientific list? Would he give us the grounds, on the basis of his findings, as to why we should trust the politicians?

Finally, Madame Chair, I think that in this report we have the continuing offence. We are told that, oh no, you cannot impose a punishment of more than one day, you see, because it is too onerous regarding a daily fishing activity. Well, tell us more about why more than one day is too onerous if you willingly and knowingly break the law.

Then we have this little beauty on the one for which we have a correction now. It is not subclause 129(5), as in the brief, but it is 130(5). Regarding research and other things, we are told of the potentially onerous manpower and financial obligations imposed on the Department of Fisheries and Oceans' science resources.

Well, they may have to be increased, Mr. McGuinness. That's what budgets are all about. That is what the surplus is all about. Or do you want future governments to retreat from governance?

You choose the answer that you want to give me. I will be very interested in that.

The Vice-Chair (Mrs. Karen Kraft Sloan): To be fair, Mr. McGuinness, we'll give you the extra few minutes to respond, as I've indulged the chair in his questions. Go ahead, please.

Mr. Patrick McGuinness: Thank you very much, Madam Chair.

My point was that the tone.... I did not say that the tone of Bill C-65 was acrimonious. What I did say was—

Mr. Charles Caccia: You've written in the second paragraph “the acrimonious tone”. It's in print.

• 1710

Mr. Patrick McGuinness: I was referring to the debate that surrounded the previous bill. That is, the bill itself, because of the elements that were in it, created a very acrimonious debate throughout Canada. So that's what I was saying.

The Vice-Chair (Mrs. Karen Kraft Sloan): Mr. McGuinness, I believe it was the Department of Fisheries and Oceans that had a good hand in creating that acrimonious debate. Please continue.

Mr. Patrick McGuinness: With respect to the question of whether I am going to support the provinces and so on and so forth, all I remind you.... The problem with looking at Bill C-5 is that it's only half the picture. The major picture out there is the national accord, and what it says in the national accord is that the provinces and the territorial ministers have come to an agreement that they are going to try to address this issue of endangered species through that mechanism. So all I'm saying is that there's no question that Bill C-5 has a role, but it has a specific role to fill the gaps with respect to where the federal government operates.

So the challenge, Mr. Caccia, is for Canada to pass this piece of federal legislation, go into the national accord, meet with the various provincial and territorial ministers, and encourage, using whatever persuasion that the government has, them to have that type of effective Canadian system.

The Fisheries Council of Canada is a federation, and I can tell you that if we drove everything from Ottawa, we would be an office of one in Ottawa. But we are a federation, and we have to work with our provincial associations. We have to work with corporate companies, and there's a magic to that. The magic to that is trying to aspire to a high common level with everybody on board. So that was the comment towards that.

In terms of residence, I guess the thing right now, in terms of what we would see there, is that there's no question that spawning grounds, nursery grounds, are identified in the legislation with respect to habitat.

In terms of your issue with respect to continuing offences, we recognize that the offences should be quite severe. All we're saying is that, in terms of the aquatic and marine area, our feeling is that it's quite distinct and different than say, for example, in the terrestrial area, where you may have, if you will, identified an endangered species, which may be some type of falcon that is usually travelling by itself in a very low population—that type of issue.

But in fisheries, we could have a fisherman out in the fisheries. Say, for example, he is fishing for one, two, or three days. He comes back to port and finds out that in that catch there is, if you will, an endangered species that isn't permitted for him, or whatever. The only concern in pointing this out is that in that type of situation—which is maybe, if you will, one act and usually accidental—we may want to look at this wording of the continuing offence so that if there is wilful action it's certainly punishable, but in the types of circumstances I mentioned you won't have an onerous type of application of that section on continuing offence.

In terms of subclause 129(5), in terms of our request for extension—

Mr. Charles Caccia: No, it's not subclause 129(5). You have corrected yourself.

Mr. Patrick McGuinness: It's subclause 130(5). I'm sorry.

Mr. Charles Caccia: It is typical of a pattern of performance on the part of your council.

The Vice-Chair (Mrs. Karen Kraft Sloan): Mr. Caccia, you'll let the witness continue. Thank you.

Mr. Patrick McGuinness: In terms of subclause 130(5), you're right. That's the problem. The problem is financial resources with respect to doing biological research. We as a fishing industry have taken up much more of that in the last five years. In fact, the resources available to deal with fishery science and to do the job on their own currently are not there. So our concern simply was putting an additional legislated, scientific burden on the Department of Fisheries and Oceans so that there may have to be situations whereby they would have to maybe apply for the extension, as provided in clause 135.

• 1715

There's no question, Mr. Caccia, if in fact the Government of Canada wanted to bolster the financial resources of DFO science, we would support that.

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

Mr. Charles Caccia: Can you put me down for a second round?

The Vice-Chair (Mrs. Kraft Sloan): I will put you definitely on the second round.

We have Mr. Reed, Madam Redman, Madam Carroll, and Mr. Knutson. Mr. Reed is on the phone, so you get bumped down the list.

Madam Redman, and you only get five minutes.

Mrs. Karen Redman: Thank you, Madam Chair. Since your clock may not be quite as elastic for me, I would ask that I go on round two as well, because I have three questions.

Mr. McGuinness, I commend you. In a committee where there's never a shortage of interesting exchanges and strong ideas, you've managed to spark lively debate today.

According to Bill C-5, COSEWIC must carry out its functions with the best available information, and that includes scientific knowledge, community knowledge, and aboriginal traditional knowledge.

In your presentation, you talked about “sectoral knowledge”. I'm wondering if you could tell us what it is and give us a specific example as to how you would see that benefiting the process.

Mr. Patrick McGuinness: We say “sectoral knowledge” in the sense—what's happening now is even happening much more in fisheries management—that DFO science has good science, but it doesn't have all the science with respect to fisheries resources.

Now, we've developed a process whereby fisheries scientists sit down with the fishing industry and with communities in terms of assessing what in fact is the condition of that particular stock.

All we're saying is that COSEWIC is going to establish a subcommittee that will look at marine fisheries. We think it would be important that as the committee looks at the population dynamics of a particular fishery, it does seek in some way the input of industry in terms of us providing sectoral knowledge. Often that is simply data, because from time to time there may be by-catches or catches of these species. We keep records of those and we're prepared to contribute to that type of exercise.

All we're saying is that you're quite right, COSEWIC and the subcommittee should look to whatever data is out there. But don't forget that the resource industries also have data, and resource industries are committed to sustainable development.

Mrs. Karen Redman: Thank you very much.

Dr. Montevecchi, a recovery team must consist of many members, whether they're academics or government, and indeed, as were mentioned already, aboriginal people and stakeholders. But a recovery team isn't owned by any one member. According to Bill C-5, ultimately it's the federal government that is publicly on the hook to ensure that the recovery of a threatened and endangered species actually occurs.

If a team isn't responding to the federal requirement to ensure the recovery, what should the federal government do?

Prof. William Montevecchi: They should maybe move on and get another team.

One suggestion right now is called an operations plan. There's a draft operations manual for recovery teams. One suggestion—and perhaps a good one—was that those teams be co-chaired by a federal employee or government scientist. He or she would have responsibility for the accountability to the department. There would also be a chair who would not be a federal employee. That's a potential way to at least get a balance in the process. But I do worry. I'm not sure, to answer your question, but I think we have to accept....

One suggestion was that we would vet these appointments through the Royal Society if they were independent. If somebody wasn't doing their job, then they're simply not doing their job, and they should be removed. But I think we wouldn't want to necessarily push that so far as to say that we would always need to have, as we were told by the Atlantic regional director of the Canadian Wildlife Service, that all those chairs should be Canadian Wildlife Service personnel. I think you can get accountability in other ways.

Mrs. Karen Redman: Thank you. If my time isn't up, I will move on to my third question.

The Acting Chair (Mr. Gar Knutson): Keep going.

Mrs. Karen Redman: Thank you.

• 1720

Ms. May, you mentioned the offences in the legislation. It's been suggested by SARWG that the legislation be changed from strict liability offences to mens rea offences. The Migratory Birds Convention Act and the Fisheries Act, for example, provide strict liability offences for the activities that would directly harm or kill individuals of a species. I'm wondering if you could comment, because in my view it would be hard to justify why prosecuting an offence of harming an endangered species would be more difficult than prosecuting for the harming of a common species.

Ms. Elizabeth May: Yes. It's an excellent question, and let me explain our rationale. Part of it is historical. The Fisheries Act and Migratory Birds Convention Act legislation was passed at a time when there was not a great deal of public anxiety in advance.

We're trying to foster a spirit of cooperation around the act. The very few clauses with any teeth at all in this bill have been exaggerated, I believe, through the Internet, particularly in the prairie provinces. There seems to be an awful lot of good people who are believing complete nonsense about what this bill might do—that people could come along and expropriate their property, that people could come along and sue them, and that people will be on their doorstep looking for them to accidentally back up over a species so that they can be hauled into court.

To lower that level of anxiety.... Frankly, in terms of the number of prosecutions one would get, you would not likely see, based on the prosecutorial discretion, a case being pursued to court for an offence that was clearly not going to survive on the basis of strict liability and the defence of due diligence. If it was an accident—someone was exercising due diligence—they probably wouldn't prosecute.

So in balancing things, looking at the need to have the prohibitions apply across the country in the least offensive way to provinces, territories, private landowners, and resource users, while establishing a firm constitutional footing for the bill and ensuring that the scope of the bill provides prohibitions against the killing of a species wherever it is in Canada, the mens rea offence is a small step in the direction of making it palatable for everyone and putting to rest a lot of the nonsense that is going on out there. But I take your point, and I think it's a good one.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you very much.

I have Mr. Reed.

Mr. Julian Reed (Halton, Lib.): Thank you very much, Madam Chair.

With the excitement of the afternoon, I don't know whether I interpreted everyone correctly. The debate goes on about whether or not the minister should be ultimately responsible, because the minister is accountable to the public in terms of the COSEWIC list, and whether it should be discretionary or whether it should be mandatory. That theme has gone through all of the witnesses.

Did I interpret correctly that I think you all feel it should be discretionary? No? Was I wrong?

Ms. Elizabeth May: Mr. Reed, I would just say quickly, on behalf of the Species at Risk Working Group, although I didn't speak to all the points in our original brief, we've always maintained that we prefer scientific listing, so that there'll be the minimal amount of political interference in the process. The example I mentioned earlier was within a system that wasn't supposed to be vulnerable to political process, because the COSEWIC system, before being created by statute, had immense political interference from the Department of Fisheries and Oceans. So it's never going to be perfect. The system is already vulnerable to political influence, but we feel that keeping it as a scientific listing is the best way.

Now, I know you want to hear from other witnesses.

Prof. William Montevecchi: I agree. That was the point I tried to make on that flow chart. In fact, that's diagnosis, and diagnosis is always a professional and not necessarily a political opinion. It doesn't mean we don't have faith in the politics of it, but the important part—the political part—is the treatment plan and how we deal with this. But the diagnosis is a professional decision. No matter what anybody says about the social and economic concerns of cod, how many cod are out there is actually an answerable question. We'll probably never be able to answer it. But if anybody's going to be able to answer it, I think we should look to scientists. We should look to fishermen, as well. But it's an answerable question. That diagnosis always has to be professional.

Mr. Julian Reed: I accept that. You take the diagnosis, but then, ultimately, should not the decision rest with a publicly accountable person—

Prof. William Montevecchi: No, because—

Mr. Julian Reed: —like the minister in council? That was my question.

Prof. William Montevecchi: Yes.

The Acting Chair (Mr. Gar Knutson): And obviously you don't agree.

Prof. William Montevecchi: Well, I think not, because, you see, the diagnosis doesn't change. What's variable is the treatment plan. The diagnosis would be the diagnosis. It doesn't mean scientists don't make mistakes.

• 1725

Mr. Julian Reed: I'll tell you why I've raised this subject. There were two anecdotes that have come forward from witnesses. One has to do with the mountain caribou. The mountain caribou is listed apparently as an endangered species and it is declining in population quite rapidly. Great habitat was set aside to protect it, but even in spite of the fact that caribou were imported to help to bolster the numbers, they're still going down in numbers. Apparently it's under 25 specimens now.

The fact is that the caribou is in decline not because of the actions of humans but because of predation. Indeed, one of the things that cause wry laughter and make one cynical is an article in one of our national papers last week—and I haven't chased it down, but I will—suggesting that action be taken against the wolves. Half the wolves should be killed off and then others sterilized and so on so that would stop the predation. Now, to me that's gross interference in the natural cycle of things.

The other argument I make for discretion has to do with the fact that COSEWIC recognizes a political boundary and species do not. Therefore, where you may find a species that would be considered at risk in Canada because only a few specimens have been found, it may be plentiful across a political boundary. So I beg to put that on the record that there's another side to the argument about discretion versus mandatory. That is why I've been coming down on the side of discretion, because of the evidence that's been presented.

Prof. William Montevecchi: With all due respect, I wouldn't think that those arguments would necessarily argue for discretionary listing. I agree with you on those points. You used caribou as an example. A species abundance on our planet really doesn't have much to do with its vulnerability to extinction. A lot of species that are incredibly common on our planet—and we know the example of cod, we talked about it a lot—are often more vulnerable. We have rare species on our planet that are never probably going to be threatened with extinction. They have a great resiliency.

I think that's what we see with that caribou example. It's an abundant species. Those tough questions you ask about the management options of killing wolves or not killing wolves are difficult questions. Again, I don't think that would put us to the point that we would ask for a discretionary listing. I still don't think we would be there. If the species is endangered, it's endangered by all the evidence we have. What's the proper way to deal with that? What don't we know? All those questions are germane, but not necessarily to whether or not the species is endangered.

Mr. Julian Reed: Do you impose action on a situation like that in some idealistic hope you're going to save this particular group that has been listed by COSEWIC as being endangered? It doesn't register with the natural evolution of things.

Prof. William Montevecchi: Yes, I understand what you're saying. Sometimes we create problems. I'm not a big fan of overmanaging. We have to let things run their course to the extent that they can, but sometimes we do have to intervene if we created the problem. Sometimes what we see is just the symptom.

I don't think we have to micromanage the environment, and I don't think we can. What's important about the SARA legislation is not necessarily individual species. If we focus on endangered species, it's important that we really protect larger natural systems and larger natural processes. I think that's what we're really trying to do to save species. So I would agree with you that micromanaging is really not necessarily an appropriate way to go.

• 1730

The Vice-Chair (Mrs. Karen Kraft Sloan): To build on what Dr. Montevecchi has said, we have to remember that a scientific decision is made that the water is polluted, that the species is endangered, and then there is a different set of decisions made about what to do about it, which alleviates some of the concerns you've been talking about, Mr. Reed.

Mr. Rideout wants to make a comment.

Mr. Julian Reed: I would have to see that demonstrated.

The Vice-Chair (Mrs. Karen Kraft Sloan): That's the separate process, because you're talking about recovery planning and there's a listing process, which is a separate process.

Mr. Julian Reed: I'm not convinced.

Mr. David Rideout: I want to reiterate the point I made earlier in my presentation. We believe there has to be a good, strong accountability framework. And notwithstanding what some people have said about some politicians, my sense is that the political decisions made will be good ones. And the reason for this is they're not black or white decisions. When this is under consideration, when they have the science, when they have the other elements of decision making in terms of the whole risk management approach, I'm hoping there will be an approach that takes a look at mitigated measures, at recommendations, instead of just yes or no.

The reality is that in the circumstance you describe, if there's something that can be done, I would think it would be within the will of the political sphere to say, let's do it. And if they don't say that, and Canadians disagree with that decision, then we have the power of the vote to be able to hold them accountable for that. And to me that's a very important element of our democracy.

The Vice-Chair (Mrs. Karen Kraft Sloan): Mr. Rideout, is the species on the verge of extinction or is it not on the verge of extinction?

Mr. David Rideout: I guess that's the question. You're going to get the best scientific advice you can get that will tell you where the species is at. Then will come other questions that will have to be answered in terms of a risk management approach.

The Vice-Chair (Mrs. Karen Kraft Sloan): Absolutely. And that's the split that Dr. Montevecchi has been talking about. The listing is a science-based approach, because the species is either at risk or it is not at risk from a biological science base. And then the decisions about what to do about that become more political, more economic, more social, etc.

Mr. David Rideout: With the listing comes a number of legislated activities. And those legislative activities are going to have to be considered in that whole concept of risk management and whether or not there are preliminary mitigated measures. Possibly there aren't. Possibly every decision will be for listing. Without an accountability framework there, it weakens the overall approach.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you.

Madam May.

Ms. Elizabeth May: These are the sorts of things that potentially one doesn't like seeing in legislation, but it should provide a level of comfort.

I am completely supportive of Dr. Montevecchi's point. The question of whether a species is at risk or not is a scientific question. It's a matter of reality, of fact. It's going to be different in cases of each species, and particularly unique to each species is going to be what you do about it. For the burrowing owl, it was getting rid of carbofuran. For another species, it may be limiting predation. For another species, and most often, it's protecting habitat.

Mr. Julian Reed: I can't disagree with you more.

Ms. Elizabeth May: Let me make sure you disagree with me a lot. Clause 40 gives the political system the out they need. If it's not technically or biologically feasible, if it's just not on, if you have a rare instance where the species is disappearing for other reasons, and arresting its disappearance isn't possible, that's where the recovery planning process stops. A confident minister may make a decision that if the species cannot be recovered that's the end of the story. So there are political mechanisms for how you deal with what I hope are very rare, very tough instances where we're going to lose a species forever.

The listing decision itself should be as removed from political interference as possible.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you.

Madam Carroll.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Madam Chair.

And I can only hope, having twice left this committee hearing today for things I had to do, that I am not now going to be redundant.

I want to address my question to Ms. White. First of all, I read your brief, and it's very good.

Ms. Louise White: Thank you.

Ms. Aileen Carroll: That's probably because I agree with it. That always has a whole lot to do with how we view things.

• 1735

I think you're dead on here, but I think it's difficult, and I don't think many people have highlighted this. So I want to go to the bottom of page 3 and the top of page 4. You talk about a multi-species and ecosystem approach and you say “Current fishery management still focuses primarily on a single species approach”, and they're not dealing with by-catch. And they're not. It's not even a phrase I hear up here. I think it's very good that you drew our attention to this. And again, how long have we been going on about dragging? It just rips all of those ecosystems apart. I think you're bringing the attention of the right committee to that dilemma. I'm not sure SARA is our vehicle, and I want you to help me with that.

You say at the top of page 4:

Other methods, such as dragging, destroy sea floor habitats with the severity of disturbance dependent on bottom type. An ecosystem or multispecies approach to protection of species at risk may help propel fisheries managers into a similar approach for fisheries management.

I think that's dynamic. Maybe because I'm a lot older than you, I worry about how long we were hoping for this and how little action we've seen in that regard.

So you recommend that although the multi-species or ecosystem approach is mentioned in the act, it should be defined. Help me with that. How would you do that? How would you help those of us on the committee who may have to push for better definitions as we work with possible amendments—or dare I say probable amendments? How could we get at that, so as not only to make SARA better, but even to send off a suggestion for an ecosystem or multi-species approach to the fisheries?

Ms. Louise White: How would I define a multi-species approach?

Ms. Aileen Carroll: Can you nail that down a bit?

Ms. Louise White: An ecosystem approach would be saving a specific type of habitat that has a number of endangered species, and a multi-species approach would be when you're looking at more than one species that happen to occur together or where you can undertake the same kinds of protection measures. An ecosystem approach generally would be more habitat-oriented.

On the west coast they have sea mounts that have all kinds of unusual invertebrates that aren't found anywhere else, so you would take an ecosystem approach there. Instead of dealing with each individual species on that sea mount, you would say, we're taking an ecosystem approach and we're going to protect those sea mounts. On the east coast I would say it applies where deep-sea corals are found. They're found along the edge of the continental shelf and in deep channels, so you could protect.... Because there are a number of corals there. We don't have enough information to even put them on the species at risk list, but maybe some day.

Ms. Aileen Carroll: “Protection of habitat requires some control or prevention of activities outside the boundaries of protected habitat”. You recommend this, as did other groups, and I strongly endorse it. We have to have mandatory protection of critical habitat. Are you asking for pie in the sky here? If we're fighting here on this committee for protection of critical habitat, which we don't have yet—and most of our presenters give excellent reasons why we have to—and then we extend that to deal with the ranging areas and the transboundary implications, which, as you've wisely said and others along with you, are ours, they're federal, here I get a bit lost.

Ms. Louise White: It seems sort of pie in the sky, but a specific species at risk may have just one of those factors affecting it, which we may be able to do something about. Let's say upriver there are industries letting out chemicals that downriver affect that species. So in SARA those threats are recognized in the recovery strategy—

Ms. Aileen Carroll: You mentioned that.

• 1740

Ms. Louise White: —but they aren't carried over into the action plan. I think they should at least consider them in the action plan and see which are biologically or technically feasible within the action plan itself. The action plan is just saying we have to protect that habitat, and people think, oh well, you just put a fence around this piece of habitat and it's fine. I'm saying you have to look at some other things, like climate change, which you probably can't do anything about.

Ms. Aileen Carroll: Oh yes, well, we're going to do that.

Ms. Louise White: There are things like contaminants. In the Bay of Fundy there's a big problem with tidal barriers. They're deciding whether to take them down or put them up, and it's creating sedimentation all over the place, disturbing the mud flats for shore birds, sandpipers, and their populations have just plummeted. So I'm just saying that sometimes you maybe need some input into management of other things.

Ms. Aileen Carroll: That's pretty good. Thank you.

The Vice-Chair (Mrs. Karen Kraft Sloan): Madam May, very briefly.

Ms. Elizabeth May: In the marine context, as we've said in previous briefs, we really believe that recovery teams working together should be able to find multi-species approaches that largely rely on gear selectivity. I want to use the example of the trawlers for shrimp off Newfoundland. Mostly you think of the Nordmore grate. It does help reduce the amount of by-catch and protect other species, not perfectly, but it's made big progress. There is also the use of sonar devices on nets that emit a high frequency pitch, so that the whales know to stay away from them.

If the SARA regulations worked in such a way that for species at risk there were some precautionary measures, it's not so much fencing it off as modifying our behaviour, so that the economic activities can continue without negligently killing species that were unintended in the harvest.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you.

Mr. McGuinness, and then Mr. Knutson.

Mr. Patrick McGuinness: For Madam Carroll, the Department of Fisheries and Oceans and the fishing industry are committed to an ecosystem approach and multi-species approach, and as Elizabeth May pointed out, we already have examples of that happening. I can tell you now, for example, that off Newfoundland our yellowtail flounder stock has rebounded to its historical high. If we took even a conservative single species approach, using F 0.1, the quota would be 20,000 metric tonnes, but the quota we're fishing to is 15,000 metric tonnes, and that's solely because in undertaking a directed fishery for yellowtail flounder, we would have high by-catches of American plaice, which is a stock in very poor condition. So there is really no message from Bill C-33 in the fisheries management.

Elizabeth is quite right, and that's why the issue should be effective recovery teams and action plans that take a multi-species approach and an ecosystem approach. There's no question that, working as partners, coming to an agreement that this is a good bill, you can bring in the fishing industry, you can bring in the small communities to say, what can we do to modify our gear? This bill has a stewardship fund that has specifically identified—not in the actual legislation, but in the background—that there could be funds available for selective gear if in fact our fishing activities would further endanger listed species. So there are opportunities there for everybody to work together.

I want to also comment on Mr. Reed's point—discretionary or not. What we're saying is that at this time the problem is that COSEWIC has not necessarily earned its spurs. It's already in place, it is to a certain extent politicized, because three of the appointees on COSEWIC are not appointees of the Government of Canada, are not appointees of the people of Canada, but are appointees of environmental groups. They may be excellent people, but the image out there is that it is not necessarily friendly to the resource industry or the coastal community.

So our suggestion is that until COSEWIC has some legs under it, until it has demonstrated that the people who are being appointed to it have substantive academic credits, until it has some sort of performance, maybe at the five-year review, which is part of this bill, it would be a more appropriate time to consider this issue, should the discretionary move to, if you will, listing by COSEWIC.... There will be an experience there.

• 1745

The Vice-Chair (Mrs. Karen Kraft Sloan): First of all, I—

Ms. Aileen Carroll: I'm still on the floor here.

The Vice-Chair (Mrs. Karen Kraft Sloan): No, just a second. Our time is up. I'll get back to you in a second, Madam Carroll.

I wanted to point out that you're probably the first person who has used such disparaging remarks about COSEWIC, because we've heard some very positive things about COSEWIC through this entire process.

Mr. Knutson has the floor.

Mr. Patrick McGuinness: I'm not being disparaging. I'm just saying there are questions out there in terms of this current—

The Vice-Chair (Mrs. Karen Kraft Sloan): My ears are hearing very disparaging remarks.

Mr. Knutson.

Mr. Gar Knutson: My sense is COSEWIC isn't supposed to be friendly to anyone; it's just supposed to do the frigging job. It might be completely unfriendly to everyone. They're just supposed to do their job. We wouldn't refer to a court as unfriendly. We just want the court to do its job. Anyway, that's not the point of my line of questioning.

Madam May, it's nice to see you in good health. I'm sure others have commented on that as well.

If I understand your line of reasoning, you're saying the federal government has the authority to prevent the wilful killing of any animal or endangered species, plant or otherwise, and it should do so. It also has the authority to protect the residence of any species, and it should do so.

Ms. Elizabeth May: Yes.

Mr. Gar Knutson: But then it doesn't have the authority to.... We've had scientists tell us that the concept of “residence” is really a make-believe concept. It doesn't make any sense from a biological point of view. Wouldn't the federal government, by way of extension if it has the power to protect direct, wilful killing, have the power to protect direct or wilful destruction of critical habitat?

Ms. Elizabeth May: Yes, it does. Let me back up and explain where we're coming from in our constitutional analysis, because we've talked to a lot of people.

First of all, not only of course does the federal government have the right to prohibit the wilful killing, it has the right to prohibit the killing of any kind, including strict liability offences. That's not a constitutional matter. That, in my view, is perhaps a practical or political aspect, which you can take or leave.

On the issue around the use of criminal law powers, you're looking at the head of power, and you style the exercise of power to be consistent with that head of constitutional law. So within criminal law powers you use prohibition and they're blanket in their effect. For instance, in the Fisheries Act you cannot put material that is deleterious to fish in waters inhabited by fish. It's straightforward, it's clear, it's a prohibition, and it works. The difficulty again is in enforcement, but that's another discussion.

The difficulty you get into if you're protecting critical habitat using the criminal law power is you have to find a way, which is tougher the larger the area you're describing becomes, to define it in such a way that the prohibition works clearly. It could be done. There's no question the federal government has that power should it want to. It might make it easier on the way the legislation is styled and the way that power is exercised to use peace, order, and good government. That would also be constitutional and could extend to any description of critical habitat and doesn't need to be styled in prohibition terms, because it's a different head of power and can be exercised.

Mr. Gar Knutson: Not to be rude, but your recommendation is just to protect residence.

Ms. Elizabeth May: Our recommendation is to protect on a mandatory basis critical habitat that occurs in areas of federal jurisdiction.

Mr. Gar Knutson: My point is it's a recommendation regarding—

Ms. Elizabeth May: The recommendation right now is to proceed to prohibit the killing of species or the destruction of residence.

Mr. Gar Knutson: Everywhere?

Ms. Elizabeth May: Everywhere.

Mr. Gar Knutson: But not critical habitat everywhere?

Ms. Elizabeth May: Not through prohibition. That's not our shared recommendation at this time. My advice to you from my legal background and the lawyers we've talked to is the federal government certainly could do that.

Mr. Gar Knutson: On that point, on the second page of your brief you make the point that the justice department was more cautious. Do you have access to their opinion?

Ms. Elizabeth May: No, but we were very active at the time. We had briefs filed from Dale Gibson, from former Chief Justice La Forest, to Environment Canada. Environment Canada told us that the justice department didn't give them that advice. So it was an ongoing dialogue, and we'd ask to see the advice and of course we couldn't see the advice. I am familiar, over the years, with justice department advice, and it's generally pretty cautious.

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So I believe Bill C-65 was that initial hobbling of scope of the federal government that is plaguing this bill to this day by tying it to who owns the land, which is not usually the way a federal government goes about legislating in an area of national importance. It doesn't make sense that we're still talking about who owns the land. Anyway, it's irrelevant once we had the decision in Hydro-Québec that established that the legal opinions we'd been putting forward in the Bill C-65 era were in fact sustained by the Supreme Court of Canada.

Mr. Gar Knutson: The issue I'm struggling with—just to address Mr. McGuinness' point of view—is I don't know whether this bill was drafted a certain way in the spirit of cooperation and good fellowship and the accord. Did we, as a political decision, draft it to avoid a fight with the provinces? Did we want to avoid going to court so we drafted it a certain way, or in fact was it drafted a certain way because they had a hard-core opinion from the justice department saying if you draft it a particular way, it will get struck down in the court? I don't know if it's a political decision or whether it was a decision based on interpretation of the law. Maybe I'll find out some day.

Ms. Elizabeth May: It's an extremely strange bill. I don't think Professor MacKay would mind if I told you he's now been appointed president of Mount Allison University. He's a constitutional law scholar. I studied constitutional law with him years ago, and I had the opinion from Louis-Paul Cullen and I had an opinion as well from having talked to Dale Gibson. I prevailed upon Professor MacKay. I said, look, I need to know if I'm crazy here. Am I missing something? How could the Department of Justice have told the government to go ahead and put forward a bill that I think is flat out unconstitutional? So I gave it to him to read and a couple of weeks later we got together and I asked him what he thought. He said it's bizarre; he'd never seen anything like it.

I think the motion that passed earlier today could be extremely helpful. Perhaps you could get the legal advice from the justice department and maybe have a panel, have someone from the justice department, have Professor MacKay, have some of the other people I've mentioned in this brief, and have a discussion. Because it's so unnecessary.

This is the thing that's boggling the mind. It puts the bill on constitutional ground without any policy rationale that makes any sense at all. It runs the risk of setting back environmental law substantially in other spheres as well, because if this bill gets struck down, the courts in future will say the federal government didn't have authority to proceed to protect species at risk.

Mr. Gar Knutson: I want to get back to my other point. Your views as to why we protect residence everywhere but not critical habitat everywhere are what, again?

Ms. Elizabeth May: Bear in mind I'm speaking today on behalf of the Species at Risk Working Group.

Mr. Gar Knutson: Can I remind you though that we had this discussion with a previous witness and he said I'm only going to answer questions from this frame of reference. When you come in front of a committee, you're in front of Parliament and I'm not sure that's a—

Ms. Elizabeth May: Let me then take that hat off and put my Sierra Club hat back on.

Mr. Gar Knutson: Take all your hats off.

Ms. Elizabeth May: All hats off?

Mr. Gar Knutson: Take all your hats off.

Some hon. members: Oh, oh!

Ms. Elizabeth May: No hats? I'm now eating but I'm hatless. I'm on a hat strike.

Mr. Gar Knutson: Parliamentarians are not bound by hats.

Ms. Elizabeth May: All right. I appreciate that, Mr. Knutson, because I honestly feel I have a very strong and robust consensus with a lot of people with whom I've worked and trust, and I don't want to take SARWG position in a direction it hasn't reached on its own.

My own personal opinion, and Sierra Club's opinion, is that the protection of critical habitat is essential to keeping species alive, to their recovery, and that if this could be achieved through a prohibition or through some other aspect of this legislation, it would make the legislation far stronger, more effective, and would be very welcome.

The Acting Chair (Mr. Paul Forseth): Thank you.

Charles Caccia, five minutes.

Mr. Charles Caccia: Thank you, Mr. Chairman.

I would like to punch another hole into the brief by the Fisheries Council, namely with respect to the first paragraph, where the comment is made, and I quote, “This Bill...represents a delicate balance among interests”. It seems to me, Mr. Chairman, that the Fisheries Council is not aware of the significance of sustainable development if it pursues the notion of balancing.

First of all, it would be interesting to know which interests the Fisheries Council intends to balance or wishes the bill to balance.

Secondly, the sustainable development approach is basically built on the principle of integrating the economy with the environment, and not in balancing the two, because the balancing concept implies, conceptually, a separation of the two.

• 1755

From this brief it would seem to me the Fisheries Council believes economic advantages to be derived from the fisheries do not depend on the environment. Otherwise they wouldn't say you have to balance them. Evidently, if you want to achieve a delicate balance among interests, it obviously is the environment on the one hand and the economy on the other.

Well, respectfully, Mr. Chairman, to the representative of the Fisheries Council, you cannot have a healthy fisheries in the long term if you try to balance economic considerations with environmental considerations. When you try to do that you go down the same slippery road that led to the calling of the moratorium on cod, because we did try to maintain a balance between the two until the species was exhausted.

It therefore seems to me that the Fisheries Council is 30 years behind its time, conceptually. This is a very serious conclusion I have to make, and I'm a bit saddened by it. I would have hoped that the Fisheries Council instead would be there in the forefront, defending the environment, saying, look, we don't want balance between the economy and the environment, we want to defend first the environment in order to protect our fisheries for the long term, and that is why we can't go for the balancing act.

The second point I would like to make is this. Mr. McGuinness made reference to the national accord as being central. Well, for anyone who has read the national accord.... I suppose it is the Charlottetown accord of some years ago that you're referring to?

Mr. Patrick McGuinness: No, the national accord of the environmental ministers.

Ms. Elizabeth May: That's Charlottetown.

Mr. Patrick McGuinness: Oh, okay, Charlottetown.

Mr. Charles Caccia: So it is the Charlottetown accord. If you read it, Mr. Chairman, you'll know it is diluted gruel. It is a wishy-washy document written to the lowest common denominator. It achieves nothing. If we wrote a piece of legislation based on that accord, we would be wasting our bloody time.

That accord is the type of arrangement arrived at in the late hours of the day by a bunch of tired ministers who just had to go home and demonstrate that they achieved something. The substance of it is very hard to find. It is a beautiful piece of public relations with no substance.

So, Mr. McGuinness, I'm sorry, I cannot agree with you that the national accord is the key document that is to guide us in the preparation of this bill or thereafter. It would be a complete disaster. I would urge you to read it carefully at night before you turn the light off.

Thank you.

The Acting Chair (Mr. Paul Forseth): Go ahead and respond. Mr. Caccia has been really great to set up some wonderful straw people that you now can knock down. Here's your opportunity.

Mr. Patrick McGuinness: First of all, Mr. Caccia, the first paragraph of our presentation says that the Fisheries Council of Canada supports Bill C-5. We support what we have here. If you find resource industries that can come to this table and have such strong support for this bill, I would like to meet them. So we are in fact a sustainable development industry.

Mr. Charles Caccia: Then you don't know the definition of sustainable development. That's your problem.

Mr. Patrick McGuinness: The bottom line is that the membership of the Fisheries Council of Canada is wide and diverse, but our main members are basically medium-sized fishing companies, mainly family owned. They have been owned and operated by their grandfathers, by their fathers, and now by their sons. Nobody has more commitment to the resources of Canada than the people who actually live on and depend on the harvesting of it. And what we're talking about is sustainable development. As you say, there is—

Mr. Charles Caccia: You're not talking about sustainable development. In your entire brief it's not mentioned once.

Mr. Patrick McGuinness: Well, just to answer your question, in our view sustainable development is just simply that—making sure that we provide for future generations as much as possible.

Now, with regard to the balance, all we are indicating is that this bill has been in evolution for five years. Bill C-65, if you recall, Mr. Caccia, ended up in quite a bit of dissension. All we're saying is that we support this bill, and one of the reasons we support it is that we think it is actually doable for Canada.

• 1800

One of the main aspects of the balance is trying to balance those various interests, the interests of the provinces, the territories, the NGOs, the resource industries, rural Canadians, coastal Canadians, and urban Canadians. Unfortunately, that's the world we live in, and if we are not prepared to address and bring forward legislation that gives legitimate aspiration to those visions, then we will return, as I say in this report, to the acrimonious debates we had on Bill C-65.

All we're suggesting is that you have a winner here, and I think resource industries like the Fisheries Council of Canada will come onside. I think coastal and rural Canadians can be convinced that it is in the best interests of Canada, that it looks at them as part of the solution and not part of the problem. That's simply trying to balance those interests and recognize that they have legitimate aspirations.

That's why we're saying, let's not look at trying to have major changes to this legislation. You have something that works, so keep with it.

The Acting Chair (Mr. Paul Forseth): Ms. May, you have a comment.

Ms. Elizabeth May: Yes, just quickly, Mr. Chair.

In terms of resource-based organizations, I just wanted to stress again that neither the Forest Products Association of Canada, formerly known as the Canadian Pulp and Paper Association, nor the Mining Association of Canada, who are member groups in the Species at Risk Working Group I've been presenting on behalf of today, are satisfied that the bill is properly structured to protect species or to work across the ground in Canada.

So the Fisheries Council may be satisfied, but other resource-based groups and industry associations are not.

The Acting Chair (Mr. Paul Forseth): Karen Redman, five minutes.

Mrs. Karen Redman: Thank you, Mr. Chair.

I'm going to go back to Ms. May's wearing, or not wearing, of hats. Do the Sierra Club's proposals differ in any way from the recommendations made by the Species at Risk Working Group?

Ms. Elizabeth May: My presentation today is on behalf of the Species at Risk Working Group. The only time I've departed from it at all was when pressed by Mr. Knutson to abandon hats. But everything I've said is on behalf of the Species at Risk Working Group.

Mrs. Karen Redman: I'm going to reiterate my question, and that is, do Sierra Club's recommendations differ from the Species at Risk Working Group's recommendations?

Ms. Elizabeth May: No.

Mrs. Karen Redman: So they're totally analogous?

Ms. Elizabeth May: They're the same. Since 1988, everything Sierra Club has been doing publicly on this bill has been in concert with our industry colleagues and other environmental groups, including the Canadian Nature Federation—Laura Telford is here today—and the Canadian Wildlife Federation. It's been a remarkably robust partnership.

Mrs. Karen Redman: Okay.

Some may argue that the Sierra Club's proposals assume that no work has really happened at the provincial level. We've already heard about the 1996 accord on which this legislation is predicated. Or they at least downplay any action that has happened, although we've heard testimony that there have been provinces that, in light of that accord and the fact that the SARA legislation was coming forward, have actually moved to do some action.

The message this committee received earlier from the Species at Risk Working Group was that federal-provincial cooperation is key to conservation of species at risk. Would you agree that this kind of cooperation expressed by SARWG is integral to protecting species and habitat?

Ms. Elizabeth May: With all due respect, Ms. Redman, I have to disagree with your premise. I don't think anything in our presentation today or on previous occasions downplays what provinces are doing. In fact, we've stressed the need for federal-provincial cooperation, and have concerns that aspects of the way Bill C-5 is structured will not lead to fostering that, particularly the uncertainty created by having on-again, off-again prohibitions. They're not clear, they're not predictable. We need to have them across the country, in the way I've described today in more detail, but that's been part of SARWG's presentation since we first appeared on the subject of Bill C-33.

Mrs. Karen Redman: So is it a fair characterization that the Species at Risk Working Group sees the provinces very much as a credible, integral part of the solution?

Ms. Elizabeth May: Absolutely. But there has to be a framework at the national level that ensures.... Our founding principle, from a document we gave to the ministers of wildlife when they were meeting in Victoria in the fall of 1998.... We presented them with a consensus opinion that was based on the premise that no species in Canada should be allowed to go extinct in the absence of legal protection. We're not there yet with this bill, but we could be.

• 1805

Mrs. Karen Redman: You have every confidence that the provinces will step up to the plate and enter into the kind of protection and the cooperative stewardship that this is based on? Do you have faith that provinces and territories will do that?

Ms. Elizabeth May: No, not without a national approach that makes sure that no species can go.... We know right now that Alberta and British Columbia have said they don't need species at risk legislation. We have seen Nova Scotia step up to the plate since Bill C-65 was first introduced with a very good bill. We've worked with the provincial wildlife managers across the country. Some of our partners within SARWG have already good, close working relationships. We've worked with them a lot. We expect a good bill out of Newfoundland because we've talked to the guy who's working on the bill there. They like the SARWG approach. They've been very good at meeting and working with us.

But no, there's no reason to expect on the basis of faith that something is going to happen when there's not a clear federal framework within which everyone can get together. I think we need to foster federal-provincial harmony, absolutely. We need to foster federal-provincial cooperation. But there has to be a clear statement that the federal government has the scope to protect species wherever they are across the country. Within that framework, we absolutely can all work together. Recovery plans involve provinces, as Bill C-5 sets out, and I think that's appropriate.

Mrs. Karen Redman: Explain to me, then, the faith and the optimism that you feel with Newfoundland, in the absence of having this piece of legislation in place, or indeed maybe the vision that SARWG has. Why are you so optimistic that Newfoundland is going to come forward with something that is along the lines that you're envisioning?

Ms. Elizabeth May: Because they haven't stated publicly that they don't intend to and because they're working on it.

In the meantime, it's important that Bill C-5, if brought forward in full legislation, ensures that species are protected there so that the Newfoundland pine marten has some protection in the interim, until the point that Newfoundland has a good bill. That's the kind of national safety net that would work—one that's not discretionary. The prohibitions apply across the country, and no species is left out.

The Acting Chair (Mr. Paul Forseth): Thank you very much.

Mr. Comartin.

Mr. Joe Comartin: Mr. Chair, I'd like to do it this way. I'd like to pose a question to Ms. May and have her think about it, and then pose one to Ms. White, have Ms. White answer hers first, and then Ms. May.

Ms. Elizabeth May: I get the tough question—is that it, Joe?

Mr. Joe Comartin: I just want to be sure Ms. White gets her answer in. That's what I'm going to do. Sorry.

Ms. Elizabeth May: No, that was good. Touché.

Mr. Joe Comartin: On the issue of the mens rea versus absolute liability, I just want to take some issue with you because it seems to me what you're saying is that, if we go with just mens rea, we're really—pandering is too strong a term—addressing a problem that in fact does not exist. That is a worry that we've heard from this committee, particularly from people from the west, around the consequences of this bill, which amounts at times, in my opinion, to paranoia.

The real abuse that this bill addresses, as I see it, in clauses 32, 33, and 97 combined is that there are those people—and I'm thinking in particular of large organizations—who would in fact use their clout to fight this. We've had some evidence of this from other people. Environmental groups have said, look, this is fairly standard wording in some of the other legislation and in other environmental legislation—that is, we go the absolute liability route.

The reason we do that is because it is the most effective way to deal with those people who in fact would abuse the terms of the thing. So I guess I'm asking you to rethink whether in fact your position on mens rea is accurate.

Now I'll go to Ms. White.

Ms. White, I just want to know a little bit more about the deep sea coral. I guess I've been aware of that existence. Do we know if it's at risk? Is it in trouble? Do we know that, or is it just that we know that it's abused from time to time? Try to give us some more information on that.

Ms. Louise White: Sure.

They're still dragging it. Mark corrected me, actually. He told me to mention this. They don't think fishermen are clearing areas any more, but they're still dragging it.

Some of the corals are about this high, and they're about 2,000 years—

Mr. Joe Comartin: I'm sorry, is that from the table or from the...?

• 1810

Ms. Louise White: Sorry, from the table to here. They're about 2,000 years old. When they get dragged, they just get broken off, destroyed, and ripped out. The recovery of that type of habitat is going to take hundreds, if not thousands, of years. In other areas it's very important for fish habitat and things like that. In the ocean it's hard for fish to hide places, especially juvenile fish, so it seems to be important for juvenile fish.

Mr. Joe Comartin: Do we know whether in fact it's substantially...? The one off Australia is in serious trouble. We know that. Do we know that about any of the coral in...?

Ms. Louise White: No, because it's very expensive to go and survey.

They're just starting to survey now, but it costs an incredible amount of money because they're in very deep water. But at this conference, there were people from Norway, Britain, and Finland, and they had been doing some interesting work because theirs are sort of closer to shore and not quite so deep, but there's still cold water.

So we don't have the information, and it costs so much money to find it. That's part of the problem. That's why a precautionary approach is preferable because it would cost $2 million or $3 million to find out.

Ms. Elizabeth May: I don't think I'm wrong, with all due respect, and let me explain why.

The difference between mens rea and strict liability in most cases doesn't matter much in terms of how people react to it, because the law is the law. In this case, it matters a lot how people react to this law, because resource users and people living on the land are going to be an integral part of making sure the act works and succeeds.

One of the worst things about the ugly dénouement of Bill C-65—I will agree with a previous comment—was largely due to the machinations of DFO staff who fomented absolute nonsense about what Bill C-65 would do. But we now have a population on the ground, and it may be wrong to give in on a point based on paranoia, but I think this is a small point. People are very concerned, across the landscape, that they are going to be hauled into court all the time.

Nothing could be further from the truth the way the act now reads, but they believe it. If they believe it, how willing are they going to be on the ground to be willing partners, cooperating in the protection and recovery of species? It's so important that we have no element.... I know the committee has heard discussion before of “shoot, shovel, and shut up”. This is an important signal to them that they are heard.

At the same time, I would say that a mens rea offence for the intentional destruction of a species at risk, its residence, or critical habitat is going to be far more likely to apply to a corporate mind than to the individual landowners.

For instance, if you're planning an activity that is going to destroy habitat, and thus kill species, you're more likely to be able to act on that...the perpetrator is more likely to be the larger corporations and not as much the individual guy in his own back forty.

Mr. Joe Comartin: But you agree that if we go that route, the chances of getting convictions and substantial fines are substantially reduced under mens rea, as opposed to strict liability?

Ms. Elizabeth May: I don't think so. I think that the chances of pursuing strict liability offences are.... I think that the RCMP prosecutorial discretion is such that they won't pursue cases that weren't mens rea in the first place. While proving a guilty mind is a tougher test in law, no question, in the kind of instances where I think we most need to be able to prosecute offences, there won't be a problem because there's a plan. There's a logging plan. There's a development plan. There are actions that are substantially directed to destroying habitat, which are established in a way that will not make it hard to prove the guilty mind.

The Acting Chair (Mr. Paul Forseth): Thank you.

A quick....

Mr. Patrick McGuinness: In terms of your question to Ms. White, coral is a significant issue, but I think it's a more important issue to be addressed under the Oceans Act.

And as to the question of whether there should be a marine protected area, I think it would be very difficult, in terms of COSEWIC and endangered species. There are discussions undergoing with respect to corals and how to protect them. Can you use the Fisheries Act, in terms of a no-fishing area, or is it a marine protected area?

And, as you've mentioned, in Australia the way they addressed it was through a marine protected area. They didn't really address it through a species at risk type of situation.

The Acting Chair (Mr. Paul Forseth): Ms. White, please make your comment very briefly.

• 1815

Ms. Louise White: Yes, I have just a quick comment.

Actually, if DFO lived up to its legislative powers, you wouldn't need marine protected areas or species at risk legislation to protect corals. It would be a fishery management decision not to allow dragging in those areas, and that would be it.

Thank you.

The Acting Chair (Mr. Paul Forseth): Okay.

Mr. Caccia.

Mr. Charles Caccia: Yes. In view of the late hour, it will be a 60-second intervention.

Mr. Chairman, I would rate the brief by the Fisheries Council with an “F” because of its imprecisions, because of its incorrect assumptions, and because it is conceptually weak. Therefore, I wonder whether Mr. McGuinness would be willing to go back to his council and ask for them to amend it, to rewrite the brief, and to rewrite the submission, so as to permit the council to regain its credibility before this committee.

The Acting Chair (Mr. Paul Forseth): Thank you.

Do we have any other questions?

Mr. Charles Caccia: Perhaps Mr. McGuinness would like to answer my question.

Mr. Patrick McGuinness: We will submit an amended brief, in the sense that instead of subclause 129(5), the actual subclause that should have been cited is 130(5).

The Acting Chair (Mr. Paul Forseth): Okay.

Ms. Redman.

Mrs. Karen Redman: Thank you, Mr. Chairperson. I appreciate the indulgence.

I have just one last question for Ms. May. SARWG suggested in the preamble that Bill C-5 be amended to include the following statement:

The purposes of this Act shall be pursued to the extent possible while taking into account social and economic interests of Canadians.

Can you just give me, in your view, what that means exactly?

Ms. Elizabeth May: The concern of people in the resource users' and landowners' community has been that they didn't see themselves in the preamble. And, although much tougher language in the actual implementation part of the bill refers to socio-economic considerations, not seeing themselves in the preamble, they brought that concern to us. I think it just makes the preamble more consistent with the overall scheme of the bill.

Mrs. Karen Redman: But in your view it's not substantive or in practice wouldn't change the essence of the bill?

Ms. Elizabeth May: The language in the preamble is only used for statutory interpretation, when the intent of the act isn't clear and a court needs to look somewhere for guidance. So it's more symbolic than real.

Mrs. Karen Redman: Thank you.

The Acting Chair (Mr. Paul Forseth): Thank you.

If there are no further questions, we'll draw the meeting to a close. I want to thank the witnesses for coming. Of course the purpose of this committee is to receive information from all points of view, and the committee itself hasn't made up its mind. We will battle that out later.

I would encourage the witnesses to follow the proceedings of the committee and not just leave your submissions at the door and expect that they have a life. But follow the issues of the committee, and there are other ways to continue to let your views be known.

Thank you very much. This committee is adjourned.