ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 1, 2001

• 0912

[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good morning to you all.

In the absence of Mr. Mills, it would not be wise to start with clause 32.

There are amendments to clause 32 that also make reference to clauses 74 and 75. I presume the movers will want to stand the amendments until clauses 74 and 75 are dealt with. But that's just an assumption; I have not spoken to them yet.

For those two reasons, I am inclined to put aside clause 32 this morning and to deal with it on Tuesday.

The same would apply, if you are in agreement, to clause 35. Mr. Herron has an explanatory note that needs to be translated before it is properly discussed. Therefore, the desirability is to deal with clause 35 also on Tuesday.

We'll tackle, then, clause 51. Here again, the first amendment, in Mr. Mills' name, is very similar to the one on page 186. We could actually deal with the amendment on page 186, because it covers the same ground, so to speak. It's in the name of Madame Kraft Sloan.

Yes.

Mrs. Karen Kraft Sloan (York North, Lib.): Mr. Chair, I have a new amendment to replace this one.

• 0915

The Chair: The amendment submitted this morning by Madame Kraft Sloan covers the same lines as her amendment on page 186.

Has that been circulated? No.

• 0916

• 0921

The Chair: All right. The clerk is distributing the amendment, which is identified as being on page 186-A. In that amendment you will notice two possible changes to clause 51, which is found on page 25 of the bill.

On line 3 of subclause 51(1), the word “substantially” appears before the word “meets”. Then, on line 4, there is the word “may”. In the amendment being proposed this morning, “substantially” is dropped, and “shall” replaces “may”.

Is that an accurate summary of your amendment, Madame Kraft Sloan?

Mrs. Karen Kraft Sloan: I'm sorry, I...

If you said that “substantially” is deleted, and that “may” becomes “shall”, then that is an accurate summary of my amendment, Mr. Chair.

The Chair: Mr. Mills, you may want to comment, because your amendment covers the same ground.

Mr. Bob Mills (Red Deer, Canadian Alliance): It does cover the same ground, pretty much. The only thing I would put forward would be a friendly amendment to add mention of not only clause 49 but also clause 48. I think that would make it more meaningful. It would increase the accountability.

Mrs. Karen Kraft Sloan: Mr. Mills, perhaps you can tell me why you want to include clause 48.

The Chair: To increase, as he just said—

Mr. Bob Mills: Basically it's consultation in clause 48, so you'd have consultation included in completing that.

Mrs. Karen Kraft Sloan: Are you putting in a consultation requirement? Is that what you're doing?

Mr. Bob Mills: By adding clause 48, yes, we would. In other words, where it reads in the clause simply “section 49”, I would suggest saying, instead, “sections 48 and 49”.

Mrs. Karen Kraft Sloan: Oh, I see.

Would the officials care to comment on that, please?

Ms. Ruth Wherry (Director, Species at Risk, Canadian Wildlife Service, Environment Canada): Since clause 48 in the bill deals with, I believe, the consultation requirements, or in cooperation with, then it would kind of defeat the purpose of putting the clause in here in the first place. If there's already an existing plan, one where they've gone out and consulted or whatever, then the whole notion is to try to build on it, not redo it. If it's already been done, and it substantially meets the requirements in here, the whole idea is that you don't have to go out and do the whole consultation all over again.

So it's to make use of it, which is the purpose of putting it in here in the first place.

The Chair: You are addressing clause 48?

Ms. Ruth Wherry: Yes, that's right.

The Chair: Mr. Laliberte, on the same subject?

Mr. Rick Laliberte (Churchill River, Lib.): On the same subject, yes.

I'm just trying to read the amendment that would go in. It says here “substantially meets the requirements of section 49”. So a plan already is drawn, as the official mentioned, and it meets clause 49. In order to get to clause 49, you would have had to go through clause 48 already. So I would assume clause 48 is in there already.

• 0925

Cooperation and consultation take place if clause 49 exists. There is an existing plan with the clause 49 process. It's adopting the final product.

Mr. Bob Mills: I think by putting it in there, though, you are requiring consultation. You're emphasizing the point.

The Chair: Ms. Wherry and Madame Kraft Sloan.

Ms. Ruth Wherry: Maybe I can give you an example. For example, sometimes cattlemen already have something under way with burrowing owls. A plan has been worked out through stewardship, or whatever, that is working very well. If something like that has been done, another province or someone has done so, or there is a fisheries plan, generally they've already been through consultation to get to that point.

The notion is to try to build on it, not to go back and redo it. If you're going to bring in the requirements of clause 48, and everything, then it defeats the premise. We're trying to not redo it all, and build on it.

The Chair: Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I would like to know from Mr. Mills what he's looking for consultation on. Is it development of the plan, or is it to determine whether it meets the requirements of clause 49?

Mr. Bob Mills: I don't want the consultation redone. I want it to be based on consultation, simply by saying there has been consultation. It should be based on that, not to redo it.

Mrs. Karen Kraft Sloan: There are two things in operation here. One is the development of the plan itself. It is one set of activities that have to be done. The second thing, which is separate, is the determination on whether the existing plan meets the requirements in clause 49. I'm trying to understand whether you want consultation in relationship to the development of the plan, or in relationship to the determination on whether the existing plan meets the requirements in clause 49.

Mr. Bob Mills: I think that through the consultation you would know it would meet the plan. The plan would be based on having had the consultation.

Mrs. Karen Kraft Sloan: I hate to say this, but I am of two minds. I understand Mr. Mills' point. In fact, Mr. Chair, I wanted to make it a mandatory requirement for the plan to be included in the public registry for transparency issues. Anyone in the public is aware of the existing plan. They themselves can take a look at it.

I think those are the reasons Mr. Mills is putting forward his amendment around consultation. I share that point. However, I have a concern that we're going to get into a very lengthy process.

I also think, from what Madame Wherry said, you're working with a group of people who are on the ground, like the Cattlemen's Association. It may also have been an existing plan set forward by the Canadian Wildlife Service or through the government itself. In either case, the people doing this work successfully have a track record and have proven themselves. To slow the process down means a lot of extra delay.

My amendment, as it currently stands, is a compromise between the two positions. It is the understanding of your particular point about access, accountability, and the involvement of people who are affected. The government's position is a discretionary position, and mine, which I share with you, is around accountability.

• 0930

Mr. Bob Mills: As long as the minister is looking at it, that's the most important thing, not to redo it.

Mrs. Karen Kraft Sloan: Right.

The Chair: Do I take it the friendly subamendment by Mr. Mills is not accepted, and we stick with the text you have distributed so far?

Mrs. Karen Kraft Sloan: I would also point out...

The Chair: Let's come to a conclusion.

Mrs. Karen Kraft Sloan: Mr. Chair, I wanted to point out to Mr. Mills that my deletion of “substantially” falls on your concerns. Then the plan will be the same plan. It will meet those requirements.

Mr. Bob Mills: I can accept it.

Mrs. Karen Kraft Sloan: Is it all right?

Mr. Bob Mills: Yes.

Mrs. Karen Kraft Sloan: Okay.

The Chair: All right. The text is the one before us without any friendly subamendment. I suppose Madam Redman wishes to comment.

Mrs. Karen Redman (Kitchener Centre, Lib.): Mr. Chair, I think Ms. Wherry has covered most of our concerns.

The Chair: She has already commented.

Are there any further comments? Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Again, I wanted to point out to committee, when it comes to an existing plan, we need to know what is in the plan. It's important for the public.

I also have a question. Subclause 51(2) says:

The competent minister may incorporate any part of an existing plan relating to a wildlife species into an action plan for the species.

The question I have deals with the incorporation of part of a plan into an action plan so one plan might exist. You might take out some pieces and put them into a new plan you're developing.

Under subclause 51(1), are we saying 100% of the existing plan would be utilized, or part of the plan would be utilized?

Ms. Ruth Wherry: Do you mean subclause 51(1)?

Mrs. Karen Kraft Sloan: Yes, it is subclause 51(1).

Ms. Ruth Wherry: Yes. I think subclause 51(1) refers to an existing plan, whereas in subclause 51(2) you may take part of an existing plan to build into your total plan.

Mrs. Karen Kraft Sloan: Okay. In subclause 51(1), you would take the entire plan as it is currently operating.

Ms. Ruth Wherry: Yes.

Mrs. Karen Kraft Sloan: There is another point I wanted to make on my amendment, Mr. Chair. If you have a plan that affects different species, it may be hard to track the plan. Even though an existing plan has been approved, it is important that it is in the public registry and is treated like any other action plan.

If we remove “substantially”, Mr. Chair, then we are clear on the elements under clause 49. I think it addresses some of Mr. Mills' concerns.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 51 as amended agreed to)

(Clause 52 agreed to)

• 0935

The Chair: We move to page 188, an amendment in the name of Madame Kraft Sloan. We could accept this from the perspective of the technical and legal work if three words are removed—because we dealt with transboundary issues yesterday. Therefore, if those three words “or transboundary species” on line 5 are removed, then we could engage in entertaining this amendment.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Can I just have two seconds here please?

Mr. Chair, I feel very strongly about the transboundary species issue. I'm willing to delete this. I haven't moved this motion—I want to make that clear. I am willing to delete transboundary species from this amendment and I would ask if there's a member on this table who would like to move transboundary species as a subamendment. We can vote on that subamendment and then we can look at the clause.

The Chair: As I explained at the beginning, we had a vote on this matter already yesterday. That vote applies to all other references to transboundary species throughout the discussion we are having on amendments—and that vote was lost.

Mrs. Karen Kraft Sloan: As I recall, Mr. Chair, when we were doing the Canadian Environmental Protection Act, we lost a vote on endocrine disrupting substances and we won it in another situation. I feel this is a very fundamental aspect of this bill.

The Chair: I gave this ruling already yesterday when we finished the vote on transboundary species.

Mrs. Karen Kraft Sloan: I understood that the amendment was similar to the one that had been defeated.

The Chair: If you are willing to remove those three words, that's fine; we can proceed with your amendment. But the ruling made yesterday has to be consistent with the ruling today.

Mrs. Karen Kraft Sloan: So you can't entertain a subamendment that adds transboundary species back in?

The Chair: That's the problem we are facing.

Mrs. Karen Kraft Sloan: Well, that indeed is a shame. I will remove transboundary species. It is a real loss for Canadian species, and it's an embarrassment, Mr. Chair.

The Chair: Has this motion been moved?

Mrs. Karen Kraft Sloan: Yes, I move this motion.

The Chair: Fine. Would you like to explain it?

• 0940

Mrs. Karen Kraft Sloan: This motion would make action plans mandatory; it would implement action plans. Right now you don't have to implement action plans, which again is a very sad thing in this piece of legislation. So it would make the implementation of action plans mandatory and it would give timelines.

The Chair: Any comments?

Mrs. Karen Kraft Sloan: I would like to know the government's position on this before we call the vote.

The Chair: Oh, yes.

Madame Redman.

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

I would ask Ms. Wherry to speak to this.

If I could, through you to my colleague, I'm wondering how 60 days was arrived at.

Mrs. Karen Kraft Sloan: It was the recommendation of a number of witnesses.

Mrs. Karen Redman: Okay.

I'd ask Ms. Wherry to speak to this amendment.

Ms. Ruth Wherry: It's sort of unusual to force a minister to make a regulation. Actually, regulations may not always be necessary. There are all kinds of tools available for the minister to implement an action plan, and it would make sense to leave that flexibility there. The language that was removed from the bill, “that he or she considers appropriate”—in whose opinion would it be that they're necessary? I ask you that question because it doesn't become obvious.

Mrs. Karen Kraft Sloan: Mr. Chair, it would be the competent minister who makes that decision. Certainly we can add that into the amendment, but if it's not always necessary to make a recommendation to implement an action plan, then what kind of wording do we need in this bill to ensure that action plans are actually implemented?

Ms. Ruth Wherry: Could I just ask Mr. Nadeau to give some examples of the kinds of things that will be done in an action plan?

Mr. Simon Nadeau (Head, Endangered Species Recovery, Environment Canada): Actually, if we look at existing recovery plans, most activities listed in these plans are not regulatory in nature. They include research activities, monitoring, indication awareness, captive breeding, and all these activities do not require regulations to be undertaken.

Mrs. Karen Kraft Sloan: There is no requirement in this legislation to actually implement an action plan. There's a requirement to do a recovery strategy; there's a requirement to develop an action plan; but there is no requirement to implement an action plan.

So what do we say to endangered species when we say that there's no requirement to implement the thing that's going to protect them, that's going to recover their numbers, to restore their populations? How can we come up with wording the government will be satisfied with and that satisfies Canadians on this issue—that action plans be actually implemented?

Mr. Chair, I recommend that we stand this down until I can work something out with the government.

The Chair: Mrs. Redman.

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

I just wanted to reiterate what Mr. Nadeau pointed out, that it's highly unusual to force the minister to make a regulation in this way, and this is not always necessary to implement an action plan.

I think what Mrs. Kraft Sloan is trying to get at is some kind of assurance that there will be action taken, but it may be outside of the need for having a regulation. Mr. Nadeau again has pointed out there are all kinds of tools available that are outside of the regulatory mandate to ensure that positive action is taken for the recovery of species at risk.

The Chair: Mr. Mills.

Mr. Bob Mills: I wonder if we could get an answer about the 60 days as well. It seems a bit of a short time. Is that a realistic time?

• 0945

Ms. Ruth Wherry: No, it's highly unlikely that you could do a regulation in 60 days. You couldn't do it unless it was national security.

The Chair: Ms. Kraft Sloan.

Mrs. Karen Kraft Sloan: First of all, Mr. Chair, I am amenable to changing the timeline. Secondly, my question hasn't been answered.

If you aren't going to implement an action plan always through regulation, if there are other tools available, the question I'm asking is, how do we make that mandatory? You can have all kinds of tools. My husband has all kinds of tools on his workbench, but I'll tell you, he never picks up a single one of them because he's far too busy to get around to doing the things he has to do around the house. So I would suggest that you can have all the tools, and all the tool kits, and they can be nice and shiny, and they can be absolutely wonderful, but if you're not going to use them, if you're not going to implement them, you're not going to do a damn for species.

The Chair: Mr. Near, please.

Mr. David Near (Legal Counsel, Legal Services, Department of Justice): I would like to point out that it's highly unusual for a piece of legislation to force a minister, or for that matter the GIC, to actually undertake regulatory activities. In response to the general question being posed, the assumption is that the minister will fulfil the responsibilities they've been charged with, and in this case for the protection of endangered species, in bringing forward regulatory-type activity.

The Chair: Mr. Comartin, then Mr. Knutson.

Mr. Joe Comartin (Windsor—St. Clair, NDP): With regard to the shortness of time, we have to remember there's a 90-day public consultation in there too, so that the processing of the regulation can begin during that period of time. So it's really five months, it's not just 60 days, for the work to be done.

With regard to the other point that Mr. Near makes—this may be a bit of nuance, but I think it's important—we're simply saying that the regulation has to be made within that period of time. It's a given that regulation should come. I don't agree that we are somehow deviating from standards here that are generally used in the legislative process.

The Chair: Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): I was going to make the point to the government that so what if it's highly unusual—it's highly unusual what we're doing in security these days. Governments do unusual things all the time. It's part of being innovative and creative and showing leadership. You are not locked into the way you do things traditionally.

I think the point this amendment is trying to get to is that we've heard evidence in terms of other pieces of legislation passed in other jurisdictions that have set up a framework, but then the framework is never implemented. So then you have a law in the books but it's not used very often. If the government's only concern is the timing, I'll move that we change the 60 days to 120 days. I'll make that motion, that subamendment.

The Chair: Mr. Reed.

Mr. Julian Reed (Halton, Lib.): Surely, Mr. Chairman, this is indeed a locking-in process. If we were to approve this amendment we would be tying the hands of the minister in a way that I believe they should not be tied. It's very simple: the minister is accountable to the public, and to limit the discretion of the minister, in my view, is negative in a bill that is intended to encompass the broad spectrum of the population of this country, and in a spirit of cooperation. When you start making things mandatory all the time, you limit that opportunity.

The Chair: Madam Redman, and then Madam Kraft Sloan, and then we'll take a vote.

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

I was actually going to reiterate or underscore the same point that Mr. Reed just did. That is, this bill is built on the belief that in order for it to be effective and protect species at risk, we need to have the cooperation of ranchers and farmers and cattlemen and scientists. In order to do that effectively, we need to use all of the avenues open. They may not need nor warrant regulation. Some of the things Mr. Nadeau has pointed out I would say are very effective and will lead to effective protection of species at risk. That's why we are not supporting the amendment that's before us, which demands that the minister make regulations in a timeframe.

• 0950

The Chair: Final comment, Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, first of all, I'd ask the government what kind of position we could come up with that didn't necessarily specify mandatory regulation-making. I'd ask how we could have some kind of assurance in this legislation through the statute that action plans would actually be implemented, that there would be a mandatory requirement to implement an action plan.

I'd suggest that if I were a farmer or a rancher... And indeed, I have a farm at the end of my street. I live in the country. I know what it's like for farmers, because I see that farm every day I leave my house. People want certainty. They want to know that things are going to happen. Ninety-four percent of Canadians want endangered species legislation that is actually going to work to save endangered species.

I would suggest, Mr. Chair, that this bill is built on huge discretionary loopholes that will not work to save endangered species. They will do absolutely nothing.

It's a very sad day in the history of Parliament that the government is not willing to have mandatory implementation of action plans to save species. Mr. Chair, I'm withdrawing my amendment. I didn't even move it. I'm sorry. I will not move my amendment.

The Chair: It has been moved, and there is also a subamendment.

Mrs. Karen Kraft Sloan: Did I?

The Chair: It was moved, yes.

[Translation]

Mr. Bigras, do you wish to speak?

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Yes, Mr. Chairman.

I am in favour of this proposal. If I am not mistaken, the proposed amendment only applies to federal lands. I would like confirmation of this. Does this only pertain to action plans involving federal lands?

[English]

Mr. David Near: It doesn't just apply to federal lands, because aquatic species and migratory birds could be on non-federal lands. It's anything within federal jurisdiction.

[Translation]

Mr. Bernard Bigras: I used the wrong term. I should have referred to federal jurisdiction rather than to federal lands. For example, it applies to migratory birds, to lands governed by Parks Canada, and so on. That is what I meant: within federal jurisdiction.

[English]

Mr. David Near: It's within federal jurisdiction, but it's important to understand that federal jurisdiction extends for aquatic species, for example, off federal lands, and for some migratory birds off federal lands. So it's not just—

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I have not finished.

The Chair: Go ahead.

Mr. Bernard Bigras: Indeed, the lands could be much larger than that, and I understand. I am in favour of this because I believe it is a good example of the fact that, within the limits of its responsibility and jurisdiction, the federal government may very well adopt proactive, determining and clear measures in favour of the protection of endangered species. I believe it is able to do so within its jurisdiction. I am therefore in favour of Mrs. Kraft Sloan's recommendation.

[English]

Mr. Alan Tonks (York South—Weston, Lib.): On a point of order, Mr. Chair.

The Chair: Yes.

Mr. Alan Tonks: We passed the amendment that in clause 51 has the word “shall”—the minister shall include a copy of the existing plan. When we go down to clause 53, is not the whole matter of the requirement under discussion redundant, inasmuch as we have already said that the minister shall act? I don't understand why we're now discussing some degree of discretion with respect to the action plan. To me, it suggests that we've already made that decision.

The Chair: We are on a different clause, and we're dealing with regulations. And what has been done with clause 51 does not necessarily apply to clause 53.

Mr. Alan Tonks: I see.

The Chair: That would be my assessment of the situation.

Mr. Alan Tonks: All right. I disagree, but...

The Chair: We have a friendly amendment by Mr. Knutson to change 60 days to 120 days. Has that been accepted?

Mrs. Karen Kraft Sloan: Mr. Chair, I want a clarification on process here, because it's my recollection—and I will check the Hansard on this, as I may well be wrong—that I hadn't moved it, but I did accept Mr. Knutson's subamendment. So if you accept a subamendment before moving an amendment, does that mean the amendment has been moved?

• 0955

The Chair: Oh yes. The amendment has been moved. But I don't know whether the subamendment has been accepted by you. That's why I was asking.

Mrs. Karen Kraft Sloan: No.

Mr. Gar Knutson: Point of order.

The Chair: On a point of order, Mr. Knutson.

Mr. Gar Knutson: I would ask that you seek unanimous consent to allow the mover to withdraw the motion as if it's never been moved.

The Chair: Yes, we can do that.

Is there unanimous consent to withdraw this amendment?

An hon. member: You mean the subamendment—the whole thing?

The Chair: Of course. That goes with it.

Mr. Mills.

Mr. Bob Mills: Just before that happens, I'm concerned about not having “mandatory” in there too. I've said many times the “trust us” kinds of things in the bill are a real concern. The people on the ground don't necessarily agree with the bill saying “trust us and we'll do it”. They do not trust.

Even though they might read it in the Canada Gazette, it doesn't mean they are going to understand or accept that. That's been my argument with compensation and other things. You must have it in writing. It must be mandatory that this issue will be dealt with. I don't have a big problem with the “mandatory” and telling the minister he must do something.

The Chair: Then you can vote against the withdrawal of the motion.

Now we have a point of order by Mr. Knutson. It takes precedence. Is there unanimous consent for the amendment to be withdrawn?

Mrs. Karen Redman: Point of order, Mr. Chair.

The Chair: On a point or order, yes.

Mrs. Karen Redman: I would just like to understand exactly what unanimous consent to withdraw this motion means. Does it mean we would then not vote on this clause, and it would still remain open?

The Chair: We would have to stand the clause and stand... No?

Mrs. Karen Redman: It would be withdrawn as if the mover chose not to move it, and we would move on.

The Chair: We would continue with the following amendment. That would be the technical consequence, I'm told.

So are you ready for the motion to have this amendment withdrawn, which requires unanimous consent? Is there unanimous consent?

Some hon. members: No.

The Chair: Then we will proceed to a friendly subamendment by Mr. Knutson to change it from 60 days to 120 days. Is that subamendment accepted by the mover?

Mrs. Karen Kraft Sloan: Yes.

The Chair: Accepted. Are you ready for the question?

Madam Redman.

Mrs. Karen Redman: I would like to speak to the subamendment that has been deemed friendly.

The Chair: Yes.

Mrs. Karen Redman: Obviously we're going clause by clause, so we're examining on a very fine level some of the detail of this bill. But we can't lose sight of the structure of the entire bill.

I would put before this committee what the government has tried to do to address some of the very valid concerns that are being raised around accountability. The annual report will go to Parliament, as well as a five-year review. I believe 18 months into it there will be a round table.

The government will be held accountable through these processes for any inaction or action it does or does not take. So it's not merely an issue of 120 days or 60 days. I would contend that it's the flexibility of the government to enact.

The Chair: Final comment, Mr. Near.

Mr. David Near: I believe earlier in the discussion there was a suggestion that the language “in the opinion of the competent minister” be added as well, so it's clear who made—

The Chair: Where would that be inserted—after the word “necessary”?

Mr. David Near: In the second-last line, “federal lands, make any regulations that, in the opinion of the competent minister”, is a suggestion.

The Chair: Thank you, Mr. Near.

Are there any further comments?

(Amendment agreed to—See Minutes of Proceedings)

• 1000

The Chair: The amendment on page 189 is redundant because it has been covered by page 188. Because of its transboundary nature, the one on page 190 is also deleted because of the ruling and the vote yesterday.

The amendment on page 191 has already been covered and is, in our opinion, consequential. It is part of the amendment that was just carried. The same happens to page 192.

Mr. Bob Mills: We'll withdraw 192 and 193.

The Chair: Mr. Mills informs us that 192 and 193 are withdrawn.

We come to 194, in the name of Mr. Mills.

Mr. Mills, you may want to explain it, because it does not seem to fit into the text.

Mr. Bob Mills: I would like our officials to just explain the time-to-time concept in that. That is my main question.

The Chair: Before they do so, could you indicate to us where your amendment on page 194 exactly applies, and how the whole clause would read? Would there be a period after “territory”, and would you delete the balance?

Mr. Bob Mills: We would delete the balance.

The Chair: That's what he means.

Mr. Bob Mills: That's correct.

The Chair: Fine, go ahead.

Mr. Bob Mills: Before I move this, I would like to simply get an explanation.

Mr. David Near: Sometimes when the government is generating a regulation, they will find another very useful document that they will incorporate into the regulations, rather than paraphrasing or making it up themselves. In this context there may be documents from the IUCN, for example, that we could incorporate into the regulation, as opposed to trying to paraphrase it.

I understand your amendment stipulates we could only incorporate other governments' documents. That's the effect of the amendment. But sometimes there are other quite credible organizations, and we would like to incorporate portions of their material into the regulation. The IUCN red list, for example, is sometimes incorporated.

Mr. Bob Mills: My concern is that it sort of looks like “Where might this stuff come from?”, whereas if it's provincial-territorial legislation, at least it has criteria. My concern is who else might utilize this and how else might this be utilized. Can you make me feel any more comfort in that?

Mr. David Near: Again, one has to assume that a sense of judgment will be brought to what credible information will be used to form part of what ultimately will become the federal regulation. It's simply a method of adopting presumably credible information from another source, like the IUCN, for example, into the regulation, rather than trying to paraphrase it yourself.

Mr. Bob Mills: What about a hard lobby group? Does that open it up to them, as well?

• 1005

Ms. Ruth Wherry: It would still be a regulation. There would still be a public comment period, if something were put in that somebody had an objection to.

Mr. Bob Mills: I'm thinking this could be any number of groups, including corporations, whatever. On this other material, my intent was to remove it so you wouldn't have any doubts, or else change the wording to make it more clear. I'm not sure exactly how to get there. That's my concern. I guess I still don't feel really comfortable with your answers.

The Chair: Isn't what Mr. Mills is worried about on lines 5, 6, and 7? The guiding criteria are set out in the preceding sentence, namely, “any legislation”. The other material would still be of a legislative nature.

Mr. David Near: No. The last line would stand by itself, which is the difficulty. The first sentence relates to government material. The second is they—

The Chair: Well, material can be any leaflet you wish to print in your basement. It's not possible to interpret it that way. The guiding thought is in the first sentence. It would still have to emanate from legislating material of a province or territory—or then it is badly drafted.

Mr. Bob Mills: The point I'm making, I guess, is exactly what you're saying. I don't have a problem if it's from a province and territory. I have a problem if it's material from somewhere else, because that could be an intense lobby, whatever.

[Translation]

The Chair: Hare-brained, as we might say.

[English]

Perhaps we may suspend—

Mr. Bob Mills: I'll move this amendment and that will get it on the table, which will remove that.

The Chair: Perhaps we should get the officials to come back on Tuesday to clarify this point.

Mr. David Near: I recall the discussion clearly at the drafting of this clause and the intention was to also allow—in fact, the IUCN was the example that was discussed—other non-governmental material to be used in a regulation.

The Chair: What would be “other material as amended?” As amended by whom? By the legislatures? By the province?

Mr. David Near: No. For example, the IUCN amends its red list every year, I believe.

The Chair: Then you have an international body in mind here—

Mr. David Near: Yes.

The Chair: —not what I could be printing in my basement tomorrow.

Mr. David Near: The intention was to provide for, at the time, any other useful material that could be used in the regulation. They were thinking about a body like the IUCN. I don't recall discussion beyond that.

The Chair: Madam Redman and Mr. Knutson.

Mrs. Karen Redman: If this section were removed, how would information that's valuable, like the amendments that come to the IUCN, be incorporated into this document?

Mr. David Near: We would basically have to paraphrase it and add it in our own language, which is possible. We might run into some copyright and other questions we would have to address, in any event. It would be just more work, that's all.

The Chair: Mr. Knutson.

Mr. Gar Knutson: Mr. Near, in the past you've commented on whether this wording is usual. Is this a usual thing? Do we just sort of say we'll pass regulations based on stuff that's written far away?

Mr. David Near: Off the top of my head I can't recall whether or not there are provisions identical to this in other legislation, but it's not unusual for the government to actually utilize other credible materials in a regulation.

Mr. Gar Knutson: So you don't know of any other piece of legislation where this is found.

Mr. David Near: I don't know one way or the other right now.

• 1010

Mrs. Karen Kraft Sloan: If the government incorporates other information into regulation-making, and it seems to me that would probably be part of the research that is done for the development of the regulation, they don't just pull them out of the air. You have to have the ideas and the research and all this other stuff to base the regulation on. I'm just wondering why it has to be in a statute, if that's part of the normal practice. Because we often hear you can't put it in the statute if it's part of normal practice. And now we're putting something that's part of normal practice in a statute.

I'm just wondering why it's here. If it's because you want to deal with the IUCN red list, then maybe you should just say that. I know you don't want to be limited to that, but... So I wonder why it's in here if it's part of normal practice.

The Chair: Thank you.

Mr. Hearn, it's all yours.

Mr. Loyola Hearn (St. John's West, PC/DR): Thank you very much, sir.

I want to reiterate what some people have said already. I think it is certainly too wide open to leave a phrase like this in. I agree with the amendment, that it should be taken out, unless the specific wording, affecting a specific set of information with which we can all agree, be spelled out. Other than that, it's wide open, and we know what happens when you have regulations that are wide open.

The Chair: Mr. Mills, do you wish to proceed and move this motion?

Mr. Bob Mills: Yes, I'll proceed.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 53 as amended agreed to)

(On clause 54—Crown Corporations)

The Chair: Clause 54, amendment on page 195. Madam Redman.

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

I move that Bill C-5 in clause 54 be amended by deleting lines 20 to 31 on page 26. This is to demonstrate the government's commitment to the protection of species at risk within federal jurisdiction. We're proposing to remove the option of going first to guidelines for crown corporations in the implementation of the measures that are contained in action plans and management plans.

Quite simply, what this means is that crown corporations will now have to comply with any regulations that are established for the implementation of action plans and management plans. This can be accomplished by deleting this section in clause 54 and clause 72.

An hon. member: Call the question.

The Chair: Thank you.

In the history of committee work, it is a well-established proper course of action that when you want to delete a clause you simply vote against it. So the motion, I'm informed, is out of order for that very reason. The vote will have to be in the negative so as to achieve the desired result.

Is that correct?

The Clerk of the Committee: Yes.

The Chair: So simply vote against the clause and you will achieve the same result. I think we came across this once before, and that's what we did.

Mr. Comartin.

Mr. Joe Comartin: Mr. Chair, if I understand, what you require is someone to move clause 54. But who is going to move it, because I'm not supporting it?

• 1015

The Chair: Very simply, we will call the clause, and if the voice vote is in the negative, it will not carry. The effect will be the one that Ms. Redman had in mind originally.

(Clause 54 negatived)

(On clause 55—Use of powers under other Acts)

The Chair: Page 198, a motion in the name of Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Is there not a motion on page 197, Mr. Chair? No, it's out.

The Chair: So can we withdraw it?

Mrs. Karen Kraft Sloan: Do you mean my motion?

The Chair: It has a reference to “crown corporation”, I'm told.

Mrs. Karen Kraft Sloan: Well, Mr. Chair, I'd be very happy to delete the reference to “crown corporation”.

The Chair: All right.

Mrs. Karen Kraft Sloan: Is this consequential to the one that we passed on the implementation of action plans?

The Chair: Which number was it?

A voice: Fifty-five.

Mrs. Karen Kraft Sloan: I think this is separate.

The Chair: It will be necessary also to delete “and every agency” so that it reads “the competent minister shall ensure” to be consistent with the previous motion on crown corporations.

Mrs. Karen Kraft Sloan: Yes, we'll just leave “competent minister” in. The “competent minister shall ensure that the measures within their authority in an action plan are implemented, and may use any powers that he, she or it”—we'll strike out the “it” there.

The Chair: Thank you.

Mrs. Karen Kraft Sloan: We never know. We may have a giraffe as an environment minister some time in the future, when they achieve sentient abilities. So it's “and may use any powers that he or she has under any other Act of Parliament for the purpose of doing so”. Again, Mr. Chair, this ensures that action plans are implemented and encourages the minister to use all of the tools in his or her tool kit.

The Chair: Yes. Madam Redman, followed by Mr. Reed.

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

I'm wondering whether Mr. Near could give us some comments on this proposed amendment.

Mr. David Near: I just want some explanation as to whether or not the term “agency” is out as well.

Mrs. Karen Kraft Sloan: Yes.

Mr. David Near: Okay.

Mrs. Karen Kraft Sloan: It's just “competent minister shall ensure” and then we've removed “or it”.

The Chair: Mr. Reed.

Mr. Julian Reed: I wonder if there could be some commentary on what the repercussions would be if in fact the measures were not implemented. What kind of action is a consequence of adopting an amendment like this? Would there be legal action in the courts?

Mr. David Near: The term “ensure” would possibly pose some difficulties, because it would be a subjective determination. There is the possibility of somebody seeking litigation to force the minister, if they don't agree with the lack of action on the part of the minister, because he hasn't “ensured” that he take that activity. So that could pose a difficulty. Somebody might want to litigate as to whether or not the minister fulfilled the statutory obligation to “ensure”—that he or she fulfilled the obligations to the fullest. Then it would become a question of argument on that point.

Mr. Julian Reed: Thank you.

Mrs. Karen Kraft Sloan: Mr. Chair, I was wondering whether the officials have suggested wording that would replace “ensure”.

The Chair: What would it replace?

Mrs. Karen Kraft Sloan: “Ensure”.

Ms. Ruth Wherry: May I ask for a point of clarification here? With your intent, are you trying to say that all measures shall be implemented—shall implement measures?

• 1020

Mrs. Karen Kraft Sloan: The amendment would require that any of the measures under their authority in the action plan be implemented.

Ms. Ruth Wherry: The last one that was carried said “shall make regulations”.

Mrs. Karen Kraft Sloan: That's right.

Ms. Ruth Wherry: I'm not entirely certain what you're looking for in this one beyond the point David just talked about.

Mrs. Karen Kraft Sloan: All it does is say, number one, that you're going to implement action plans; and number two, that you're open to using any other powers or authorities you have, other than regulation, to implement action plans. It's broader.

Ms. Ruth Wherry: So it's not just regulatory measures you're looking for. They shall implement any measures, whether non-regulatory or not.

Mrs. Karen Kraft Sloan: It's whatever tools are available in the tool kit. What I'd also like to point out, Mr. Chair, is that the national accord itself stipulates all recovery plans shall be promptly implemented. The problem we have... Well, we have passed a clause or an amendment that requires regulations be made to implement action plans, but this is firming up the commitment the committee has already agreed to and expands it to other authorities and powers the minister has.

Ms. Ruth Wherry: For example, it could be, I guess, a non-regulatory measure like a stewardship initiative or agreement you're trying to work out with somebody. I don't know that the minister can force or mandatorily implement something like that. It implies a kind of stewardship agreement between two parties.

Mrs. Karen Kraft Sloan: As the amendment says, it's “within their authority”. On their side, they have to do everything they're responsible to do “within their authority” to implement action plans.

The Chair: Okay.

Madame Scherrer, then Madame Redman.

[Translation]

Ms. Hélène Scherrer (Louis-Hébert, Lib.): Thank you.

I am trying to push the thinking a little bit further with regard to the mandatory nature of these regulations. It is clear that the purpose of the bill is truly to protect species. I believe, first and foremost, that the only person responsible is the minister.

As soon as a mandatory element is written into the regulations, should there not also be an "otherwise" written in here somewhere? When we say that someone has the obligation, the responsibility to do something, do we not have the obligation to state what will happen if he or she does not do what is required? That is where I have a small problem. Have we provided for such measures?

For example, a minister may one day, in his or her great wisdom, decide to not respect something that is contained in the Act. Since we are making the respect of these provisions mandatory, should something else not be included here? If we do not set out an obligation to do something else afterwards, then what is the point of the mandatory nature of this? Without back-up, it is just wishful thinking and we are simply saying that we hope the minister will agree that this is mandatory. If we do not say that something else will happen if he does not do what is being asked, then what is the point. It is just wishful thinking.

Is there an "or else" in the bill? If such is not the case, then what is the point of wishful thinking.

[English]

Ms. Ruth Wherry: I'm not entirely certain I understood the question.

Ms. Hélène Scherrer: Okay. If it is mandatory, it means the minister really has to do it. What happens if he doesn't do it? Shouldn't there be in the bill something that says that if he doesn't do it, there will be consequences—any kinds of consequences, but there are going to be consequences? Considering that the minister has the first line of responsibility in a bill made to protect, if you just put in a mandatory obligation, shouldn't there be something that says what happens if he doesn't do it?

The Chair: Madame Scherrer, as far as I can tell you, to the best of my knowledge, that assurance is not in the bill.

Mr. Near, Madame Redman, and then we'll call a vote.

• 1025

Mr. David Near: With respect to your question, in this case the possible outcome would be an interested party—assuming they don't agree with the minister's not taking some measure they think he should to ensure that something is done—would probably bring what's called an application for mandamus to force the minister to undertake a statutory obligation. That would be the remedy often used.

Ms. Hélène Scherrer: Could I just talk about something else? What would be the purpose in making something mandatory if there are no consequences if you don't do it?

Mr. David Near: The consequence is it's providing a statutory obligation, which could form the basis of a federal court action. Putting it in the statute gives you standing, if you like, or a cause of action to bring that type of action.

The Chair: We'll hear Madame Redman and Madame Kraft Sloan, and then we'll close.

Mrs. Karen Redman: Very briefly—because I was hoping to cover the same issues—substantively what we're doing in this clause is changing the “may” to the “shall” and inserting the word “ensure”, given the amendments Ms. Kraft Sloan has made.

There are lessons to be learned from the legislation in the United States. One of the substantive ones that have impacted on the crafting of this bill is that there is not an unlimited amount of resources. If we tie up the bulk of our resources in litigation, despite how well intended this amendment may be we're going to have less money to spend protecting species at risk and looking at stewardship programs. For that reason, the government would not support this amendment.

Monsieur Nadeau would like to add to this.

Mr. Simon Nadeau: Yes. I'd like to try to shed some light on what an action plan is. An action plan is a list of activities proposed to achieve recovery of the species. It's a snapshot at a certain point in time, but as some of the activities are implemented, new information is gathered that, in a lot of cases, makes some of the actions devised in the first place inappropriate. They have to be changed. Some should not be done. We discover new populations somewhere, so we have to change our management that was planned at time zero.

As we get new information, our plans should change. Some of the actions, if we make them mandatory to undertake, might actually hurt the species in some cases.

The Chair: All right.

Madame Kraft Sloan can conclude.

Mrs. Karen Kraft Sloan: In response to what Mr. Nadeau has just said, anyone involved in a management process understands that you develop a plan and you implement your plan. In the course of action, you're always changing and adapting, but that means you are implementing your plan.

If the parliamentary secretary is concerned that the government is going to be tied up in litigation because it's not doing its job, then again, that's a very sad thing indeed.

I would just ask that the committee support this motion because the government has said, time and time again, that they plan on being accountable with endangered species recovery and protection, and you can't do that unless there are some mandatory requirements to implement.

Thank you, Mr. Chair.

The Chair: The amendment now reads, with the adjustments made at the beginning of this discussion:

The competent minister shall ensure that the measures within his/her authority in an action plan are implemented and may use any powers that he/she has under any other act of Parliament for the purpose of doing so.

(Amendment negatived)

(Clause 55 agreed to)

[Translation]

(Clause 56—Monitoring and reporting)

The Chair: Mr. Bigras, you have an amendment to clause 56.

• 1030

Mr. Bernard Bigras: Yes, Mr. Chairman. It is an amendment aimed at amending clause 56 relating to action plan implementation follow-up. As the clause stands, five years after the plan comes into effect, there will be a "report on its implementation and its socio-economic impact". We would like this report to also include environmental impacts. Why, Mr. Chairman? The implementation of any action plan may have serious environmental impacts. This is why I believe that this report should include an evaluation of the environmental impact of the plan.

[English]

The Chair: Mr. Bigras has moved an amendment that would insert the words “environmental and” in clause 56.

Mr. Laliberte.

Mr. Rick Laliberte: I wanted to speak in favour of this one. That's the wording I've been looking for for a while, to balance the socio-economic with the sustainable aspect. I think it would be very appropriate to have it in this clause.

The Chair: Madam Redman.

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

We're wondering if Monsieur Bigras would entertain a friendly amendment to this, to change the word “environmental” to “ecological”. I would ask Monsieur Nadeau if he could speak to why we have a preference for that wording.

Mr. Simon Nadeau: The word “environmental” is a bit broader than “ecological”. It includes all aspects: physical aspects, biological aspects, and chemical aspects. “Ecological” is more related to species, to wildlife. That's why we thought it was more appropriate in the context of this bill.

The Chair: Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: The purpose of this amendment is precisely to ensure broad coverage, Mr. Chairman. The implementation of an action plan might have serious impacts on habitats and on species, but it may also have, on top of that, environmental impacts. This is why the meaning of the amendment is broader. This would, among other things, change the object of the amendment.

The Chair: The suggestion is rejected?

Mr. Bernard Bigras: The suggestion is rejected.

The Chair: Mrs. Kraft Sloan.

[English]

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

I was going to ask Mr. Bigras if he would be amenable to a friendly amendment as well.

In my amendment on page 166, which was carried, dealing with the plan for the recovery strategy, there was the addition of “the progress towards meeting its objectives”. So I'm wondering if Mr. Bigras would mind inserting “and the progress towards meeting its objectives”. This would follow thus: “The competent minister must monitor the implementation of an action plan and the progress towards meetings its objectives...”.

I actually have two friendly amendments, but I wanted to know if Mr. Bigras agreed with the first one.

[Translation]

Mr. Bernard Bigras: Yes.

[English]

Mrs. Karen Kraft Sloan: To state the other concern, I actually wanted to argue for “ecological” as well, Mr. Bigras, because “environmental” is very broad. I appreciate that you want to be as inclusive as possible, but sometimes we have social environments and built environments.

I understand that in this legislation we're probably talking about the natural environment, but if you take a look at this paragraph as it is currently written, it's looking at the socio-economic impact. To provide a better integration of the “three Es”, “ecological” I think would better reflect the needs in this particular case.

So I am supportive of the government's position on the addition of “ecological” here.

The Chair: Mr. Herron.

Mr. John Herron (Fundy—Royal, PC/DR): I think it's a very good amendment that Bernard brought forward. I'll vote for it as “environmental”, but I think there is some merit to the “ecological” debate. I think you accomplish what you're after with “ecological”. I'll support it either way, but if you have a chance to get the amendment through with “ecological”, you might want to go that route. I'll vote for it either way. It's your call.

• 1035

The Chair: Mr. Comartin and Mr. Mills.

Mr. Joe Comartin: Actually, I'm more comfortable with “environmental” because of the use of “socio-economic” in the wording. It seems to me what “socio-economic” is taking into account is a very broad spectrum on that side of the ledger—if we can think of it that way—and “environmental” does it on the other side of the ledger. “Ecological” is akin here to the use of “biological” or “scientific”; it's moving in that direction. It's significantly limiting the scope of the criteria you want the minister to be taking into account. If we have to concede “environmental” to get the vote, I will support it either way, also, but I would prefer “environmental”.

The Chair: Mr. Mills.

Mr. Bob Mills: I just have a comment; it would be much like Mr. Herron's, I think. I would prefer “ecological” as the term is used here, but the whole thing is about the environment, and to me “ecological” is a little more meaningful a word in this position.

The Chair: If there are no further interventions, I would ask Mr. Bigras to read the amendment, as he has also decided to accept additional suggestions from Madam Kraft Sloan.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I do not have the written text of Mrs. Kraft Sloan's proposal, but it could be read over again. I accept the friendly amendments of Mrs. Kraft Sloan, but I am keeping the word “environmental” in my basic amendment. The idea, then, is to take the basic amendment I tabled and add on to it Mrs. Kraft Sloan's friendly amendments.

[English]

The Chair: Fine.

Could you please read the text that is being proposed? Go ahead.

The Clerk: It would be to delete line 38 and replace it with “the implementation of an action plan and the progress towards meeting its objectives and”.

The Chair: Are there any questions? Madam Redman.

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

I guess I'm asking a logistical question here. If this amendment were not to enjoy being carried, would I be able to move an amendment that brought in the word “ecological”, or would that have to be on the table before—

The Chair: This would be along the same lines that... The clerk is suggesting that if that is your intention, you should move this as a subamendment now.

Mrs. Karen Redman: Thank you.

I would move a subamendment that “ecological” be inserted instead of—

The Chair: In place of “environmental”. Fine. So we vote first on the subamendment moved by Madam Redman.

(Subamendment agreed to)

The Chair: Now we come to the friendly amendment—

A voice: To the amendment as amended.

The Chair: To an amendment as amended? This is the friendly portion suggested by Madam Kraft Sloan, namely the insertion of “and the progress towards meeting its objectives” after “action plan” on line 38 in clause 56. Correct?

(Subamendment agreed to)

(Amendment as amended agreed to)

(Clause 56 as amended agreed to)

• 1040

(On clause 57—Codes of practice)

The Chair: There are no amendments on clause 57. Shall clause 57—

Mr. Gar Knutson: Mr. Chairman, on a point of order, I'm just trying to set up the debate for clause 58, and I'd like to ask the officials a question on clause 57.

The Chair: Go ahead.

Mr. Gar Knutson: I'm just giving Mr. Near a chance to comment. Is there anything in clause 57 where Parliament is telling the minister he may do certain things? Is there anything in there that he or she can't do anyway?

Mr. David Near: No.

Mr. Gar Knutson: It was intended as an affirmative statement, as a sort of feel-good clause.

(Clause 57 agreed to)

(On clause 58—Destruction of critical habitat)

The Chair: Now we go to clause 58.

Mr. Bob Mills: Mr. Chair, this is a kind of ongoing thing that really relates back to clause 32, the mens rea issue. It would seem to me it will be very difficult to deal with clause 58 till we've dealt with clause 32.

The Chair: Why is that?

Mr. Bob Mills: It basically deals with the intent to destroy, the mens rea issue. Clause 58 is basically talking about that destruction of critical habitat and whether someone intended to do it or whether they did it accidentally. This is, then, basically that whole issue of mens rea versus lack of intent.

The Chair: We have as of this morning an explanatory note on clause 32, which is being translated, from Mr. Herron. Right?

The Clerk: It's being drafted and translated.

The Chair: We will deal with that on Tuesday, so we could stand clause 58 and deal with it after clause 32.

Mr. Bob Mills: I think it would fit in that order.

Mr. Gar Knutson: Before we stand the whole clause, I have a series of amendments about the protection of critical habitat I think we could debate and vote on without dealing with the narrow issue of—

The Chair: We can stand the balance and deal with your amendments today. Once we have dealt with them, we can still stand the clause.

Mr. Gar Knutson: All right. It would be my preference that we deal with it today.

The Chair: Fine. We will stand the amendment on page 200.

Madam Redman, would you want to stand your amendment on page 201, or are you ready to move it?

Mrs. Karen Redman: My understanding, Mr. Chair, is that we're standing down the amendment on page 200. Are you asking if we want to stand down page 201?

The Chair: Yes.

Mrs. Karen Redman: We're prepared to do this at this time, Mr. Chair. I would point out that this has been a long process. It's been productive. There's a lot of passion on all sides of this table concerning this legislation, and this is a substantive way the government has responded to some of the concerns this committee has expressed after hearing testimony.

The amendment is that Bill C-5, in clause 58, be amended by replacing line 10 on page 27 with the following:

species or a listed threatened species that is an aquatic species or that is on

The Chair: So you're moving it?

Mrs. Karen Redman: I am moving it.

Mr. John Herron: Mr. Chairman, on a point of order, it's my interpretation that if this were to carry, that would make my amendment on page 203 out of order. True or false?

• 1045

The Chair: It would probably be only the portion dealing with aquatic species. It would be unnecessary.

You do have a cross-border item there, which we will tackle, but we're not there yet.

Mr. John Herron: I have some new information on the transboundary issue that we might want to have a chat about. It's new, riveting, exciting—

An hon. member: And out of order.

Mr. John Herron: —and out of order at the moment. There's a precedent for what we did in the bill that I believe means that the transboundary issue is still on the table.

The Chair: We are not there yet.

Madam Redman has moved her amendment. It's before us.

(Amendment agreed to)

The Chair: Thank you.

We are now on page 203.

Mr. John Herron: I have a point of order. Mr. Chair, with great reverence toward the chair, I would like to call into question the previous ruling with regard to transboundary species. With the amendment on page 57, which adds new subclause 15(2.1), we entrenched the action within COSEWIC to consider transboundary species. We made that a function of their job. The issue of transboundary species has been enshrined in the bill. So I believe that for us to rule that transboundary species were not included would be incorrect, because it has been enshrined in the bill under the amendment on page 57, which the committee has passed.

Moreover, the more important point, Mr. Chair, is that this issue requires a full debate on transboundary species. If we go back to the committee evidence, we will not see any reference that a myriad of amendments would be consequential. We would have had to list those pages at that time. Members clearly knew that they were not voting to remove that particular issue. So it is a point of fact that the committee was not informed that this would be consequential. We had a second vote yesterday in this very room just to verify that members were sure of what they were voting on. So we set a precedent yesterday as a procedure issue just to make sure. So it's enshrined in the bill. The members weren't sure. This issue is big enough to have a full debate. More importantly, the clerk would have had to inform the committee that these things were consequential. Otherwise, we didn't have a proper vote.

So with that new information, Mr. Chair, I'd ask that transboundary species be considered again.

The Chair: I did inform the committee yesterday about the consequential aspect.

This debate on a point of order is becoming extremely interesting. I'm inviting other comments on the intervention just made by Mr. Herron, particularly with reference to page 57.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I want to seek clarification about an amendment I made yesterday around the safety net, which was moved, discussed, and voted on. It was my first amendment. I'm just trying to locate that right now. There were only 30 pages in that part. It's on page 104.

• 1050

The Chair: Is this relevant to this discussion?

Mrs. Karen Kraft Sloan: Yes, it is relevant to this discussion. I want to know if the discussion and subsequent vote on this particular amendment was held before or after the transboundary amendment was defeated.

The Chair: The minutes will show that. We can answer that on Tuesday.

Mrs. Karen Kraft Sloan: This clause also deals with transboundary species. We put this amendment on the floor, we had a discussion on it, and we voted on it. So I want to identify whether this was before or after.

The Chair: Mr. Near.

Mr. David Near: Just as a point of clarification on the impact of the amendment on page 57 with reference to cross-border species, that's a function of COSEWIC. It's directing COSEWIC to address that when they're performing their duties. This is distinct from the definition of transboundary that was discussed and defeated, which makes it a federal species throughout the legislation.

My recollection is that the chair did direct members to some of the consequential amendments. In fact, Mr. Knutson withdrew his motion that defined transboundary species, which I think was L-4.

The Chair: I would say at this stage that Mr. Herron's intervention on a point of order to draw our attention to page 57 is a very interesting one. I will tell you what I'm going to do. On a matter of this nature, which is becoming rather complex, I'm going to consult the Speaker. On the basis of that consultation, I will be able to convey to the committee on Tuesday a decision on the point of order made by Mr. Herron. We will stand Mr. Herron's amendment for the time being.

We will move on to the next clause. Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I also want to ask a question. We've had discussion around this table as to whether or not transboundary species come under federal jurisdiction. At one point in time it was the will of the committee to suggest that they were not going to include them in this bill. That does not mean to say that they're under federal jurisdiction. In fact, just about every lawyer and legal association in the country said that transboundary species are indeed under federal jurisdiction.

So you have a situation here where you have a species that is truly a federal species but the committee through its will is entertaining a virtual reality position, if you like, that excludes transboundary species under federal jurisdiction. So I'm wondering if an argument can be made substantively as opposed to just procedurally for the inclusion of transboundary species to be continued in this debate as well because they are under federal jurisdiction.

The Chair: We will take your reflection into account as well.

We will stand the motion on page 203.

We could move to the motion on page 204 in the name of Mr. Bigras. Mr. Bigras.

• 1055

[Translation]

Mr. Bernard Bigras: Mr. Chairman, as you will see, this amendment is a major one. I am very aware that this is not the wish of some on the dominant side of the committee, but I must remind you, Mr. Chairman, that certain provinces already have legislation in this regard, as is the case of Quebec, with its Loi sur la conservation et la mise en valeur de la faune. We also have in Quebec the Loi sur les espèces menacées ou vulnérables, and we are of the view that this act should apply. I am well aware that this is not the wish of the committee—in any event, we will have a vote—but it was to my mind important to table this proposal so that we might discuss it.

For us, Mr. Chairman, habitat protection is clearly a matter of provincial jurisdiction. In this regard, we believe that it is the Quebec Act, which was passed by the National Assembly in Quebec City in 1989, that should apply.

[English]

The Chair: You've heard Mr. Bigras. Is there any comment?

Madame Redman.

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

This amendment removes the requirement of the GIC order to apply to critical habitat protection. It removes the obligation to consult with competent ministers, as well as territorial ministers, bands, and wildlife management boards, when recommending an order to protect critical habitat on federal lands. Because the government feels that kind of consultation is really critical to the buy-in of those other parties, we would not support it.

I would ask Ms. Wherry if she wants to make additional comments.

Ms. Ruth Wherry: Yes, this would make it mandatory, exactly as you said. If you delete the subclauses, then all that would be left is clause 58, which says no one shall destroy any part of the critical habitat as soon as it is identified in the recovery strategy or action plan. It would make it mandatory right away, and would not leave in any option to try to work out stewardship on federal lands, or for aquatic species.

And that would be a major thing. There would be no opportunity to work out any stewardship.

The Chair: Any further comments? Mr. Herron.

Mr. John Herron: I'm a little bit confused about the phrase “stewardship on federal lands”.

Ms. Ruth Wherry: There are companies, such as mining companies, who operate on federal lands. There are people who lease federal lands—for example, PFRA lands are leased to private landowners. You do have to take into consideration PFRA lands, because those are federal lands. Indian reserves are federal lands.

Mr. John Herron: Okay.

(Amendment negatived—See Minutes of Proceedings)

The Chair: Mr. Knutson, page 205.

Mr. Gar Knutson: Thank you very much, Mr. Chair.

I'd like to move this amendment. It is part of a very substantive series of amendments on pages 211, 213, 214, 215, and 216. I'm going to refer to all of them as part of my opening comments.

The gist of this amendment is to give subclause 58(1), which says you shouldn't destroy critical habitat, some teeth. If my amendment passes, you wouldn't destroy critical habitat that's identified in a recovery strategy or an action plan, except as qualified, which I'll address later.

Before the government says that this will bring in the heavy hand of government, and we don't want to do things mandatorily, I'd like to point out that in terms of the drafting of a recovery strategy, which is covered in clauses 37 to 46, clause 38 says a recovery strategy has to be cost-effective.

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As well, clause 39 says it has to be done in cooperation. Subclause 39(3) says a recovery strategy has to be done in consultation with landowners. Clause 40 says a recovery strategy has to take into account whether it's feasible to protect the species. And clause 41 says if it is feasible, you identify habitat.

So there are lots of negotiations just in the recovery strategy process. Protecting critical habitat, then, which is key to protecting species, is not just going to be some hand out of the sky, and all of a sudden you have habitat on your land that's protected, and you can't use it.

There's a similar argument with regard to clauses 47 to 56, which cover the action plan. Clause 48 basically says the action plan has to be developed in cooperation with the whole world. Subclause 48(3) says it has to be developed in consultation with landowners. Clause 49 says you have to identify the critical habitat within your action plan. If you're identifying it and you want to protect the species, it makes sense to protect it.

If you would give me just a little bit more leeway, I also want to point out that the following amendments also provide huge qualifications for this proposal. Of them, the one on page 211 is the most significant. It basically says you don't need to protect habitat. It's not mandatory that you protect habitat if you go and get a permit. So even where it's necessary for a landowner to destroy critical habitat—and there are times it is necessary to destroy critical habitat, for socio-economic or other reasons—the amendment on page 211 gives them the out. It would require a permit.

My amendment on page 213—again, it's a huge qualifier—says if you're protecting habitat on provincial lands, you need to go and make reasonable efforts to contact the landowner. You have to make reasonable efforts to negotiate an agreement under clauses 11, 74, or 75. Again, there's a qualifier that there's not going to be this huge, heavy hand coming out of the sky. There has to be a negotiation period.

The amendment on page 214 provides a qualifier for Indian reserves.

The amendment on page 215 provides a qualifier for lands covered under land claims.

The amendment on page 216 allows for an extension of time. If you need more time to negotiate, with good will and cooperation, then the time to do that would be extended by 90 days.

I would just point out to the committee that if we're going to protect species, we need to protect their critical habitat. That's why I think this is a reasonable group of amendments. It's done with a full eye on the principles of cooperative, of feasibile, and of all those good things the government is so proud of being in this bill. It lays out in very clear language, though, at the end of the day, that to protect species you need to protect habitat.

Mr. Julian Reed: If you can define what that is.

Mr. Rick Laliberte: Well, you have to, Julian.

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The Chair: Since there are some interesting developments—

[Translation]

Ms. Hélène Scherrer: On a point of order, please.

The Chair: Go ahead.

Ms. Hélène Scherrer: I would have a lot of difficulty going along with Mr. Knutson's amendments as long as...

The Chair: We too have the same problem.

Ms. Hélène Scherrer: You have the same problem?

The Chair: Yes.

Ms. Hélène Scherrer: I am happy to see that we agree.

[English]

The Chair: We'll make a brief announcement on how to settle the problem that Madame Scherrer has also identified. However, at this point there is an intervention, a statement that Madam Redman wishes to make, which is extremely helpful. It removes an iceberg from the—

Mrs. Karen Redman: I certainly would agree with your ruling that we have dealt substantively with transboundary, but if you would seek unanimous consent, I think you would find most members agreeable to revisit that topic and again have a full discussion rather than get into the logistical wrangling. The government's prepared to have that discussion today. If the committee or the clerks want a little extra time, I believe you'd have unanimous consent to revisit that.

The Chair: This is extremely helpful, so I'm asking whether there is unanimous consent to reopen the transboundary discussion, as already suggested by Mr. Herron earlier.

Some hon. members: Agreed.

The Chair: That item is now resolved. Thank you.

We are trying to adjourn at around 11:30 today, so there is not an immense amount of time for doing too much. I would rather try to tackle in the limited time available the line conflict problem, which Madame Scherrer has already identified, beginning with the motion on page 205, which has to be analysed or looked upon in conjunction with page 206, because I am told here that there is a technical problem related to line conflict limited to three words, “subsection (1) applies”.

“Subsection (1) applies” is in the text of Mr. Knutson's amendment on page 205 in the first line, and you will find the same wording virtually on the last line on page 206. So I'm told we have to resolve this conflict, which perhaps could be resolved if the mover of the motion on 206, namely the government, would delete the conflicting line from their amendment. That would be one reasonable suggestion. The other reasonable suggestion by the clerk is that Mr. Knutson instead modify his amendment by deleting those three crucial words so as to remove this technical conflict. So it's whichever way.

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Mr. Knutson.

Mr. Gar Knutson: I'm quite happy to agree to a technical change in the amendment in order to facilitate the committee's work. That's fine if it solves the problem.

Can I raise another point of order, though?

The Chair: Yes. But I would also like to ask Madam Scherrer whether this adjustment also removes her doubts.

Ms. Hélène Scherrer: My issue is that

[Translation]

I was having difficulty coming to a decision with regard to subsections 58(2), 58(3), 58(4) and the following since we had not solved the problem with regard to subsection 58(1). That was the purpose of my point of order. We could not deal with that before having looked at the amendment on page 200 and that of Mr. Herron. I would have difficulty choosing if subsection 58(1) had not yet been dealt with.

[English]

The Chair: Mr. Knutson, on a point of order.

Mr. Gar Knutson: I happen to agree with Madam Scherrer. There's concern about dealing with the subclauses in clause 58 without dealing with the main one or the introductory section. Since I don't think we can deal effectively with my group of amendments in the next ten minutes anyway, why don't we just finish ten minutes early?

The Chair: Yes, also we have to reorganize ourselves here at the table because of amendments that have been put forward today. And there is the issue that Mr. Herron brought up in the morning and his memo that is being translated. The picture is becoming a bit too complicated to deal with at this stage.

Mr. Knutson, we will stand your amendment at this point and resume on Tuesday. Let us hope that on Tuesday we can clean up this enormous bottleneck.

Thank you for your patience.

The meeting is adjourned.