ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 6, 2001

• 0915

[English]

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

You may recall that when we met last Thursday we were wrestling with clause 58. We agreed to the government motion on page 201 of our collection of goodies, and it was carried.

The carrying of that amendment has two consequential effects—namely, by adopting that motion, we also adopted the motions on pages 206 and 209.

Then we voted on Mr. Bigras' amendment on page 204, which was lost, and we stood Mr. Herron's motion on page 203.

• 0920

Let me conclude by saying that when we were discussing the motions on pages 205 and 211...

No, we discussed the amendment on page 205, and only page 205. There was the notion that there would be a conflict with a motion on page 206. But that conflict is only a cosmetic one, because it can be resolved by a very simple adjustment in the language of the amendment proposed by Mr. Knutson, if he were to delete the second line so that there is no conflict on that line. It is more of a technical change that I would like Mr. Knutson to consider so that we can resolve this inconvenience.

So then, at that point, the parliamentary secretary indicated that there was no objection to the issue of reopening the issue of transboundary species, a decision that was certainly very helpful so that we could start clean and tackle that particular subject in an orderly fashion, because there are a number of amendments involved and a clean start would be extremely helpful in order to do the job properly.

What I propose to do now is, first, to conclude the discussion that we had already initiated about the conflict between the motions on pages 205 and 206, and then see how far we can clean up the transboundary species package of amendments.

In addition to that, there are a number of reorganized amendments, by Mr. Herron, relating to clause 34, which perhaps could be tackled in the next hour before some members have to go to the House, I understand, for other duties. So we are operating here under the most unusual circumstances.

I see Madam Kraft Sloan would like to raise a point.

Mrs. Karen Kraft Sloan (York North, Lib.): Mr. Chair, on the issue of consequential amendments, we passed the one on page 201, and there were other ones that you said were consequential to it. Was this issue addressed before the vote?

The Chair: No, that is not my recollection. I'm doing it now, and from now on, I will make extremely certain that the announcement on consequential effects is made together and at the same time as the amendment is presented.

Mrs. Karen Kraft Sloan: Exactly, Mr. Chair, because there are amendments that can be affected, and in terms of good will on this committee, we've always had an opportunity to discuss everybody's grouped amendments where they affect one another's. So I would hope that movers identify any consequential amendments so that it's not after the fact.

The Chair: As in the case this morning with Mr. Knutson, when there are conflicts in lines, it would be helpful that the proponent of the amendment anticipate the problem by suggesting a solution, possibly with some advance notice, if at all possible. That would be a solution to the problem of handling consequential amendments in an orderly fashion.

Madam Redman.

• 0925

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

In the spirit of cooperation and trying to move this bill through in a timely fashion, the reason I supported looking again at transboundary is not that I didn't feel there had been full discussion, or not that I didn't feel most members knew what they were voting on, but clearly this is a huge issue.

I would put to the chair, and perhaps to the committee, that if you want to deal with Mr. Knutson's motions on pages 205 and 206, we could then move to a discussion and allow every member of the committee a chance to talk about whether we want to deal in this bill with the issue of creating a new class of transboundary. I don't know if we need an actual motion to vote on that. That would settle it once and for all.

Then any subsequent or consequential amendments that dealt exclusively with transboundary would either be deemed passed or, when we got to that individual motion, the person could say, I will take that part out of it. I think that's what you're suggesting. It deals with other issues. But clearly, if transboundary has been dealt with, that would be taken off the table. If there were other things within that amendment that the mover wanted to see put forward, they could do it in that fashion.

But I think it's very fundamental to this bill that we have the discussion and give everybody a chance to speak. Then we could vote on transboundary and put that issue to rest as we move through the rest of the bill. That would be my suggestion.

The Chair: The discussion is a precondition, absolutely. We may have it very soon, and hopefully once we have gone over this little item that was partially discussed—namely, the motion on page 205, as it is in conflict with the motion on 206.

Mrs. Karen Kraft Sloan: Mr. Chair, I have a point of order. I believe the suggestion you made last week, which was to take the matter to the Speaker to determine—

The Chair: No.

Mrs. Karen Kraft Sloan: Mr. Chair, I have a problem with us deciding once and for all on this committee at a particular moment in time whether or not an issue is before the committee. What other aspects of this bill are we going to take votes on and then silence debate?

The Chair: The moment that—

Mrs. Karen Kraft Sloan: Mr. Chair, you decided last week that because there was some issue around transboundary having consequential aspects to it, you were going to take it to the Speaker to have a discussion about whether or not it was in order.

The Chair: At the end of our discussion—

Mr. John Herron (Fundy—Royal, PC/DR): Karen, it's wide open now.

The Chair: We are opening the whole issue as a result of the suggestion made by the parliamentary secretary that the entire issue of transboundary species can be re-examined.

Mrs. Karen Kraft Sloan: Mr. Chair, I understand that we're going to take a vote after our discussion, and if the people who want to have discussions around transboundary species at a later date lose that vote, then that's the end of the discussion on transboundary, and the issue is put to rest.

Mr. John Herron: Mr. Chair, I do not have the exact committee evidence in front of me, but I think it would be very helpful for us to get that. Is it a matter that in lieu of going to the Speaker, the parliamentary secretary has said that this subject is now wide open?

Mrs. Karen Kraft Sloan: I'm not sure that's what we agreed to. We didn't agree to a situation where there was no more voting on an issue.

Mr. John Herron: If not, we will bring it to the Speaker.

The Chair: We could have a number of votes by re-examining the issue of transboundary species. So we start fresh—

Mrs. Karen Kraft Sloan: This is it.

The Chair: —and we go into it in an orderly fashion, including the motion on page 108.

• 0930

So the discussion starts anew because of the consent given by the parliamentary secretary to do so.

At the end of that meeting on Thursday, I thought that was a way of clearing up the whole confusion that had arisen from the consequential statement I erroneously made last Tuesday about the effect of a vote on a certain motion that could have an impact on a number of other amendments.

So let us now put these things together in an orderly fashion.

First of all, let me ask Mr. Knutson whether he has any suggestion for the overlap on pages 205 and 206.

Mr. Knutson, do you agree that by having adopted the government motion on page 201, this has a consequential effect on your amendment?

I'm sorry, I should ask this question of Madam Redman.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): It has an effect only by the strict application of the line rule. I had worked out a suggestion with the committee clerk that instead of replacing, my language on page 205 would simply be an addendum.

The Chair: Madam Redman, could I have your answer as to whether you agree that the application of the amendment on page 201 takes care of your amendment on page 206?

Mrs. Karen Redman: I would ask Mr. Near to comment.

Mr. David Near (Legal Counsel, Legal Services, Department of Justice Canada): They're addressing two separate issues. Mr. Knutson's wording on page 205 says “applies to the critical habitat”. Critical habitat is a defined term that means as established under a recovery strategy or an action plan. In the motion on page 206 it applies to a portion of the critical habitat that the GIC makes an order with regard to. So they're actually two different ideas. Number 205 is substantively different from 206.

The Chair: Mr. Near, do you agree that adopting the amendment on page 201 takes care of the amendment on page 206?

Mr. David Near: Actually, I'm not clear on that one, either. I wouldn't mind hearing an explanation.

The Chair: The amendment on page 201 was carried last Thursday, and it inserts the term “aquatic species”. This is what we are attempting to finalize now.

• 0935

We were told by the government representative that adopting the amendment on page 201 it would take care of the amendment on page 206. Now, if there has been a change of assessment on the part of the government—and this is what I am trying to clarify now—then we had better know it now. Obviously, in the amendment on page 206, there is a reference to aquatic species as well. That's true.

Mr. Knutson.

Mr. Gar Knutson: Page 201 is, by my reading, merely a housekeeping amendment that was put forward to fix a drafting mistake because we hadn't included fish. If you read the bill as it stands right now, it mentions federal lands when the intent of the drafter was for all federal jurisdictions; it should have included federal lands and aquatic species. I think we should accept 201 as passed. It was a minor technical amendment intended to include aquatic species, and that's a good thing regardless of any other views you might have on any other section.

As to the difference between pages 205 and 206, again, Mr. Chair, I agree with Mr. Near that it is a substantive debate. If you read clause 58, it deals with the protection of critical habitat within areas of federal jurisdiction. The way the bill is drafted now, subclause 58(2) is a huge qualifier on the impact of clause 58, on protecting critical habitat under federal jurisdiction. Basically, the bill as it is written says, we'll protect critical habitat within areas under federal jurisdiction only when the Governor in Council, on the recommendation of a competent minister and after consultation with every other competent minister, makes an order. We set out with this grand intent of protecting critical habitat within areas of federal jurisdiction, and then we qualify it way down and say the minister has to pass an order and has to do these things before he passes the order.

The day this bill is passed and proclaimed, habitat will still not be protected. The government's reaction to that complaint, if you will, is in the amendment on page 206. It basically says they're agreeing that habitat will be protected in bird sanctuaries, it will be protected in national parks and marine protected areas right from the get-go, and you don't need a government order.

It's my view that this is a step forward, but it's not a big enough step. I would suggest that we have a substantive debate on my 205 and that, if it doesn't pass, we debate 206. That's my recommendation.

The Chair: All right. I'm also reading from the voting pattern prepared by the government for the consequential effects of G-11. It reads that the vote on G-11 applies to G-12, G-13, and G-14. If there has been a change of mind on the part of the government, we need to hear it now.

Madam Wherry.

Ms. Ruth Wherry (Director, Species at Risk, Canadian Wildlife Service, Environment Canada): I don't think we ever put forward that these were consequential to each other.

The Chair: Would you like to see the text?

Ms. Ruth Wherry: We put together some themes. We didn't put them together as anything related to consequential. We never submitted anything that said something was consequential to another one.

The Chair: All right. I think we will not consider them consequential because you implied your lack of mutual comprehension.

We will first vote...

Mr. Gar Knutson: We're on 205.

The Chair: We'll first decide on Mr. Knutson's amendment, and then we'll go to 206 when or if it doesn't carry.

Madam Redman.

• 0940

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

Further to Ms. Wherry's comment, this is a debate that I think is well worth having, as Mr. Knutson has pointed out. Mr. Herron's is similar. If you would look at dealing with them thematically, pages 211, 213, 214, 215 and 216 all deal with a similar issue. I wonder if it would be worthwhile to have a debate about that rather than doing one-offs.

The Chair: You're suggesting a debate on critical habitat or a debate on a bundle of amendments?

Mrs. Karen Redman: I'm suggesting a discussion on critical habitat. Some of the amendments remove GIC as part of the decision-making process.

The Chair: That facilitates the handling of the amendments. We can have it, but we've heard some discussion on the subject over the past several meetings, so it seems to me that we would be covering the same territory that we have already, in good part, discussed. I would prefer to hear now Mr. Knutson's arguments and his presentation on the amendment on page 205, and gradually move into the subject matter.

Mrs. Karen Redman: As part of the discussion on Mr. Knutson's, could we hear from Mr. Herron on whether his is different from Mr. Knutson's, and if so, how?

The Chair: Mr. Knutson, would you like to present your amendment?

Mr. Gar Knutson: Certainly.

I would move the amendment on page 205. If passed, this will protect critical habitat within areas of federal jurisdiction.

I want to point out that I also have an amendment on page 211 that would allow for permitting. So you start with a general rule that habitat is protected, and the reason we want to protect habitat is that this is the key element in terms of protecting an endangered species. But there are some cases where you do need to destroy habitat, whether for socioeconomic reasons, for public safety reasons, or... So it's not an absolute. The amendment on page 211 sets out language that hooks that protection into getting a permit.

We're protecting habitat that's identified in both the recovery strategy and the action plan. If you review the language in the bill, the recovery strategy has to be cost-effective; it has to be done in cooperation; it has to be done in consultation with the landowners; it has to be feasible, and only if feasible do you identify critical habitat. Then, on the action plan, again, it has to be done in consultation with landowners, and you have to identify habitat.

So I think this is an important step, and this amendment goes to one of the primary weaknesses in the bill, that we don't know to what degree the government, the ministers, will actually protect habitat. So this is Parliament's clear indication to the government that you will protect habitat unless there are really solid reasons not to.

Again, I emphasize it's only within areas of federal jurisdiction.

The Chair: Thank you.

Now could we hear from Mr. Herron, presumably on his motion on page 208? His amendment on page 208 covers lines 15 to 19.

Is that the one that you would like to explain briefly as an alternative?

• 0945

Mr. John Herron: I would say this clearly follows the same line of approach as Mr. Knutson's. My view is that it is different only in that it includes the issue with respect to the public registry, which opens a different aspect. So I would say although it has the same substance, it could be discussed as well.

The Chair: Karen.

Mrs. Karen Redman: Thank you, Mr. Chairman. As I said, there's a bit of a theme through several of these motions, and I go back to the fact that while it's maybe the intent of the mover to look to certainty, and despite the fact these are on federal lands, we have to consider the people on those lands.

If we look at people who are holding leases on the prairie farm rehab, who are lessees for years and years, certainly we want to enter into stewardship agreements with them, and we want to consult with them.

We want to do the same with people who are on reserve lands. There are timelines that are part of this bundle that, I would tell you, preclude those kinds of things happening in good faith.

Because of these issues, we feel the bill is far more workable, taking into consideration that it is built on cooperation and partnership. It holds the hope that the threat of the stick, as opposed to the stick, will bring people to the table. In consideration of the people on the ground who need to make this legislation work, this is not an improvement, in our estimation.

The Chair: Mr. Herron, briefly, then Mr. Mills.

Mr. John Herron: Mr. Chair, this is probably one of the most substantive aspects we're going to be discussing in the context of this entire bill. This is about getting the federal house in order, and only getting the federal house in order. That's what it's about.

Mr. Chair, how can the Government of Canada even have in its tool kit the capacity to perhaps make intervention into provincial lands, to perhaps make interventions on private lands, but not guarantee mandatory protection in its own backyard?

The questioning we had from government members and heard from witnesses, time and time again—whether it was from Ms. Carroll, Ms. Kraft Sloan, Mr. Laliberte, or, on occasion, I think, Ms. Scherrer—had pointed out that very aspect. There is a clear flexibility tool kit in Mr. Knutson's approach, in the sense that there's a provision to ensure that socioeconomic aspects would come into play—in particular with lease holders as well.

It's about federal jurisdiction; it's not about provincial jurisdiction. But how can we clearly try to provide leadership when we don't even clean up our own backyard? I think the approach Mr. Knutson has taken—to show some flexibility—is a proper approach. Whether it's going to put our own backyard in order is the difference between this bill being panned outright or getting some level of success.

I strongly urge the committee to support Mr. Knutson's amendment.

The Chair: Mr. Mills.

Mr. Bob Mills (Red Deer, Canadian Alliance): I think, first of all, what Mr. Herron says is correct; the federal government should set an example. I think we should also say that critical habitat is important, and that it is very important that it be protected.

The problem we have with this whole thing is that an action plan covers the socioeconomic matters, the local concerns, all of those things the landowners and the people right out there might consider. A recovery strategy is science. It covers the scientific aspects of things; it does not cover all those other factors that should be included. If we can remove “recovery strategy”, we would agree this is acceptable. This is much along the government's line: the action plan, yes; the recovery strategy, no.

The Chair: Madam Kraft Sloan.

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

In recent months, Canada has been very sensitive to problems internationally, particularly with our neighbours to the south. Canada's international reputation has always been very important to it. The idea that we would have endangered species legislation that did not even provide mandatory protection of critical habitat on federal lands would put Canada in the unenviable position of being an international joke on the endangered species front.

• 0950

I am concerned about Canada's international position. I think it would be a very sad day if we did not support Mr. Knutson's amendment. While I would like to see “recovery plans” remain in this amendment, I feel so strongly about mandatory critical habitat protection on federal lands that I would indeed be willing to support Mr. Mills' suggestion, if Mr. Knutson thought it was appropriate.

The Chair: Madam Redman.

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

Further to some of Mr. Mills' and Ms. Kraft Sloan's comments, the decision about recovery teams—whether that provision is in or out—is made by the people who are on the land. They are not elected officials. Another very important aspect of the amendment before us is that it takes the Governor in Council out of the decision-making process.

It's very important that these decisions have some political accountability, which is why, whether “recovery strategy” is in or out, it's a very important aspect of the amendment before us that it would take out the Governor in Council's involvement and eliminate the political accountability.

As well, a future amendment by the government is designed to put in a 180-day time line, which again adds more clarity and certainty for everyone that there will be action taken.

The Chair: Mr. Herron, briefly.

Mr. John Herron: I would ask a direct question through you, Mr. Chair, to Mr. Mills about his level of concern with respect to the recovery strategy. If that section were taken out of Mr. Knutson's approach—if that friendly amendment were made—would he find the Knutson approach more amenable?

Mr. Bob Mills: I think so. But I think also about what the government position is. One way to fix this may be a friendly amendment for Mr. Knutson. If we were to take out “the recovery strategy” and add lines 15 to 19—in other words, it would read “identified in the action plan”, and then add lines 15 to 19—that would cover the Governor in Council and would allay the concerns I have about mixing science and... If you just leave it as “action plan”, now you involve all the factors. That seems more realistic than the potential for just science to be used. That would solve all of those problems.

The Chair: We'll let Mr. Knutson think it over for a moment.

Madam Redman, or Mr. Near.

Mrs. Karen Redman: Mr. Chair, I believe Mr. Near and perhaps Ms. Wherry would like to comment on this.

Mr. David Near: I think it's important to give a brief explanation as to why both “Governor in Council” and “order” were in this clause in the first place. Part of the policy and the legal position behind it was the desire to achieve some level of certainty that a person would know where the prohibition applied. The intention in making it a Governor in Council order was that you would actually have a legal description saying that this area—described in geographical terms—would be subject to the prohibition, whereas a recovery strategy or an action plan wouldn't have that degree of certainty.

So there's a policy dimension but also a legal dimension. If we're going to prosecute somebody for a possible violation of critical habitat, we would need to be able to convince the court that the citizen had a reasonable likelihood of knowing where he or she might be transgressing the law.

There would actually be more publication if you went with a Governor in Council order. You would have the public registry and the Governor in Council order in the Canada Gazette and it would be official, legal description. With respect to an action plan or a recovery strategy, you would have it as published by the scientists in the public registry.

• 0955

The Chair: Thank you, Mr. Near.

Mr. Knutson.

Mr. Gar Knutson: In response to Mr. Near, it would take just as much work to provide in an action plan an appropriate legal description to show what area you're protecting as it would in a government order. Somebody has to go and come up with the defined area, and do a geographic description. So if the government's intent is to protect habitat, it's not less work to do it under a GIC. In fact, I think that's even more cumbersome.

With regard to the issue of notice, again, you can get around that by making sure people are properly notified. We've put language in the development of the recovery strategy and the development of the action plan that there has to be consultation. But the government, presumably, will have already notified these people.

The difficulty in relying on doing it by Order in Council is that has to go to cabinet, and that's not a simple measure. I think it should be relatively simple to protect habitat in law. That's why we should support this amendment. It's not that people are going to act in bad faith. It's just that the cabinet regulatory system is somewhat cumbersome; you have to compete for time against other issues. It's just a whole lot simpler to protect a little piece of property than maybe to protect the last nesting pair of a particular bird. I don't think that's the type of thing you want to do by regulation.

The Chair: Madam Redman, then Mr. Herron.

Mrs. Karen Redman: Thank you.

I think Ms. Wherry wants to make a comment as well, Mr. Chair.

Ms. Ruth Wherry: The notion of putting in the GIC was also to allow some time to do stewardship agreements. But with respect to a notion that had been raised a while ago, which is to delete the recovery strategy and just leave this as an action plan, I'm not quite sure how that would work, since we're identifying critical habitat in the recovery strategy and the definitions go along with that. If you suddenly deleted it from this clause, I'm not so sure the rest of the bill would make sense.

I would also suggest that with this motion we're considering right now, which applies to, I guess, subclause 58(2), if it was amended and carried as is, then subclause 58(3) wouldn't make sense any more.

The Chair: Mr. Herron.

Mr. John Herron: We can fix that.

Ms. Ruth Wherry: But in later motions; perhaps they should have been considered together.

The Chair: The motion on page 211 is dealing with subclause 58(3), and it is presented by Mr. Knutson. So he has taken care of that aspect by way of the motion on page 211.

When we take a vote, I will indicate to the committee that the motion on page 205 will apply also to the one on page 211.

Mr. Herron.

Mr. John Herron: This is a technical question. I was just reading one aspect of clause 58. Could Mr. Near explain what they mean by the “exclusive economic zone of Canada”?

The Chair: Which line?

Mr. John Herron: That would be on line 11 on page 27.

Mr. David Near: I'm not an expert in this area, but as I understand it, we did seek advice on this. It's necessary to include a reference to the exclusive economic zone in your legislation if you're asserting federal jurisdiction over that area, because it's an area that goes beyond the normal 12-nautical-mile limit and is not included within the definition of Canada in the Interpretation Act. So by including the economic zone, we are asserting that this bill applies to an area beyond the normal 12-nautical-mile limit.

• 1000

Mr. John Herron: So it's about aquatic issues, not about provincial lands in any way.

Mr. David Near: That's my understanding.

Mr. John Herron: I see.

The Chair: That's the common understanding.

Are you ready for the vote?

Mr. Laliberte.

Mr. Rick Laliberte (Churchill River, Lib.): Mr. Chair, just to be clear here, the definition of federal lands as “land that belongs to Her Majesty in right of Canada” includes, in my interpretation, the territorial lands right as well. Then it includes “the internal waters of Canada and the territorial sea of Canada”. So that's internal provincial waterways as well, deemed to be waterways in the provinces.

So it's any piece of water, any drop of water, in a muskeg, lake, river, or stream, regardless of where it's at?

Mrs. Karen Redman: Do you want to ask an official from DFO?

Mr. Rick Laliberte: Yes, let's clarify it.

The Chair: Please identify yourself.

Mr. Michael A. Rayner (Legal Counsel, Department of Fisheries and Oceans): My name is Mike Rayner. I'm a Department of Justice lawyer at Fisheries and Oceans, and I believe we're talking about internal waters with respect to federal lands.

Internal waters is in the law; it's not clear whether that includes waters within a province. But under the bill, the intention is that federal lands refers more to the concept of ownership. So it shouldn't include internal waters when they're a province... under federal lands.

The Chair: Thank you.

At this stage it might be helpful, Mr. Knutson, if you would then read your amendment as it has been gradually massaged through the discussion.

Mr. Gar Knutson: It says:

(2) Subsection (1) applies to the critical habitat that is identified in an action plan.

The Chair: In an action plan; so “in a recovery strategy” is dropped.

Mr. Bob Mills: Did you take it out?

Mr. Gar Knutson: I did.

The Chair: It is taken out. All right.

Are we ready for the question?

Madam Redman.

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

For my own clarification as well as the committee's, are we then bundling 211 with this? And if we are, I would ask the officials if they would comment on that, if you're deeming that to be consequential to 205.

The Chair: If you mean by bundling it that if 205 is passed, it will apply to 211, the answer is yes.

Mrs. Karen Redman: May we hear from officials on that?

The Chair: Yes.

Ms. Ruth Wherry: The way I read it is that if you call 211 consequential to 205, and 205 is carried, then I think you're also going to have to say 213, 214, 215 and 216 are all consequential, and I don't think any of this has been debated here.

Mr. Gar Knutson: That was pointed out last week.

Ms. Ruth Wherry: Yes, but not this morning. I don't think people understood that what they were debating was the whole package.

Mr. Gar Knutson: May I speak to that, sir?

The Chair: We agreed that it would apply to pages 213, 214, and 215.

Mr. Knutson.

Mr. Gar Knutson: On that point, if you notice, those sections allow for further consultation and further agreement. The amendment on page 213 is if they happen to be on provincial land. For example, if you have a migratory bird, covered under the Migratory Birds Convention Act, page 213 would prevent you from declaring a habitat critical until you negotiated with provincial authorities.

Under the amendment on page 214, if the migratory bird covered under the Migratory Birds Convention Act happens to be on an Indian reserve, you couldn't protect critical habitat until you negotiated with the people affected on the Indian reserve.

On page 215, you couldn't protect critical habitat until you negotiated with the people affected by a land claim.

You can extend the time for negotiations with the people affected by 90 days; that's what the page 216 amendment does.

• 1005

So those amendments in a certain sense water down the effect of this amendment. They make sure it's done in the spirit of cooperation and consultation, and I don't think they should be seen as particularly worrisome. I think they're helpful.

The Chair: Thank you.

Madam Redman and Mr. Mills.

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

I'll go back to my earlier comment, that if this is to work with people on the ground, there needs to be time to negotiate with them, and I would point out that 60 days, in our opinion, would somewhat constrain that.

I would ask Mr. Near to speak to this bundle as well.

Mr. David Near: If we are in fact dealing with the subsequent amendments as indicated by you, Mr. Chair, then I think I would make some substantive comments on some of the later amendments.

For example, in this package there is a reference to consultation with wildlife management boards, or if first nations are affected and it's covered by the Indian Act, it gives 60 days to negotiate some form of agreement. If in fact the critical habitat prohibition has an impact upon existing aboriginal or treaty rights, it will take far longer than 60 days to do the required consultation required as per the law under the Sparrow test to justify such an infringement.

The second element I would point to is that if the transboundary amendment comes into place, essentially 94% of all species will be covered by this particular section, and I think that's important background to have in play.

With respect to the motions that refer to clauses 11, 74, and 75 agreements, the inclusion of clause 11—

The Chair: Are you on page 216?

Mr. David Near: I'm on 211, actually.

The inclusion of clause 11 agreements really doesn't make any sense, because they're only for the benefit of the species. The whole rationale behind permits and agreements is to exempt you from the prohibition in this context. If you just reference clauses 74 and 75, there's a whole section in clause 83, which we will get to, that covers exemptions under the act. So unless you delete clause 83, for example, the two don't fit together, and in fact I would say reference to 74 and 75 isn't necessary, because it's covered in clause 83, where both of those clauses are also covered.

The important thing to remember is that the prohibitions kick in based on the recovery strategy—or not the recovery strategy but the action plan now, Mr. Knutson has deleted recovery strategy—and by the consultation periods of 60 days in some of these subsequent amendments. I've already addressed the aboriginal one but on the other ones, essentially you would be going to a landowner and saying, okay, either you have an agreement with me in 60 days or the prohibition comes into place. Talk about the big hand of government coming down on you.

The Chair: I have to follow here a certain sequence. It was Monsieur Gagnon, Mr. Mills, and Mr. Knutson.

Mr. Marcel Gagnon (Champlain, BQ): No.

The Chair: Mr. Mills.

Mr. Bob Mills: I want to clarify, Mr. Chair, that the recovery strategy has been removed from 205, but also where it appears on 214, 215, etc.

The Chair: Mr. Knutson.

Mr. Gar Knutson: With respect to Mr. Near and the wisdom of the Canadian civil service, I think you have to appreciate that this is coming very late in a process. We have the recovery plan, consultation with landowners, which may take up a couple of years, and then we have the development of the action plan, more consultation with landowners, and further identification of critical habitat. And to say, if you're going to do this with an Indian band, you only have 60 days, it's 60 days after a fairly lengthy period. These people presumably are brought in right at the beginning of the process, so I think the time lines are appropriate. I think we should vote on the question.

The Chair: All right.

Mr. Herron.

• 1010

Mr. John Herron: I appeal to members on the committee to think this through. If we vote down this amendment, we're basically saying that we're not going to have mandatory protection of critical habitat in federal jurisdiction. This is a federal bill, so if we vote down this amendment, we're saying that it doesn't even apply in its own backyard. This is about the federal backyard and nothing else.

The Chair: Final intervention, Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Because this is such an important vote, I'd like to have the names recorded.

The Chair: Let me confirm that the vote on this amendment by Mr. Knutson on page 205 will then apply to pages 211, 213, 214, 215, and 216.

(Amendment agreed to: yeas 8; nays 5)

The Chair: Thank you.

We will take a five-minute break to reorganize our system.

• 1012

• 1024

The Chair: Let's see if we can proceed in an orderly fashion.

Mr. Mills.

Mr. Bob Mills: My question is a point of clarification. I'm not sure if I need unanimous consent to ask this.

With regard to the amendment on page 213, my question is, does that apply only to aquatic species, or does it apply to any species on an Indian reserve, or on PFRA federal land? I've received both answers, and I would like to clarify on the record just exactly what that includes.

The Chair: This question would have been relevant before the vote. But if you want to clarify it, by all means go ahead.

Ms. Ruth Wherry: I wasn't necessarily going to clarify it; I was going to say that until you figure out what's going to be in subclause 58(1), which you haven't discussed or debated yet, you're not entirely sure what all the rest is going to apply to. It depends how subclause 58(1) comes out, whether it includes the transboundary perspective or not and what the rest of the section would apply to.

• 1025

Mr. John Herron: Mr. Chair, is that the same language she gave to Bob minutes ago, though?

Ms. Ruth Wherry: I gave?

Mr. John Herron: Yes. Just before we reconvened. Is that the exact same thing you said to Bob then?

Ms. Ruth Wherry: Well, if you look at what has been carried now, if you just go on what is currently in subclause 58(1) on the bill, and if you don't talk about the motions to change it or anything, then this stuff applies to federal lands, including reserves and PFRA lands. As to whether it would apply to any private lands, I would imagine that would follow from, for example, provisions regarding critical habitat for aquatic species, which could impact on private lands.

Mr. David Near: I just have a further comment related to that question, which is, it is really relevant to subclause 58(1). With respect to the version of subclause 58(1) on page 200-A, which is also Mr. Knutson's amendment, if that passes, then there's the addition of migratory birds and transboundary species. This would, as I said before, cover 94% of all species and a significant amount of private land—if that's the question.

The Chair: We'll go into all the amendments on transboundary species very soon, but first let me clean up what is here in this bundle. I think that the partial answer to Mr. Mills' question is to be found if he goes back to government amendment G-11 on page 201, which was carried.

But let me now inquire of Madam Redman whether she wants to proceed with amendment G-12 or whether she thinks that it's no longer applicable. In other words, can it be dropped?

Mrs. Karen Redman: It can, Mr. Chair.

The Chair: So it is withdrawn. It's not moved.

Then we'll assume the same, Madam Redman, for page 209?

Mrs. Karen Redman: Yes.

The Chair: Thank you.

Now, Mr. Herron, can we assume that your amendment is taken care of by the recent vote on page 208?

Mr. John Herron: The Knutson plan holds, yes. We don't need it.

The Chair: Thank you. That takes care of that.

Then it would appear that the amendment on page 212 is no longer applicable. Are you in agreement?

Mr. Bob Mills: Yes, it would not apply.

The Chair: It would not apply. It is withdrawn.

We have one more amendment before we go into the transboundary discussion, and that is an amendment by Mr. Mills on page 200, amendment CA-43:

No person shall intentionally destroy any part of

Mr. Bob Mills: This does relate to the mens rea issue in clause 32, which we haven't dealt with yet.

• 1030

The Chair: It is advisable that we deal with Mr. Mills' amendment when we deal with clause 32 because it has a number of consequential impacts. I will ask the committee for its indulgence as we continue to stand Mr. Mills' amendment, which is the agreement.

We could now open the discussion on transboundary species, based on the understanding that at the end of the discussion we will vote on each amendment that has been prepared or presented on this topic, as we discussed earlier. We will give it a new, clean treatment, so to speak, so we can move ahead in a clear and orderly fashion.

Who would like to start this discussion?

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I'm sorry, Mr. Chair, I just want some clarification on the process. What you have said is that each time there is an amendment that relates to transboundary species, we will have a discussion on transboundary species, right?

The Chair: Yes, we will have a discussion on those amendments that are not affected by an amendment that has a consequential effect.

Mrs. Karen Kraft Sloan: But every time there is no consequential amendment and the amendment contains transboundary, we will have a discussion, right?

The Chair: The purpose of preparing these bundles was so we can have a good, thorough discussion of the amendments in the plural and not in the singular.

Mrs. Karen Kraft Sloan: So there'll be only one discussion, and if the amendment gets defeated or the issue of transboundary species gets defeated, we will have no more discussions on transboundary in this committee. Is that correct?

The Chair: No, the way I see it is that we'll have a good discussion, and then we'll proceed amendment by amendment. At that point the mover will have the opportunity to present the motion and have a discussion on each amendment.

Mrs. Karen Kraft Sloan: On transboundary species.

The Chair: Yes.

Mrs. Karen Kraft Sloan: Thank you, sir.

The Chair: Madam Redman.

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

With respect to the suggestion I made earlier, I would ask you to perhaps seek the consent of the committee in order to move along in a timely fashion. I have the blues transcripts of last Thursday's meeting, which I have referenced. It would be my suggestion that the committee consider having a full discussion on whether or not to create a new category of species under transboundary and then vote on that. For subsequent amendments that contain transboundary, it would be as if they were purely on that issue and no other, and it would be deemed to have been dealt with whether or not that issue carried. But if there were other pieces of that amendment, if the mover chose to withdraw the subclause amendment that referenced specifically transboundary, we would then discuss the other issues. I was supporting this debate so we would be able to have a clear question.

The Chair: My preference is to proceed with the discussion in general terms, following it with a discussion and vote on each separate amendment. It would just give the chair a tremendous amount of discretion, and I think that this an important subject, one that requires a good examination. I would prefer to proceed as I indicated earlier, and I now invite comments. Let's have the general discussion first so we can proceed with the discussion as it applies to each specific amendment.

May I invite comments on the general topic of transboundary species? I hope the comments will be crisp, concise, and to the point.

Madam Kraft Sloan and Mr. Herron.

• 1035

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

My question is through you to the parliamentary secretary.

I fail to understand why this is viewed as the creation of a new category of species; Bill C-65 already included transboundary species. In 1997 the federal government understood that it had responsibility for transboundary species. Somehow, in the year 2000 or 2001, we have dropped transboundary species off the federal responsibility list.

Not only in 1997 in Bill C-65 did we have transboundary species represented in the legislation, but part of clause 33 in that particular bill also required a mandatory safety-net trigger.

Through you, Mr. Chair, to the parliamentary secretary, I would ask why in 1997 the government saw fit to include transboundary species and in 2001 it doesn't?

The Chair: I don't know whether this is a debate we want to engage in, a comparative study of bills, but whenever a dry moment appears, the parliamentary secretary will, I suppose, intervene.

Mr. Herron.

Mr. John Herron: I will defer to Ms. Redman.

The Chair: You indicated earlier that you wished to speak.

Mr. John Herron: Ms. Redman wants to reply to Mrs. Kraft Sloan.

The Chair: Madam Redman.

Mrs. Karen Redman: I put a request to the chair, and I would respectfully resubmit, that you take a vote of the committee to find out if we are going to have one substantive discussion. I have the blues in front of me, and I'll be happy to read them back into the record. I would ask that you ask the committee for consent to have one clear question and to have a full discussion on transboundary species so at that time it will be deemed as having been dealt with. The individual amendments will then move forward.

The Chair: Look, I can only tell you what I said the last time after you indicated to me your intention or your agreement to have the matter reopened. Last Thursday, when we concluded the meeting, I indicated that we would have a discussion on the general topic and that then we would proceed with the discussion and would vote on the amendments. That is my understanding of last Thursday's meeting.

In addition to that today, I have indicated that this would be the procedure I would recommend to the committee because of the complexity of the issue and of the refinements that exist in each amendment, which vary the theme from one amendment to the other. That is the procedure I am recommending to the committee. I don't think that we have to spend too much time on this approach any further. We have agreed to reopen the item. We have agreed that we will have a discussion. We have agreed that we will vote on the amendments. I don't know what else we can do but to proceed.

Mr. Knutson.

Mr. Gar Knutson: I think we should proceed on that basis. I am suggesting this to be helpful, believe it or not, that we look at amendment 200-A, which includes transboundary. It's on a clause we're still dealing with, clause 58. Let's use this as a starting point.

The Chair: That is a good starting point for the discussion because the discussion has just started.

I have on the list Mr. Herron on the general discussion and then Mr. Mills and other speakers.

Mr. John Herron: One thing I would like to say, Mr. Chair, is that a comparative aspect of the previous Bill C-65 is somewhat relevant in the debate context. The federal government clearly at that time recognized that nearly 90% of species that are at risk are transboundary in nature.

We're interested in looking after all species at risk, not just some. For us not to include a transboundary aspect is not, I think, as advanced or as substantive as what we had under Bill C-65. Moreover, the case law on this seems to be in this direction as well—Chief Justice La Forest's determination that migratory birds were clearly within the jurisdiction of the federal government, that there's nothing that would prevent the federal government from, I guess, living up to its legislative obligations to include transboundary species. We know that species don't really know where the border is, so for us not to include a transboundary aspect of it... They're not going to check in with Canada Customs and Minister Cauchon on the way through. That's why we have to recognize that this bill has to reflect what species do, not just what might be in a particular module.

• 1040

The Chair: Mr. Mills.

Mr. Bob Mills: It seems to me that the critical issue is that this is 80% to 90% of the species and that by including them we are going to basically put all of the responsibility pretty much on the federal government, and along with that we're going to put all of the costs onto the federal government. I think that in itself is just going to be overwhelming for the federal government. That's one aspect.

Secondly, how are we going to foster the cooperation that this bill is based on when already we are going to say as a federal government, well, we control 90% of the game, you really only have 10%? What incentive would there be for a provincial government to even have an endangered species act or to even provide any resources toward it? It would seem to me that this would be an overpowering reason not to negotiate, not to work, not to cooperate with the federal government, and I think it goes totally against what this whole bill is trying to establish.

The Chair: Madam Redman.

Mrs. Karen Redman: Thank you, Mr. Chair. I would ask that Mr. Near speak to the issue that Ms. Kraft Sloan raised about previous incarnations of Bill C-5, and then I would like to speak to some of the issues Mr. Mills has raised.

The Chair: Mr. Near.

Mr. David Near: There have been several references to Bill C-65 and the provision for cross-border species. Bill C-65 did not make transboundary species within federal jurisdiction for purposes of regulation and general prohibitions. What Bill C-65 did was to create a mens rea offence for part of a limited number of species, basically animals, in clause 33, based on the use of the criminal law power. In fact, in Bill C-65 cross-border was aimed at limiting the application of the criminal law power to animals that moved across the borders or had a range on both sides.

There was a fair amount of criticism of that limited approach for general prohibitions, so in Bill C-5 the criminal law general prohibitions were applied to all species, and not just animal species, as it was in Bill C-65.

This change of transboundary, if it was accepted as a federal species, would do as Mr. Mills has indicated: basically all species would become federal.

The other aspect is that several of the amendments speak to regulating transboundary species. Not only would general prohibitions come into play, but you would in effect be taking over the whole field in relation to these species. That is a legal problem as well as, from the government's point of view, which they will speak to, a policy discussion.

In terms of the specifics of the bill, we had the discussion last week. The safety net will basically disappear for most of the species, both in clause 34, which is the general prohibitions, and with respect to critical habitat. As I've already mentioned, the regulation-making powers in action plans, critical habitat, and management plans is a concern as well.

So it is a fundamental change to the legislation.

The Chair: Thank you.

Madam Redman, followed by Mr. Herron.

Mrs. Karen Redman: Thank you, Mr. Chair. Fundamentally, it changes the way this bill is built, with the feds being on first, obligating the federal government to act in 94% of species merely because they cross borders.

• 1045

We're intruding into federal-provincial-territorial relationships that have been in place since Confederation, which had the provinces and territories looking after a lot of these species. We're building the bedrock of this legislation to be cooperative. One of the cornerstones and the shining example of the process of this legislation is that people have been widely consulted to make legislation that works on the ground, which is something the minister has reiterated time and time again. By making this special treatment of transboundary species we are taking away the cooperative approach, which means the provinces and territories are invited to cooperate first and the safety net then becomes the backstop.

The Chair: Thank you.

Mr. Tonks.

Mr. Alan Tonks (York South—Weston, Lib.): Mr. Chairman, I have a question of the staff pursuant to the interjection that was given. When we talk transboundary, are we're talking north-south boundaries or are we talking interprovincial? Can you be specific with respect to that?

Mr. David Near: Under the legislation, it's currently an international boundary, which essentially means the United States, and possibly Russia, I guess.

Mr. Alan Tonks: With respect to the amendments that have been passed so far, if there is a suggestion that there is rigour with respect to the registration and recovery with the statutory time limits that have been imposed, would there be any problem with taking the approach that with respect to the description of transboundary species, the registration in COSEWIC would provide for that, but it would be without prejudice to the critical habitat issues, which are ex parte to the jurisdiction of this act?

Is there an opportunity here to accomplish what I sense is the transboundary nature of the species, have them registered, but have it without prejudice to jurisdictional issues, for example, American law, with respect to habitat protection? Can we accomplish both?

The Chair: Mr. Near, please.

Mr. David Near: You'll recall, Mr. Chair, one of the earlier amendments—I believe it was Ms. Kraft Sloan's on page 57—gave to COSEWIC a function to identify whether or not a species moves in a cross-border fashion for purposes of informing the recovery strategy and action plan process. That amendment was not problematic because it informs the recovery strategy, whether the province or the federal government undertakes it. In fact, as you'll recall, COSEWIC reports to both the minister, in terms of submitting its assessment, and to the Canadian council of provincial and federal ministers for the purposes of informing their recovery strategies to design them accordingly. So that amendment is certainly not incompatible. It's where it makes all transboundary species a federal species that you can both prohibit and regulate that is problematic.

The Chair: Mr. Tonks.

Mr. Alan Tonks: Did Ms. Kraft Sloan's amendment pass or is that—

The Chair: Yes, it did.

Mr. Alan Tonks: Then, to your satisfaction, we've bumped and nudged as close to the protection side, and the registration and COSEWIC, without prejudice to international jurisdictional sensitivities on habitat. Thank you.

The Chair: Mr. Tonks, you will find that amendment on page 57.

Mr. Herron, Monsieur Gagnon, Madame Kraft Sloan.

Mr. John Herron: I'd like to say to the committee that we're really taking some of our arguments extremely à la carte, and I'll point out why.

We're now saying if this amendment passes, it fundamentally changes the bill. No, it doesn't, because provincial law is still implied unless the Governor in Council chooses to enact the federal law. It just gives it the capacity to do so.

• 1050

The cooperative aspect... we just passed an amendment that said if there is a provincial law in place, and it has an element of equivalency... We actually set out the formula in terms of how that equivalency is done. That aspect of the bill didn't all of a sudden get struck out of the bill. It's still in play. The federal law applies only if the federal government chooses to make it apply. The Governor in Council still has to engage in that regard. To throw around this icon that we don't want to be uncooperative... Those sections and that cooperative approach are still in the bill.

The Chair: Madame Wherry, very briefly.

Ms. Ruth Wherry: That would depend on how it worked out. If you put “transboundary” in the federal part, which has to go on first, then it would still be the federal government that's on first, to the first 94%, and then the province would have to show they have equivalent criteria, depending on what other sections... That's the way it would work.

The Chair: By virtue of what you just said, it would add momentum to the effectiveness of the legislation.

Ms. Ruth Wherry: Perhaps I could just add one more point. If the federal government is on first for 94% of the species, there's always the risk the provinces will simply say “Fine, do it all”, instead of trying to work it out. Then that whole long history of experience, personnel, and resources that have always been there for managing wildlife, etc...

The Chair: That seems to be the attitude of provinces these days, Ms. Wherry. Your political judgment is as good as ours. But I wouldn't bet on that.

Monsieur Gagnon has patiently waited.

[Translation]

Mr. Marcel Gagnon: Thank you.

Could you possibly clarify something for me? How does the bill change the current situation? Earlier, the importance of cooperation between the provinces and territories was stressed if species at risk were to be protected.

Does this mean that in some cases, there is now a lack of cooperation? How does the bill ensure added protection for transboundary species at risk?

[English]

Mr. David Near: I'm not sure I can describe the whole bill in a nutshell, but to address your question with respect to critical habitat, for example, the federal bill invokes general prohibitions that now apply to the critical habitat of a listed wildlife species. That is a new, just to take an example, general type of prohibition invoked by the federal government as set out in the legislation, however it ends up.

I guess the answer is that the bill is complementary. It adds new prohibitions and new statutory requirements with respect to species at risk in addition to those that already exist at the provincial level in some of their wildlife and endangered species legislation, and in addition to some of the requirements of existing federal legislation.

[Translation]

Mr. Marcel Gagnon: Could this enhance the level of cooperation between the various levels of government?

[English]

Mr. David Near: That's a judgment call. The original intention of the national accord on species at risk was to improve the relationship between the province and the federal government. Probably how this bill turns out will have some impact as well.

The Chair: Merci, Monsieur Gagnon.

Madame Kraft Sloan, Mr. Knutson, and Mr. Mills.

Mrs. Karen Kraft Sloan: Mr. Chair, I have two comments.

There seems to be some great concern about the government being on first. I'd ask the question, who's on second? We can get into that debate, if you'd like.

In this legislation, every time you turn around, consultation is happening. In regard to losing action and whatever expertise exists in the provinces because the federal government acknowledges their responsibility for transboundary species, you're talking about action plans. You're working in the local community, so all of that knowledge and all that work would be captured in that process.

The other point I would like to address, if I understood Mr. Tonks correctly, is whether, because transboundary species are international species, we have the ability to regulate, monitor, and enforce environmental issues that cross borders. Well, I didn't know the natural environment obeyed political boundaries.

• 1055

We're always in a situation where environmental issues are crossing boundaries. What do we do with air pollution? Do we close our eyes and say, oh sorry, there's air that flows from New England, crosses over into Canada, and comes back again? There's air that crosses boundaries a couple of times internationally. Do we just close our eyes and say forget it, we're not going to bother enforcing anything; we're not going to bother monitoring; we're not going to set regulations?

Mr. Alan Tonks: But we rely on—

Mrs. Karen Kraft Sloan: But you said, Mr. Tonks, you understood that to be—

Mr. Alan Tonks: I understand that.

Mrs. Karen Kraft Sloan: I understand it to be your question, and it was the response from the officials I was referring to. I'm sorry for that confusion.

Mr. Alan Tonks: I appreciate that, but I was trying to make the point, Mr. Chairman, that there are EPA regulations with respect to air quality that are the purview of the States. Some are very stringent, some are less stringent. We don't attempt to establish international law. We establish international principles with respect to working toward an objective. My point was that in relation to habitat and matching it to species, that's what we're trying to do here.

The Chair: Thank you.

Mr. Knutson, Mr. Mills, Madame Redman, and Madame Kraft Sloan.

Mr. Gar Knutson: I'd just like to make a brief political comment. We who live in Ontario are about to get a budget—I think it's today. We're going to have more cuts. The provincial Ministry of Natural Resources, which has been significantly cut under the common sense revolution, may have even more cuts because Mike Harris has chosen to give his priorities to corporate income taxes, and he's not going to run a deficit. So I'm not sure it would be a bad thing for the federal government to take the lead, but I appreciate reasonable people can differ on this view.

I'd like to finish my comment with a question. We're good at bringing in statistics when they suit our argument. We're going to have 94% or 97% of the species covered if this amendment goes through. How many are covered by the bill now?

Mr. Simon Nadeau (Head, Endangered Species Recovery, Environment Canada): About half of the 94%.

Mr. Gar Knutson: Thank you.

Mr. Bob Mills: Again, I just want to emphasize what I would be concerned about with the provinces looking at this. I think they will simply look at this and opt out, or else not cooperate, which would be even worse.

The other question I have, seeing we're talking about transboundary, is something that's bothered me from day one when we started to listen to witnesses, when I heard the experts say when a species is endangered, it doesn't matter what's happening on the other side of the border. So if in the U.S. there are a lot of species A, but there are only one or two of them in Canada, it's an endangered species. That seems to me totally illogical, and it makes no biological or ecological sense—or any sense—that this would be the case.

I think by having this transboundary clause in there we're fostering that even more, and that might be a red herring. I don't know. It's just something that's bothered me from day one, that we would be so unaware of habitat... I mean that freak group that happens to end up broadening their boundaries by coming across the border. It just doesn't make any sense to have this in the bill, as far as I can see. Can you comment on that?

Mr. Simon Nadeau: The criteria COSEWIC uses to derive a species' status are based on the World Conservation Union criteria, and they look at the skew effect—how individuals outside the country can help the Canadian population. That's the way they're looking at the question of species that have ranges or populations outside our frontiers.

I think the important issue we should not forget is that a lot of the expertise right now for wildlife management resides in the provinces. They have data, they have experts, and they allow quite a lot of resources for that. If we become responsible, all of a sudden we'll need all of these resources. We'll need expertise, because the federal expertise right now is really as it relates to aquatic species and migratory birds. Now we'll need expertise on plants, on invertebrates, on reptiles, on amphibians—all these species we really don't have expertise on. We'll need that expertise quickly because we'll need to identify the critical habitat for these species, and it's really species specific. So it's going to be very problematic if we don't have the cooperation from the provinces and territories.

• 1100

The Chair: Madam Redman, then Mr. Stoffer, and then Madam Kraft Sloan.

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

I actually was going to raise the issue Monsieur Nadeau just talked about, and it is what the difference will be on the ground if we are responsible for 94% rather than 50%, as the bill is written.

The other point I would like to reiterate is the fact that provincial governments for years have dealt with land use and land-use decisions. By bringing in the category where we would deal with transboundary as the federal government being the first one obligated to look after it, and not being able to work in cooperation, as Monsieur Nadeau points out, we'd lose an extreme reservoir of knowledge, as well as people who have been doing this for years, and it does fundamentally shift the cooperative aspects. Mr. Mills has spoken to this as well.

The Chair: Thank you.

We welcome Mr. Stoffer to the committee. You have the floor, Mr. Stoffer.

Mr. Peter Stoffer (Sackville—Musquodoboit Valley—Eastern Shore, NDP): Mr. Chair, it's an honour for me to be here representing my colleague, Mr. Comartin.

Colour me crazy, Mr. Chair, but as a person just sitting down and hearing the argument, 40% would be protected if the bill stays the way it is and over 90% is protected if we have the amendment. Canadians don't identify themselves just as provinces, or territories, or municipalities—

The Chair: Mrs. Kraft Sloan, could we put this discussion into the context of percentages, please?

Ms. Ruth Wherry: Actually, the bill covers all species automatically. When you bring in the prohibition against killing, in terms of the federal government right up front, it would apply to roughly between 40% and 50%, and we would say for the rest the provinces would have first to cover it with theirs, but if they don't there is a legislative backstop for the government to move in on those others. So the bill covers all species in Canada.

Mr. Peter Stoffer: You talk about provincial expertise. If you look at, for example, where I live in the Northumberland Strait, you have P.E.I., New Brunswick, and Nova Scotia, and when you're talking about migrating herring, or lobster stocks, or crab stocks, whatever, there's not much expertise in the province. It mostly falls upon the federal government. The perception of this, and colour me crazy again, is that any dilution of federal responsibility would be a dereliction of its duty.

I think with the amendment that is put forward, if we can show all Canadians that the federal government must take the leadership role... Castro used to say, if you can't educate them, you shoot them. The provinces are cutting back everywhere they go on environmental standards and we're hoping they would kick in. There's nothing wrong with cooperation and dialogue, but the fact is the federal government must be the lead in all circumstances when it comes to the protection of endangered species, especially transboundary ones.

So I don't see what the big discussion would be, Mr. Chairman, and I'm sorry for my weak and lame intervention. It's just how, as an objective person, I see it

The Chair: Thank you.

Madam Kraft Sloan, Mr. Reed.

Mrs. Karen Kraft Sloan: I want to thank Mr. Stoffer for his intervention, and it certainly wasn't weak or lame.

As a resident of Ontario, like Mr. Knutson, I can say that there may be a lot of expertise there but it's sure hiding its light under some large bush somewhere I don't know. Certainly if the job had been done by the provinces we wouldn't be in a situation where we would have to have a federal endangered species legislation, other than in a very restrictive sense. In many ways, this committee has done a lot of work to remove a lot of discretion in this bill.

As to the issue of whether Canada can legislate or regulate on international environmental issues, my reference was to the laws we have in this country, and certainly because an environmental problem crosses the border does not suggest we should step back and have no involvement.

• 1105

We can be very respectful of the laws of other countries. Also, by all means, there are international principles. This committee just witnessed an effort that brought this bill into better line with other legislation around the world, with regard to endangered species, by making critical habitat protection mandatory in the area of federal jurisdiction. It wasn't mandatory previously, and it was certainly out of step with the rest of the globe.

The Chair: Mr. Reed.

Mr. Julian Reed (Halton, Lib.): Thank you, Mr. Chairman.

I just want to put on the record that the current financial situation of provinces, or the perceived capacity for dealing with their own endangered species legislation, should not be a part of this debate. It shouldn't even register.

When we began with this legislation, it was with the certain recognition that provinces had their own endangered species acts. As Ms. Wherry has pointed out, in some cases, if the act goes the way it was conceived, the federal government acts as a backstop to the provincial thing. So when my friend Peter talks about the percentage of species that are covered under the federal act versus the other, it's quite clear that all species are covered, ultimately.

It is in the interest of Canada and Canadians to recognize the legislation that is in place provincially, work with it, complement it, and not try to override it or hammer it. We seem to perceive, at some point, that there might not be the expertise in a particular province, or their current financial situation might not encourage this kind of protection. But that's a very narrow viewpoint, because economies come and go, and governments come and go. We should accept that.

Thank you.

The Chair: Thank you.

Mr. Herron.

Mr. John Herron: I'd actually like to pick up where Mr. Reed left off. Believe it or not, I concur with some of his sentiment on this.

It's very wrong to say that the federal government has any moral right to claim superiority on environmental protection, especially for species at risk. Provinces have at least had acts in place for years, so they're actually well ahead of the federal government. If we just sit here and province-bash, that doesn't help us at all.

Clearly, the Governor in Council has to enact the federal law instead of the provincial law. We've always maintained that if a provincial law is in place that has an element of equivalency, the federal law need not apply.

There's nothing wrong with giving the federal government the capacity to be the lead to make that determination and transboundary... I disagree with where Mr. Stoffer and Ms. Kraft Sloan went, in terms of beating up on provincial governments. At least they have laws.

Getting back to the issue we do agree with, the federal government can at least have a capacity to make that determination to ensure we protect species at risk.

The Chair: I would now like to bring this discussion to a conclusion, by commenting on what Mr. Herron just said. Mr. Herron is quite right in saying the provinces have laws, and in the case of Nova Scotia it's a very recent one.

Committee members will recall, though, that when we looked at the percentages of species the respective provincial governments adopted, in relation to the number of species recommended by their scientific communities, they were extremely low—in some cases as low as 15% and 14%. The highest were not higher than 29% or 30%.

So the performance of the provinces leaves very much to be desired. Mr. Herron is quite right that they have laws, but when it comes to the political crunch we see different outcomes.

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We had a good discussion, if I may interject for a moment. I wonder whether we could tackle now the first of the many amendments before us. I'm sure there will be room for further discussions as the specifics of the amendments emerge.

I would be inclined to recommend to the committee that we start with the bill on page 108, which is in the name of Mr. Knutson. It is the cleanest amendment we could find, in terms of its applicability. It has only one adjustment that may be needed in the language.

Mrs. Karen Redman: Mr. Chair.

The Chair: May I be allowed to finish this reasoning for a second? Then I will recognize you right away.

The amendment on page 108 would have a line conflict with those on pages 109, 110, 111, and 116. Nevertheless, perhaps the various movers of these amendments could indicate to us how they could remove the conflicts, if it is desired by them, to simplify the beginning of this process.

Madam Redman.

Mrs. Karen Redman: This motion was defeated on October 31, and as such I would say it has been dealt with. I'll go back to the blues from our former meeting and read back into the record my intervention at that time. It was:

I certainly would agree with your ruling that we have dealt substantively with transboundary, but if you would just 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 a sort of logistical wrangling. The government's prepared to have that discussion today.

I contend that this has been dealt with, this has been defeated, and we've had a fulsome discussion. It was your ruling that we would go on, so I suggest we go on to amendments that have not already been dealt with.

The Chair: I interpret revisiting that topic to mean we revisit the topic entirely, including this item. It's as simple as that.

Mrs. Karen Redman: I challenge the chair. I would ask the committee to rule on whether or not this should be reopened.

The Chair: What would be lost in revisiting the topic in its fullness, including this amendment? The decision was on the overall concept of transboundary species. This comes under the general heading. A vote could confirm the previous votes or it could not, but at least it would be following a discussion on the general topic. I would consider this amendment to be part of the general discussion.

Mrs. Karen Redman: I would go back to an intervention I've already made twice. If we had a clear question for this committee to deal with, on whether or not transboundary species should be dealt with in the way that is being suggested, then if transboundary species were to receive the support of this committee, perhaps it would be a substantive issue and we could go back and look at this clause. But this clause has been dealt with. It was your ruling that we would move forward clause by clause, by which I would say this has been defeated.

The Chair: We could take a vote on the ruling. Is that your wish?

Mrs. Karen Redman: Yes.

Mrs. Karen Kraft Sloan: A point of order.

The Chair: A motion has been made to the effect that the ruling of the chair is to be discussed and voted upon.

Madam Kraft Sloan and Mr. Mills.

Mrs. Karen Kraft Sloan: Mr. Chair, on a point of order, you said last week you were going to take this issue to the Speaker, because it's a procedural issue.

The Chair: After the intervention by Madam Redman, there was no need to take it for that purpose. It was clear to me that we were reopening the whole issue.

The ruling of the chair has been objected to, which I fully accept here, so I'm now asking that we discuss this motion and take a vote.

Mr. Mills.

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Mr. Bob Mills: Mr. Chair, the way I understand this—and supporting Ms. Redman's position when she very generously at our last meeting opened up this issue and said we're going to look at the total subject—I believe the committee is probably in a position to vote on the issue as to whether we think transboundary should be there or not.

If that is decided, we would then have guidance as to where we go from here.

Another generous position was that if a particular amendment we haven't dealt with has transboundary in it and a member wants to take that out, thus keeping the amendment... I thought that was very fair and reasonable. But if we simply reopen everything to do with transboundary, I think we're going backwards.

The Chair: I also thought the position of the parliamentary secretary was very generous. I interpret it to mean that we tackle the entire subject and all the amendments that come under the general heading. Evidently, we have two different interpretations, so let us resolve this item now so that we can proceed.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: But, Mr. Chair, there was an understanding last week when the parliamentary secretary said we would be opening the topic of transboundary, and you said you had then no need to go to the Speaker. From what I hear from Hansard, all that was said was there was a willingness on the part of the government to open the topic. In fact, they were even willing to do it that particular day. There was an attachment that said we will have a discussion on transboundary as an issue, and then we are going to vote on whether we're going to allow any further amendments that contain transboundary. That wasn't part of the suggestion that was put forward.

This is a procedural issue we're dealing with, Mr. Chair, under the guise of a substantive discussion. Whether people agree with the issue of transboundary or not is irrelevant. Now we're talking about part of the procedural way in which this committee operates that's being shifted under the guise of a substantive debate. For any member of this committee to agree to this is a precedent that I am deeply, deeply concerned about. You can disagree with the content, you can disagree with the issue, but we are setting a procedural precedent that I have grave concerns about.

The Chair: Here we are moving into uncharted territory. It was certainly not my intention to understand the statement by the parliamentary secretary to mean that we would, by reopening the discussion, entertain additional amendments. That is definitely not the case. We are dealing with the amendments in our collection that have already been tabled.

I have no difficulty at all in submitting my ruling to the will of the committee. I would urge you to come to a conclusion of this discussion so that we can take a vote. Depending on the will of the committee, we can proceed.

Mr. Herron.

Mr. John Herron: I just wanted to clarify what my interpretation was of our last meeting on this issue. I made an intervention saying the aspect of transboundary species had been previously enshrined in the bill. We made a reference about an amendment that was actually passed. You at that time said that was an interesting aspect and that you were willing to actually take it to the Speaker. My interpretation—and I respect Ms. Redman's perspective now—about what she was saying was, okay, if you think it's already been enshrined in the bill, instead of taking it to the Speaker, then the aspect of any amendment pertaining to transboundary species will be discussed, debated, voted on, and moved forward. It wasn't like a one-of basis. The issue itself of transboundary species was wide open. That's what I interpreted it to be and that's why I didn't ask you to seek clarification with the Speaker. I thought we were moving forward on it.

The Chair: I don't know whether we can also expect from the Speaker an interpretation of the interpretations that were made. Evidently we have two views here as to what was the intent and the scope of the voluntary suggestion on the part of the parliamentary secretary to reopen the issue. The parliamentary secretary has a certain interpretation. The chair has a different one. I would like to ask you whether you are ready for the vote so that—

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An hon. member: We are.

An hon. member: What are we voting on, Mr. Chair?

The Chair: We are voting on whether the ruling of the chair is sustained, which means that completing the discussion we would examine all the amendments that are in our collection.

Mr. John Herron: Is this motion in order or does it require 24 hours?

The Chair: It will be a discussion followed by a discussion of the amendments before us, except for the one I called earlier, namely page 108.

Mrs. Karen Kraft Sloan: Mr. Chairman, I would like to know which ruling of the chair is going to be sustained. The chair put forward a ruling that any more amendments on transboundary would not be accepted. Then the chair made a ruling that he would go to the Speaker. So I want to know which ruling the chair is being—

The Chair: No, I'm sorry, I didn't make any ruling along these lines. I indicated there was no need to go to the Speaker, particularly at this stage where interpretations are becoming a variety of interpretations. I have indicated that we are going to examine only the amendments in our collection at the present time and not any additional ones. That is absolutely clear.

Mr. Alan Tonks: Mr. Chairman, I'm sorry, I have to just get a clarification on that.

Is this what you're saying: The consequential amendments that have been bundled together vis-à-vis transboundary implications are going to be put. We've had the general discussion. We're now going to go through this. But when we come to 108, for example—which already has been voted upon previously—we are not going to put that.

The Chair: Yes.

Mr. Alan Tonks: Or is it your suggestion that we're going to deal with everything in the bundle?

The Chair: We should put that because it is part of the bundle that comes under the general heading of transboundary species.

Mr. Alan Tonks: Then I'd suggest, Mr. Chairman, that if that were the intent, we would have had to reopen those clauses, and it was never my understanding we were going to do that. You can ask the committee if they're going to support the ruling of the chair.

The Chair: This was the interpretation of the chair as a result of reopening the subject.

Mr. Alan Tonks: Okay. Thank you.

The Chair: Now, evidently, there are two interpretations—

Mr. Alan Tonks: There are differences of opinion.

The Chair: —and this is where we are at now.

Mr. Alan Tonks: I understand.

The Chair: So are you ready for the question? Fine.

Those in favour of the ruling of the chair, please so indicate?

Mr. John Herron: A recorded vote, please.

The Clerk of the Committee: That the ruling of the chair stands.

Mrs. Karen Kraft Sloan: I'm sorry, Mr. Chair. The ruling of the chair was to close any more amendments on transboundary. Is that not correct?

Some hon. members: No.

Mr. Gar Knutson: A point of order.

The Clerk: The ruling is to open all the amendments on transboundary that are before us: those that have carried, those that have been negatived, all of them.

Mr. Gar Knutson: A point of order.

Mrs. Karen Kraft Sloan: I thought we were voting on the ruling you made last week.

Some hon. members: No.

Mr. Gar Knutson: We're voting on whether we're doing page 108.

The Chair: Will you proceed, please?

(Motion negatived: nays 8; yeas 6)

The Chair: It was not a narrow vote, by all accounts. That means we proceed with the amendments that are in our collection, except for the amendment on page 108 in the name of Mr. Knutson.

Mr. Gar Knutson: A point of order. Can I suggest we start with the amendment on page 200A, which will take us back to clause 58?

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The Chair: Do you accept then the suggestion that we deal first with the amendment on page 200A, an amendment to clause 58 in the name of Mr. Knutson?

Some hon. members: Agreed.

(On clause 58—Destruction of critical habitat)

The Chair: Would you like to present it?

Mr. Gar Knutson: I'd like to present it without paragraph (d), which refers to “a transboundary species”.

The substantive effect of this amendment would be to add paragraph (c), because paragraphs (a) and (b) are already in the... The mandatory habitat protection we passed about 45 minutes ago would apply to birds covered under the Migratory Birds Convention Act.

The Chair: Who would make the ruling as to the—

Mr. Gar Knutson: That's the mandatory habitat protection included in the action plan.

The Chair: All right. You've heard Mr. Knutson's explanation of his amendment.

Madam Redman, do you have a few comments?

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

I would ask Monsieur Nadeau to speak to this amendment as well, but I'm wondering if the mover would consider it a friendly amendment.

The phrase “or adversely modify” is a lower standard than “destroy”. We're worried it may be somewhat problematic, but I would ask Monsieur Nadeau to speak to it.

Mr. Gar Knutson: What are you suggesting?

Mrs. Karen Redman: I'm suggesting to delete “or adversely modify” and keep “destroy”.

Mr. Gar Knutson: Fine.

Mrs. Karen Redman: If it's acceptable to the mover, the suggestion would be just to delete “or adversely modify”?

Mr. Gar Knutson: Well, hold on a moment.

Mrs. Karen Redman: Perhaps if Monsieur Nadeau could speak to it, Mr. Knutson could contemplate.

The Chair: Monsieur Nadeau, briefly.

Mr. Simon Nadeau: I can't really speak to that one. The element I would like to speak to is actually about the addition of the word “extirpated” so that the prohibition applies to extirpated species.

I think it's probably an oversight that we don't have the critical habitat provision for extirpated species. But I would suggest the language of clause 33 be used so that the prohibition applies to these extirpated species where a recovery strategy has recommended the reintroduction of the species into the wild in Canada.

Freezing land use activities where it would not benefit a species—because an extirpated species, by definition, is not present in Canada unless it's reintroduced... If we identify critical habitat and say “These activities should not be carried on the way they are right now”, we're actually prohibiting activities in ways that will not benefit the species, because the species doesn't exist there.

So the language of clause 33 would be appropriate here.

The Chair: And it would be appropriate to the friendly amendment in the meantime.

Mrs. Karen Redman: To be fair, Mr. Chair, I don't know if Mr. Knutson has accepted it as a friendly amendment.

Mr. Gar Knutson: Well, I guess if the government is going to support this, with that change, then I'd accept it.

The Chair: And what would be the change? Would you mind repeating?

Mr. Gar Knutson: We would take out the phrase “adversely modify”.

The Chair: On which line?

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Mr. Gar Knutson: It begins on the first line of the amendment.

The Chair: You take out “adversely modified”—

Mr. Gar Knutson: So it becomes “No person shall destroy any part of the critical habitat”.

I'd like to hear the comments of Mr. Nadeau.

Mr. Simon Nadeau: Do you want me to say it again?

Mr. Gar Knutson: I do.

Mr. Simon Nadeau: Under clause 33, prohibitions apply to extirpated species where a recovery strategy has recommended the reintroduction of the species into the wild in Canada. It makes sense that this language be used in subclause 58(1), because prohibiting activities in certain areas, if the species is not present, is not benefiting the species but is affecting those who carry on these activities that would be prohibited. I think it makes sense in the case of extirpated species that the prohibition apply to those species that we will—and are planning to—reintroduce.

The Chair: Mr. Mills.

Mr. Bob Mills: Well, the big problem I have with this whole section—and this really relates to what I've been saying—is that it should say “no person shall intentionally destroy”. To me, that's a critical word that needs to be there—not for corporations, but for individuals. They don't know that the species is there, and this becomes a major point for them. The onus should be on the government to tell them it's there. If it's an endangered species, you can't expect the guy out in the boonies to know it's an endangered species.

Mr. Gar Knutson: Just in response, unfortunately the word “person” includes corporation.

Mr. Bob Mills: No, I know that. I'm just saying I'm worried about the person—the individual, the farmer out there who didn't know he destroyed an endangered species. If we add the word “intentionally” before “destroy”, we specify the case where he knew it was there and did it anyway; now we throw the book at him.

Mr. Gar Knutson: If you want to propose an amendment that applies to individuals as opposed to persons, I'm prepared to listen.

The Chair: Mr. Mills, this is the essence of your amendment on the previous page. So you could propose it as a friendly subamendment, if Mr. Knutson accepts it.

Mr. Bob Mills: Yes, that's what I would propose to Mr. Knutson. To me, that would then cover the individual I'm concerned about. Mine is on page 200.

Mr. Gar Knutson: Or change the word to “corporation”.

Mr. Bob Mills: Well, as I say, it's not an argument with the corporation. They should do an environmental impact study of whatever they're doing, and they would know. It's the individuals I'm referring to here who destroy a habitat. They didn't intend to; they didn't know it was there; they destroyed that habitat—drove over that nest, plowed up that violet, whatever—because they didn't know. That's why I'm saying “intentionally destroy” to me makes a lot more sense for the individual.

The Chair: Thank you, Mr. Mills. Mr. Knutson.

Mr. Gar Knutson: I would suggest that this be a subamendment that we vote on separately. The way it's drafted, in statutory interpretation, the word “person” includes corporation, so if we accept Mr. Mills' amendment, we're giving corporations the mens rea defence.

Mr. Bob Mills: And that's not my intention.

Mr. Gar Knutson: But that's the way you've drafted it.

Mr. Bob Mills: Let's redraft it, Gar.

The Chair: Let's move on and perhaps come back in a moment. Mr. Reed, then Mr. Herron.

Mr. Julian Reed: Thank you very much, Mr. Chairman. I am concerned with the word “extirpated” in here. As Mr. Nadeau pointed out, it creates a situation where, let's say, the wolves came in over the last three years on my farm and extirpated all the groundhogs. Now, whether the groundhogs are going to be an endangered species ten or twenty years from now if the wolves continue to multiply and find food, I don't know. But I do know that if they are an extirpated species generally, then my farm would have to be left absolutely as is, so that if the groundhogs are reintroduced, they could come back. This is why I have this fundamental concern about the word “extirpated”.

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I'm using some fundamental illogical logic here, but I mean that. If you have any kind of land where a species did exist but is extirpated now and that might qualify as habitat some time in the future, you're tying up an awful lot of economy and an awful lot of land for no reason at all. In my view that doesn't make sense.

The other question is about the word “intentionally” that Mr. Mills would like to introduce. The decision as to whether something happened intentionally or not is a decision that would ultimately be made by the courts. It wouldn't be made by anybody else. So I think corporations should be included as well. I don't really see the logic of exempting them. I realize they may be in a more responsible situation, I suppose, than a single individual, or somehow should take note of endangered species. But I think the word “intentional” should apply to both.

The Chair: Thank you, Mr. Reed.

Mr. Herron, Mr. Savoy.

Mr. John Herron: I would like to move a subamendment to Mr. Knutson's amendment. He did not include his original draft of paragraph 58(1)(d) that says the words “a transboundary species”. I so move that aspect of it. I would be moving an amendment on that if Gar was interested in...

The Chair: It was deleted at the very beginning by the mover.

Mr. Gar Knutson: He's moving it as a subamendment so we'd have a separate vote.

The Chair: Well, we already have one subamendment and that is Mr. Mills subamendment to insert the word “intentionally” on the first line between “shall” and “destroy”.

Mr. John Herron: It's on a different line. This would be a separate subamendment.

Mr. Bob Mills: Was that accepted by Mr. Knutson as a friendly amendment?

The Chair: No.

Mr. Gar Knutson: No, we'd have to have a vote.

The Chair: He said we could, however, vote on it. It can be voted upon as a subamendment.

Mr. Bob Mills: Can we leave that until we get into that more substantive issue of—

The Chair: Yes, we could drop it entirely and go back to your motion for a vote later on.

Mr. Bob Mills: Let's do that.

The Chair: So the subamendment is not there, but the words “or adversely modify” are now deleted and the “transboundary species” has been also deleted.

The aquatic species is already covered in the motion by the government on page 201. So we have a line conflict there, which could be resolved if Mr. Knutson were to delete paragraph 58(1)(d). Now we have a subamendment by Mr. Herron.

Would you mind repeating?

Mr. John Herron: I would incorporate the same language that Mr. Knutson had in his original draft on page 200A, Liberal amendment 21a, to add back in paragraph 58(1)(d) the words “a transboundary species”.

The Chair: All right. These are subamendments.

Mr. Knutson, are you willing to delete paragraph 58(1)(b) since it is covered by government amendment 11e on page 201, which was adopted on November 1?

Mr. Gar Knutson: Sure.

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The Chair: Mr. Mills.

Mr. Bob Mills: I'd just like to ask the officials, when I read this, we're saying you cannot destroy an extirpated species. Well, you can't destroy it because it's not there. Why do we have extirpated there?

Mr. Simon Nadeau: Recovery strategy requires the identification of critical habitat even for extirpated species. But it only makes sense in my mind to do so if you plan to reintroduce the species. There's also a time delay, if you will, for the species to react to all of these positive management activities so that it gets down-listed to endangered. So there's a period of time where it would be useful to have the tool to protect critical habitat for those species that we decide to reintroduce.

The Chair: Mr. Savoy.

Mr. Andy Savoy (Tobique—Mactaquac, Lib.): The extirpated species thing is a hang-up for me also. I believe we can solve it by incorporating the language of clause 33 into clause 58 as a friendly subamendment, Gar. After “extirpated species” we would include “if a recovery strategy has recommended the reintroduction of this species into the wild in Canada”. So if you added that to the amendment, I think that would solve a lot of our concerns.

The Chair: Just a moment, where would you make that addition?

Mr. Andy Savoy: As a friendly subamendment, if you said “a threatened species or a listed extirpated species” and then added “if the recovery strategy has recommended the reintroduction of the species into the wild in Canada”—the language used in clause 33—and then “, that is”. I think it would accomplish the same thing we're speaking to here.

Secondly, just to speak in support of the word “intentionally”, I agree it's a matter for the courts and we should treat corporations and individuals the same.

The Chair: Mr. Knutson, are you accepting that subamendment?

Mr. Gar Knutson: Yes.

The Chair: Then read it again, Mr. Savoy.

Mr. Andy Savoy: It would read:

a listed threatened species or a listed extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada, that is

The Chair: Do it again please from “recovery strategy”.

Mr. Andy Savoy: It reads:

if a recovery strategy has recommended the reintroduction of the species into the wild in Canada, that is

Then it goes back to paragraphs (a), (b), (c), (d).

The Chair: Madam Kraft Sloan.

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

I just want to ask a point of clarification on a technical drafting issue. If we take a look at the government's amendment on page 201, it says “or a listed threatened species that is an aquatic species”, and if we look at Mr. Knutson's amendment on 200A... well, I guess it's the same. There was some question as to whether there was some difference in the drafting.

The Chair: Those are valid questions. The legal drafters will have to struggle with that and come forward with an amendment for the committee to see, because the two have to be reconciled in a manner that we can't do right now.

Mrs. Karen Kraft Sloan: Perfect. Thank you.

We're not deleting paragraph (b) in Mr. Knutson's amendment?

The Chair: No, we are not deleting it for that reason.

Mrs. Karen Kraft Sloan: Okay.

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The Chair: Mr. Knutson, would you like to indicate how you understand your amendment to read so we can vote on it?

Mr. Gar Knutson: It would read:

58(1) No person shall destroy any part of the critical habitat of a listed endangered species, a listed threatened species or a listed extirpated species

The Chair: There's an insertion.

Mr. Gar Knutson: Yes, I know. I'm looking for it.

The Chair: It's from clause 33.

Mr. Gar Knutson: It continues:

if a recovery strategy has recommended the reintroduction of the species into the wild in Canada, that is

(a) on federal lands, in the exclusive economic zone of Canada or on the continental shelf of Canada;

(b) an aquatic species;

(c) a species of birds that is a species of migratory birds protected by the Migratory Birds Convention Act, 1994.

The Chair: Then we have a subamendment by Mr. Herron.

Mr. Gar Knutson: Yes.

The Chair: Okay. We will take Mr. Herron's subamendment first.

(Subamendment negatived)

The Chair: Now we have the amendment by Mr. Knutson.

(Amendment agreed to)

Mrs. Karen Kraft Sloan: Mr. Chair, I have a point of order.

I apologize to the committee, but in the last recorded vote, just prior to the vote I sought clarification from the chair on what I was voting on. My understanding of what we were voting on was not what the chair said we were. I would like to have my recorded vote say that I voted “yes” on that, not “no”.

The Chair: All right, we'll make sure that correction is made.

Mrs. Karen Kraft Sloan: Thank you.

The Chair: Thank you.

We now have Mr. Mills' amendment, which has relevance to this, on the word “intentionally”. While the iron is still warm and memories are fresh, I would like to suggest we go to Mr. Mills' amendment so we can deal with it, because it has repercussions on other motions. We invite Mr. Mills, if he's willing, of course, to introduce his amendment on page 200.

Mr. Mills, would you like to move your amendment?

Mr. Bob Mills: Thank you, Mr. Chair.

I think we've had some of the discussion as to why I would want “intentional” in there. I've listened to two members say why they would like it to apply to corporations. I don't have a problem with it applying to corporations, other than that I think they have a higher level of responsibility. I'm not as concerned about them as I am about the individual landowner, who conceivably doesn't read the Canada Gazette every day to find out what's endangered and what should be included.

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I think it's putting them in a very difficult position where they're supposed to do the due diligence, if you want, to go and check out all of the newly listed endangered species, to ask if they have any of them, or if their habitat is on their land, when the government doesn't tell them that.

I feel this is much more reasonable. It's up to the government to work with landowners, to advise them. If they go ahead and destroy it, of course, that's a whole different issue. That's a criminal offence, and it should be. I feel by putting “intentional” in there it makes it very clear, and it would make a major difference to the judge hearing the case that might be brought against that individual or corporation.

The Chair: Thank you, Mr. Mills.

Mr. Savoy.

Mr. Andy Savoy: Thank you, Mr. Chair. I come from a strong agricultural and lumber area with numerous private woodlot owners and numerous farmers. I think there's some way we have to look at exempting or differentiating between corporations and individuals, and I would ask the officials if there is a manner in which we can do that.

Mr. David Near: The short answer is, right now I don't know. In some aspects, the charter does apply to corporations, to afford protection to them. In other aspects, the charter does not. If we were to differentiate and impose a higher threshold for corporations, as opposed to individuals, without further analysis I couldn't say whether or not it would be a violation of the charter.

Mr. Andy Savoy: Excuse me, Mr. Chairman. If it were one or the other, I would go with supporting the small landowner, but I would rather see it differentiated. I think that would be the will of the committee too.

The Chair: Madame Kraft Sloan, Mr. Forseth, and Madame Redman.

Mrs. Karen Kraft Sloan: Mr. Chair, I understand the intent of what Mr. Mills is trying to do here, and I laud that. The problem is that corporations are not just MacMillan Bloedel and 3M. For example, my husband and his family owned farmland in Chatham and they were incorporated, so they were really private landowners who were incorporated. They did that for a variety of reasons. So we may run into situations where individuals are actually incorporated. It's a very problematic area.

The Chair: Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance): In law, a corporation is an individual. The issue of creating a corporation is that you're creating an individual. The other side of why we need mens rea is that in any prosecution the crown counsel is going to look for that kind of criteria, to prevent bureaucracy running amok.

The other side of making the legislation work is the public relations side, and this is going to be one pivotal issue. Those who don't agree with the legislation and want to make all kinds of wild claims about how draconian it is are going to pick on this spot and create all kinds of bad stories, and I don't know if we'll ever catch up with it. But if we put mens rea in, we'll shut down a whole host of those who are waiting to say “We told you this shouldn't happen”.

So it's one of the greatest sales tools to get acceptance of the bill by those who are very critical and are against the implementation of this type of legislation.

The Chair: Madame Redman.

Mrs. Karen Redman: Thank you, Mr. Chairman. I too certainly appreciate the intent, and I think Mr. Savoy has raised the issue very well. We can't forget there is a notification process involved in this and the fact that claiming due diligence is a defence under strict liability. If they can prove they've acted reasonably, it certainly will be in their favour, and that's built into the process.

Fundamentally, what we come down to—and Mr. Savoy made this point—is the issue of the individual rancher, farmer, or landowner doing something without intent versus the multinational corporation who may be harming the environment.

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Again, Mr. Savoy has made this point. We have to weigh the balance. Is mens rea going to maybe not bring a case before the individual farmer? It may also create a piece of legislation that doesn't have the required teeth to go after the multinational corporation as well.

It's certainly the intent of the bill to work with landowners, ranchers, farmers, and people on the land to implement this. I think the point is very well taken. Mens rea, in our view, will leave us with a piece of legislation that will, indeed, not be effective where it needs to be.

The Chair: Thank you.

Mr. Herron.

Mr. John Herron: I have a couple of points. The privacy secretary used the language that there's a notification process in place. There is because of an amendment this committee passed. We're talking about the issue down the road anyway.

I'm going to support the Alliance amendment, but I do have some mixed emotions. To illustrate, via the grapevine I heard we only have five or six prosecutions per year under the Canadian Environmental Protection Act, without adding a mens rea component. The federal government is extremely reticent about taking people to court arbitrarily anyway.

I'm going to support the Alliance on its amendment. Ms. Redman is right in the aspect that the Government of Canada does not want to use this in an excessive way. The notification process would be a component thereof. It's really less of a lightning rod, given the number of cases that are actually prosecuted.

The Chair: Mr. Mills will conclude.

Mr. Bob Mills: I think you've put it rather well. It's not how many cases there are. As Mr. Forseth said, it's in front of the town hall meeting where you are showing this is a reasonable piece of legislation. You should cooperate because most Canadians agree we should preserve endangered species.

I think, as a friendly piece of legislation, we could point to this as a sign post. There is cooperation. We're not leaving it to the courts. Trust us, we're not leaving it to the government. They have to prove you intentionally did it. To me, that argument would be very strong at the town hall meeting.

The Chair: All right. Are you ready for the question?

Keep in mind, if this amendment carries, it will also apply to the amendments on pages 99, 141, 200, 229, and 233, all the amendments in the name of Mr. Mills that carry the same word.

Madam Redman.

Mrs. Karen Redman: Thank you, Mr. Chair. Given those comments, could we ask for some comments from the staff?

Ms. Ruth Wherry: I'll make one comment, then maybe some others will be made. Federal environmental legislation and the majority of provincial wildlife legislation is a strict liability. It's a strict liability for healthy populations of wildlife. We're talking about the emergency ward of wildlife. In other words, if this gets changed to mens rea offences, it would be much more difficult to prosecute anyone for killing or destroying the critical habitat of an endangered species than it would be for a healthy wildlife species.

Mr. Simon Nadeau: The Ontario Endangered Species Act has been in place for about 20 years. Under the act, to my knowledge, there has been only one court case.

After talking to an enforcement officer, basically, he says it's impossible to prosecute because the legislation is mens rea legislation. You have to prove wilful intent. You never have the information and can't prosecute. They're using other pieces of legislation when an act is committed that affects enlisted species.

The Chair: Mr. Laliberte.

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Mr. Rick Laliberte: Yes, I'm trying to play out how the act will go with Mr. Mills' amendment.

This deals with mandatory critical habitat protection under federal jurisdiction for aquatic and migratory species. When he speaks of a farming family making a decision, most of the situations will occur under provincial jurisdiction. This does not kick in.

There's an opportunity here. It's basically highlighting the issue under federal jurisdiction. It doesn't fall under provincial jurisdiction. This would impact on aboriginal lands and northern lands.

I'm trying to figure out the intentional side. There's a language barrier in some of the communities under federal jurisdiction.

I don't think your argument is completely touching on the point. If it's farmland under provincial jurisdiction, this doesn't kick in unless it's as a safety net.

I'm trying to figure out the complete circle of your argument. I'm trying to figure it out.

Mr. Bob Mills: I think the aboriginal communities would support this intentional mens rea concept. They have to then prove they intentionally did it.

As well, of course, throughout the west at least, there are many PFRA pastures that are federal lands leased by individuals on long-term leases. There is a great deal of federal land.

Officials used the argument that the other legislation is due diligence and so on. To me, you look at those pieces of legislation and bring them into line with this legislation. I know the minister uses the argument as well.

It seems to me those 20-year-old, or whatever, pieces of legislation go one way. We're talking about cooperation in environmental areas. We need cooperation or nothing is going to work. We all agree. We need the cooperation of aboriginal communities if this is going to work.

By putting it in, you really send a signal that this is cooperative. Environment is an area of cooperation between all people and ultimately should filter down to provincial legislation as well. We're setting the example.

The Chair: Ms. Wherry, very briefly, please, and then we'll vote.

Ms. Ruth Wherry: Yes. I wanted to add one last comment. Most of the bill is built upon cooperation and consultation with everyone, especially with reference to critical habitat. People are at the table. It is highly unlikely they're not going to know where the critical habitat is. The whole issue becomes moot.

With respect to what Madam Redman said, we are trying to address the other concerns and issues you would have through the notification.

The Chair: Are there any further comments? If not, are you ready for the question?

Mr. David Near: I have a technical point. This same committee dealt with CEPA relatively recently. Those were strict liability provisions about 20 years ago.

The Chair: Are you ready for the amendment? Those in favour of Mr. Mills' amendment? Those opposed?

It's a tie vote. The chair votes against the amendment.

(Amendment negatived)

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(Clause 58 as amended agreed to)

The Chair: Thank you.

Madame Redman.

Mrs. Karen Redman: Thank you, Mr. Chairman. I sense a lot of movement in the room, but I could seek some clarification as to what we are going to cover on the Wednesday and Thursday meetings this week. Are we going to move forward numerically with clauses, or are we going to look at critical habitat, compensation, and management plans? As well, I believe Mr. Laliberte had a motion he wanted to bring in on clause 7, as well as clause 32. Have we any plan as to how we're going to move forward at this point in time?

The Chair: We have agreed on completing the examination of transboundary species. I would be of the view that we should clean up that aspect, and then we should complete clause 32 where possible, and then we will resume the normal work, page by page, in a numerical and progressive manner, unless there is a need to go back to clean up something that is selected. The amendment by Mr. Laliberte on clause 7, for instance, we could do as well. So we'll go roughly in the sequence I just indicated.

It being 12 noon, we might as well adjourn and resume tomorrow afternoon.

The meeting is adjourned.