ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, November 7, 2001

• 1535

[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good afternoon. Welcome to our Wednesday afternoon entertainment.

You received a letter yesterday from the executive director of Wildlife Habitat Canada, accompanied by a very elaborate and thoroughly prepared report. It's on your desks. It is a very well-thought-out document. There are a number of passages that are relevant to our work here.

It's interesting to note that at the bottom of each page of this report, which is some 90 pages long, there is a phrase, “Without habitat... there is no wildlife. It's that simple.” That message is repeated throughout the document from beginning to end. Evidently, the Wildlife Habitat people want to stress that message to the world.

On page 62 at the top you will find the passage that says, “...efforts in habitat conservation to help fulfill many of these commitments have been slow.”

Then for those of you, like Mr. Reed, who have a particular interest in the farming community, on page 59, you'll find the observation that tax incentive programs have also been developed to encourage retention of ecologically sensitive lands, habitats, woodlands, wetlands, and other conservation lands. Then there is a big “however”, which says that “a recent survey of rural land owners in Ontario revealed relatively low levels of participation in these programs (10% for the Managed Forest Tax Incentive Program and 7% for the Conservation Land Tax Incentive Program).” This is a survey entitled “Countryside Canada 2000”.

So this report is on your desks. This last quotation, which is relevant only to Ontario, is on page 59.

The reason I look so reproachfully at Mr. Reed is because I hold him responsible for everything that happens in rural Ontario.

Mr. Julian Reed (Halton, Lib.): Then in self-defence, Mr. Chairman, I have to tell you that even though many of us don't participate in those programs, we do it anyway. I happen to be one of them.

The Chair: Well, that's an interesting observation.

In any case, under the heading, “What Are the Main Factors Affecting Agricultural Wildlife Habitats”, on page 59, there is a discussion of that theme. Since I know it is close to Mr. Reed's heart, in particular, and I imagine others as well, and since this report covers the whole of Canada, I would urge you to make sure it does not disappear under a pile of documents, which usually builds up in everybody's office, and that it gets the attention it deserves. That's all I'm urging you to do. This is what the front page looks like. It must be the work of several years.

• 1540

It also deals with the Arctic, urban landscapes—Mr. Tonks—Arctic landscapes, agricultural landscapes, forested landscapes, and oceanic and coastal seascapes, Mr. Savoy, in case you might be interested.

The clerk reminds me we are making progress with this plan to go as a committee to Washington in January. It is shaping up as a trilateral event, because our European colleagues in Brussels are making positive noises.

With Senator Jaffer we have almost finalized an event in Washington in the last week of January, as a committee. It would be interesting to have, by a show of hands, an indication as to which members of the committee are interested in participating.

Yes.

Mr. Joe Comartin (Windsor—St. Clair, NDP): When you say the last week of January, is it the first week we're back?

The Chair: It's the very same week.

Mr. Joe Comartin: Then I would be available.

The Chair: Perhaps I should also add that the main topic on the agenda will be climate change. The next topic on the agenda is likely to be pollution prevention.

Could I have another show of hands, please?

It looks like a good composition.

Mr. Andy Savoy (Tobique—Mactaquac, Lib.): If there's time, perhaps we can spend some time on transboundary smog.

The Chair: Transboundary pollution, you should say. That can be confirmed, yes.

Mr. Bob Mills (Red Deer, Canadian Alliance): Like the north shore of lake Erie.

Mrs. Karen Kraft Sloan (York North, Lib.): And implementation of the precautionary principle, pollution prevention... It has to be the hardest pollution to prevent.

The Chair: We can put forward the implementation of the precautionary principle, if they are willing to agree with us.

Mr. Andy Savoy: We're all yours.

Mrs. Karen Kraft Sloan: Try the environmental health agenda as well.

The Chair: Fine. Keep in mind that the plan is to have a three-hour meeting with the Senate committee on the environment, and then a number of meetings that will be organized through the office of Senator Jaffer with other think-tanks or organizations in Washington, to make it as enriching as possible.

The entire event will start on Tuesday in the morning and will be completed Wednesday at noon. The dates are the Tuesday and Wednesday of the last week in January, when we would be here.

The Clerk of the Committee: The 29th and 30th.

The Chair: We will have to seek, of course, the consent of the House leaders for that. It might be a good idea if members spoke to their respective House leaders to get a favourable attitude, and a budget, which is still to be prepared.

You will recall that yesterday we passed an amendment by Mr. Knutson, which we promised to circulate, so you would see exactly how it looked in print. I'm referring to the amendment on page 200A. You will recall that yesterday we spent some time on it. There was a line countered on page 201 with the words “aquatic species”.

The amendment was approved yesterday and has been circulated, so you can see it. It is on your desks. You will see that what was agreed upon, by way of deletion, has been deleted, or modified. There's also the reference to transboundary species. You will see aquatic species is now paragraph 58(1)(b), as it was in the original amendment. We are circulating it for you so you are fully informed on what was done yesterday.

• 1545

We can, this afternoon, continue with transboundary species, and I would like to take you through the transboundary species bundle, or those species that go up to clause 58, which was approved yesterday, so we can proceed in concurrence, in tandem.

Would you please look at page 18, the amendment by Mr. Knutson. That amendment is negatived by virtue of the vote that was taken on his amendment on page 108. So page 108 is disposed of.

Then you have an amendment on page 57 in the name of Madam Kraft Sloan, which was adopted, you will recall.

The amendment by Mr. Comartin on page 109 is now out of order because of yesterday's decision to overrule the chair, thank you very much. So that's the disposition of Mr. Comartin's motion on page 109.

The amendment on page 110 follows the same fate. The amendments on pages 111 and 116 in the name of Mr. Herron are also negatived.

Mr. John Herron (Fundy—Royal, PC/DR): Is that on the basis of Mr. Knutson's amendment being passed, or...

The Chair: Because of the ruling yesterday.

Mr. John Herron: My prerogative to seek leave to the Speaker on the initiative... that hasn't been eliminated, has it?

The Chair: That hasn't been touched, no.

Mr. John Herron: So we're foregoing these issues on transboundary on the basis of the chair's ruling being overruled, right?

The Chair: Correct.

Mr. John Herron: So I still have the prerogative to set all these aside, subject to a ruling from the Speaker, with reference to the amendment on page 57 that was passed before?

The Chair: We then come to page 135—

Mr. John Herron: On that point of order, Mr. Chair, just to answer the question, do I still have that prerogative before we rule out these...

The Chair: The prerogative in the end will be exercised by the Speaker.

Mr. John Herron: Right.

The Chair: But you could certainly try.

Mr. John Herron: So why don't we set these down subject to the ruling of the Speaker then, whether we're allowed to revisit on a continuous basis, because the issue of transboundary was enshrined in the bill when the amendment on page 57 was passed with respect to mandating COSEWIC to actually follow through on that particular aspect.

The ruling of the chair originally was to refer this to the Speaker. Then we had another intervention that was changed, and then changed again. Maybe that would have been a better direction to go in the first place.

The Chair: There are certain motions that are still in this bundle that can be put forward, as in the case of the one on page 135 that was stood, which is also in Mr. Herron's name. That we have not dealt with.

• 1550

Mr. John Herron: I ask the clerk to confirm which ones related to the transboundary issue—

The Chair: That's what we're doing now.

Mr. John Herron: —have been set aside due to the reversal of the reversal of the reversal.

The Chair: That's what we're doing now, one by one. So I refer to the amendment on page 116 as being negatived.

The amendment on page 135 still stands, so that is the first one we could deal with.

Then on page 188, there was a motion in the name of Madam Kraft Sloan, which was carried, but without the reference to transboundary species. That was deleted.

Mrs. Karen Kraft Sloan: But, Mr. Chair, transboundary species were deleted because we had been told we weren't allowed to bring them to the table again, and now we are bringing them to the table. This causes some real procedural problems.

The Chair: No, it doesn't, because this motion was carried on the understanding that transboundary species was deleted. There was a good and lengthy debate on that.

Mr. John Herron: But the point is they're not deleted if we seek leave to the Speaker on that ruling, as originally planned.

The Chair: That option is always open to members. If they want to seek that option, they can.

Mr. John Herron: But I thought originally you were willing to take that to the Speaker for his consultation, and request that that be done.

The Chair: It was related to the ruling on the consequential impact of a certain amendment that was taken on page 156 last week. It was only in relation to that, nothing more.

Mr. John Herron: But that issue got derailed, because of Ms. Redman's intervention.

The Chair: I suspended that rule myself, and I included in the ruling certain motions that were challenged yesterday, and as a result of the challenge, certain motions were brought.

I'm now taking you through the bundle so it is clearly understood by the committee which motions, for technical reasons flowing from that ruling yesterday, are still alive and which have been negatived.

Mr. John Herron: But, Mr. Chair, again on the same point of order, that ruling was more than just a vote on your interpretation of Ms. Redman's intervention. It now becomes an interpretation of whether we're going to debate an issue, so it's stifling debate on a public policy issue. That is the end effect of it.

The Chair: We have these items before us. I made a reference to page 189. Next to it is an amendment by Mr. Herron on page 190, which cannot be put because I'm told there is a line conflict. The same applies to Mr. Comartin's motion on page 197 because his amendment applies to a clause that was deleted. The motion on page 208 in the name of Mr. Knutson was carried yesterday. The motion on page 203, in the name of Mr. Herron, cannot be put because of a line conflict with the motion by Mr. Knutson.

We can proceed with the balance of the amendments on pages 216A, 218, 277, 278, 323, and the one I mentioned earlier in the name of Mr. Herron, the one on page 135, which is an amendment to clause 35, and has been stood.

So I would invite you to turn to page 135, the motion by Mr. Herron, an amendment to clause 35.

• 1555

(On clause 35—Application—certain species in territories)

The Chair: As suggested by the clerk, we will deal with Mr. Herron's motion and any other motion that is still stood or standing related to clause 35. In order to do that in that sequence, we would have to turn to page 134, where there is the first amendment by Mr. Herron, which then will be followed by page 135.

The first amendment is with the Governor in Council. The amendment has at the bottom of the page the words “Replaces 134”. It's PCDR-31 at the top. It's in Mr. Herron's name.

Mr. Herron, you have the floor.

Mr. John Herron: Mr. Chair, this amendment states that “The Governor in Council shall, after the minister recommends to make an order, prohibit harming of the species...” No, that's the wrong one.

Mr. Chair, you may remember a series of amendments were passed when we were reviewing this similar section with respect to provincial jurisdiction, where the committee said that as a minimum, if there's a species at risk, we shouldn't kill it. I was thinking that if there's a species at risk, and we know it's on the designated list, we shouldn't harm it, we shouldn't kill it, we shouldn't outrightly cause harm to that particular species. What we determined to do, with the help of Mr. Mills, is that the federal law would only apply unless there was not a provincial law in place or the provincial law was not as stringent or equivalent. We even had an additional amendment that actually determined what equivalents would be. We would negotiate what equivalents would be after about a six-month period.

• 1600

In this series of amendments we're talking about the territories. After a Governor in Council says we'll make a recommendation to prohibit the harming or destruction of a species in a territory, if there's a territorial law in play, the federal law need not apply. If the territorial law is deemed to be not as strong—it doesn't protect the species from harm or from being killed—then there's a provision to determine what the level of equivalency might be.

We did it for the provinces just last week. For the sake of consistency, so that we don't have a haphazard bill on this particular issue, we should do it for the territories as well.

The Chair: For grammatical purposes, would you like to change “apply” to “applies”, since you are referring to clause 32?

Mr. John Herron: Of course.

The Chair: We have Mr. Mills.

Mr. Bob Mills: I have a couple of questions for the officials. Did the territories sign the agreement that the provinces signed?

Mr. David Near (Legal Counsel, Legal Services, Department of Justice Canada): Yes.

Mr. Bob Mills: Secondly, can you treat the territories the same as you treat the provinces? Constitutionally, isn't there a major difference?

Mr. David Near: The answer is yes. If we choose to treat them like the provinces, which most of the time we do, we can.

The whole purpose of clause 35 is in fact to provide a safety net—a feature for the territories—that was included in clause 34 for the provinces.

Mr. Bob Mills: Did they sign?

Ms. Ruth Wherry (Director, Species at Risk, Canadian Wildlife Service, Environment Canada): They all supported it in principle. Not all the territories signed it, and of course Nunavut separated out from the Northwest Territories after they had signed or made those arrangements to sign the accord. So, no, the territories didn't all sign it, but they all support it in principle—all of them.

Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance): Why wouldn't they sign it?

Mr. Bob Mills: Is there a reason for that?

Ms. Ruth Wherry: Part of it, as I say, was the Northwest Territories splitting up into two territories. At least one or two other provinces also just supported it in principle at the time.

The Chair: Mr. Near.

Mr. David Near: I think it's fair to say that since the original signatures, the provinces have been waiting to see what the federal legislation will look like before anybody else signs on.

The Chair: Madam Redman.

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

I would like to ask about two aspects. I don't know if Mr. Near wants to continue or Ms. Wherry and perhaps Monsieur Nadeau. Amendment 134, as written, talks to species of game, and game traditionally has been more or less caribou. There's a real concern that this would somehow undo the effect of efficient wildlife management, which has been in place for a very long time in the territories.

I don't know if Mr. Near would like to start.

Mr. John Herron: Perhaps I can add why we put in species of game in the first place. The federal government already has jurisdiction over all the other species. The species of game is one that has been delegated to the territories. That's why that aspect was identified specifically for that purpose. The issue is we just don't think that if a species is at risk, if it's in danger of becoming extinct, we should kill it. So if we vote against this serious amendment, we think it's okay to kill species that are at risk.

I'm not talking about protecting the habitat and the whole shooting match. I'm just saying we shouldn't harm it.

Mrs. Karen Redman: I appreciate the sincere attempts of my colleague to protect species at risk, and I would tell you I think that's why we're all here. But I also think one needs to look at the larger picture of the cooperative effort and the building on a lot of consultation that has taken years to achieve.

I don't know if Ms. Wherry or Mr. Near would like to comment.

• 1605

Mr. David Near: I'll address the first aspect first.

It is true that in the delegation powers to all of the territories there is a whole list of matters delegated to the territories from the federal government for things that they are to legislate with respect to. One of those is specifically game. However, there are several others, such as property and civil rights, and matters of a local concern, that essentially mirror the provisions given to the provinces in the BNA Act.

Under that authority, the territories have in fact been legislating with respect to wildlife well beyond just game for years. Their delegated powers are not restricted just to game, and in fact all three—well, two territories, I'm not sure about Nunavut yet—do have extensive wildlife management regimes in place and wildlife legislation.

With respect to the second point, I think everyone would agree that we're not here to authorize the killing of endangered species. The prohibitions are in place. It's just a matter of whether or not you assess the protection that's provided under the territorial legislation before you bring in the criminal law power or before you actually issue an order to assert federal jurisdiction, if you like. It's a process question.

The Chair: Are we ready for the question?

Mr. John Herron: I just want to ask a question to the parliamentary secretary.

She was probably aware that we followed the same process with provincial jurisdiction. Why would we want to have a bill that would have, to quote the minister, “a hierarchical approach”, where we would treat one region differently from the other?

Mrs. Karen Redman: Perhaps to lend some clarity to my colleague, Mr. Chair, I would point out that prohibitions do apply. The attempt is to allow territories to be responsible for the stewardship and the protection of species at risk. We would have the same safety net for them that we would for provinces.

I would ask Ms. Wherry if she would like to add a comment.

Ms. Ruth Wherry: Yes, I would.

Actually, with respect to the territories, they're all currently in the process of amending their wildlife legislation to make it broader than just game, etc.—to cover wildlife species.

I'd also like to point out in the motion that's before us that I notice it only refers to clause 32. Is there a reason why you left out clause 33?

Mrs. Karen Kraft Sloan: Mr. Chair.

Mr. John Herron: We could put clause 33 back in. We didn't do that when we passed the provincial side of this, did we?

The Chair: All right. If that part has been clarified... Madam Kraft Sloan, Madam Redman.

Mrs. Karen Kraft Sloan: I was just going to say that perhaps clause 33 is not included in this amendment because we're referring to listed species of game.

The Chair: Thank you.

Mrs. Karen Kraft Sloan: There may be differences there with respect to residence because, as we've been told, caribou do not have residence.

Mr. John Herron: They don't have it but they're residents. A caribou doesn't have a residence in the same way a fox or another particular species would have. So I don't think we'll include clause 33, but I'm ready for the question.

The Chair: Well, these are interesting elaborations on wildlife.

Mrs. Karen Kraft Sloan: But it's not necessarily restricted to caribou, either.

The Chair: Could we—

Mrs. Karen Kraft Sloan: May I answer, Mr. Chair?

I also just want to point out that if we're concerned about the treatment of the safety-net provisions with regard to the province and the territory, we did amend clause 34.

As we go through Mr. Herron's package, you will see that it's very similar, in many respects, to the amendments we passed on clause 34. So if we want equal treatment for territories as well as provinces, I would encourage members of the committee to pass this amendment.

The Chair: All right. Thank you.

Madam Redman.

Mrs. Karen Redman: Mr. Chair, I would say the inclusion of clauses 32 and 33 doesn't change our substantive objection to including this for the reasons that have already been given.

• 1610

The Chair: Any further points? Are you ready for the question?

An hon. member: We are.

The Chair: The reference number is 13481. If this motion carries, it would replace other motions in the name of Mr. Herron, namely those numbered 134, 136, 137, and 139.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Now we come to another motion by Mr. Herron. The reference number, to simplify communications, is 13302. It's in Mr. Herron's name, it deals with clause 35, and it's in our collection on page 135.

[Translation]

Mr. Herron, you have the floor.

It is on page 135.

[English]

Mr. John Herron: Mr. Chair, essentially what this amendment does is seek to augment the level of protection of species. Critters or species don't exactly know where international borders are. It's in the purview of the federal government to deal with environmental issues that are transboundary in nature. Just as with air pollutants, it's in the purview of the federal government to provide the lead with the transboundary nature of species that cross boundaries. That's what we're aiming at.

The effect of this would be to deal with species that migrate across the Alaskan border, or may fly on the rare occasion perhaps from the Soviet Union, or something of that nature. We're really only talking about transboundary aspects involving two particular nations.

I think we should protect all species at risk, regardless of the migratory patterns. We should add migratory birds. As Chief Justice La Forest said, that's clearly in the purview of the federal government. He has a very clear line on that particular issue. The former chief of the Supreme Court has a bit of background on that particular topic, and on transboundary species as well.

The Chair: Thank you, Mr. Herron.

We have Madame Redman.

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

I would ask Mr. Near if he'd like to comment on this. This is the same problem we've faced in including transboundary right all the way along. It includes 94% of species that are listed. It puts the federal government in, but does not allow for provinces and territories to participate.

Mr. David Near: Just as a short repetition of what I've said earlier, this effectively eliminates a safety net for the territories.

• 1615

The Chair: Is there any further comment?

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I've been hearing over and over again that including transboundary species would effectively include 94% of listed species. Why is that a bad thing? I thought Canadians wanted us to protect endangered species.

The Chair: Madam Redman.

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

I again would acknowledge the goodwill of this committee and Canadians to protect species at risk. This amendment causes a fundamental shift that changes the relationship between provinces and territories and the federal government. The whole bill is structured on the cooperation of the provinces in being first off the mark; then, having a backstop, it allows the federal government to come in afterward.

It's that cooperation we feel would be at risk if we were to put “transboundary” in and make 94% of all action federal first—and then, by default, involve provinces and territories.

The Chair: Mr. Mills.

Mr. Bob Mills: Just repeating what we've said before, I think this is a slap in the face to the provinces. It changes the whole cooperative approach this bill is trying to build. I think it would not be accepted well at all by provinces and territories. So I would oppose it.

The Chair: Madam Kraft Sloan.

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

You know, if I were a Canadian reading the proceedings of the committee or watching us when we're televised, I would still go back to my original question: what is so bad about protecting 94% of endangered species? Why is that such a horrible thing? Isn't that what Canadians expect us to do when we enact endangered species legislation?

The Chair: Thank you.

Mr. Herron.

Mr. John Herron: If we use this guise that it throws out the whole cooperative approach with the territories respecting their capacity to write laws... What this simply does is empower the federal minister, having made a determination that the territorial law does not protect the particular species at risk, to utilize this particular power. He still has to make the conscious decision to make that level of interference.

Obviously, that is not something that would be done on a whim. The federal government has to be respectful of the fact that the territorial government is capable of writing its own law. It has the capacity to determine whether it's equivalent or not. Making an intervention would be an extraordinary kind of thing, I would think. So the aspect of cooperation is not thrown out the window.

Every time a federal law was imposed over the territory at issue, it would be controversial. They're not going to do it just willy-nilly. That's the approach: the cooperative approach is taken, but it's done on a case-by-case, as opposed to a global, basis. That's the difference.

The Chair: Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Mr. Chair, let me say through you to my colleagues in the Canadian Alliance, I don't know how people think out west, but I don't think at Queen's Park... Do you see? “It's Mike Harris on the phone to tell us he doesn't mind that—”

Mr. John Herron: “It's Ms. Witmer; she's on board.”

Some hon. members: Oh, oh!

Mr. Gar Knutson: I really suspect the provincial politicians at Queen's Park don't mind if we have a stronger prohibition against killing or destroying habitat in the territories. To suggest that this is somehow going to be a fundamental shift and undermine the philosophical underpinnings of the bill is, I think, a bit of a stretch.

It's my view that clauses 32 and 33, which are the general prohibitions against killing and destroying habitat, are almost fraudulent because they've been riddled with so many exceptions and qualifiers. All my friend from the Progressive Conservative party is trying to do is remove a couple of the qualifiers that would just impact in the territories. I think for those reasons we should support his amendment.

• 1620

The Chair: Mr. Reed.

Mr. Julian Reed: Mr. Chairman, obviously there's a fundamental philosophical difference on this committee regarding the use of command and control versus discretion. The bill was tailored initially to provide for discretion and cooperation with not only the provinces but private individuals as well. The further we get into this command-and-control thing the less opportunity there is to exercise the option of cooperation.

The truth is if this bill passes as a cooperative bill, a discretionary bill, we'll be coming back and can review it in four years' time. We can look at it to see what has been good and what has not been good about it. But if we continue with this command-and-control approach all the way through, we'll end up with such an Americanized bill it's going to have all the flaws the American bill has now that we recognize totally.

I beg everyone to stop and think about that for a minute. We have an opportunity to go down this path. If we continue to bring in all the hammers, we'll gradually destroy what we set out to create in the first place.

The Chair: Mr. Mills, Mr. Comartin, Madame Kraft Sloan. Then we'll take a vote.

Mr. Bob Mills: I think the most important thing is we're still protecting species. What we're doing is putting it closer to where those species are on the ground. We're saying the territories will protect those species. We're putting the emphasis on them: we've got enough other areas of control. I think it is just goodwill to say, “You have those species, you protect them, here they are”—whereas something like this is just too much from the central government.

The Chair: Mr. Comartin.

Mr. Joe Comartin: Mr. Chairman, I agree with Mr. Reed that we in fact do have a substantial and perhaps impossible hurdle to overcome here between the two viewpoints on the philosophical underpinnings of this bill. I just don't believe—and I guess I'm speaking through you to Mr. Mills—that the relationship between the federal government and the provinces is that fragile; that this type of amendment, and a series of other ones that are there to ultimately protect the species—on a case-by-case basis. I don't believe our relationship is so fragile that it would somehow totally destroy the cooperation we all are admittedly trying to get out of this bill. That would be the first, second, third—God knows how many—stages we would go through where we're trying to reach agreements and cooperation between the levels of government. To suggest it totally destroys the underpinnings... I have to reject that. I just don't see us doing that.

Ultimately what I see is that if we hit a recalcitrant other level of government, whether in a territory or a province, one that for any number of reasons, valid or invalid—financial, they're anti-environment or they're anti-species, we can go through the list. If we run into one of those governments that just doesn't care, as the bill is drafted now there's nothing we can do as the federal government to protect these species. We're just blown away. We can't do anything at that point without this type of amendment.

To recognize we're going to run into that at some point I don't think is scaremongering. I think it's the reality, that at some stage we would run into it. And we need the ultimate authority to protect the species.

We have to look at the history of the provincial governments. It's not a very good one. I think, Mr. Chair, you raised this perhaps most eloquently. If you look at that record it's not a very good one. So for us to say to them, “Look, we're going to cooperate with you, we're going to do whatever we can to reach agreements, and we're going to do whatever we can to assist you in salvaging these species that are needed, but if ultimately you're not going to come on side, we have to do something”, that's a responsibility we have here to draft this legislation and see it passed. I think we shirk that responsibility if we don't put these kinds of amendments through.

• 1625

The Chair: Madam Kraft Sloan, Madam Redman, Mr. Bailey, and then to conclude, Mr. Herron.

Mrs. Karen Kraft Sloan: I think, Mr. Chair, you're forgetting that there are aspects in this bill that clearly work on the ground for the protection of species, and I'm talking about the action plan process. That's where the cooperation and the involvement with local landowners, local community groups, local NGOs, the provinces, and all interested and affected individuals come into play in the development of those action plans. Mr. Herron may say this—he articulated without the aid of a microphone—but where's the hammer? The reality is that the strong elements of cooperation still exist. They're well embedded in this act. Where the real work in saving species is done is through those action plans in many respects, and that's not threatened at all.

The Chair: Madam Redman, please.

Mrs. Karen Redman: Mr. Chair, I find it really interesting that Mr. Comartin paints a picture that is the essence of the bill as it is presented, because we go into cooperation. Species are protected when they're listed, and the backstop is the safety net when provinces don't act. To portray it without including transboundary species, which obligates the federal government to be the first level of government for 94% of the species—and that's the only way they're going to be protected—misrepresents the logic and the structure of this bill.

I would ask Mr. Near if he wants to comment on this issue.

Mr. David Near: The only matter I wanted to comment on, related to the comments by Madam Redman, is that Mr. Herron has on occasion indicated that it would be assessed on a case-by-case basis. Well, only 6% of the species will be assessed on a case-by-case basis. The other 94% are automatically under federal jurisdiction. That's the philosophical debate.

The Chair: Mr. Bailey, please.

Mr. Roy Bailey: Mr. Chair, you quoted at the beginning from a brochure that we have the support of a rural area in Ontario. Now, if any one of us around this table were sitting on a territorial or provincial board and saw, as Madam Redman has stated, this 94% figure, they would say, look, we haven't signed on, but if those so-and-sos in Ottawa are going to automatically control 94%, the heck with that noise; we're only going to be left with 6% anyway. To my way of thinking, this bill is counterproductive—absolutely counterproductive.

Bob and I were looking at something that came in today. If you're going to throw a blanket over this great nation and say “No, this is federal, but you guys had better be in on it”, and so forth, then we have the wrong approach to a cooperative venture to include this at this time. I think it's wrong.

The Chair: Thank you.

Monsieur Gagnon, and then Mr. Herron to conclude.

[Translation]

Mr. Marcel Gagnon (Champlain, BQ): I am in a bit of a quandary, Mr. Chairman, listening to the comments on both sides. I support provincial autonomy. If, as is being suggested, we intrude excessively on provincial jurisdiction, this is a cause for concern.

The figure of 94% is being thrown out. I would like to know if, by passing this amendment, we would protect 94% of the species or if we do protect 94% at the present time. What does the amendment mean?

[English]

The Chair: Mr. Herron, would you like to deal with the question and then conclude?

Mr. John Herron: First of all, about 94% of the species are transboundary in nature; 6% wouldn't be of a transboundary nature at all.

On the issue of transboundary pollutants or issues of an environmental nature that are transboundary, the federal government traditionally has had jurisdiction. What this does is it enables the federal government to use its law should it seem appropriate. However, we all know that if you use a federal law when there's a pre-existing provincial or territorial law and if you just automatically do it on a cavalier basis all the time, that's going to be an irritant between that province or territory and the federal government on an ongoing basis. In my view, it wouldn't be something that would be done arbitrarily.

• 1630

[Translation]

In my view, if a territory has legislation to protect species, that legislation should apply in that territory.

The Chair: Mr. Gagnon, you have the floor.

Mr. Marcel Gagnon: Listen...

[English]

Mr. John Herron: Is this my last comment, or do you want me to finish that?

The Chair: Let's hear Mr. Gagnon. Then you can complete your remarks.

[Translation]

Mr. John Herron: I apologize, Sir.

Mr. Marcel Gagnon: Having been a member in the Assemblée nationale of Québec and assistant to the minister of Environment in my previous life, I am surprised by the suggestion provinces are not doing their job in this area. I would not want us to impose regulations on provinces that already have their own. Could I ask you, for example, how endangered species are presently protected in Quebec?

Mr. Simon Nadeau (Head, Endangered Species Recovery, Environment Canada): A number of species have been classified as endangered or threatened by COSEWIC and are protected by provincial legislation. Not all are protected by law but a number are.

The Chair: What percentage, Mr. Nadeau?

Mr. Simon Nadeau: The percentage...

The Chair: Less than 30%.

Mr. Simon Nadeau: Probably, yes.

Mr. Marcel Gagnon: Are you saying that less than 30% are protected?

Mr. Simon Nadeau: Yes, at the present time.

[English]

The Chair: Mr. Herron.

Mr. John Herron: I'll conclude, and I thank Mr. Gagnon for his comments.

Essentially, what we're advocating here is that the issue of cooperation not be removed. The federal government would still have to choose. It would have the first right, but it would still have to choose to actually use its law.

I disagree with my dear friend from the NDP on the contention that the provinces haven't done a very good job. We may say that they haven't done a sufficient job for sure, but the fact is that the federal government has barely been engaged in the issue at all.

We know for a fact that Canadians want the federal government to exert leadership in the issue, but it doesn't mean it has to use a hammer to override a provincial law. We have to respect the provincial laws and respect the provinces' capacity to write the laws, but there has to be a capacity for the federal government to ensure that it is able to engage if a provincial law isn't sufficient. The issue here again is that when a federal government wants to use its law all the time despite a pre-existing provincial or territorial law, this will become an irritant. The federal government does not like to do things in a cavalier or irritating way. I think the Liberal Party has learned from the national energy program.

That's the kind of approach we're trying to take here. I encourage all members to consider transboundary species with respect to territories. We're not talking about a myriad of countries here; we're talking about species that migrate back and forth from Alaska and occasionally from Russia and Greenland as well.

A voice: What about Iceland?

[Translation]

Mr. Marcel Gagnon: Mr. Chairman, I believe there are already enough irritants between the federal government and provinces. If this amendment presents a risk of adding another irritant, I would rather leave the bill as is. I am not in favour of adding irritants. Thank you.

The Chair: We have had a very good discussion. Are you ready for the question?

• 1635

[English]

(Amendment negatived—See Minutes of Proceedings)

The Chair: Mr. Herron, would you like to move your amendment on page 138? What is your wish?

You heard me say before that a consequence of carrying the earlier amendment by Mr. Herron would be that the motions on pages 136 and 137 are carried too. This is why I did not call them. We are now on page 138.

Mr. John Herron: Are we on page 139 as well?

The Chair: That will be the next page. We called it before, didn't we?

Mr. John Herron: Mr. Chair, in my view this is a simple amendment. Whether members support it or not, it will be judged on the merit of the issue. It deals with why the federal law will apply if there isn't an equivalent law established within a particular territory. This amendment provides public scrutiny, as the minister would have to put in writing why the federal government chose to use its legislative tool versus the territorial tool in a public registry. This would be more open and democratic and would give a chance for individuals to have input. That's the intent, and I am moving the amendment.

The Chair: Mr. Herron has moved his amendment on page 138.

Madam Redman.

Mrs. Karen Redman: I don't know if Mr. Near wants to speak to this, but I think a critical issue in this is taking the Governor in Council out of the process and putting the minister in. We're dealing just with page 138, right?

Mr. John Herron: Either way is okay. I just want public comment.

Mr. David Near: The one thing that I would note is that Mr. Herron had a similar amendment on page 118, which was withdrawn, with respect to clause 34. I'm not sure what the difference is between the two amendments nor of the rationale behind them.

Mr. John Herron: We passed it under page 134, so page 118 wasn't applicable. It was probably one of the Gar Knutson smorgasbord of amendments. It was on the extended list, I think, but I don't know.

The Chair: Are there any further comments?

• 1640

Mrs. Karen Redman: I would like a clarification, Mr. Chair.

Mr. Herron, are you saying that you would put the GIC in as opposed to just the minister?

Mr. John Herron: I'm okay with that.

Mrs. Karen Redman: Okay, I would ask Ms. Wherry or Mr. Near if they want to comment on that.

Ms. Ruth Wherry: Putting in the minister instead of the GIC...

Mrs. Karen Redman: No, Mr. Herron is saying that he's now amenable to having that read GIC. So I guess the substantive issue is the GIC's decision and then the minister would provide reasons for his or her determination in the public registry.

Ms. Ruth Wherry: Sorry, but I'm still not sure whether this one makes sense any more, because of the previous ones that were carried.

Mr. John Herron: Karen, it should be minister.

Mrs. Karen Redman: Okay. Let's fix it in, you're right. I don't disagree with it. It would have to be the minister, but it would be the GIC who makes a recommendation. So I guess I would just like some clarification that the lines affected here don't change the fact that the GIC makes the recommendation.

The Chair: So are we in agreement on the text of the amendment on page 138?

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I'm just seeking clarification on the amendment.

The Chair: Any further clarifications? Any further comments on Mr. Herron's amendment?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Mr. Herron, are you ready for your next amendment on page 140?

Mr. John Herron: I'm not going to move it.

The Chair: Thank you.

(Clause 35 as amended agreed to)

• 1645

The Chair: Mr. Laliberte, do you want to speak?

Mr. Rick Laliberte: Yes. I have a point of order on the process. We mentioned yesterday that clause 7 might come up today. Is that a possibility at all?

The Chair: Yes, it is a possibility. We can revert to clause 7.

We stood it a long time ago. There is a bundle of amendments in the name of Mr. Laliberte. He's here today, so we might as well take advantage of his presence.

Is there a disposition to vote on clause 7?

Some hon. members: Agreed.

The Chair: We will stop here at clause 36 and we will revert to clause 7.

(On clause 7—Composition)

Mr. Rick Laliberte: It's amendment LLL2 on page 29A.

The Chair: There is an amendment in the name of Mr. Laliberte.

Would you like to start?

Mr. Rick Laliberte: To clarify the amendment, Mr. Chair, I'd like to entertain a subamendment to some wording that's in there. Perhaps I can walk the committee members through how the subamendment would now change the amendment.

The subamendment that I'd like to make in subsection 7.1(1), reads:

The National Aboriginal Council on Species at Risk consists of the Minister of the Environment, the Minister of Fisheries and Oceans, the Minister of Canadian Heritage

From there, I would like to change it to read:

and six representatives of the aboriginal peoples of Canada

And that would strike out and continue on the line where it says:

selected by the Minister based upon the recommendations from aboriginal organizations that the Minister considers appropriate.

It would strike out “governments and” and strike out the rest of the sentence that starts at “and representatives”, to the end of “Canada; and”.

The Chair: All right, that seems to be quite clear, but let's repeat it. You are retaining the first three and a half lines, to the word “and”. Is that correct?

Mr. Rick Laliberte: To the word “Heritage”, yes.

The Chair: After “Heritage” you are adding “and six representatives of the aboriginal peoples of Canada”. Then you jump to the seventh line, to the word “selected”.

Mr. Rick Laliberte: Yes, “selected by the Minister based upon the recommendations from aboriginal”, and then striking “governments and” and just going to “aboriginal organizations that the Minister considers appropriate”.

The Chair: For those who have been lost, we'll try again.

• 1650

Mr. Laliberte is suggesting retaining lines 1 to 4, up to the word “Heritage”, and inserting afterwards “and seeks representatives of the aboriginal peoples of Canada”, and then we skip lines 5 and 6 and reconnect with the word “selected” on the third last line, and continue, “selected by the Minister based upon recommendations from aboriginal”, and Mr. Laliberte has deleted “governments and”, so that it reads “from aboriginal organizations”, and so on. Is that clear? Is everybody on board?

Mr. Laliberte, would you like to explain it?

Mr. Rick Laliberte: I'll continue. There's one more little amendment at the end of this one. It shortens it up:

The role of the National Aboriginal Council on Species at Risk is to

—this is the change—

provide advice and recommendations to the Canadian Endangered Species Conservation Council;

And I would stop there.

The Chair: Would you repeat that?

Mr. Rick Laliberte: It would read:

The role of the National Aboriginal Council on Species at Risk is to provide advice and recommendations to the Canadian Endangered Species Conservation Council;

And that's it.

The Chair: That deletes everything else?

Mr. Rick Laliberte: Yes, everything else.

The Chair: That deletes paragraphs 7.1(2)(a) and 7.1(2)(b) completely?

Mr. Rick Laliberte: Yes. It shortens it up.

The Chair: Would you like to explain the amendment?

Mr. Rick Laliberte: Okay. It would give me great honour to bring this forward to the committee for consideration.

If you look at clause 7 of the act, it creates the Canadian Endangered Species Conservation Council, which is made up of provincial and territorial wildlife ministers of Canada. So there are 13 ministers representing the territories and the provinces and the three federal Ministers of the Environment, Fisheries and Oceans, and Heritage.

As regards making up that council, in part of this act, federal jurisdiction falls on aboriginal lands. Quoting the minister, 40% of the endangered species in some way migrate or live or have critical habitat or aquatic habitat in aboriginal jurisdiction. If we don't have the aboriginal peoples as a major part of the decision-making... This Canadian Endangered Species Conservation Council makes the recommendations on implementation of strategic planning, recovery plans, and action plans. That is where it is very crucial that the aboriginal people be included in dealing specifically with endangered species and their habitats.

This would create more certainty with this bill in terms of effectiveness and the cooperation of the aboriginal peoples. I've also sought advice, and much to my delight, the minister had been working with the aboriginal representation of the country and was well on the way to striking a relationship. So this completes the circle of this relationship and the jurisdictional issues that this bill could create, and I think it's high time, it's a perfect time, and that's the honour that I'm here with, to recognize that the people who have always been here can contribute to the betterment and the future aspect of the biodiversity, the environmental health, and the consciousness of this country. So I offer this amendment to bring that about.

The Chair: Thank you, Mr. Laliberte.

Are there any comments or questions?

Mr. Herron.

Mr. John Herron: Briefly, I'd like to support Mr. Laliberte's amendment. I think it's only respectful of one of the three levels of government that we have in the country, so I'll support that.

The Chair: Are there other comments?

Madame Kraft Sloan, and then Madame Redman.

Mrs. Karen Kraft Sloan: Mr. Chair, I would also like to lend my support to Mr. Laliberte's amendment, and I want to congratulate him on bringing this idea into this bill.

The Chair: Madame Redman, and then Monsieur Gagnon.

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

We have a little bit of discomfort only because there are agreements being worked on outside of this legislation and we're not at the point where we've established the advisory committees. However, the participation of aboriginal peoples in the development of this entire piece of legislation has been absolutely essential, and their advice has led to several dramatic improvements in Bill C-5, including including the requirement to establish a subcommittee for aboriginal and traditional knowledge, and the participation of aboriginal peoples in its implementation will also be essential.

• 1655

The Chair: Thank you.

[Translation]

Mr. Gagnon, you have the floor.

Mr. Marcel Gagnon: I too would support this amendment but with some small reservations. I always wonder why the members of this group would be appointed by the minister based on recommendations from aboriginals. Why this requirement that they be selected by the minister? It seems to me we could leave that responsibility with the aboriginals, rather than them being able only to make a recommendation. Would that recommendation carry enough weight for the minister to appoint the people recommended by the aboriginals?

[English]

The Chair: Mr. Laliberte, would you like to give a brief answer?

Mr. Rick Laliberte: I think you raise a very critical issue to consider. We did consider the perspective of having the representation be chosen by the organizations or the aboriginal governments, but in the case of the working relationship and the accord, the instrument the minister will use to create this agreement might address that. The other aspect is that the bill will also go through a five-year review, and if the council proves itself, it may strengthen the role in representation as it evolves into the future.

[Translation]

The Chair: Thank you, Mr. Gagnon.

[English]

Thank you, Mr. Laliberte.

Mr. Comartin.

Mr. Joe Comartin: Just quickly, Mr. Chair, I'd like to express my support for this amendment as well and congratulate Mr. Laliberte on bringing it forward. It seems to me it's a logical extension and probably should have gone in when the bill was originally drafted.

The Chair: Thank you.

Are you ready for the question? Please keep in mind that this vote will also apply to Mr. Laliberte's motion on page 14A.

(Amendment agreed to)

(Clause 7 as amended agreed to)

The Chair: Since we are in this neighbourhood, I wonder whether I could invite you to visit clause 8, which has an amendment that has been stood by me, in the name of Mr. Mills.

(On clause 8—Responsibility of Minister)

The Chair: Mr. Mills, would you like to tell us whether you are—

Mrs. Karen Kraft Sloan: I have an amendment on the same line as well, Mr. Chair.

The Chair: Yes, that's right.

Mrs. Karen Kraft Sloan: Actually, there would be a way of dealing with this, because Mr. Mills' amendment follows mine; his starts later in the process. Mine deals with the issue of “person”, and so if we went after the comma, yours would follow mine and we wouldn't have a conflict.

You see, yours says “two ministers, delegate to any person”, but your real amendment starts after the comma: “in accordance with the regulations,” whereas if I ended mine “two ministers, delegate to any government”, it wouldn't conflict with yours, right? Is that okay?

The Chair: Do you agree with Mrs. Karen Kraft Sloan's approach?

Mr. Bob Mills: Sure.

The Chair: In that case, we do not proceed with the amendment on page 30 in the name of Mr. Mills, and we proceed with the amendment on page 30A by Madame Kraft Sloan.

• 1700

Mrs. Karen Kraft Sloan: Right. Then we'll go back to Mr. Mills amendment, Mr. Chair?

The Chair: It's one or the other one.

Mrs. Karen Kraft Sloan: Well, if Mr. Mills accepted a friendly amendment to his amendment and deleted the first bit up until the comma, then I would accept a friendly amendment to my amendment and delete anything on that line after “government”.

The Chair: Then they would be exactly the same.

Mrs. Karen Kraft Sloan: No, they wouldn't, because mine substantively changes “person” and Mr. Mills leaves that in. The change to the line in Mr. Mills' amendment happens after the change to the line in my amendment.

The Chair: Do you mean the portion that deals with “in accordance with the regulations, any of”?

Mrs. Karen Kraft Sloan: Yes. That comes after my change.

The Chair: Why don't you combine them into one text?

Mrs. Karen Kraft Sloan: All right. Then I can speak to...

The Chair: Mr. Mills, would you be—

Mr. Bob Mills: Could we wait another day on this, Mr. Chair? It seems we have some... I have to go back through this. Is that okay, Mr. Chair?

The Chair: Yes.

Mr. Bob Mills: I think we can work something out.

Mrs. Karen Kraft Sloan: Sure.

The Chair: All right, thank you.

We are standing clause 8 to allow for consultations, and we move on to clause 10, which has also been partially dealt with, but there is an amendment on page 37 in the name of Mr. Herron. We could clean up clause 10, if you are ready.

(Clause 8 allowed to stand)

Mr. John Herron: Minister Martin is looking at my proposed paragraph 10(2)(a) at the moment. He's promised to get back to me momentarily, so I'm waiting to hear back on that before we go forward.

Mr. Gar Knutson: Paul Martin?

Mr. John Herron: That's the one.

The Chair: Mr. Herron, may we have your attention for a moment? You have an amendment on clause 29 on page 95. Are you ready to move it?

Mr. John Herron: I believe we have language that's been agreed to.

• 1705

No, I don't think we should do it. The truth is I don't have my homework done on that one just yet. The government doesn't like it, and I gave my word that I would cut out... it would open up unanimous consent on a similar issue, which we will do at a later time. I think we should just set this down for the time being.

The Chair: Mr. Mills.

Mr. Bob Mills: Yesterday you did list the clauses we would be dealing with. If it's possible to have advance notice on what we're going to try to deal with, it would help a lot—you can have your homework done.

The Chair: Advance notice would be fine if we were in the stage of just starting the process, but now we are halfway through. At this stage, it is not unreasonable for the chair to take every opportunity when we deal with certain clauses to deal with others.

Mr. Bob Mills: Sure, that's okay.

The Chair: When you're not ready and you indicate that to me, I will respect your intent. But it would be helpful if you could somehow be ready for all of them. I appreciate your difficulty, but we are having difficulties here too.

Mrs. Karen Redman: Mr. Chair, just for clarification, I thought you and the clerk did provide some direction yesterday.

The Chair: Yes, I did.

Mrs. Karen Redman: We were anticipating going to clause 32. I'm wondering if—

The Chair: Yes, but on clause 32 there are people who are not ready to move their amendments. We just examined that possibility.

Madam Kraft Sloan has an amendment. Would she like to introduce it?

• 1710

(On clause 39—Cooperation with others)

Mrs. Karen Kraft Sloan: This is a new amendment on page 146A. The reference number is 13414. On line 34, page 20, in clause 39 it adds, “or interested in the strategy”.

In other words, if I could read the new clause:

(3) To the extent possible, the recovery strategy must be prepared in consultation with any landowners and other persons whom the competent minister considers to be directly affected by or interested in the strategy, including the government of any other country in which the species is found.

I think it's important from the point of view of public access, as well as individuals who work on the ground in support of endangered species, who may not be landowners but...

Shall I wait until members find their places, Mr. Chair?

The Chair: All members have found their places, except for Mr. Herron. Please proceed.

Mrs. Karen Kraft Sloan: This must be one of the very few slip-ups Mr. Herron has made. He is always... I was going to say on his toes, but if we're going to use the species analogy, he's standing there on one foot.

Mr. John Herron: As a heron, yes.

Mrs. Karen Kraft Sloan: Flying down the marsh. Indeed a beautiful bird.

An hon. member: I wouldn't say that.

Mrs. Karen Kraft Sloan: I know the herons in my mother-in-law's marsh are beautiful birds. Unfortunately, they're sort of a blue colour.

Are we all together here now?

The Chair: Do you have any comments or questions? Madam Redman.

Mrs. Karen Redman: The substantive difference is, “or interested in the strategy”. Could you give us an example of the type of person and how that would work through the process? Who are you thinking of when you add this wording?

Mrs. Karen Kraft Sloan: First of all, it's at the minister's discretion. As I explained when I was putting forward the idea of this amendment, I had identified conservation NGOs, such as Ducks Unlimited, that do an awful lot of work around the recovery of species. For example, you have individuals who are directly affected by the strategy, but there are individuals who can provide a lot of expertise because of their work on the ground.

I would also draw the member's attention to subclause 48(3) on page 24, where there is consultation around an action plan. It says:

an action plan must be prepared in consultation with any landowners and other persons whom the competent minister considers to be directly affected by or interested in

This would just make it in line, so I'm assuming it is a drafting error on the part of the government.

The Chair: Thank you.

Madam Redman again.

Mrs. Karen Redman: Thank you, Mr. Chair. I would just ask Ms. Wherry or Monsieur Nadeau if they would like to comment on this wording.

The Chair: Yes, please, Ms. Wherry.

Ms. Ruth Wherry: The only comment I would make is I think what you are looking for is provided, because we have proposed recovery strategies, etc., that go into the registry that will enable anybody who is interested to provide public comments. So it wasn't a drafting error; we felt it was covered off through that process. We were trying to get, through the recovery strategy action plan, etc., those people who might be directly impacted.

The Chair: Monsieur Nadeau.

Mr. Simon Nadeau: To complement what Ruth just said, I think we have to be cautious that people might be interested in participating in the development of action plans and recovery strategies for the wrong reasons. These people might just want to derail the recovery process. Interested people might not be interested just for the good sake of the species.

The Chair: Who can tell that in advance?

Mr. Mills, Madam Kraft Sloan.

• 1715

Mr. Bob Mills: I guess I'll say what Mr. Nadeau said, except more from the landowners' perspective.

I think the biggest fear and the biggest reason this piece of legislation won't work is because the rural landowners are really concerned that the guy from downtown Toronto will come out, drive past their land, and feel they have as much interest and involvement as they do, and should be able to tell them what to do, when the landowners have worked the land, preserved the habitat, and preserved the species for generations, in some cases. Their big concern is that you'll start putting in language where just any interested person, special interest group or whatever, can start telling them what to do on their lands.

I think there are protections in here to allow the minister to consult with people, but I think these are just a bit too “we're going to come after you” kind of comments.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I have two points.

I live in Ontario and my riding is in the region of York. The York Federation of Agriculture might be the organization that has expertise in working with conservation and want to send one of their specialists over. It might be the Ontario Federation of Agriculture. It might be the Canadian Federation of Agriculture.

The second point is that the minister is making the decision, so any sort of stray traveller from Scarborough who happens to be driving through my riding, which is the rural riding of York North, can't just say they want to be involved in this process because they have these sorts of feelings about what this landowner is doing—any person. It's up to the minister himself.

I'd like to point out that this is the recovery strategy. Madam Wherry said this would go into the electronic registry. That is very helpful and it provides access to the public, but it's not the same as being involved in the preparation of the recovery strategy.

If the government has concerns about people, and Mr. Nadeau raised the possibility of someone who might be acting in the bad interest of species, perhaps we're expecting the government then to amend subclause 48(3) and delete those interested in the action planning process too.

So we're looking first at the competent minister making the decision. The person has to be interested in and has to provide something to the consultation process on the recovery strategy.

We also heard earlier about the expertise that's on the ground. Sometimes it's not just a landowner. Maybe a landowner in Saskatchewan wants to help a landowner three or four counties over, or in another province, because they've already been involved in this process and have the expertise. In many respects, you're only involving informed people and it's at the minister's discretion. That's just consistent with subclause 48(3), which allows for this in action plans.

The Chair: You've heard the explanation as to where Madam Kraft Sloan draws the notion of interest for this amendment, namely subsection 48(3) on page 24, the fifth line, where there is a reference to “interested in” as well. Actually, these are exactly the same words.

Mr. Reed.

Mr. Julian Reed: In other words, my intervention is very simple. It's already been covered off in the bill. To keep restating these things simply clutters up the bill.

The Chair: Thank you, Mr. Reed.

Are there questions or comments?

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Reed is correct. It is covered in the bill in subsection 48(3). Unfortunately that only deals with action plans and it doesn't deal with recovery strategy.

The Chair: Are there any further questions or comments?

• 1720

(Amendment negatived)

(Clause 39 agreed to)

(On clause 50—Public registry)

The Chair: We're on page 182. There is an amendment to clause 50 by Madam Kraft Sloan. I wonder whether you are ready to move it.

Mrs. Karen Kraft Sloan: I'd have to take a look at this for a second, please.

The Chair: We stood this amendment on October 30. If I remember correctly, it was the intent of the mover to move only subclause 50(3).

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Just to refresh committee members' minds, as the chair pointed out, I'm only moving subclause 50(3). What subclause 50(3) essentially does is provide timelines for public comment on action plans.

The Chair: Thank you.

The amendment has been moved.

Madam Redman, do you have any comments?

Mrs. Karen Redman: I do, Mr. Chairman, and this is just to zero in on subclause 50(3).

I'll just point out that consultation takes a long time, and for it to be effective there's a broad range of people who need to be involved, both in the development and the implementation. Because action plans are consensus documents, there is sometimes some brokering and giving and taking. While we fully support the principle of transparency, consultations should take place during the development of the action plan. The fear is that when you have a public comment period, you run the risk of reducing some of the goodwill and perhaps of breaking some of the consensus that was reached.

I don't know, Ms. Wherry, would you like to add to that?

• 1725

Ms. Ruth Wherry: I thought you said it all, really. I agree with you that it's going to be difficult enough to get the consensus that's needed on an action plan. If all that discussion has taken place, then to go and reopen it for public comment again will be difficult.

[Translation]

The Chair: Mrs. Kraft Sloan, it is your turn.

[English]

Mrs. Karen Kraft Sloan: Mr. Chair, this doesn't make it mandatory that the comments we receive from the public be incorporated into the action plan.

I find it rather unusual that in the instance of recovery strategies, where we dealt with the involvement of interested parties, we weren't allowed to have consultation because it was in the electronic registry, which was after the fact. In this situation we are allowed to have consultation on the action plan, but we're not allowed to have public comment after the fact. It's a sort of flip-flopping in the government position on this, Mr. Chair.

The Chair: Are you ready for the amendment?

Madam Wherry.

Ms. Ruth Wherry: I was just going to make a short comment in response to Madam Kraft Sloan, and that is that in the action plan there is a requirement for socio-economic considerations. In the recovery strategy there wasn't. There wasn't one, so this was an opportunity, once again, to allow for comments in the recovery strategy.

The Chair: Madame Scherrer.

[Translation]

Mrs. Hélène Scherrer (Louis-Hébert, Lib.): Hello, Mr. Chairman and thank you.

I would just like to know what the problem really is. Is it the 90-day period or the delay? Is it the length of the delay or the simple fact that there is a timeline?

[English]

Ms. Ruth Wherry: I don't think the difficulty is with the timeline so much as that it's going to be extremely difficult to reach a consensus document in an action plan. This will reopen it again for public comment. If there's public comment, one would presume that one has to almost go back and talk to the people you reached the consensus with in the first place.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, if I could ask committee members to take another look at this proposed amendment, I would remind them that it's not mandatory that the plan be reopened. It's not mandatory that the comments be incorporated into the action plan. What this does is, where someone was not involved in the action planning process—for example, an individual who lives on the other side of the country and who may have been involved in a similar sort of activity—they may provide a comment that may be useful and valuable. At that point the minister can decide whether it's worthy of incorporation or not. This is not a mandatory requirement to incorporate the comment. All it does is open it up to the public, and there might be something useful to be taken out of that.

The Chair: We'll have Mr. Bailey, and then we'll take a vote.

Mr. Roy Bailey: The mover said it's not mandatory, yet I see the word “must”. In what way is this not mandatory?

Mrs. Karen Kraft Sloan: The minister “must consider the comments”. In other words, the minister must—

Mr. Roy Bailey: He doesn't have to, then.

Mrs. Karen Kraft Sloan: The minister must read the comments and think about them, but the minister does not have to incorporate those comments into the plan. That's all we're asking, because some good ideas may come up.

Mr. Roy Bailey: I just want to know. You say it's not compulsory?

Mrs. Karen Kraft Sloan: That's right. My mother-in-law, as I've mentioned before, had heritage wetland on Lake St. Clair, which she's recently sold, but she could well have been involved in an action planning process there. There may be some wetlands in Manitoba. People can make comments and share information.

Mr. Roy Bailey: He must consider them, but he does not have to—

Mrs. Karen Kraft Sloan: It doesn't mean you're reopening the plan.

Mr. Roy Bailey: All right.

The Chair: Madam Redman.

Mrs. Karen Redman: I wonder if we could hear from Monsieur Nadeau.

Mr. Simon Nadeau: I'd just like to say that in a lot of cases recovery strategies and action plans are going to be developed with representatives from many different jurisdictions. These documents will be consensus documents. Although the competent minister is responsible for approving these documents federally and putting them in the registry, every time we make a change it has to be in consultation with the other partners on the recovery team. They will decide together what is best for the species, and that takes time. If you change the management system that is proposed, there will be socio-economic changes, so you have to redo the socio-economic analysis.

• 1730

The Chair: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, quite clearly, if this is a good idea but it's far too cumbersome to apply, then that will be taken into consideration. As I've said a number of times, this does not require the reopening of an action plan. It is only there for public comment. It is only there for the minister's consideration. Good ideas might come from other parts of the country, and one thing I've learned sitting around this table is that a lot of good ideas come from other parts of the country.

The Chair: Mr. Mills.

Mr. Bob Mills: On something like this I'm torn between Madam Kraft Sloan's position and where Julian's coming from. You're increasing the bureaucracy and the cost, but I have a really hard time not supporting the public input concept Madam Kraft Sloan is putting forward. That's the dilemma: we're adding another step, but we're getting public input. That's the dilemma, plus a whole bunch of other areas we've discussed.

[Translation]

Mrs. Scherrer, you have the floor.

Mrs. Hélène Scherrer: Thank you, Mr. Chairman.

I am not happy with the word “must”. Even if the mover says there is no requirement, I believe on the contrary that there is a requirement to consider the comments and, if so, there is obviously a requirement to act on these comments.

Would it be possible to take out the compulsory character and to make it only a possibility? If we said, for example, “the minister may consider the comments”, this would avoid any requirement to answer and would provide ministerial discretion rather than making it mandatory.

[English]

The Chair: Madame Scherrer has, in effect, suggested as a friendly subamendment using “may” instead of “must” on the third line of the proposed amendment to subclause 50(3).

(Amendment as amended agreed to)

(Clause 50 as amended agreed to)

(On clause 59—Regulations re federal lands)

The Chair: Please turn to page 217. It's the first amendment on clause... What happens to page 216A?

• 1735

I'm told that precedence should go to Monsieur Bigras's amendment

[Translation]

on page 217.

[English]

It's a very short amendment and is in the name of Mr. Bigras. It should be the first one in the sequence, to be followed by Mr. Knutson's amendment.

[Translation]

Mr. Gagnon, are you ready?

Mr. Marcel Gagnon: I need to find the right page.

The Chair: It is on page 217.

[English]

This amendment, if it carries, will have an impact on page 224 and also on page 226.

[Translation]

Mr. Marcel Gagnon: On line 4, in clause 59, on page 28... In French, it says...

The Chair: Yes, that is the one.

Mr. Marcel Gagnon: The language in the bill says “the governor in council may... make regulations”. This would replace the word “may” by “must”.

The Chair: Eliminating what word...

Mr. Marcel Gagnon: It is simply a matter of replacing the word “may” by “must”. The governor in council must. Do you understand the clause?

The Chair: Yes.

Mr. Marcel Gagnon: So I read the clause with the amendment: “must... make regulations to protect critical habitat on federal lands”. This means that it becomes a requirement.

The Chair: Can you explain the rationale for this amendment?

Mr. Marcel Gagnon: Mr. Bigras looked into this issue and formed the opinion that this clause needs to be strengthened. Where it says “may”, this can also mean that the GIC may not do it, if I understand correctly. If we say “must” it means it becomes automatic, it has to be done.

The Chair: Thank you, Mr. Gagnon.

[English]

Are there any comments or questions?

Madam Redman.

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

This takes the “may”, which is discretionary, and makes it a “must”. It's the decision of a cabinet committee as to whether to make regulations. I would ask Mr. Near to speak to this.

Mr. David Near: I think I've made this comment before, that it's highly unusual to—

The Chair: We never get tired of hearing you, Mr. Near.

Mr. David Near: Thank you, Mr. Chair.

It's highly unusual for the Governor in Council to have all discretion taken away, especially with respect to a regulatory activity.

[Translation]

Mr. Marcel Gagnon: You understand, Mr. Chairman, that this would take away the discretion.

The Chair: You have the floor, Mr. Gagnon.

Mr. Marcel Gagnon: If I understand correctly, passing the amendment would take away the discretion. Is this what you just said?

[English]

Mr. David Near: It would in fact force the Governor in Council to make regulations, perhaps in a situation where the government doesn't think it's necessary. It takes away the discretion.

The Chair: Thank you.

Mr. Bailey.

Mr. Roy Bailey: I agree with Mr. Near. If you're going to go through this bill and do the same thing all the way through, completely taking away any discretionary powers of the minister, why would you appoint a minister? Why not just have a body making regulations? I think we have to be careful of this word “must”. You have to leave some discretion for your minister.

[Translation]

Mr. Marcel Gagnon: Do you suggest...

[Editor's note: Inaudible]

[English]

The Chair: Are there any further comments or questions on the amendment? Are you ready for the question?

• 1740

[Translation]

(The amendment is defeated)

[English]

The Chair: Could we disturb Mr. Herron from his transatlantic communications system and invite him to join us again and indicate to the committee whether he is favourably inclined to move his most honourable and respected amendment on page 218? Welcome back, Mr. Herron.

Mr. John Herron: Mr. Chair, it's my pleasure to move this particular amendment on page 218. The intent of the amendment itself is that coming from a corporate background, I believe in the theory that if you can't measure it, you can't manage it.

The bill says:

The Governor in Council may,

This could mean “might” or “could”.

on the recommendation of the competent minister after consultation with every other competent minister, make regulations to protect critical habitat on federal lands.

We're saying:

Within 60 days

We're actually putting a timeframe in place.

after a recovery strategy is completed,

The game plan has already been established.

or after an action plan that revises the critical habitat identified in the recovery strategy is completed, the competent minister, after consultation with every other competent minister,

We're keeping that sentiment in place.

shall make regulations to protect the critical habitat of a listed species that is on federal lands,

This is about federal lands. It's not about provincial lands.

[Translation]

This does not apply to provincial crown lands, only federal crown lands.

[English]

a species of migratory birds protected by the Migratory Birds Convention Act, 1994,

The case law says that this is clearly within federal jurisdiction, according to Chief Justice La Forest.

a transboundary species

I know that's going to create some fun.

or an aquatic species.

That is in play right now under sections 35 and 36 of the Fisheries Act.

I'd like to point out to my colleagues in the Alliance that this amendment is supported by industry and environmental personnel alike, including the Pulp and Paper Association, the Mining Association of Canada, as well as a strong and well-respected environmental group, the Sierra Legal Defence Fund.

So I move this particular amendment.

The Chair: Thank you.

Are there any comments or questions? We have on the list Mr. Comartin and Mr. Knutson.

Mr. Joe Comartin: I'd like to suggest to my friend that he include the word “critical” before “habitat”.

• 1745

Mr. John Herron: I inserted the word “critical” when I read it, but you're absolutely right, as always, Mr. Comartin.

Mr. Joe Comartin: I would like to ask, through you, Mr. Chair, to Mr. Herron, whether it's really necessary to include the words “after consultation with every other competent minister”. We would assume that would have happened in any event.

The words “critical habitat” appear in the first part but not in the second part. The word “critical” needs to be added to the fourth line from the bottom.

The Chair: Is that friendly subamendment acceptable to Mr. Herron, the insertion of the word “critical” before the second mention of “habitat”?

Mr. John Herron: Yes.

The Chair: Thank you.

We now have on the list Mr. Bailey, Madam Redman—

Mr. Joe Comartin: Mr. Chair, I did have a second question.

The Chair: Sorry.

Mr. Joe Comartin: It had to do with whether the words “after consultation with every other competent minister” are necessary. I'm not sure that's necessary, and I wonder if you could give us some explanation as to why you think it is.

Mr. John Herron: That language is utilized in the bill. I'm trying to get a timeline to provide some accountability if the recovery strategy has been completed. We're not forcing him to do anything faster. We're just saying, now it's time to make the regulations, and we provide two months in which to perform that function. The crux of the amendment is to accelerate the process, as opposed to the really weak, flippy language saying they might or could possibly consider making an amendment sometime.

Mr. Joe Comartin: Some year.

Mr. John Herron: So what we're trying to do is make regulations.

The Chair: On the list we now have Mr. Bailey and Mr. Knutson.

Mr. Roy Bailey: Mr. Chairman, I don't know what kind of staff you envision having and how many people you're going to employ. This could be a massive document, and in order for this to be done within 60 days, you're going to have to hire a lot more people than you think. This involves a tremendous amount of work.

Mr. John Herron: Would you like a different time, as opposed to keeping it open-ended? I'd be more than amenable to that, Mr. Bailey.

Mr. Roy Bailey: I'd like to hear from Mr. Near.

The Chair: Mr. Near, would you like to comment?

Mr. David Near: I have three comments, and I'll touch upon the issue you raised. Generally speaking, where several federal ministers are involved in the issue—and here there are three of them, one with respect to aquatics, one with respect to birds, and the heritage minister for national parks and other areas—it's usually the GIC that is designated to make the decision to act as the referee in case those ministers don't happen to agree with one another.

The “must” element was just voted upon by this committee in another context, and it reappears here, except that it's now the competent minister who must do it within the specified timeline of 60 days.

Of course, as Mr. Herron has already mentioned, the issue of transboundary species occurs in this particular amendment, and we have some difficulty with the notion of transboundary species being seen as a federal species, for the reasons we've gone over several times.

Mr. John Herron: If my friends in the Canadian Alliance are concerned about the timeline, I'm amenable to a change in it. But I think we need to have one. If you wanted to strike out “transboundary”, we're cool there too.

Mr. Roy Bailey: My concern, Mr. Chairman, is whether it is reasonable for this committee to give a timeline of any kind. Sixty days is not a very long time in which to complete a massive report. I'd like to address a question to the witnesses. Does this follow a pattern that you give them a deadline to make a completion of this nature?

Mr. David Near: No, almost all enabling powers for people to make regulations are discretionary.

The Chair: Mr. Knutson.

Mr. Gar Knutson: Through you, Mr. Chair, to Mr. Near and the officials, the committee has accepted the expertise on what normal language is. I have a two-part question.

• 1750

One, is it normal language to have this concept of the recommendation of a “competent minister” and then for emphasis “after consultation with every other competent minister”? Does that exist in other bills? We want to determine that we're using normal language here, to be consistent with objections in other places. This is rather unique. I'm curious as to why Environment Canada or the executive that drafted this legislation and presented it to Parliament... When there is an internal process within cabinet that regulations have to go through a committee—I believe it's chaired by Herb Gray—that cabinet ministers get the right to comment on regulations before they come, as part of the cabinet-making decision, why did the government feel it needed to put language in here to tie the hands of its environment minister? Was the government afraid that they're going to have some sort of independent... when it's already in the system anyway? It's in the cabinet committee system that regulations are done on behalf of the group.

Maybe you can answer my normal language question first and then—

Mr. David Near: As to the language of “competent minister”, I think in the last bill it was “responsible minister”, but then it was changed. I forget why.

Mr. Gar Knutson: My point is “after consultation with every other competent minister”. Is that found in other pieces of legislation?

Mr. David Near: No, because the rationale behind that is in most other pieces of legislation there's just one competent minister.

In this piece of legislation, we actually have three. So that's why there's this requirement to consult with one another, because they're all responsible for different aspects of the bill—Heritage for parks primarily, the fisheries minister for aquatics, and the Minister of Environment for everything else. So that's why it's—

Mr. Gar Knutson: You felt it was necessary to actually write that into the legislation?

Mr. David Near: Yes.

The Chair: I think we have Madam Redman and Mr. Mills.

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

I would ask through you if perhaps Mr. Nadeau can speak to some of the issues contained in this amendment, certainly transboundary.

I can give you all the fundamental shift and the fact that it will be 94% of species, but I will see people's lips moving if I keep giving the same rationale. This not only sets a timeline, but it directs, saying the minister must make regulations.

I wonder if Mr. Nadeau can comment on that aspect of this amendment.

Mr. Simon Nadeau: Yes. If we have to develop regulations for all transboundary species that are threatened and endangered and extirpated, that will mean an awful lot of regulations. It's going to be a lot of work. I mean, 94% of the species is a lot.

Ms. Ruth Wherry: Could I just add to that, please?

There is a timeline in here: within 60 days the competent minister shall make regulations. What about for measures that are only identified a little later on? This seems to preclude the ability to make any other regulations down the road. We may do something one year and we may only know the next year that we need to do more. This precludes that ability to make those regulations as we learn more.

Mr. John Herron: But can't a recovery strategy and an action plan be evolved as time goes by anyway? Obviously, the regulations would actually follow that, because the initial recovery strategy may not be the final recovery strategy. Am I correct in saying that?

Ms. Ruth Wherry: There's a—

Mr. John Herron: Right. So then we would have regulations that would apply to the new plan. Yes.

The Chair: All right. Thank you.

Mr. Mills, Madam Kraft Sloan, Madam Redman.

Mr. Bob Mills: Mr. Chair, through you to Mr. Herron, again we're very concerned about that timeline. If we want to give the department the maximum, we could say a year. This would become a friendly amendment.

From previous debates we've had here, we have removed the “recovery strategy” and simply said “after an action plan is completed the competent minister”. So we remove that “recovery strategy”, and of course we remove “transboundary species”. So if we made those three changes as a friendly amendment, I think we could go along with that.

• 1755

Mr. John Herron: I'm very open to Mr. Mills' constructive contribution here. I would just ask him whether he might be amenable to six months, and I'll tell you why. We said it was appropriate to negotiate equivalency arrangements with interprovincial governments for six months. Now we're talking about bureaucrats within the same house. Surely, they should be able to get together quicker than what we did at six months. If you want to keep it a year, I'm on board, but I think six months is more applicable. But I need your votes.

Mr. Bob Mills: Can we talk about some other clauses, Mr. Chair?

Again, the year gives the department lots of leeway to look at what's happening on the ground.

Mr. John Herron: Okay. That makes sense.

Mr. Bob Mills: I think removing the recovery strategy... the action plan is the final thing, and it seems to me that makes a lot of sense. So we remove “that revises the critical habitat identified in the recovery strategy” to just leave the action plan part of it, and then remove, of course, “transboundary species”. So that's where we would like to stay.

The Chair: Mr. Herron, am I to understand correctly that you have accepted the change from 60 days to one year?

Mr. John Herron: Yes.

The Chair: And then that you have accepted the deletion of “transboundary species”?

Mr. John Herron: Yes.

The Chair: And what else? And then the amendment by Mr. Comartin—

Mr. Bob Mills: And remove the recovery.

The Chair: —for the second “critical” before the word “habitat”—

Mr. John Herron: Right.

The Chair: —on the seventh line. And finally?

Mr. Bob Mills: And the removal of “that revises the critical habitat identified in the recovery strategy”. So it would just read “after an action plan is completed, the competent Minister”, etc.

Mr. John Herron: Right.

The Chair: Can you read it again, please?

Mr. Bob Mills: Okay. So it would be—

The Chair: “Within one year...”

Mr. Bob Mills: Let me see:

Within one year after an action plan is completed, the competent Minister, after consultation with every other competent Minister, shall make regulations to protect the critical habitat of a listed species that is on federal lands, a species of migratory birds protected by the Migratory Birds Convention Act, 1994 or an aquatic species.

The Chair: Are you in agreement?

Mr. John Herron: Absolutely.

The Chair: Has everybody caught the text?

Madam Redman and Mr. Reed, or Mr. Reed and Madam Redman.

Mr. Julian Reed: Karen, you go first. It's all right.

Mrs. Karen Redman: Sorry, Mr. Chair. The point I want the committee to deal with—and I certainly appreciate the spirit of cooperation in trying to forge something here that we could reach consensus on. This clause is enabling legislation. It directs and says the minister must make regulations. My understanding is that there are instances where we don't make regulations, and I would ask if perhaps somebody from the department could speak to that. We're now making a requirement in a piece of enabling legislation that may require something that's not necessary.

Mr. Julian Reed: Precisely.

Mrs. Karen Redman: Was that your point?

Mr. Julian Reed: Yes.

The Chair: Mr. Reed.

Mr. Julian Reed: The words have been taken out of my mouth. Why do you want to make regulations if you don't need them?

Mr. Gar Knutson: Sometimes you need them and you don't make them.

A voice: There you go. Good answer.

Mr. Gar Knutson: That's the answer.

The Chair: Are there any other further comments?

Mr. Nadeau, would you like to comment?

Mr. Simon Nadeau: Yes. If we give the example of federal lands that are leased, where we could actually have a stewardship agreement to accomplish the same thing, a regulation would not be needed.

The Chair: If this amendment carries, then it would make the amendment in Mr. Knutson's name on page 219 unnecessary. It is understood. You all have the text of the amendment. Are you ready for the question?

Mr. Bob Mills: May I ask just one more question of Mr. Nadeau?

The Chair: Mr. Mills.

Mr. Bob Mills: Does this really force the minister?

Mr. Simon Nadeau: Yes.

Mr. Roy Bailey: Even though it isn't necessary.

Mr. Simon Nadeau: Yes, if there's a stewardship agreement to address, we still would have to develop regulations.

Mr. John Herron: It's still permitting them to do all these kind of things.

The Chair: So it does.

Mr. Bailey.

• 1800

Mr. Roy Bailey: I want to make this clear. The way it is right now with the word “shall” in there, what we're doing is forcing the ministers, all three, to go ahead with something that might be totally unnecessary. Is that what you're telling us?

Voices: No.

Mr. Simon Nadeau: In some cases.

Mr. Roy Bailey: In some cases?

Mr. John Herron: Roy, I'll help you with that.

If there's a permitting regime under clause 74 that would actually say we're going to permit the destruction of that particular species, there is no regulation necessary to put in place. If there is an action plan developed, then if there's action that needs to be taken it shall be implemented within a calendar year.

So if you're going to do it, let's bring it on, instead of having this drift of “might” and “could be”. I think the amended amendment is a good amendment.

An hon. member: Do the experts agree with that?

The Chair: Mr. Knutson.

Mr. Gar Knutson: I would undertake, Mr. Chairman, to bring forward additional language to comfort my colleagues across the way.

Conceptually it would be to the effect that if the stewardship agreement is in place, the minister would be off the hook and he wouldn't have to make regulations. Basically I would say if the voluntary system has worked and a stewardship agreement has come into force, that may be good enough and that may be all you need.

But the worry is—and why I think we should support this amendment—that sometimes regulations are required and they're not made. The government sits on its hands and it doesn't do the job. So this is Parliament telling cabinet, telling the executive, to do its job and protect habitat. That's critical if we're going to prevent extinction.

The Chair: Madam Redman, Madam Kraft Sloan.

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

I would still point out that it says “shall” and it requires the making of a regulation. I would ask Mr. Near to comment.

Mr. David Near: To try to clarify it, this would require the making of a regulation. What Mr. Knutson has indicated... and in his amendment on 219 there are exceptions to the prohibitions contained, the general prohibitions and those contained in regulations, but you would have a regulation and then you would have to operate some sort of permitting, or licensing, or agreement, to take that prohibition off.

The short answer is you would have to make the regulation. Clause 83 actually already provides for exceptions to any prohibitions that may be contained. It's really a question of whether or not you want to force the regulation and have a scheme to take it off, or not force the regulation.

The Chair: Thank you.

Madam Kraft Sloan, Mr. Knutson.

Mrs. Karen Kraft Sloan: Mr. Chair, first of all, I would like to draw committee members' attention to the opening comments Mr. Herron made and his statement that this amendment is supported by industry.

I would suggest, Mr. Chair, that industry is never, or very seldom, of the belief that the government should make unnecessary regulations. It seems to me, Mr. Chair, if industry groups are very supportive of this particular amendment, it's for a good cause, it's for a good reason, and it's not because of making unnecessary regulations. It's indeed for making regulations that are required and it provides certainty.

The Chair: Mr. Knutson.

Mr. Gar Knutson: I was going to say, in response to Mr. Near's comments, that the bill is riddled with “such-and-such happens”, and then you read the next section and it's “but by the way, such-and-such won't happen if this and this”.

It would be fairly straightforward to amend the language in my proposed amendment 219 so that if there's a stewardship agreement in place we wouldn't require regulations.

I don't know that we're going to go much past 6 o'clock today, but we can amend this amendment 219 tomorrow, to give comfort to my colleagues in the Canadian Alliance.

The Chair: We'll do it tonight. We've come to a vote.

Mr. Herron, would you like to conclude, please?

Mr. John Herron: I would like to conclude, but the point is, what enforcement mechanism is there for not implementing an action plan? There isn't one without regulation. As it is right now, what would the enforcement mechanism be if you have an action plan that you don't implement? If you develop an action plan and you don't implement it, what's the backstop?

• 1805

Ms. Ruth Wherry: There are other provisions in the bill that provide for measures to implement action plans. This particular section is only related to protecting the habitat, so it's to do positive stuff to the habitat, like restore it or rehabilitate it, etc.

Mr. John Herron: But if you don't implement it, what's the backstop? There isn't one. That's why the regulation is necessary.

The Chair: All right. Are we ready for the vote?

You have two more interventions, Mr. Bailey and Madam Kraft Sloan.

Mr. Bailey.

Mr. Roy Bailey: Thank you very much.

Listening back and forth, I appreciate what our witnesses have said, but if we have the “shall”, I see now that it makes them make a regulation they don't necessarily need, and then they have to go through the other process within the act to take it away. If you look, Mr. Chair, Mr. Knutson's amendment on 219 really corrects that.

Mr. John Herron: That's right.

Mr. Roy Bailey: If that is understood, then I have my position as to how I will vote now on this bill.

The Chair: Are you ready for the question?

Mr. Roy Bailey: Yes.

(Amendment negatived)

The Chair: We can now take the amendment in the name of Mr. Knutson on page 216A. It's reference 13029.

Would you like to proceed?

Mr. Gar Knutson: I would.

I'd like to propose the amendment as outlined on page 216A. It has in big bold letters the word “may” to satisfy all those people who don't like mandatory language; they don't think Parliament should tell the executive how to behave, how to conduct its affairs.

In presenting it, I'll remove transboundary species so we don't have to go through that debate again. And I point out that this key amendment gives the authority to the competent minister to make regulations as opposed to the cabinet. It takes out all that willy-nilly language that I think is unnecessary, “after consultation with every other competent minister”.

I would add in the word “critical” before habitat since the government's going to support—

The Chair: On the second habitat.

Thank you.

Mr. Knutson, any further comment?

Mr. Gar Knutson: If someone wants to change the 60 days, I'm open on that question.

The Chair: All right. Thank you.

Comments or questions.

Mr. Near.

Mr. David Near: I have only a bit of a technical worry. I wonder what happens if there's no regulation made within 60 days. This is an empowerment to make a regulation within 60 days, and I'm not sure what happens if you don't generate a regulation within 60 days.

The Chair: The bill is silent. It would be silent.

Mr. Knutson, does that trouble you?

Mr. Gar Knutson: No, the language is discretionary and nothing will happen. It's cool.

The Chair: Yes.

Mr. Bailey.

Mr. Roy Bailey: Could you make a regulation after the 60 days?

Mr. David Near: That's my point.

• 1810

Mr. Roy Bailey: All right.

The Chair: Are there any further comments?

Madam Kraft Sloan, Madam Redman.

Mrs. Karen Kraft Sloan: Can you make a regulation after 60 days?

The Chair: It says within 60 days.

Mrs. Karen Kraft Sloan: But if it's 61 days, can you make a regulation?

The Chair: There is no indication.

Madam Redman.

Mrs. Karen Kraft Sloan: I'm hearing, “No, you can't”.

The Chair: Madam Redman, would you like to speak?

Mrs. Karen Redman: Mr. Chair, I'm looking for a little direction here. There's a series of amendments and I don't know if they're deemed consequential. I know we're dealing with page 216A, but it has links to pages 218, 219, 221, 223, 225, 227, and 228.

The Chair: We don't have page 228, but we are checking.

Mrs. Karen Redman: Thank you.

The Chair: We don't think so, on page 228. The others, yes.

Mrs. Karen Redman: I'm seeking direction. Does how we vote on this one have any consequence for those other amendments?

The Chair: The ones you read, yes—pages 219, 223, 225, and 227.

Mrs. Karen Redman: I would ask the staff to speak to it. The discussion may be a little bit broader than just page 216A. But if we're going to deal with these...

[Translation]

The Chair: Mrs. Scherrer, you have the floor.

Mrs. Hélène Scherrer: Thank you, Mr. Chairman. I will ask a question to which he probably has an answer.

The bill presently says 60 days. I would like to know if this means that if a minister decides not to make regulations, he or she simply can do nothing for 60 days and, on the 61st day, decide that, the deadline having passed, there will be no regulation. Is this what this means?

[English]

The Chair: Madam Wherry or Mr. Near, would you like to answer both questions, the ones posed by Madam Redman and Madame Scherrer?

Mr. David Near: I'll deal with the last question. I think there's a considerable risk that on day 61 you would be precluded from generating a regulation.

The Chair: What about the question by Madam Redman?

Mrs. Karen Redman: The impact of the series of amendments.

Mr. Ruth Wherry: What this whole series would do... it's the notion of putting the regulations in, then the remainder would talk about how you could take them off, for example, if you have agreements, etc.

In another one in this package, for example, he speaks about how the regulations “shall” include provisions prohibiting activities that adversely affect the critical habitat”, and the bill uses “may”.

Prohibitions against adverse activities are not always needed to protect the critical habitat. In some cases, maybe the only thing you'd have to do is a positive thing like restoring a spawning bed. It may not be at all necessary to prohibit anything to protect the habitat.

The Chair: One step at a time, now. Let's deal with the amendment before us, which is Mr. Knutson's on page 216A. The term used is “may”.

Can we conclude this discussion, or are there any further questions?

Mr. Peter Adams (Peterborough, Lib.): I propose that “within 60 days” be deleted. It would begin “after a recovery strategy”.

Mr. Gar Knutson: That's a good idea.

The Chair: Mr. Knutson is agreeable to the deletion of “within 60 days”. That sounds like a very helpful suggestion, Mr. Adams. Thank you.

We welcome Mr. Adams, and we invite him to come more often.

• 1815

Are you ready for the question? If so, those in favour of Mr. Knutson's amendment, please so indicate.

(Amendment agreed to)

The Chair: Mr. Knutson, I understand your motion on page 219 will be taken care of by the vote we have just taken. Are you in agreement?

Mr. Gar Knutson: I trust your judgment.

Mrs. Karen Redman: Mr. Chair, are we assuming that page 219... it's carried?

The Chair: It's carried, and also the amendments on pages 223, 225, 227, and 228, as you were suggesting earlier.

Mrs. Karen Redman: Mr. Chair, I'm seeking some clarification. What happened to the amendment on page 221? Is that now gone?

The Chair: We'll look it up. That stands by itself. Actually, we could deal with that now, unless you wish to adjourn and we can do it tomorrow morning.

Mrs. Karen Redman: Can we hear from Mr. Near?

Mr. David Near: I'm sorry, Mr. Chair, I don't know why all of the separate thoughts contained, beginning with page 219, are consequential to the simple ability to make regulations. For example, on page 219, there's reference to regulations made in subclause 59(1), but then there's a different subject matter included that refers to agreements under clause 11, to permits under clause 74 and clause 75 that would qualify the regulations made under subclause 59(1).

I would have some comments with respect to a potential problem with the language including clause 74 and clause 75 in terms of confusion between the existing exceptions in clause 83 and the addition of specific ones here. They would be in fact more limiting.

The Chair: Mr. Near has a point. The amendment on page 218A stands by itself and it has no consequential effect, and we apologize for that. We thank you for bringing that point up at this stage.

This means we are ready for adjournment, because the wheels are beginning to spin in a vacuum and we don't want to do that too often.

I thank you for your patience, but Madam Redman wants to intervene.

Mrs. Karen Redman: Mr. Chair, could I just seek your direction? Where will we be starting tomorrow?

The Chair: Tomorrow we will try to go back to those amendments that members were not ready for earlier, the ones in the name of Mr. Mills, for instance. Otherwise, basically, we will continue where we have stopped tonight, and if possible we will clean up something in the back, provided the members are ready.

Thank you very much for your patience, Mr. Near.

• 1820

The meeting is adjourned.