ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, April 26, 2001

• 0904

[English]

The Vice-Chair (Mrs. Karen Kraft Sloan (York North, Lib.)): Order.

I'd like to welcome our witnesses this morning. Today we have, from the University of Alberta, Dale Gibson, and from the Canadian Bar Association, Magdalena Muir and Tamra Thomson. It's my understanding, Mr. Gibson, that you will be leading off, Tamra Thomson is second, and Magdalena Muir is number three on our list.

Thank you very much and welcome.

Mr. Dale Gibson (Constitutional Law, University of Alberta): Shall I begin?

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

Mr. Dale Gibson: Okay.

When I began learning about public speaking at the age of eight, I was told never to apologize at the beginning of a presentation, but I do in fact have two apologies for you. One concerns the fact that my material is in English only and therefore will be delayed in getting before you. The other thing is that I have an early airplane to catch, and I have to apologize in advance for slipping out, probably before the proceedings are concluded. Sorry about that.

• 0905

The Vice-Chair (Mrs. Karen Kraft Sloan): What time will you have to leave?

Mr. Dale Gibson: I hope to leave by about 10:30.

The Vice-Chair (Mrs. Karen Kraft Sloan): All right. So I suggest that if we have questions for Mr. Gibson, we make sure they're asked before 10:30.

Mr. Dale Gibson: I'd be grateful for that, Madam Chair. Thank you.

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

Mr. Dale Gibson: Madam Chair and members, I am a professor of constitutional law. I also practise constitutional law fairly intensely.

One of the areas I have done quite a lot of study and writing about over the years has been the interaction of the Constitution and the environment, and that has brought me to this particular issue of species at risk on several previous occasions, for several purposes.

I appeared before this committee in 1997, talking about the predecessor bill, and at that time I expressed the view that the bill seemed to be based upon an unduly modest assessment of the constitutional powers of the Government and Parliament of Canada. It was and is my view that the Constitution provides extremely ample constitutional powers to the Parliament and Government of Canada to deal with every aspect of species at risk.

Since the time of that 1997 presentation, the legislation has been modified, and I too have been busy. I have provided to the clerk for you two studies that I worked on in collaboration with others concerning endangered species legislation since the 1997 presentation. I had the great fortune to work on those studies with the Honourable Gérard La Forest, former justice of the Supreme Court of Canada, and before he became a justice of the Supreme Court of Canada, a leading constitutional expert, particularly in the area of the environment.

Mr. La Forest and I, and a junior assistant of mine, produced two studies, which I have provided to the clerk. One of them is called “Federal Protection of Endangered Species and the Criminal Law Power”, which examines the extent to which criminal law may be used as a basis for the legislation and concludes that it provides an extremely sweeping base for federal constitutional jurisdiction. The second is called “Constitutional Authority for Federal Protection of Migratory Birds, Other Cross-Border Species, and Their Habitat in Endangered Species Legislation”.

The second study was of the Migratory Birds Convention Act and concluded that the act also provides very wide powers with respect to migratory birds, and not just migratory birds, but also with respect to all species that cross boundaries, whether they're international or interprovincial boundaries.

In addition to those studies that were done in 1999, I have also produced quite recently three smaller opinions that are not quite complete, which, with your permission, I would like to send to the committee in another week or two when the final polish has been put on them.

One of those additional opinions goes back to the Migratory Birds Convention about the effect of the protocol. As you know, there has been a protocol to the original convention and I've looked at the impact of that protocol. In particular, I've looked at whether there is any possibility that it weakened the original powers of Parliament under section 132 of the Constitution Act. I concluded that it has not weakened that power, and the reasons are in the report that I will provide to you shortly.

• 0910

The second of these mini-studies is called “Different Strokes for Different Folks”, and it's about the possibility of providing different standards of enforcement for different parts of the country. I know there is a view that Parliament must provide uniform standards across the country. My conclusion from the case law is that this is not the case. The Supreme Court of Canada has ruled on several occasions that the Parliament of Canada may in fact apply varying standards to different parts of the country.

There are limits to that, of course. You can't discriminate contrary to the charter, but within those limits, which the Supreme Court has judged quite leniently, my conclusion is that it is possible to provide a considerable variety of standards both under the criminal law power and under a mixture of powers if Parliament should be relying upon one or more of its constitutional jurisdictions.

The third of the mini-studies that I'll be sending to you in a couple of weeks looks at the criminal law power in particular with respect to the Species at Risk Act, Bill C-5. The study that was done with Mr. La Forest was with respect to Bill C-33, or perhaps a predecessor, but at any rate, it was prior legislation, so I've looked specifically at Bill C-5 to see what problems might be there. I have identified some problems there. I think the way in which the legislation is drafted creates some constitutional risk, and that's one of the things I'd like to address today.

So with that prelude about the material that I have provided and will be providing, let me move on to my brief presentation.

I've said this many times and I'm sure you know about it, so I'll quickly run through the list: The heads of potential federal power to deal with endangered species are many. The criminal law power is a very potent source of jurisdiction. The fisheries power under subsection 91(12) of the Constitution Act also provides wide jurisdiction.

The third one, and one that isn't as frequently considered in studies, is the public property power under subsection 91(1A), by which any federal property may be dealt with. I suppose as kind of an addendum to that, subsection 91(24), which gives Parliament jurisdiction over lands reserved for Indians, similarly gives wide jurisdiction.

The Migratory Birds Convention Act and one or two other early treaties are implementable by the federal Parliament and federal government under section 132 of the Constitution Act, and as I say, one of the small studies that I did concludes that this power is still very active and very important.

And finally, a power that many people shy away from, I think undesirably in some circumstances, is the peace, order, and good government power, the federal residue to deal with matters that are under federal jurisdiction but not explicitly dealt with otherwise.

In my view, the peace, order, and good government power enables the Government of Canada to implement treaties that are not covered by section 132—that is, more recent treaties. The Rio Convention, for example, in my view, can be implemented under the peace, order, and good government power. I've gone into that in previous studies. Secondly, in my belief, the peace, order, and good government power gives ample jurisdiction to deal with all cross-border species, and finally, the peace, order, and good government power gives jurisdiction to deal with national emergencies, and in my view, ecological emergencies come within that concept of national emergency.

• 0915

All of these are strong powers. There's some controversy over some of them, particularly with respect to peace, order, and good government, for which there are different views. I have to confess that Mr. La Forest takes a less ambitious view of the sweep of the peace, order, and good government power than I do, but even he recognizes its importance. But let's put aside peace, order, and good government altogether as being subject to some controversy. Some of the powers I've mentioned are enormously strong. Criminal law powers, fisheries powers, and the empire treaty power under section 132 are very sweeping.

The legislation has changed somewhat from previous drafts. In some ways, it seems to me that there have been improvements. There has been a somewhat heavier reliance on the criminal law power to support discretionary standards. On the other hand, as I'm sure many witnesses have told you—and I'm not going to bother going into it—the bill has been weakened in a number of ways, when it wasn't all that strong to begin with.

What I would like to do in the next few minutes this morning is to address two of the weaknesses that seem to me to be most obvious. The first is the fact that the proposed legislation, Bill C-5, does not take a very strong position with respect to species that are on provincial or territorial lands unless they happen to be aquatic species or migratory birds. My view of that is that it is an unnecessarily narrow view of federal constitutional powers, or it at least reflects a narrow view. And the second is the very weak approach that the legislation takes to the protection of critical habitat everywhere, even on federal land.

The weaknesses I'm referring to, in terms of the legislation, are rooted primarily in clauses 34, 35, 58, and 61 of the bill. I won't look at all of those—at least, not in any detail—but clause 34 is typical.

You'll remember that clauses 32 and 33 set out what is initially a quite sweeping prohibition with respect to harm inflicted on endangered species and on their residences. But then, in clause 34, there is immediately a severe modification of that general prohibition in that, if it's not on federal lands and so on, the modification is said to apply only where a cabinet order permits the provision to apply.

A similar restriction is to be found in clause 35 insofar as territorial lands are concerned. Of course, there's utterly no legal constitutional basis for being concerned about territorial jurisdiction, although there may well be a political one. At any rate, clause 35 takes a similar approach to the one that's taken with respect to the provinces.

Then, as far as critical habitat is concerned, although they provide some important measures concerning critical habitat, clauses 58 and 61 are severely weakened by again being made subject to cabinet order—not cabinet order by way of exception, but cabinet order by way of bringing them into effect in the first place.

• 0920

To the extent that the Government of Canada has chosen to put forward weak legislation as a matter of political preference, I have nothing to say as a constitutional lawyer, although I deplore it as a citizen. My concern is that the advice the government is receiving from some of its advisers says there is not sufficient constitutional jurisdiction to go further than the legislation goes. At that point, I step in as a constitutional lawyer and I say such concern is misplaced. In my submission, there is indeed sweeping jurisdiction.

The other concern I have with the legislation is with the technique I have just described. That is, stating something is prohibited, making it a crime, and then suddenly saying this crime only applies if the cabinet says it should apply in one part of the country or another part of the country. I'm concerned that such a technique, such a way of attempting to use the criminal law power, endangers the ability to use the power itself. That is to say, when you go about imposing a prohibition in that way—by saying there will be a prohibition if the cabinet says there will be in certain parts of the country—there is, in my submission, a severe risk the Supreme Court of Canada will say it is not criminal law, it is administrative law, it is regulation.

That is one of the topics addressed in one of the studies Mr. La Forest and I did, and, at the risk of boring you and taking too much time, I'd like to read a couple of paragraphs from that study, which I have provided to you, because it's exactly on this problem.

I'm sorry, I've misstated slightly. What I want to do is read a section from one of the studies I'm going to be sending you in a couple of weeks, which incorporates something that was said in the La Forest study.

In my opinion, these are questionable uses of the federal criminal law power. Because somewhat similar examples of ministerial discretion were held to be constitutionally valid in the Hydro-Québec case—which was a Supreme Court of Canada decision on somewhat similar legislation—I am not prepared to say that they are clearly outside the criminal law jurisdiction of the Parliament of Canada. It should be borne in mind, however, that the Supreme Court of Canada was sharply divided in the Hydro-Québec case, because the legislation was upheld there by a majority of only five to four.

Moreover, there is room to argue that the conditional prohibitions in Bill C-5—and I would ask the clerk to take note that I've made an error in my submission, because I wrote Bill C-33, but it was Bill C-5 that I did indeed look at—bestow more administrative discretion and are, therefore, more regulatory in nature and less likely to be upheld under the criminal law power than those which the Supreme Court of Canada ruled to be valid in the Hydro-Québec case. This is especially true of the prohibition in clause 61, concerning the destruction of critical habitat on non-federal land. That not only depends upon rather complex administrative considerations, but also includes a provision for automatic expiry of the prohibition every five years—in subclause 5—something that is not a common characteristic of criminal prohibitions.

As the study that I did with Mr. La Forest in 1999 stated, difficulties of this kind don't have to exist. They could be obviated quite easily by establishing a general prohibition in the statute, tempered by a well-defined administrative power to create exceptions.

There's a big difference between saying something will be a crime if the cabinet says so, and saying something is a crime but the cabinet may create exceptions. In the latter case, the case law is strong in saying that's all right. In the latter case, the case law is strong in saying that's all right. In the former case, there is considerable doubt—shared by me and by Mr. La Forest, and stated in the opinion I've provided to you.

• 0925

It's understandable, Madam Chair, that the government of Canada may wish to avoid unnecessary political confrontations with this legislation, unnecessary consultation and negotiation with the provinces and territories, and unnecessary constitutional litigation. That's completely understandable. However, in my view it would be wise to enter those consultations and negotiations fully aware of the extent of federal constitutional powers, and fully ready to use them effectively if it's necessary to do so. It seems to me particularly unwise to use Parliament's strongest power, criminal law, in the questionable way I've just described. That would perhaps undercut its very constitutionality.

It was Teddy Roosevelt who said that it's a good idea to walk softly but carry a big stick. I can well understand why the Government of Canada is walking softly in this area: there are sensitive jurisdictions to be considered, and walking softly makes good sense. But in my view, it does not make good sense to carry a much smaller stick than you've got the constitutional power to carry.

Those are my comments—subject to questions that I hope I'll be here to deal with. Thank you.

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

Madam Thomson.

Ms. Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Madam Chair.

The Canadian Bar Association is very pleased to be before your committee today to comment on this important legislation. The CBA is a national association representing over 36,000 jurists across Canada, and one of our objectives is to work toward improving law and the administration of justice. It's under this rubric that we make our comments to the committee today.

We have provided a letter for you concerning Bill C-5, as well as the submission we prepared on its predecessor, Bill C-33. There are sufficient similarities between the current and the former bill that we thought it would be to your advantage to have both documents.

I am accompanied today by Magdalena Muir, who is a lawyer in Alberta and past chair of the environmental law section. I'm going to ask her to address the substantive issues we've raised in our submission.

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

Ms. Magdalena A. Muir (Member, National Environmental Law Section, Canadian Bar Association): Good morning, Madam Chair, honourable members.

The CBA NELS, the National Environmental Law Section of the Canadian Bar Association, welcomes the opportunity to speak on its two most recent submissions concerning federal legislation on endangered species. Those are the letter of April 24 and the submission of 2000.

After a long involvement with this bill and previous ones, it's also a personal pleasure to appear before you.

I'd like to briefly outline our submission today. First, I'd like to discuss some previous material on the history of engagement on endangered species issues, from both CBA and CBA NELS. Then I'd like to highlight some specific points raised in both the September 2000 submission and the April 24 letter.

I should mention that I'll be referring to the English copy of both the letter and the small booklet. After that, of course, I'll answer any questions you may have on either the written submission or my oral remarks.

• 0930

The matter of endangered species legislation has been addressed quite extensively by the Canadian Bar Association as a whole, and by the NELS in particular. There are some brief descriptions of that in the September 2000 submissions—I refer you to pages 1 to 4 of that booklet. I'll just briefly highlight some of the different ones:

—A February 1991 omnibus resolution dealing with environmental protection and sustainable development, included a recommendation that the federal government adopt legislation within the scope of its jurisdiction to effectively conserve endangered species and their habitat.

—I'll also refer to a June 1996 letter, signed by the president of the CBA and the chair of the National Environmental Law Section at that time, on a then-existing legislative proposal. It particularly concerned the constitutional authority of the federal government for endangered species and their habitats.

—Lastly, before the ones we're going to discuss now, the very extensive submission prepared in December 1996 for what was then Bill C-65.

—As well, there are a variety of general CBA resolutions on environmental issues that are quite pertinent.

Tamra Thomson has kindly explained the relationship between the two submissions I'm going to speak about today.

I should mention that we felt there was a significant similarity between Bill C-33 and Bill C-5, so we thought it was better just to make brief additional comments. That's why I'll be referring to the two submissions.

Six key areas of concern for SARA are referred to in these submissions. I'll list them first, and then give a brief overview of them. There are issues of the Constitution, of the federal government and aboriginal and treaty rights, of intergovernmental cooperation, and of Canada's obligations under the United Nations Convention on Biological Diversity. There are also comments pertinent to SARA and some comments with respect to environmental assessment.

The constitutional remarks on the Species at Risk Act are found on pages 4 to 8 of the English version of the booklet, and essentially summarized in the remarks on page 4. If you don't mind, I'll just briefly paraphrase them.

The National Environmental Law Section has long held the view that within the scope of federal jurisdiction, Parliament should adopt legislation to provide effective protection for endangered species and their habitats. Legislation should cover a broad range of species, habitat, and territory, and can do so while remaining well within federal jurisdiction. It can and should also explicitly bind the federal and provincial crowns, as other federal environmental legislation does. In addition, the legislation should explicitly bind crown corporations and agencies. In our view, the federal government has a general authority to enact broad endangered species legislation.

Given the extensive discussion and remarks of Professor Dale Gibson, as well as the written submissions, I would not like to address this matter in depth at this time, other than to reiterate that the federal government has the general authority to enact broad endangered species legislation.

I refer again to the first page of the April 24 letter. Under the first clause, limitations on federal government authority, the very first sentence is “The federal government is being too cautious in interpreting its own constitutional powers”.

With respect to the second issue, the federal government and aboriginal and treaty rights, I would like to congratulate the government on its incorporation of aboriginal and treaty rights under clause 3 and numerous other provisions of the Species at Risk Act. Government legislation, under all heads of federal power, must carefully respect these rights.

The next area I'd like to address is intergovernmental cooperation, mentioned on pages 9 to 10 of the brief. To summarize, the Canadian Bar Association and the Environmental Law Section of it has consistently supported a cooperation between the federal, provincial and territorial governments and agencies, provided—and this is very explicit—that cooperation does not result in the removal of environmental protection or the non-enforcement of environmental laws.

The next issue I'd like to turn to is Canada's international obligations, referred to on page 10 of the booklet, and also its obligations under the United Nations Convention on Biological Diversity. Canada is a contracting party to this 1992 convention. Article 8 of that convention sets out Canada's obligations for the protection of endangered species and their habitat. I want to stress that it's important that Canada domestically implement its international obligations, and that the federal government do so to the extent of their constitutional powers and authority.

• 0935

I'd like to now turn my remarks to really what is the substance, particularly to SARA, of the presentation, which can be found on pages 11 to 18 of the booklet, and within our letter as well, and to raise three primary concerns. While we can address the very specific details in the written remarks, the concerns of National Environmental Law Section fall into three categories: the failure to provide comprehensive protection for endangered species and their habitat under this legislation; the inappropriate reliance on discretion and political will for the implementation of the legislation; and the inadequate provision for public participation and remedies for government action.

In terms of addressing the first issue, the failure to provide comprehensive protection for endangered species and habitat, I draw attention to the limited application to aquatic species and migratory birds on federal lands, and to the exclusion of transboundary species. I note the even discretionary application on federal lands and jurisdiction. And the treatment of habitat is particularly problematic.

I'll turn to page 2 of the letter of April 24. An additional concern I'd like to highlight within Bill C-5 is the whole nature of the use of the existing list of species, and the possibility that this will not be incorporated directly into the act despite the years that have been spent on the creation of this list.

In relation to each concern, I'm going to raise the recommendation we've raised in response to the concern.

In response to the first concern, about the failure to provide comprehensive protection in species habitat, if you look to page 13 of the booklet, there is a recommendation that SARA be extended to have obligatory application to all species and species habitat within federal jurisdiction, including all species ranging across international, provincial, and territorial boundaries.

The next concern is the inappropriate reliance on discretion and political will. Professor Gibson has referred to that in his presentation. I would like to make a further observation of the high degree of discretion vested in the federal government, and through delegation to the provinces and the other parties. There are some different examples of that, such as the broad powers of delegation, treatment of recovery plans, transboundary species, and emergency orders. There is, again, further reference within the letter of April 24, in point number 2 on page 2, to this as well.

With respect to this matter, the recommendation is that SARA be amended to require government action and eliminate discretion and provide for objective reviewable standards. Without limiting the generality of that, there are some specific ones:

—that a designation of a species as endangered under the COSEWIC process should lead automatically to regulation;

—that recovery plans should be legally binding and enforceable;

—that endangered international and interprovincial species should have automatic protection;

—that where there are emergency conditions the minister should be obliged to act, and where possible and appropriate, that any use of “may” should be replaced by “shall”.

The last area of primary concern is the nature of the inadequate public participation and remedies. There are, on page 15, a series of different observations in this regard.

As a general note, public participation, whether it's advanced consultation on legislation or the role of public participation in the implementation of legislation, has been an area for which the CBA NELS has provided summations for this and other acts.

It's interesting to note that there's been the removal of some of the earlier proposed matters for public participation, even such things as endangered species protection orders.

To turn to the recommendation, the recommendation of the National Environmental Law Section, on page 17 of the English version, is that the bill be amended to ensure public access to complete information and to grant the public the right to comment and participate in all decisions other than emergency situations and agreements permitted by the act, and to require decision-makers and administrators under the act to respond to public comment and report in detail on the administration, operation, and enforcement of the act, its regulations, and any order or agreement made under it.

• 0940

While I can address the specifics, I would rather keep my presentation briefer versus longer. So I would conclude with that on the primary concerns.

The very last point I'd like to make is on the nature of environmental impact assessment under the Canadian Environmental Assessment Act and how that interacts with the Species at Risk Act. This is referred to on page 18 of the English version of the booklet. I want to make the observation that while environmental assessment will be required for consideration of a listed wildlife species or its habitat or residence, this again will only result in recommendations, as any environmental assessment only results in recommendations.

Thank you very much.

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

First on our witness list we have Mr. Mills.

Mr. Bob Mills (Red Deer, Canadian Alliance): Thank you very much, Madam Chair.

Thank you for being here with us. I have a comment and a couple of questions.

The first thing is that this legislation is largely based on the principles of cooperation, consultation, and the very end result being litigation if necessary. I hear from you that you want to strengthen the stick and you're not saying the carrot shouldn't be there. We've heard from other witnesses in regard to the due diligence part of this legislation that due diligence is just too tough and too hard, whereas putting a mens rea in there would be much more effective. I'm not a lawyer, so I don't totally understand this concept and I'd like your help on it. So that's one question or explanation.

Secondly, I don't know if you're familiar—I imagine you are—with the Alberta Surface Rights Act, which basically says if you take a piece of land or take the productivity away from the landowner, you compensate them. That has been in effect for 20 or 30 years, I believe, and it has worked pretty effectively. Most landowners are pretty pleased with it. It provides them with compensation. It's black and white. It's in the law and they understand it.

Again, what I'm hearing is that landowners will largely not object to this legislation provided there is something to do with compensation and it's in the legislation, not in the regulations. Because in the regulation, who knows what that means? I'd like you to comment on that, please.

Mr. Dale Gibson: Thank you for those questions.

I don't pretend to be able to talk eruditely about a distinction between using a standard of due diligence and a standard of mens rea. But the basic message I was trying to get across was that if you do try to fudge an alleged criminal prohibition by including all of those administrative ifs, buts, ands, and so on—i.e., a due diligence kind of thing—you are running the risk of undercutting yourself constitutionally.

To me, as a constitutional lawyer, it makes much greater sense to make a clear-cut criminal offence that nobody can mistake for anything else, and then, to the extent necessary, create exceptions. That's all right; the courts have permitted that. They've permitted varying standards within that. They've permitted exceptions by which this or that situation can be excused. But to make it criminal law it has to start out, in my submission, as a clear-cut general prohibition, whether you state a mens rea requirement or you don't, and then add your exceptions on thereafter. That's by far the safer way constitutionally to go about it.

• 0945

With regard to your question on whether I'm familiar with the Surface Rights Act, I just acquired some property in Alberta without the mineral rights. I see these darn oil wells and gas wells all around me and I'm thinking, oh my God, what are my surface rights? But I still haven't looked to see what they might be. I'd better do that pretty soon.

The basic issue you were raising, I think, was whether compensation ought to be an element of the provision. Again, I don't pretend to talk about political wisdom. That's not my shtick. I sure think it would be a lot easier to get the acceptance of those who are going to be affected by it if we ensured that they would be fairly compensated.

The only thing I would say as a constitutional lawyer is that those who may be affected will be protected to some degree at least, in my view, under the Canadian Bill of Rights. Everyone has noted that the charter doesn't protect property rights, but the Canadian Bill of Rights, which is still in effect, does indeed protect property rights. If I were acting for a client who didn't get adequate compensation under legislation like this, I would want to be relying on the Canadian Bill of Rights. So I think there is a constitutional right to compensation to the extent at least that the Canadian Bill of Rights provides it.

Mr. Bob Mills: Excuse me. Can the landowner afford to do that?

Mr. Dale Gibson: I'm sorry....

Mr. Bob Mills: Isn't the cost of using that legislation prohibitive to the average landowner?

Mr. Dale Gibson: Yes.

I make much of my living from engaging in constitutional litigation, and it is my daily sorrow that only the few can afford to engage in that litigation because it is just too expensive. Some people say it's we lawyers who are taking too much out of it. It isn't that. It's a very complex, expensive system. And you're right, to do it by way of litigation is not the desirable way to go. So if your question to me is would it make more sense to provide compensation up front, I would have to say that makes good sense, even if it does take business away from me in the long run.

The final point, actually it was the first point that you.... I've lost it, so I guess I'm not going to respond to it. Sorry.

I'll pass it on to my colleagues.

Ms. Magdalena Muir: Thank you.

It's going to be interesting, because I'm going to give you an environmental law perspective versus the constitutional perspective, and you'll see that we're somewhat different in approach.

I think the first issue was the stick versus the carrot. That was the comment you may have been thinking of making, Dale.

Mr. Dale Gibson: Yes.

Ms. Magdalena Muir: Unfortunately, people seem to respond better to a carrot if there's a bit of a stick there. Typically, and it's the example I would make, when you have an enforcement regime that is consistently applied, people are usually willing to engage in voluntary measures. So I think often a combination is very useful. Without getting into it at a specific level within the bill, it strikes me that the carrot becomes more acceptable if there's a stick there in some way. We in the National Environmental Law Section and the Canadian Bar Association have passed resolutions dealing with the appropriate enforcement of federal environmental laws.

The next question you asked dealt with the distinction between due diligence and mens rea. I'm not certain how you're using that, so I would like to give a general answer. This is where you'll see a bit of a difference. Dale was talking with reference to how we constitutionally proof this legislation under the criminal law power. That's the direction from which his answer was coming.

I'm going to address that from the perspective of environmental legislation, which deals with protection of the environment or a regulatory matter. If you look at the Sault Ste. Marie decision, they talk about it being acceptable to have a strict liability approach for environmental and regulatory things, where mens rea is often used in a criminal law power, and that you don't have to prove the intent to commit the harm. You just have to prove that the harm has occurred. There are usually some outs within the legislation. That tends to work better, because you don't get into a debate as to what someone intended to do but rather what effect they caused on the environment. That approach has been supported throughout federal and provincial environmental legislation.

• 0950

I apologize if I'm not properly addressing your question, but I'm trying to go where, from my understanding, it's directed, namely that environmental legislation tends to function more appropriately when you have a strict liability approach and you don't get into a debate about intent.

The last issue I'd like to address is the area you've raised concerning the Surface Rights Act. Because I live in Alberta, I occasionally work with oil and gas, so I'd like to address that one.

What we first have to recognize in the Surface Rights Act is that we really have competing, recognized private interests. We have the issue of the surface owner, who may be a farmer or a rancher, a person who has a surface lease or some degree of rights with respect to the surface, and we have someone who has been issued an equally binding subsurface right, both usually by the provincial government. We really only have these splits where the provincial governments own the surface and the subsurface and have issued ownership separately. In that situation it is quite important to the statutory scheme of compensation because you have two clearly recognized private rights.

I would say, though, that if we look at environmental legislation and maybe parallel legislation such as planning, the issue of compensation is not really so much the same because you may have regulation that somewhat affects the value but you don't have those clear, recognized rights to entry and to develop. While I recognize that compensation is a valid and an important concern, I would say that the Surface Rights Act is probably not the best parallel. It applies to situations where government has issued title to two conflicting private interests at the same time, and it particularly applies to how measures are implemented.

With respect to compensation, I would just like to turn to the letter of April 24. In comment 6 we have noted that the act or the regulations should clarify the circumstances where compensation is available because any compensation raises difficult issues. The entitlement of parties with interests in land will have to be balanced against the government interests both in protecting species and habitat and in preventing abuse of any compensation regime.

The National Environmental Law Section is more than willing to address compensation, but we'd like to do it after we've seen some proposals, whether they're in the act or the regulations. We don't necessarily have a preference as to whether this is in the act or the regulations.

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

Normally we take five minutes each on the first round, and this includes the member's question and the response from the witness. However, as chair I'm going to exercise some discretion this morning, and I hope all the members are willing to be flexible with me. We have an opportunity with the witnesses here today to explore some issues of great complexity. I would appreciate it if the members would ask their questions in a very succinct way. Members can be as pointed—but polite—as they want, and I would also ask that the witnesses respond as quickly as they can, bearing in mind the complexity. This is no criticism at all of what you have already given us because I think this has been very important. I just want to be clear about the ground rules this morning.

We are going to ask the indulgence of the committee because Mr. Mills has to leave shortly for an event concerning one of his constituents. He had a very short point of clarification.

Mr. Bob Mills: Thank you, Madam Chair.

Ms. Muir, what I really want to know is this. Let's say I own a piece of land. I am not told, or as we've heard from some, you may not know you have an endangered species on there...maybe no one knows. Yet you do something to that land, you hay it, you put cattle on it, or you do something else and you find afterwards there was an endangered species there. Now it has been hurt, destroyed, or whatever because of what you did. But you didn't knowingly do it. You didn't know it was there because nobody told you, the government didn't identify it, yet now you've committed a criminal offence. Is that correct?

Ms. Magdalena Muir: That is not an issue we have specifically looked at, so I can't speak to it in detail. You're asking me, based on how the act is currently drafted, is there a possibility that somebody who without knowing they have an endangered species on their land would at some point be criminally responsible if they commit an act that detrimentally affects that species or its habitat?

Mr. Bob Mills: Isn't that what due diligence is?

Ms. Magdalena Muir: Due diligence has many different meanings.

The response I'm giving to you was really in terms of the whole general nature of the act, what it's intended to do, which is to protect species, and the means by which it goes about that. I would say that if this is what happens if an unwitting person conducts an action, I could not help but see that it's an unintended consequence of the act, because it does not seem to be in general keeping with the overall intent of the act. But I can't say anything beyond that, because it's not a specific issue that we've actually looked at.

• 0955

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

I would like to also remind members that Mr. Gibson has to leave at 10:30. If need be, direct your questions to him first. If the representatives from the Canadian Bar Association would understand that, perhaps their questions can be responded to after 10:30.

Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): Both my sets of questions are directed toward Mr. Gibson. Let's see if he can help me with a couple of particular sets of situations.

Wayne MacKay, of Dalhousie University, and also Louis-Paul Cullen, of Ogilvy Renault, have expressed some specific concerns over the constitutionality of the bill. I did miss the opening part of your presentation, but my assistant indicates that you touched on those specific aspects of it.

Particularly speaking, as the Supreme Court confirmed in the Hydro-Québec case, the federal government can use its constitutional power over criminal law to prohibit environmental harm. It follows that the law is based on criminal law, and we shouldn't have room for cabinet discretion. Having said that, when we look at clauses 32, 33, and 34 of the bill, 34 makes it directly permissive. So, first off in this aspect, would you agree one of the easiest amendments to do would be to strike down clause 34 of the bill in order to clean up the 32 and 33 components? I think that's one solution, but are there other clauses that need to be stroked out, and could you refer to those clauses?

Mr. Dale Gibson: I'm not a legislative draftsman, and I certainly wouldn't say yes, you can just strike out 34 and everything will be fine. I think the way in which that whole set of provisions has been drafted needs to be reconsidered. You need to start with the prohibition and add some exceptions, rather than making it permissive to begin with. But 34 certainly is, in my view, one of the most problematical sections as far as that is concerned.

The other two I think I mentioned in my brief were clause 35—which is a similar provision concerning territorial land, or land in the territories—and the second subclauses to clauses 58 and 61—

Mr. John Herron: Clauses 60 to 61, yes.

Mr. Dale Gibson: —which have the same provisions concerning critical habitat, or similar ones.

Mr. John Herron: Obviously, instead of having exceptions, as we see in 34, the exemptions should instead be via ministerial permits and that route, and that would make it more permissible from a constitutionality perspective.

Mr. Dale Gibson: Yes.

The perspective that I was trying to bring—and I admit that I borrowed it from Mr. La Forest, formerly of the Supreme Court of Canada—is that you should start by prohibiting, and not by making the prohibition subject to cabinet order. Make the prohibition general, and make any exceptions you're going to have subject to cabinet order.

Mr. John Herron: So your view, to be quite clear, is that this bill can be challenged constitutionally as it is written at the moment.

Mr. Dale Gibson: What I say in my opinion is that there's a substantial risk. It's possible the Hydro-Québec case is sufficient authority to protect it. But, my goodness, that was a five-to-four decision of the Supreme Court, and it was different legislation. I would not take the risk that this legislation provides.

Mr. John Herron: I'd like to go down the same track of the constitutionality of the bill. I am particularly grateful for the documentation that has been brought forth not only in the opinion of former Chief Justice La Forest, but also by the Canadian Bar Association with respect to migratory birds.

• 1000

I see from the opinion on migratory birds that both you and Justice La Forest conclude that there is virtually no doubt that the federal government has the constitutional power to protect the habitat of endangered migratory birds. So my question is twofold. First, I take it then that if a bill were to protect the critical habitat of migratory birds, it would not pose a constitutional problem. Second, would you briefly explain to us the basis for federal authority in this field.

Mr. Dale Gibson: In my view, critical habitat can be constitutionally protected generally. And the other thing I should say is that the La Forest and Gibson opinion also extends that beyond migratory birds themselves to all cross-boundary species. That's a very important fact.

There are several constitutional bases. As far as migratory birds are concerned, it's the Migratory Birds Convention Act, based on the convention between Great Britain and the U.S. many years ago, and a more recent protocol to that. To the extent that it goes beyond migratory birds themselves, in my view the constitutional authority is based on the peace, order, and good government power, which is controversial in some circumstances but which the courts have made clear does cover cross-boundary phenomena, as well as criminal law, property, and all of the other sources of federal jurisdiction I've mentioned.

Mr. John Herron: If I could increase the critical mass of the opinion here, we have Mr. La Forest and Mr. Gibson's concurrence with respect to migratory bird—

Mr. Dale Gibson: And cross-boundary species.

Mr. John Herron: My question is a brief one to Ms. Muir. Could I say that the CBA also concurs with the Gibson and La Forest position on migratory birds?

Ms. Magdalena Muir: I would refer to page 7 of the English portion of our submission, and that would probably summarize the position with respect to migratory birds.

The reason I mention that is I haven't had the chance to review Mr. Gibson's opinion. It was provided to us only very recently. Basically, the Migratory Birds Convention Act and the regulations were enacted to fulfil Canada's obligations under an international treaty, namely an empire treaty. The act and regulations implement the treaty and regulate hunting, disturbance of nests, and harmful alterations. Provided that it addresses a valid federal objective, this can affect activities occurring on non-federal land. So I won't enter into his distinction.

I guess what I'm saying is that we view it as a broad power combined with the fisheries power, combined with the criminal law power, combined with the peace, order, and good government. This is not to distract from the presentation he's been making with respect to the extent of the criminal law, but if you would like an approach from the CBA versus the constitutional issues, it would be that there are so many bases of federal jurisdiction. This is really discussed in pages 4 to 8. There are so many constitutional bases for this federal legislation that there isn't particularly a problem.

Mr. John Herron: Thank you.

I don't have any more questions, Madam Chair, but what I would like to address at this time is that we're now seeing a concern for Mr. Gibson. In the public domain right now, we have Wayne MacKay of Dalhousie University and Louis-Paul Cullen of Ogilvy Renault, a noted constitutional lawyer, who are concerned about the constitutionality of certain sections of the bill. I would say that it is paramount to the committee that Mr. MacKay and Louis-Paul Cullen be added to our witness list.

The Vice-Chair (Mrs. Karen Kraft Sloan): Thank you, Mr. Herron. I will take this up with the permanent chair of the committee.

We certainly appreciate having all of the witnesses here today. The CBA certainly has a very long history and a very credible reputation in this field. Mr. Gibson is a noted constitutional lawyer. In fact, the Supreme Court goes to him for advice on a number of occasions when it tries to make some of its own decisions.

• 1005

Mr. Dale Gibson: I've lost some pieces before them, too.

The Vice-Chair (Mrs. Karen Kraft Sloan): We'll discuss that one later. You're very modest.

Mr. John Herron: Actually, Louis-Paul Cullen was on the other side of Hydro-Québec's perspective, so you win some, lose some, right?

The Vice-Chair (Mrs. Karen Kraft Sloan): Okay, Mr. Comartin, we're trying to keep to about seven minutes.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Thank you, Madam Chair.

Mr. Gibson, if I can pursue this thing, we have your opinion, and we obviously have that part of it that former Chief Justice La Forest agrees with you on. We have the Bar Association online. Other than the justice department people, who we got some very strange comments from when they were in front of us a month or so ago, are you aware of anybody else in this country who has a legal background, or a former legal background, who doesn't agree with you?

Mr. Dale Gibson: I have not done a public opinion survey, but the question you ask is interesting, because I expressed these views as long ago as 1994, I think, in an opinion that I did on endangered species. I was told there was a difference of opinion in the Department of Justice. I then met with Department of Justice lawyers and discussed my views. We did not come to agreement, but we certainly aired our respective views.

Since then, I have not heard a different opinion from the one the justice department consistently puts forward, nor have I heard it supported by anyone else. I'm not saying there are no others who have said that, but I have not heard it since I did my original study back in 1990, or whenever it was.

Mr. Joe Comartin: Let me just pursue it to the point of asking about the other constitutional experts at the various law schools across the country. Are there any dissenting opinions from them?

Mr. Dale Gibson: I have not discussed this issue with them, but I have not read or heard any contrary opinion.

Mr. Joe Comartin: Is your opinion published in any law review—yours and Mr. Justice La Forest's?

Mr. Dale Gibson: The La Forest and Gibson opinions? No, they were opinions done for the Sierra Legal Defence Fund, and I think they are being made public today for the first time, as far as I know. They're being provided with the Sierra Legal Defence Fund's approval today.

Mr. Joe Comartin: There are no court decisions that run contrary to the positions set out in yours or in the Bar Association's, are there?

Mr. Dale Gibson: None that I'm aware of, sir.

Mr. Joe Comartin: If I can go off then, leaving that for a moment, I want to go back to the mens rea, due diligence, or strict liability issue.

My perspective, historically, is from some other areas—not just in the environmental area, but probably the health and safety area more specifically. We have had difficulty getting convictions when we didn't go the mens rea route, the due diligence or strict liability route. Let me suggest that was mostly because of judicial bias in feeling uncomfortable in convicting people under strict liability rather than mens rea, which they were traditionally more used to dealing with. Do you have any comments? Does this legislation vary in any significant way from some of the other legislation, like that in the health and safety field, or, as Ms. Muir has indicated, in other environmental legislation? Are we basically online?

Mr. Dale Gibson: I don't think I can offer you a confident opinion about that, Mr. Comartin, but I will say that, quite a few years ago now, with respect to a highway traffic statute in British Columbia, the Supreme Court of Canada held that absolute liability is contrary to section 7 of the charter.

Where the line lies between acceptable strict liability and unacceptable absolute liability is a very hard position to find, and I did not examine this legislation or proposed ideas with respect to where a safe line might lie. I simply will say that the further you move away from a mens rea position, the closer you get to something that could be challenged under section 7.

That's the most I'll say, and I've probably said more than I'm really confident to say.

• 1010

Mr. Joe Comartin: Perhaps Ms. Muir may be the better person to be asking.

Ms. Muir, can you address some comments specifically around this area? Is it that significantly different? Have we crossed the line, as opposed to some of the other environmental legislation that we have provincially?

Ms. Magdalena Muir: After the other honourable member left, I started delving and finding a bit more about where his concerns were lying. If we turn to clause 97, following in the actual act—parties have it before them, and if not, I'll just refer to it—it talks of offences and punishment. I'll just make a couple of observations, and then I'll comment on your question with respect to comparable environmental legislation, because I can't speak to safety and health.

If we look at offences and punishment, we have “every person”, which includes corporations as well as individuals. When we start looking at them, clauses 98 and 99 talk about officers of corporations, and offences by employees and agents. So I guess the first comment is that the true breadth of these offences is supposed to attend to anyone who is a legal person—not to just an individual, but to a corporation and its conduct.

Part of the reason you have these strict liability approaches is the breadth of conduct that you're trying to capture and the difficulty, perhaps, of tracking when behaviour was mens rea intentional for a corporation. If we look at those things, there is a reference in clause 100 to due diligence.

The interesting point—and I wish I had been able to address it in response to the earlier question—is that they talk about sentencing considerations and whether an offender was found to have committed an offence intentionally, recklessly, or inadvertently. That somewhat addresses the concern about a farmer doing something in total innocence that has an impact.

I guess what I'm trying to say is that within the act there seems to be a very broad scope, and that it's intended to be so for offences. And not just dealing with individuals, but with the actions of corporations, there are some internal sensing considerations that a court would use very much for dealing with situations, perhaps to impose no sentence.

Generally, environmental legislation has broad powers because it covers such an ambit of situations. Without commenting directly, comparing this to other federal environmental legislation, this is not untypical, because of the breadth of circumstances it's intended to address.

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

I had Mr. Reed as the next questioner, but I'll go to Madame Scherrer, and then Madame Redman.

[Translation]

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

I feel that all this legalese is greek to me this morning. I have a little trouble making sense of all this.

I'd like to come back to a point Mr. Gibson noted today while identifying two weaknesses concerning a number of sections, including sections 32, 33, 34 and 35, where the identified weakness, in my understanding, was the fact we let the federal government grant itself a discretionary power regarding a number of interventions, namely on so called provincial lands.

On these sections, I was under the impression that the federal government, through this law, gave itself the possibility to intervene where there was no provincial jurisdiction or where the provincial jurisdiction was weak. You still see that as a weakness. Do you think the constitutional law would not recognize provincial jurisdiction? Do you suggest the federal government would implement a law superseding everything, a law that would not recognize provincial powers? Would it not be deemed as an intrusion not to recognize provincial jurisdiction?

[English]

Mr. Dale Gibson: Thank you.

You're right, there were two criticisms, two weaknesses. The first one was that I believed the Parliament of Canada has not used its constitutional powers as widely as it could. That was one.

• 1015

The second point was that in using or attempting to use the criminal law power, it basically put in place a regulatory scheme, rather than a prohibitory scheme, and the constitution requires, when the criminal law power is to be used, that it be fundamentally prohibitory rather than regulatory. So I was saying that if they are going to use the criminal law power, they should use it in a prohibitory manner, which is the way it's intended to be used.

Your question, however, I think ought to be addressed, as to the respective roles of the federal and the provincial regimes. The provinces, in my view, have quite wide jurisdiction to deal with endangered species and other environmental matters. That wide provincial jurisdiction overlaps with federal jurisdiction. As you know, where a federal and a provincial power overlap, if there is a conflict, the federal power takes priority. The strategy I was suggesting was that the government of Canada should be prepared to use its powers as broadly as necessary, but respect the right of the provinces to do what they think should be done. If the provinces are doing a satisfactory job, there will not be a conflict with the federal legislation—indeed, the provinces might be doing a better job than the federal Parliament. I'm not suggesting that the federal Parliament should attempt to prevent or displace provincial action. What I am proposing is that the federal government be prepared to use the fullest extent of its powers to ensure that the provinces have done everything necessary, and then add on those things only the federal Parliament can do.

It is to be hoped that this will not be a competition between the provinces and the government of Canada, but will be a cooperative action. I am not opposing cooperation, as I think that's the way constitutions ought to operate. What I am opposing is the government of Canada's pretending that it does not have powers as broad as it has.

Ms. Hélène Scherrer: Would you like to comment?

Ms. Magdalena Muir: I'd appreciate the opportunity to comment. I have just some brief points, because Professor Gibson has addressed it quite extensively.

First—these observations are on page five of the written material, so I'm referring slightly to that—shared jurisdiction over the environment is the rule rather than the exception. In many cases we're talking about species where there's a clear right to regulate, such as fish, marine species, whether fresh or salt water, migratory birds, which are under an empire treaty, or species that migrate over provincial boundaries or whose habitat is found in several regions. In that case I think there's a real clear need for a federal role. If there is overlap or if the provinces are dealing with it, I think that's where, perhaps, there would be the use of an administrative or equivalency grievance to address those overlaps, or if it's already being accomplished. But for many species that don't necessarily respect what seem to be somewhat arbitrary political boundaries, it sometimes is very necessary to have an overarching approach.

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

Mr. Reed, and Madam Redman.

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

I wonder, Ms. Muir, if you would be prepared to go into some more detail on your view of the mechanics of public participation.

• 1020

Ms. Magdalena Muir: That's a very broad, general question. Could you repeat your question and perhaps clarify it? You were asking me about public participation?

Mr. Julian Reed: There is legislation in place now in some provinces I'm familiar with that encourages public participation, to the point where there's one act that says any person can, for instance, intervene or stop a project. I have some personal experience with a colleague who went through this process. The outcome was that after six months of delay, the proponent of the project was saddled with an interest bill of $50,000, and the objections voiced by two individual citizens, who could do this under the law, were found to be specious and simply an emotional reaction to a particular project. This is public participation, in my view, gone bad and not well thought out, when an individual can do this without taking on any personal liability for a specious position.

Ms. Magdalena Muir: I don't think it's important for the fact situation, but you're referring to an administrative proceeding, a formal hearing where somebody objected?

Mr. Julian Reed: No.

Ms. Magdalena Muir: Maybe what I'll do is actually give you a bit of my sense of where we think the public participation should be, then you can target specific aspects of it.

Mr. Julian Reed: Sure.

Ms. Magdalena Muir: I think you're talking about a potentially narrow fact situation, and our comments on public participation tend to be quite broad—not that I'm unwilling to address your specific concern. In a range of environmental legislation—and that's probably been a development in the last 10 to 20 years—there's a much broader role for the public. That's been something in different legislation we supported. They would be things such as public access to information as to the nature of a species, the nature of an issue; participation, or ability to comment in some way in any decision-making process, which here might be the listing of a species, an agreement made to protect it; some degree of accounting mechanism; in other legislation some degree of private action, if the federal government is not enforcing its own legislation. So public participation has a very broad range. That's typically what we have supported.

Then in our specific comments, found on pages 15 to 17, we just tried to identify areas where there seemed to be some issues or problems. It seemed that the act itself, as it's currently proposed, doesn't really give sufficient public consultation, participation, and remedies, if one looks at it in a broad way. For example, you've removed the ability to have a protection action, which was an independent civil suit, to compel the minister to act. Though it had its own internal limitations, it at least allowed the public to initiate an action in that regard.

With respect to delegation, if you delegate a federal responsibility to another party, whether it's a provincial party or an administrative board, where is going to be the transfer of some of these obligations, the reporting obligations, or the participation? Where is the ability to comment on what often are very private arrangements?

• 1025

There were comments dealing with the listing itself and the nature of participation in the whole role of the committee. There were comments dealing with public participation in the recovery plans or the compensation arrangements. So public participation under this act, at least as we addressed it, is quite broad, very much dealing with participation in a number of aspects, adequate information, information being provided on any agreements, some degree of ability to consult on them.

Mr. Julian Reed: Ms. Muir, you have zeroed in on the area, and it's this area of private action. Should a person precipitating a private action assume a liability?

Ms. Magdalena Muir: We should consider what the private action is for. Let's talk theoretically.

If we take the Fisheries Act, I can launch a private action to try to compel the government to enforce the law. There is a prohibition on depositing deleterious substances into water frequented by fish. Let's say the department responsible for that act chooses not to enforce it, either Fisheries and Oceans Canada or, if it's been delegated to a provincial government, the provincial government. Under that piece of legislation you have the right, as a private citizen, to say that the federal government has a law whereby they've a mandatory requirement to do this, and they're not complying, so I think I'm going to launch a private complaint to, in essence, get the party responsible for enforcing the legislation to do what the law says they should do. In a situation where somebody is trying to enforce an actual law that should have been enforced anyway, why should there be liability?

Mr. Julian Reed: I'm suggesting to you that some public responses are emotional and not based on fact, but they do tend to inhibit a proponent of a project. The person may have, in their mind, a very good reason for involving themselves in a situation. Should that turn out to be specious, should that turn out to be simply an emotional argument, does the citizen have any responsibility?

Ms. Magdalena Muir: The point I was trying to make is that it's such a continuum, depending on the situation. If I'm in a regulatory proceeding where I'm trying to get an approval for, let's say, an energy project and somebody is sponsored by a competitor to go in there and raise environmental concerns, when they're trying to delay to give that person a commercial disadvantage, perhaps there should be a penalty. If I have an action where I feel there has been a breach or a non-enforcement of a federal law that is mandatory for a government department, and the government chooses, in its wisdom, to give me a right under legislation to try to launch a complaint, or at least compel an investigation of those circumstances, I don't think there should be a penalty. I guess my response is that it depends on the fact scenario.

The Vice-Chair (Karen Kraft Sloan): Thank you very much, Madam Muir. There are situations, I think, when the government is acting perhaps on the basis of politics and not the basis of fact.

Madam Redman.

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

The approach to habitat protection under Bill C-5 is to offer a carrot through stewardship and incentives, and voluntary participation clearly is not something you can legislate. Conditions may vary with the local context. In addition, the identification of the habitat will be crucial to the survival and the recovery of the listed species. Bill C-5 aims at creating a climate of both trust and cooperation among the parties, not one that will only use sticks, because what we really want to avoid is the shoot, shovel, and shut up syndrome, which I'm sure you're aware of. Would you not agree that to create that kind of climate, to have effective recovery on the ground, there has to be the invitation to be voluntarily involved in this?

Ms. Magdalena Muir: I think we're now talking very much about the issues of intergovernmental cooperation, and even cooperation with affected private parties. Would it be correct to say you're talking about interaction between levels of government, but also with private individuals?

Ms. Karen Redman: Clearly, yes.

• 1030

Ms. Magdalena Muir: That was part of the reason I read the comment that we've always supported cooperation between federal, provincial, and territorial governments and agencies, between government and private parties, provided that cooperation does not result in the removal of environmental protection or non-enforcement of environmental laws.

While we would very generally agree that a voluntary approach is preferable, that cooperation is very desirable, sometimes cooperation works best in a framework of some absolute requirements. The concern we have with the exercise of discretion is that even the protection is discretionary, perhaps given that there will be perhaps either some costs, some difficulties, or some different perspectives in the absence of some. Without at least mandatory requirements to consider protecting a species or its habitat, it may not occur.

We would say it's better to have a mandatory framework, and, within that mandatory framework, parties cooperate. In essence, that's really how our federal system works. It's through administrative agreements, equivalency agreements.

Mrs. Karen Redman: Speaking of provision, I actually had a question for Mr. Gibson, but he had to leave before I could ask it. He did a pretty thorough job of actually describing what the safety net provision is, that being that the federal government acts when a provincial government is either unwilling or unable to act. I would tell you there are different levels, there is a three-pronged approach, but it's predicated on inviting voluntary participation, both by the individuals and in acknowledging the roles of territorial and provincial governments.

Ms. Magdalena Muir: And that discretion actually is quite broad, because it extends beyond provincial lands to even incidents on federal lands. I would think that if we have an act that is supposed to protect both species and habitat, it should do that. It should not be a choice made, at the very first step, as to whether or not to do that. If you build discretion into the safety net approach, it would seem it's preferable to have a situation in which it's required that you protect an endangered species and its habitat, and that you then have exceptions versus basically having to involve the discretion even to do the initial protection.

I guess we're suggesting that it would be preferable to have a reverse approach in the legislation.

Mrs. Karen Redman: Just to be clear, you don't have a problem with the fact that there could or would be exceptions.

Ms. Magdalena Muir: Well, let's explore some of the possible clauses. Let's say that in an affected area a group of parties has agreed on a method or an agreement that's going to protect the species and the habitat. Surely that should be an exception, a situation in which there's not going to be an imposed method, if there has been a voluntary agreement between a range of parties or if the province is adequately protecting a species or its habitat.

Mrs. Karen Redman: Clause 126 talks about some of the public accountability and transparency that Bill C-5 has, and it talks about the minister annually reporting, as well as COSEWIC assessments and recovery plans, as well as convening a round table. I wonder if you would to comment on the inclusion of these things in this bill.

Ms. Magdalena Muir: I'm actually looking at clause 126. Could you refer me to the specific paragraphs, just so I make sure I have this completely?

Mrs. Karen Redman: I was just making a sweeping reference to the fact that there is an annual report that includes paragraph (a), which talks about COSEWIC's assessment, as well as the minister's response.

Ms. Magdalena Muir: I would say the breadth of reporting in clause 126 is good. As I understand it, there's been, in essence, an improvement on some of the previous reporting. More things are covered.

I would just make the general comment that you're not asking any specifics, and that the conveyance of information to parties is almost the best way to allay concerns. By virtue of preparing an annual report, and by expanding the breadth of such reports and the requirements, the government is being actually very proactive in trying to allay parties' concerns that this at least is being addressed and people know what is occurring. It should be very strongly supported.

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

We've just completed the first round, and the chair would like to ask a couple of questions.

The concern that many of us have around the issue of discretion is that it's often not exercised, particularly when we look at instances of environmental legislation or legislation related to environmental concerns, when it allows the federal government to act if the provinces don't act. On a discretionary basis, that has not been exercised. That's one point.

• 1035

The second point is that discretion operates in both directions. The federal government can indeed act in many different regards when it hasn't acted in the past, so people really don't know what the playing field is going to be all about, what the rules are going to be all about. So I appreciate the comments you have been making with regard to voluntary compliance, as well as about having a carrot and a stick. Monte Hummel, from the World Wildlife Fund, suggested to us that we have a spongy stick, but indeed that there is a stick somewhere.

The other thing I was wondering about is that you seem to have a great deal of knowledge and experience with environmental law. I'm wondering if you know of any documentation that clearly identifies, discusses, describes—what have you—the “shoot, shovel, and shut up” syndrome.

Ms. Magdalena Muir: I'm sorry...? “Shoot, shovel, and shut up”?

The Vice-Chair (Mrs. Karen Kraft Sloan): We've heard many witnesses and individuals around this table refer to “shoot, shovel, and shut up”. Essentially, as I understand it, if you have an endangered species on your land and you happen to shoot it, you shovel it under really quickly, and you don't talk about it. In other situations, it has been identified with people wanting to sell their land. They don't want to have to be concerned with endangered species, so they shoot them or they kill them, if it's a plant, for example. I don't quite know how you're going to shoot a plant, but you can pull it out and bury it. Or you shoot your burrowing owl and you flip it over your neighbour's fence, or something like that. So there's this idea that because legislation might be too restrict or too much of an imposition, there's going to be a lot more destruction and killing of endangered species just to get them out of the way.

Ms. Magdalena Muir: I can tell you I've heard that phrase, but it has usually been referred to with respect to the U.S. endangered species legislation, so I'm assuming they're incorporating some of the concerns. I guess it's an interesting question. Do you not protect a species or a habitat because of concerns that if you try to protect it, people will disobey the law and kill the species?

It strikes me, first of all, as a somewhat extreme approach. It almost basically honours civil or criminal disobedience. I do take the point, though, that once you have discretion, discretion needs to be appropriately and consistently applied. Otherwise, it becomes very draconian and unpredictable. Discretion has problems. It may not be exercised, particularly if you start delegating, because then there's not even a necessary consistency of action. It may become unpredictable.

When something's high-profile, what would have earned you no reprimand one day might bring the full weight of the law against you the next. I think that's the aspect where discretion becomes very problematic. That's something you see very much sometimes, say, with provincial environmental laws. If something's high-profile, there might more likely be a charge laid, versus when it's not high-profile. That's partly the primary reason why we argued for the removal of discretion and the creation of more objective scientific standards, and somewhat even for the incorporation of voluntary compliance or agreements within there.

I guess this is a more personal thought, but I wonder how much “shoot, shovel, and shut up” is more like the far end of the continuum, and not the likely thing. For example, if you take someone such as a rancher or a farmer, many of those people are very attached to their land. While some may be in breach, I think you'll find examples of some who are the most ardent conservationists, provided you have a framework that's fair in its implementation. Provided there's perhaps some degree of compensation or perhaps some degree of some sort of financial benefit or tax credit, parties often are willing to work quite cooperatively.

The Vice-Chair (Mrs. Karen Kraft Sloan): Yes, and certainly that has been evidence documented before the committee. It's just that we have been hearing a lot about “shoot, shovel and shut up”. Certainly, when I was a member of the committee on the former bill, Bill C-65, in 1997, we heard a little bit about this phenomenon as well, but I'm always looking for documented evidence of this.

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I'm wondering if you're familiar with the SARWG. It's a cross-sectoral group of industry and environmentalists who have come together to work through consensus. Quite frankly, it's a very unusual group of individuals who have come together on environmental legislation. They made a very good presentation before our committee a few weeks ago. Are you familiar with this group?

Ms. Magdalena Muir: I'm familiar with the general framework of the group, and I understand they were working cooperatively. I also understand they've come forward and have made some suggestions that are more extensive than the provisions currently before us in the bill, and which might go further, one could argue, toward protecting the species and their habitat. But I do not have their actual submission before me.

I would also suggest, though, that as you see environmental law evolving, I think such a consensus approach is starting to become more common. You see industry, environmental concerns, and public interests cooperating. Despite some of the environmental issues related to the energy sector, there are a lot of cooperative approaches on different issues. I just raise that this seems to be the trend for the future. It's a good trend, but it is a trend for the future.

If we look at something even like the Canadian Environmental Assessment Act, we had a regulatory advisory committee that was formed of industry, government, government departments, and also environmental groups. I guess I'm just raising the comment that it seems to be more common than not.

If you have a particular comment that they made, I'd be willing to speak about it, but I don't have their submission before me and I haven't read it in detail.

The Vice-Chair (Mrs. Karen Kraft Sloan): I was curious about the alternative dispute resolution proposal that they had created as a result of their discussions, so if you are able to comment now, we would certainly appreciate hearing some brief comments. Otherwise, if it were possible—and I know people's lives are extremely busy, with their careers, etc.—if you're not able to comment now, would you like to supply the committee with some brief comments on that alternative dispute resolution? We'd be happy to receive those.

Ms. Magdalena Muir: Could you perhaps just briefly outline the alternative dispute resolution?

The Vice-Chair (Mrs. Karen Kraft Sloan): I have to apologize. I don't have it with me here. That's why I thought if you knew anything about it....

Ms. Magdalena Muir: We'd be more than willing to look at it and to comment on it. I can't tell you at this point in time what the extensiveness of the comments would be, but it would be certainly a matter of interest.

I should mention that we have, in other matters, made comments on other legislation on voluntary compliance and approaches, so we wouldn't necessarily be foreign to it.

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

Mr. Comartin, for a second round.

Mr. Joe Comartin: Thank you, Madam Chair.

Just as a follow-up, if you are making comments on ADR, could you also make some specific comments on how a compensation system would work? That has come up, and there has been a fair amount of discussion about it—and I'm not really asking for that now, but just in whatever written response you give us.

Ms. Magdalena Muir: I guess my comment on that is that it's a lot easier to comment if there's a target. Have you had any proposals for compensation that you as a committee are considering in your recommendations?

Mr. Joe Comartin: There's the Pearse report, which is an extensive report.

Ms. Magdalena Muir: I have reviewed the Pearse report, but it still talks more about general principles. Do you have a specific framework that you're considering?

Mr. Joe Comartin: No, we're still wording...the government proposal is to be under regulations, but we don't have the regulations yet.

Ms. Magdalena Muir: We'll certainly consider it, but I have to give you my feedback that, given that there is no particular specific compensation regime, it'll be difficult for us to give much in detail.

Mr. Joe Comartin: I guess what we may be looking for is something from...we've heard that in some of the other environmental legislation, there are some provisions on some of those across the country. If you have any perspective on how that has worked, specifically around the methodology....

Ms. Magdalena Muir: We can certainly turn our minds to it, but this is an unusual comparison. Just keep that in mind. That's why I addressed the detailed comments on the Surface Rights Act. To my mind, that is not really a direct comparison to the situation we have here.

Mr. Joe Comartin: The question I had is a bit of a follow-up to Mr. Reed's. On the whole issue in terms of public participation, you didn't make any comments in your brief about citizen suits. That is, the right of citizens to formally bring action against either an individual corporation or government for enforcement of the legislation. Has the association taken a position on that?

Ms. Magdalena Muir: Actually, we did make a comment. If you don't mind just looking at page 15 of the written brief, we refer to something that had been in the legislation previously but which has been removed, and that was the endangered species protection actions. If you don't mind, I have our historic briefs, so I'm just going to see what our initial comment had been on that under Bill C-65, if I may, just in case we had some detailed provisions on it.

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I have only the odd pages of our previous brief, and not the even, in which clause 60 was addressed. So it was in our previous brief. I'm just going to refer to that, if I may. I don't know the adequacy of this given the omission, but in the brief we made in December 1996 for Bill C-65, on page 10, we referred to the protection actions, but unfortunately, I cannot quote that to you, as I only have page 11 and page 9.

Mr. Joe Comartin: I don't have a copy of this brief. I wasn't around at that time, so could you provide us with that?

The Vice-Chair (Mrs. Karen Kraft Sloan): Yes, that would be very helpful. As I recall, the citizen suits had a number of conditions attached to them, which made them very difficult, but still they were in the bill, and this certainly is a concern, to see some of those items removed in this piece of legislation. I noted with interest your comments on public participation, because we have been told by officials that there is a very high level of public participation through the entire process.

Mr. Comartin, do you have a very short follow-up?

Mr. Joe Comartin: No, I'm fine, Madam Chair, thank you.

Ms. Magdalena Muir: We could add to what was said in the previous brief. It might not be that extensive, but perhaps we could put some limited comments on citizen suits in our response.

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

Ms. Magdalena Muir: I say limited.

The Vice-Chair (Mrs. Karen Kraft Sloan): That's okay. We really appreciate all the work you've done so far.

Mr. Reed.

Mr. Julian Reed: Thank you, Madam Chair.

The COSEWIC list includes species that are considered endangered in Canada, but not in the United States. The life doesn't know the political border. Therefore, is that not in itself a valid case for discretion?

Ms. Magdalena Muir: Is the scenario we're discussing the one where a species is protected in Canada, but not in the United States? Is it a species that is endangered according to an objective scientific standard?

Mr. Julian Reed: We got some evidence—I think it was yesterday—about a species of bird that only rarely appears in Canada. It's on the endangered list in Canada, but it's not endangered at all, unless you recognize the political boundary. It seems to me that in itself is one of the strongest cases for discretion, rather than changing “may” to “shall” in the act.

Ms. Magdalena Muir: Okay. You're raising a scenario where a species is only occasionally in Canada, but in its common range may not be endangered.

First, we'd like to comment on that whole list. I think it's important that the list be incorporated into the act. One could have a time process to look at these factual issues, as to whether or not that species should truly be on the list. It may be, given the number of species, there are one or two or a few that are inappropriate, but this process has been going on for a number of years. My understanding is that it represents some degree of scientific consensus, that there is some validity to how the list was, at least initially, assembled, and that it's been in process for a while. I think to have an act without any species attached to it is just to create an empty framework. If there is a valid scientific reason behind most of those listed species and one accepts that the process of creating it has been valid up to now, then arguably they should be adopted in the act, with perhaps some period, maybe six months or a year, where you could question and, if necessary, have them removed. But the onus should be that they be incorporated.

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There are other issues. If you've described a scenario of an uncommon bird that just occasionally has this range, that's probably a case where it should be removed. If we have a species that for political reasons is not protected in another country, but is truly endangered, then despite the fact that we can't necessarily encourage our neighbour to protect it, I think there's a valid reason for us to protect the species and habitat.

One thing that's interesting to consider, though, if we look at discretion, is the comparison showing that both the U.S. and Mexico have more extensive protection of endangered species than we do, and by virtue of our discretion, we're not moving in their direction, we're moving away. So the complaint may be more from the U.S., that we're not protecting our species to the level they do.

Mr. Julian Reed: Do I have time to relate a little anecdote here?

In the Mississippi River in Ontario a find was made of three specimens of a fish called a river redhorse. This rare species precipitated the cancellation of a power project on the Mississippi River. On investigation it was found that the river redhorse is a very common species of sucker. They're prevalent all over North America. This happens to be one of its more northerly habitats. I am suggesting that if there's no discretion, that kind of mandatory application could be imposed on absolutely anything.

Ms. Magdalena Muir: The current act says that the federal cabinet itself decides which species are listed. It doesn't say it's based on objective scientific determination. So in essence, the discretion and the politicization is for every listing of the species. Surely the concern you are speaking about could be addressed by actually having a process whereby you objectively determine a species' being listed, allowing then a government process, on an exception basis or for exceptional circumstances such as you've described, to remove it, saying that maybe it's not within Canada, but has an extensive range elsewhere.

If you allow it to be a political decision to list species, you may have a whole range of species that aren't listed, because perhaps there's some forestry that might affect this bird, perhaps it's going to be conflicting potentially with mining, particularly with oil and gas, with agriculture. So you get to such a gamut that instead of saying these species need protection, their habitat need protection, it's more whether we can afford, in the balancing act, to list them. Where do you do the balancing, where is it applied, and how broadly is it applied?

Mr. Julian Reed: I have an opinion on that, but that's....

Ms. Magdalena Muir: I'm just saying that rhetorically.

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

It was my understanding, when the members of COSEWIC were here, and when we had Dr. Scudder here as well, when we had this discussion about species coming into Canada that may be considered endangered here, but not in the United States, because their population is abundant, one of the reasons for that might be that they're geographically distinct.

Ms. Magdalena Muir: It might be a separate population, even though it's a common species.

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

I think your point is a valid one, Mr. Reed, but we'll have to check the notes about that, because as I understand it, with the review of the lists they've been very careful to go through these things and to understand that if a species occasionally comes into Canada and therefore the numbers are small, if it is only occasional, it's not really considered to be at risk. However, if it's a special population that over time has become geographically separated, then it is a different matter. It's almost like a subspecies, I suppose, but it's geographically distinct.

The other issue that was raised yesterday I think is an important one for this committee to consider—and certainly when we are in the international arena it comes up over and over again—that Canada is a wonderful country, filled with the world's natural resources. It's one of the few places on earth where we have a lot of important natural resources, because it's such a vast country. The problem is, of course, like any developed nation, we are encroaching on nature and on species' habitat, putting these creatures at risk.

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The important thing for us to remember, as explained yesterday, is that species on the edge of their habitat are important to the species in general, because they've had to exist at the margin. They are more flexible in adapting and therefore more important to the survival of the species than softer ones that live at the core of their habitat where things are a little more abundant and easier. So when we look at species in Canada that are at risk, especially when we're considering cross-border species, in many instances these species are really important to the overall survival of species as well.

Ms. Magdalena Muir: It's interesting. I'll make a couple of quick observations.

First of all, it really brings to the fore the difference between scientists and lawyers, or even policy, in terms of how you define a species and an ecosystem, and the need to almost separate the distinction. But when you mention certain populations, for example, if we look at Beluga whales, a species with which I've become intimately familiar, there's a population in the western Arctic that shares between Canada, the U.S., and Russia, and is very abundant; it brings in a lot of international issues. There's another population in Hudson Bay, which is not threatened at all, especially around Manitoba, and then there are some in the eastern Arctic that may be a bit more questionable. So each population often has a different genetic fingerprint and actually might have totally different circumstances surrounding it.

The Vice-Chair (Mrs. Karen Kraft Sloan): I think this goes back to the point that was made earlier, and certainly it's unfortunate that Mr. Herron wasn't there for the discussion, the idea that the law—or not necessarily the law but the enforcement—can be applied differently in different parts of the country. Certainly this is a question that he often brings up about a hierarchy.

Ms. Magdalena Muir: That's within the country, but I think the other thing to think about is that, because of their importance, a number of species such as polar bears, or certain whale species, or the Porcupine caribou herd are already managed on an international level, often involving first nations and several levels of government within Canada, and also governments between Canada and the United States.

The Vice-Chair (Mrs. Karen Kraft Sloan): All right. Are there any other questions of our witness?

Thank you very much. This has been a very useful session today. Not being a lawyer, I'm getting into some muddy water for my staff. I'm not sure if other colleagues will agree with that, but I really appreciate the fact that you've been able to clarify this for us. You and Mr. Gibson have brought up some very important points.

Is there anything you want to sum up with here?

Ms. Magdalena Muir: This is more just a question procedurally. We've been asked to comment on a few matters, and I would like to have a sense of the timeframe of the committee on perhaps two different bases: when they would like it, and when they would need it.

The Vice-Chair (Mrs. Karen Kraft Sloan): I would think it would be within the next two weeks or three weeks. I recognize the fact that you have a very busy schedule and it takes a while to prepare these things. So if you could get that to us.... We have to get it translated, as well. If you can have a discussion with the clerk afterwards, he will help you with some of the more—

Ms. Magdalena Muir: That will be satisfactory. I think a timeframe of two to three weeks is workable. We do have translation services internally within the CBA, as well.

The Vice-Chair (Mrs. Karen Kraft Sloan): You can send it here in whatever official language you would like, as long as it's in one of the official languages.

Ms. Magdalena Muir: Given we're lawyers and we like it to be equally binding in English and French, we'd like to do it ourselves.

The Vice-Chair (Mrs. Karen Kraft Sloan): That's perfectly okay.

Again, thank you very much.

Mr. Comartin.

Mr. Joe Comartin: The issue is Ms. Carroll's motion. We haven't shown in the record of the committee that we have received a letter from the minister.

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

Mr. Joe Comartin: In addition to that—and I assume that it is now part of the record of this committee—I understand from information received from one of the participants that the three recovery projects that were under way have in fact continued in spite of the decision by that one administrator in the Maritimes, that in fact the committee continues to function in some fashion. I think in each of the three cases the species were birds. The work has in fact continued in the recovery process for those, and I thought that should show in the record of this committee.

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

With that, the committee is adjourned, and I thank everyone for their participation and patience today.