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, May 3, 2001

• 0911

[Translation]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good morning, ladies and gentlemen. As you know, we are examining Bill C-5, an Act Respecting the Protection of Wildlife Species at Risk in Canada.

Today, we will be hearing from four groups of witnesses specializing in the area of the law and environmental law. We will begin by hearing from Ms. Keenan, Mr. Attridge, Mr. Girard or Ms. Powell.

[English]

Who would like to go first?

Ms. Karen Keenan (Articling Law Student, Canadian Environmental Law Association): My name is Karen Keenan. I'm the articling student at the Canadian Environmental Law Association.

The Canadian Environmental Law Association, CELA, is an Ontario legal aid clinic, so we're part of the legal aid system in Ontario. We're a specialty clinic and we focus exclusively on environmental law and environmental issues. We provide legal representation to people who have environmental problems and who wouldn't otherwise be able to access legal representation. We also do a lot of law-reform work.

I have made my submission and forwarded it to you. I believe you have it. In that submission there are 41 specific recommendations that CELA would like to put forward.

I'll focus my comments on four areas: citizen suits or private prosecutions; the issue of compensation; the process for listing species; and the general application of the bill with respect to the species and the habitat that are protected.

To begin with, on the issue of citizen suits or the right to private prosecutions for violations of the provisions of the bill, although I understand previous versions of the bill included such a right, Bill C-5 does not. CELA would like to submit that the bill needs to be amended to include such a right.

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We see the ability for citizens to bring private prosecutions as a valuable enforcement tool that provides several functions. It provides an incentive for compliance. It also obviously allows for prosecution for non-compliance. And the ability for citizens to bring private prosecutions also acts as a mechanism for encouraging government accountability for its enforcement obligations.

If such a right were included in Bill C-5, it wouldn't be the first time such a provision was included in environmental or resource extraction legislation. Such a right already exists in federal and provincial statutes, including the federal Fisheries Act, Ontario's Environmental Bill of Rights Act, Quebec's environment quality act, and the Yukon and Northwest Territories environmental rights statutes, among others. Those are just a few examples.

So that would be my first proposition, that such a right should be included in the bill.

Moving to the issue of compensation, clause 64 of the bill provides that the minister may provide compensation for losses suffered as a result of the application of a number of different provisions of Bill C-5. CELA has a concern with this section because of its ambiguity and because of the potentially very broad application of this provision. We would like to see it amended to limit its application and to apply exclusively to expropriations. We'd like to see there be an opportunity for compensation, but specifically in a case of expropriations.

Speaking to the process by which species are listed to the list of wildlife species at risk, this is governed under Bill C-5 by subclause 27(1), which gives the Governor in Council the discretion to list a species, and again, CELA would like to see amendments here so that this process is changed from a political process to a scientific one. We'd like to see the listing of a species be based on objective, scientific criteria, not on political criteria. Such an amendment would require the Governor in Council to list a species on the list of wildlife species at risk when COSEWIC makes such a recommendation based on their scientific criteria and their scientific expertise.

We would also like to see an amendment such that when the bill comes into force and effect, the current COSEWIC list is the default list that we start with as the list of wildlife species at risk. We're concerned there may be a process by which that list is revisited or that species currently on that list are reconsidered one by one or on a piecemeal basis. We'd like to see that list in its entirety appended to the act as the starting or default list of wildlife species at risk.

Finally, speaking to the issue of the application of the act in terms of the species and habitats that are protected, I've left this point to last but it's certainly not of minor importance. In fact, I would say and I have said in our submission that for CELA this is the greatest weakness of the bill—the limited application.

Clauses 34 and 35 restrict the application of clauses 32 and 33. Clause 32 concerns which species are protected, and clause 33, of course, is concerned with the protection of their residences. Those provisions are limited by clauses 34 and 35 to aquatic species, migratory birds that are protected under the Migratory Birds Convention Act, and species on federal lands.

Similarly, clauses 58 and 60, which protect critical habitats, are restricted to federal areas. They're also restricted to those areas that are designation by order, and that's discretionary. We would like to see these provisions amended so that all endangered species, all residences, and all critical habitats are protected regardless of where they're found. We've set out how we would do that in our submission, basically, through the deletion of clauses 34 and 35, or alternatively, through changes to the wording so they explicitly protect all species and all critical habitats.

In the alternative, we would like to see clauses 32, 33, 58, and 60 apply to all species as a default, and should provinces and territories be able to demonstrate that their endangered species legislation is as protective or more protective than the federal bill, the federal bill would then not be in effect over those provinces—they could apply for some kind of retraction of the federal law. The default would be that failing a province demonstrating that their law was as protective or more protective, the federal law would protect species in provincial areas. Again, we would prefer as a first position that clauses 32 and 33 apply to all species and all critical habitat.

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Those are my comments. Thank you.

The Chair: Thank you very much.

Who would like to be next?

Mr. Ian C. Attridge (Research Associate, Canadian Institute for Environmental Law and Policy): Good morning. My name is Ian Attridge. I'm here representing the Canadian Institute for Environmental Law and Policy, the short form for which is CIELAP.

I want to thank the committee for the invitation to come and make a presentation to you today. This is a very important bill, and it is of significant interest to CIELAP as an environmental law research institute.

I'll just give a brief outline of the type of comments I'll make today—and I certainly welcome questions and an opportunity to elaborate as necessary. I'll describe CIELAP just to start off with, make some general comments, talk about the national accord for the protection of species at risk and our work in that regard, and then speak to the scope of stewardship as it's reflected in Bill C-5.

First of all, I'm a lawyer in the province of Ontario with extensive experience in land and wildlife conservation. I'm a former legal analyst with the Ontario Ministry of Natural Resources, which has responsibility for wildlife and land matters in the province of Ontario.

I do a lot of work with landowners on stewardship activities, working with landowners in the stewardship community in order to encourage voluntary activities to conserve land and wildlife.

Today I appear as a research associate of CIELAP. We're a non-profit environmental organization focusing on research. We're based in Toronto, and I'm based in Peterborough, Ontario; we conduct research at the provincial, national, and international levels.

We've had a longstanding role in the implementation of the Convention on Biological Diversity and its protocols through our comments on the Canadian biodiversity strategy. I was the editor and main author of a text on Canadian biodiversity law and policy in 1996, and we were involved in preparing a report on the capacity of all jurisdictions across Canada to implement the national accord for the protection of species at risk. We're also doing national and international work on genetic resources and diversity.

I'd like to make a couple of general points to start off the presentation on the bill itself. I have prepared a detailed submission, which I've provided to the clerk today, and I believe that you now have before you some summary comments and recommendations dealing with our 27 specific recommendations to your committee.

The first point I'd like to make at a general level is that the protections for species and habitat rely much too much on the minister's and cabinet's discretion. These are found, particularly for species and habitat, in clauses 27 and 58. We believe that the most effective approach for protecting species and the critical aspect of their survival, their habitat, is through mandatory protections.

We also believe that there are other ways of coming at this issue, and at a conceptual level these might be of interest to your committee. Some of these approaches involve retaining some discretion, but they do so within limits and suggest the expected results from that process and that exercise of discretion. One example is the reverse onus, where there will be protections extended but where the Governor in Council may by order make exceptions and publish the rationale for that on the registry, as proposed under the act. That would ensure that protections would occur, but particular exceptions could be made by cabinet if necessary.

The second approach that might be adopted is to set a timeline, to say that within 60 days, three months, or two years the discretion may be exercised, after which there may be a particular result or a mandatory provision that comes into effect.

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The third approach is to set guidelines or decision factors to consider for the results you want to avoid, such as harming species or destroying their habitat.

These are the kinds of decision factors that can frame the scope of this discretion as to where it may be exercised.

The second point is, as my colleague Ms. Keenan had mentioned, that COSEWIC's list of species at risk should become law at the outset. It should be rolled over from its current status into the act, and that's very important.

The third point is that critical habitat protection is essential and must be mandatory. It is really the core, the key to the success of this bill. It includes all federal lands and waters. Aquatic species—there's certainly clear federal jurisdiction there—migratory birds, and cross-border species come under federal jurisdiction and should therefore be included. There's certainly... and I understand that you've had testimony, authoritative legal and constitutional opinions, regarding such authority for that power with regard to habitat.

Finally, there's a need for a strong federal safety net based on an equivalency test, such as in the Canadian Environmental Protection Act. It could be based on the national accord and the agreed standards. In fact, there are a number of interpretation documents already in place for the national accord. These could be elaborated on further to establish that equivalency test. Where there's been a discretionary safety net in other legislation, it's almost never been used.

The second major point I'd like to make is about a discussion on the national accord itself. This accord was agreed to in 1996 by all jurisdictions. It really is the framework for species at risk and conservation in Canada. Among other provisions it deals with listings, species and habitat protections, environmental assessments, stewardship, and enforcement.

In my opinion the accord is generally quite good, and it has certainly made some political mileage. On the ground it has in fact led to some legislative changes across the country at the provincial level. It certainly has been one of the markers the federal government has been looking at to meet its own diverse commitments under the Convention on Biological Diversity and the national accord.

CIELAP reviewed all jurisdictions' reported capacities to implement the accord. This was essentially done during the years 1998 and 1999. This exercise essentially consisted of looking at the capacities of the jurisdictions to implement the accord, not their actual implementation. There is still a thorough assessment that needs to be done, and this was one of the recommendations in our report made in 1999.

One of the major means at the federal level to deliver on its commitments under the accord is through the Species at Risk Act. In the past we've had different bills and different understandings of what new bills would include, and that made it difficult to make a proper assessment during the preparation of our report.

In the 1999 assessment we did, we found that there was a need for more integration of the Department of Fisheries and Oceans. There was also a need to reflect the national accord in Parks Canada's mandate and also in the National Parks Act. Of course that act has recently been amended and updated, and there may be some further work necessary there to meet the accord provisions.

We find that the Canadian Environmental Assessment Act is weak in its provisions for assessing impacts on endangered species, and the Species at Risk Act must be listed on the CEAA law list.

I think others will have more to speak to on environmental assessment. There certainly is a need to speak in this act to other aspects of the national accord, aspects dealing with preventative measures, sustainability principles, and stewardship. The provisions need to be clear and explicit and must reflect the principles of the national accord in the Species at Risk Act—that is, in the bill before you.

There's also reference to a national stewardship action plan. I believe there's value in making reference to that plan and to the need to move that forward, not only to develop the plan but also to implement it.

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Since our assessment in 1999, there have been a number of other points that have come up. COSEWIC's role needs to be specified as independent and free of political and socio-economic considerations. This was one of the interpretation pieces, along with the accord, that is not explicitly included in the act at this point—and you'll see that in one of my recommendations.

The legal designation of “species” would be found inadequate under the accord if the existing COSEWIC list is not rolled over into the act. We feel that would be starting from square one again. We already have an existing list for which the review has almost been completed again, certainly in time for the enactment of this bill.

The discretionary species and habitat protections may lead to only partial protections, and there would therefore be inadequate federal implementation of the accord. That leads to our suggestion to make those mandatory.

Emergency order powers to protect habitat need to be included in the bill.

There are no international agreement powers in this bill. Interjurisdictional cooperation is one of the principles found in the national accord. Certainly interprovincial agreements or agreements with the provincial and territorial governments are contemplated, but international agreements are not. Obviously, other departments would need to be involved in those arrangements, but there are existing arrangements with jurisdictions such as the United States, on a more administrative level, on how to protect species at risk and other wildlife species.

In the Species at Risk Act, there is an increase in and a recognition of the need for broad enforcement capabilities, and also reporting on the enforcement capabilities. I think that's a reflection of some of the work that we've done in respect of the accord. Certainly, this whole concept of whether it's mandatory or discretionary is a critical aspect in the bill.

The final area I'd like to address today is the concept of stewardship—or as first nations people prefer to call it, perhaps, voluntary activities or responsibility. Stewardship has some negative connotations for some first nations, and that should be recognized. I certainly wouldn't recommend that you try to define it in the bill. There are about a million definitions of stewardship. Everyone has their own perspective, but I think the general principle is in terms of voluntary activities. Stewardship is recognized in the accord to some extent, and it is key to the government's plan to deliver species-at-risk protection in the country.

The first major point is that we need a full range of tools in this act and on the landscape. We need protected areas: national parks, national wildlife areas, provincial areas. We need regulatory mechanisms. We need voluntary stewardship and economic incentives. Some of these can be placed within the bill, and others can be referenced. We need to contemplate a broad picture, because stewardship cannot conserve all species alone. Stewardship exists within a regulatory context, and it depends upon that context.

One of the landowners I represent in my own private law practice is involved in entering into a conservation easement, a conservation agreement, to protect his land. That depends upon the regulatory authority exercised by the conservation authority upstream to protect the water quality of the stream that flows through his property. He needs to work with his neighbours and with another agency that has a protected area just to the downstream side of him in order to connect this habitat and make it all viable for species at risk and those species that are more abundant.

We need all of these tools, and they work together. A strong regulatory framework provides a background for stewardship activities. Stewardship needs explicit and comprehensive recognition in the act. That's the second main point under stewardship that I'd like to make.

I think what we find in the act are some very good things on the stewardship front. There's recognition of it in the preamble. There are agreement-making powers in clauses 11 to 13. There is recognition of land acquisition opportunities in clause 62, and codes of practice for habitat in clause 57.

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There are some consultation mechanisms. In fact, in some places they may be excessive and may get in the way of actually taking action, but I think the concept of consultation is very important in a stewardship model. These things are good and they are welcome, but there are several things that are missing.

There's no direct authority for competent ministers to have programs for or to encourage citizens in the carrying out of stewardship activities. These are only carried out through agreements in clauses 11 to 13. The scope of activities for stewardship listed in clauses 11 and 12 misses certain key aspects of stewardship—and you'll see that in my recommendations.

There are no granting powers for providing funds, nor a review of financial incentives and disincentives involving the competent ministers and, I would suggest, the Minister of Finance. These are key aspects of supporting stewardship, and they need to be part of the package. That fact needs to be recognized and integrated into this bill.

There need to be explicit roles for the Endangered Species Conservation Council in stewardship and coordination of a national stewardship action plan. Also, references to stewardship and the identification of key aspects of stewardship need to be put into the recovery strategies, action plans, and management plans, and into the powers of courts to grant funds to organizations that are carrying out stewardship activities in local communities. They're the main stewardship providers.

The final point is that there needs to be a stewardship fund put into the act. Compensation is an extraordinary power, and I think you'll hear more about that.

Thank you very much.

The Chair: Thank you, Mr. Attridge.

[Translation]

Mr. Valiquette, please.

Mr. Pierre Valiquette (Volunteer Member, Board of Directors; Treasurer, Centre québécois du droit de l'environnement): Good morning.

I would like to thank the parliamentarians for giving us an opportunity to talk about this bill and also to give you a brief introduction to the CQDE and to present my colleague, Jean- François Girard.

The CQDE is a non-profit association established in 1989 with a mission to promote environmental rights as tools for protecting public health and collective heritage. We are active in three sectors in particular; namely, protection, all aspects of pollution and conservation, which we will be talking about today. We also take action at the international level.

As such, we have been participating in parliamentary committees since 1989. We have submitted about 20 briefs, both in Quebec and here in Ottawa, on various issues.

With respect to voluntary conservation, the CQDE has played a very active role with community organizations throughout Quebec since it was founded. Bearing this expertise in mind, I would like to introduce you to Mr. Jean-François Girard, a biologist and lawyer, who is responsible for the conservation sector of the Centre québécois du droit de l'environnement. Jean-François has just completed his third year with the CQDE. Although he may not have been around for a great deal of time, he has examined just about all of the issues pertinent to Quebec today.

Thank you very much.

The Chair: Mr. Girard, please.

Mr. Jean-François Girard (Lawyer and Biologist, Centre québécois du droit de l'environnement): Thank you.

At the outset, the CQDE would like to underscore the initiative taken by the federal government which, through its legislation on species at risk, is trying to improve the protection afforded to species at risk and to fulfil its international and national obligations.

Like the federal government, the CQDE strongly believes that stewardship must be the cornerstone of a strategy to protect species at risk. We believe so strongly in the success of the conservation stewardship movement that we will be focussing primarily on this area today.

Stewardship, working in tandem with the State, is a good approach to take to protect species at risk as effectively as possible. We would like to point out that under the species at risk legislation, it will be possible to enter into conservation agreements both for those species at risk and those that are not currently in that situation, but may be in future.

However, although we support the approach taken in this bill with respect to stewardship, we do, as the result of the wording used in the bill, have a few questions on the federal government's concept of what stewardship really is.

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Indeed, we can distinguish three different types of stewardship that complement each other: public stewardship, private stewardship and community stewardship. The bill is not clear about what type of stewardship it intends to promote under the future Species at Risk Act.

At the Centre québécois du droit de l'environnement, we focus on private stewardship and community stewardship. These two activities, sometimes grouped together and referred to as "voluntary conservation," are designed to achieve complementarity with State initiatives.

Currently, in Quebec, the legal tools used by both private and community stewardship groups pertain almost exclusively to the Civil Code of Quebec. Usually, these are matters involving the sale or donation of lease and servitude. In summary, stewardship is a series of measures that enable us to achieve conservation objectives. But these measures are by no means simple.

The world of stewardship represents a genuine revolution because of the approach used in conservation. In reality, stewardship occurs when the people who live in an area or benefit from an area take charge of it. In order to really understand what stewardship is about, it is important to know who the leading actors are.

Generally speaking, there are two main leading actors: land owners and conservation groups. Together these people often form an inseparable pair. There is no need to go into great depths as to who private stakeholders and landowners are. We know them.

However, the conservation groups do merit a little more attention from us. These groups are too often underrated. They are, for the most part, non-profit associations that often have charitable status. These groups are formed when local citizens band together to promote a conservation project. These citizens, both young or retired, come from all walks of life and are aware of the value of the natural heritage. Their willingness to get involved at the local or regional level is surprising. In summary, the conservation groups form a distinct movement within our communities, a movement whereby a community takes charge of itself.

Actively involved in their communities, conservation groups have a number of advantages over government action when it comes to conservation. By turning to the community and getting its assistance, these groups encourage the protection of heritage at the local level, maintain the tradition of private ownership, develop awareness and promote the interest of both the State and the local community in managing natural resources and establish direct and close links with the resources or the protected sites. These groups can therefore complement the government in creating and protecting natural or heritage sites.

In our view, the best feature of the Species at Risk Act is the fact that it recognizes the important contribution made by private and community groups in conservation efforts. We therefore strongly support this aspect of the bill.

Although the objectives of conservation groups may vary from one group to the next, the mission is usually the same. The mission is to promote the protection and the use of natural habitats.

It is important to remember two basic aspects of both private and community stewardship. First of all, conservation groups are the first to get involved and the initiators of conservation projects on private land. The conservation groups are, indeed, the ones who regularly establish the first contact with the land owner, make him or her aware of the heritage features on the land and the importance of preserving them. These groups are the spark that triggers many conservation projects. By creating a relationship of mutual trust, they gradually, patiently, persuade the land owner to make a more formal commitment, through a conservation agreement, in order to preserve these heritage features.

The second basic aspect of private and community stewardship pertains to the fact that these conservation agreements are always voluntary and, generally speaking, do not involve any direct government intervention, except to provide financial assistance or to provide assistance through a paragovernmental organization, such as the Fondation de la faune du Québec or through a municipality.

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In our opinion, any legislation that does not really take these two fundamental realities into account can have only a limited impact on private and community stewardship groups.

Finally, before I deal with the bill itself, I need to cover the nature of the conservation agreements that have been entered into to date between the private owners and stewardship community groups.

Essentially, a conservation agreement is a contract between an owner and a conservation group whereby the owner agrees to protect his or her land in accordance with certain specific rules. The conservation agreement is adapted to reflect the wishes of the owner and the mission of the conservation group. Accordingly, all conservation agreements are unique and tailored to suit the needs and wishes of the owner, while at the same time taking into account the specific features of the environment or the feature to be protected.

As mentioned previously, the legal tools that make it possible to enter into such conservation agreements are at present all found in the Civil Code of Quebec, which applies to us in Quebec. In fact, these agreements are contracts whereby the parties have obligations to each other, under the principle of freedom of contract which prevails in Quebec civil law. It is precisely this freedom of contract that enables us, in private and community stewardship, to use the Civil Code institutions and to adapt them to our conservation needs. Conservation agreements are nothing more or less than contractual obligations provided for in general terms in the Civil Code and adapted to the requirements of heritage conservation.

The bill deals with stewardship in clauses 11, 12 and 13. Clause 11, which deals with designated species, states that the minister "may enter into an agreement with any government in Canada, organization or person". This agreement enables us to establish rules governing conservation, recovery or the use of species that come under the agreement.

As we have already stated, we strongly support the federal government's commitment to stewardship. In addition, the bill, in clause 12, makes reference to the protection of species that are not at risk and provides greater flexibility.

We are, however, concerned that, according to our interpretation of the bill, the only stewardship projects eligible for consideration under the law are those projects where the government is a mandatory party to the agreement. Given that the bill states that the minister may enter into an agreement and clause 13 adds that cost-sharing may be possible under the agreements entered into under subsections 11(1) and 12(1), it appears to us that the only conservation projects that may benefit from federal government financial assistance are those that are entered into under clauses 11 and 12, namely, projects where the government is always a contracting party.

We believe that this is contrary to the spirit underlying the voluntary conservation movement and that the bill is confusing the three types of stewardship, namely public stewardship, private stewardship and community stewardship.

At the risk of repeating ourselves, it is neither necessary nor desirable for the government to always act as the mandatory principle intervenor in stewardship matters. With all due respect for the opposing opinion, it seems to us that, in its current form, the bill puts too much emphasis on the competent minister's discretionary authority in the area of stewardship.

In addition, our understanding of the bill causes us to have doubts about the availability of funding for conservation agreements entered into between private parties, which would be tantamount to invalidating the efforts made to date by private and community stakeholders in the conservation sector.

The Centre québécois du droit de l'environnement therefore recommends that the wording of clauses 11, 12 and 13 of the Species at Risk Act be amended to ensure that all private parties interested in entering into conservation agreements can have access to the financial assistance provided by the federal government without the latter being a mandatory party to the conservation agreement, providing, naturally, that these agreements comply with the objectives of the legislation.

This major intrusion by the government into the voluntary conservation sector also raises some very serious questions from the legal standpoint. Earlier, we described how in Quebec, conservation agreements are based on civil rights mechanisms as set forth in the Civil Code of Quebec. What legal system will be applied to the agreements described in the bill on species at risk? Will it be the common law or will it be Quebec civil law? Most importantly, how will these contracts between the government and individuals be classified? The partnership between public and private persons can tell us to ask questions about the legal nature of the contract. Is the agreement described in SARA a private law contract or an administrative contract?

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It is essential that we establish the legal nature of the contract in order to determine what court will have jurisdiction in the event of a dispute and which legal system will apply to dispose of this dispute. Unfortunately, SARA is silent on these important points. We are, therefore, entitled to ask what the consequences would be should there be a failure to comply with the clauses of an agreement. Are we to understand, from reading SARA, that a landowner who did not abide by such an agreement could face criminal charges, as set forth in clauses 97 et seq?

We must say that if this were the case, we would feel very uncomfortable with such measures. We feel, in fact, that this would be an unacceptable interference with a fundamental principles of stewardship.

Today, in Quebec, protection mechanisms and procedures for ensuring compliance with the conservation accords or agreements are governed by civil law, at the discretion of the contracting parties. These parties also can choose arbitration. They can call in a mediator or an arbitrator or they may go to the common law courts to resolve their dispute.

To date, the criminal justice system has had nothing to do with the criminal justice system and we feel that it should stay that way.

It must also be noted that in the event that a contract between a public person and a private person is classified as an administrative contract, that classification gives the public person precedence over the private person. Thus, as far as performance of the contract is concerned, the public person has the unilateral power of control and sanction, even if the contract does not provide so specifically.

This sort of system also gives the public person a unilateral power to modify the contract. These prerogatives seem to go well beyond the jus communis of private contracts. If the government wishes to assume such powers under the Species at Risk Act, then this should be clearly stated in the Act, which it is not at present.

I would like to ask one final question on this issue. If the minister can enter into such agreements, does that mean that we will be swarmed by civil servants criss-crossing the country in order to enter into such agreements, substituting themselves for the conservation groups? If that is not the objective sought by the government, we believe that clauses 11, 12 and 13 should be amended so that accords entered into by private parties can be recognized as being eligible for the funding prescribed by the legislation.

Under these new circumstances, citizens assume responsibility for the management of the resources in their area and the Species at Risk Act provides a unique opportunity for laying the groundwork of a new partnership between the government and citizens.

However, as we have already stated, we have some doubts about the role that the government is assigning itself within this bill. Simply put, we believe that the government is playing too big a role in the stewardship aspect of SARA, and that this role should be reviewed to reflect the reality of voluntary conservation stakeholders. The legislation should also, through adequate funding programs and innovative tax incentives, facilitate their activities and help them achieve their conservation objectives.

The stewardship movement is the result of initiatives taken by the public and that, aside from access to financial resources, functions autonomously. The Species at Risk Act must not disregard that fact, but rather it must encourage the public to take action.

Indeed, we must observe that conservation groups, which are often the project managers of stewardship projects, are the expression of a persistent movement within our communities, a movement based on the community taking charge of itself. The government, given the current state of public finances with its attendant staff and budget cuts, cannot think about increasing its responsibilities if it alone is to protect species at risk. The government must now rely on the voluntary participation and initiatives of the private and community sectors.

Moreover, aside from the regulatory purpose, legislation has many other uses. Laws enable governments and their representatives to pursue activities, set up programs and infrastructures, spend money and enter into funding agreements.

In a nutshell, a law is a tool that is essential for assisting and supporting the actions taken by citizens, and we believe that this is one of the major roles that should be played by SARA.

The CQDE is recommending that the stewardship aspects of the Species at Risk Act be amended. First of all, the role played by the government must be amended: the government must not be a mandatory party to any conservation agreement. On occasion, simply acting as a witness may be sufficient. Secondly, we need to expand the means of action available to private and community stewardship intervenors. Thirdly, we must ensure that all private and community parties with an interest in entering into conservation agreements have access to the financial assistance provided by the federal government without the latter being a mandatory party to that conservation agreement. Fourthly, we must provide for more assistance programs and support for voluntary conservation programs, we must facilitate the registration of rights and provide technical and scientific support, etc.

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At the same time, it would be wise to provide for the creation of fiscal provisions that would genuinely encourage the emergence of voluntary conservation projects in Canada. Accordingly, we join with those who are asking, specifically, for the elimination of the capital gains tax on donated property that is of ecological value or donations of conservation easements.

Before concluding, we would like to raise one final point with respect to the quality of the drafting of the bill itself. Clearly, this bill was written to reflect the needs of animal species alone and creates interpretation problems that will delight the legal experts. We ask you, how is it possible to kill, harass, capture or take a tree? I can understand that if I cut the tree, it may die, but even at that, it may still produce an offshoot and it won't be clear that I have killed a tree, not to mention harassed it. The same thing goes for a herbaceous plant. Moreover, what is the den or nest of an herbaceous plant? I don't see it. Or again, how can we kill, harass, capture or take pollen or seeds? We believe that the bill is in need of drastic revision if only to truly reflect vegetable species, which it does not do at present.

Thank you.

The Chair: Thank you, Mr. Girard. You have raised some very interesting questions, particularly with respect to the Civil Code. We will try to make good use of your recommendation.

[English]

Ms. Powell, welcome from Edmonton. You have had some distinguished predecessors at the centre. I'm glad you were able to come.

Ms. Brenda Heelan Powell (Staff Counsel, Environmental Law Centre): Thank you.

My name is Brenda Heelan Powell. I'm staff counsel with the Environmental Law Centre located in Edmonton.

The Environmental Law Centre is a non-profit, charitable organization that was incorporated in 1982. Our overall objective is to ensure that the law works to protect the environment. In pursuit of this objective, the centre provides a number of services, a key one being law monitoring and law reform work.

On behalf of the Environmental Law Centre, I wish to thank you for the opportunity to present our comments on Bill C-5, the proposed Species at Risk Act. We have made written submissions, and I believe you have copies of them before you.

I would like to go through my comments, but first I would like to focus on two particular issues, that of the use of compensation in the act and the interaction between SARA and the Canadian Environmental Assessment Act. If time permits, I will then go through some of the other comments in our submissions.

I'll start then with the issue of compensation. We have some concerns with the provision that deals with compensation in SARA.

Firstly, we're concerned about the precedent that this will set. The language in the act is broad enough to create an entitlement to compensation for mere regulation of land use, as opposed to an expropriation of land. This concept is unprecedented in land use in environmental legislation, with the exception perhaps of Nova Scotia's Endangered Species Act. Further, Canadian jurisprudence has established that governments have broad rights to legislate land use limitations for valid public purposes without having to pay compensation.

There are no clear high-level court cases where compensation has been ordered for mere regulation of land use, in contrast to the actual taking of a property right. Thus there is no established legal obligation to offer compensation to landowners for mere regulation of land use. Thus the compensation approach in SARA could create a legal entitlement that does not currently exist. This will set a precedent that causes us concern.

There's no way to draw a line between the Species at Risk Act and other land use and environmental legislation, for example, in regard to zoning laws or chemical use. So will this set a precedent that compensation will now be required for any type of land use regulation or any type of environmental regulation?

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Further, we wonder how this provision will interact practically with other legislation that currently requires habitat protection but does not offer compensation. As an example, if you can imagine a stretch of river that will be affected by a project, in the lower half of that stretch of river there's an endangered species of fish and the upper half of that river contains fish habitat but it is not habitat for an endangered species.

The project proponent can be required to take measures to mitigate damages on habitat in both parts of the river. So in the bottom part of the river they're being required to protect habitat under SARA. In the other part of the river they're being required to protect habitat using the Fisheries Act. The Fisheries Act does not provide for compensation. Does this mean that the project proponent will receive compensation for half the work he does, or will he receive it for the whole work? It's only half the river that is being protected using SARA.

Aside from our concern that providing compensation sets a precedent that will require the government to perhaps pay compensation for any sort of regulation of land use or environmental regulation, this approach also enforces a mistaken view of property entitlements. It serves to enforce the mistaken view that property entitlements grant landowners the right to forever destroy critical habitat on which species at risk depend for survival. This distorted view of property rights should not be promoted by governments.

As well, it is foreseeable that this approach will act as an incentive to encourage development and destruction of critical habitat. In other words, compensation may act as a perverse incentive.

The concept of compensation runs counter to the concept of cooperation and voluntary stewardship actions upon which SARA is built. SARA should speak in terms of incentives rather than in terms of compensation. Incentives can be used to counteract any burdens that may be imposed on a particular individual as a result of land use regulation under SARA.

It is our recommendation that the compensation approach be abandoned in SARA. Rather, efforts must be made to provide stewardship education and assistance, including financial assistance where appropriate, to assist landowners in enhancing habitat. It is essential that sufficient funding be in place to provide these incentive programs.

If the compensation approach will not be abandoned, then we recommend some amendments to the proposed language. The act should define what is meant by an extraordinary impact. Compensation should be offered only where there is a complete taking or total extinguishment of all rights associated with the ownership or property. In addition, the act should specify that forms of compensation other than money are available. There could be items such as land swaps or tax breaks and so forth.

Our next concern is with the interaction of SARA and the Canadian Environmental Assessment Act. Firstly, we think it should be made clear that permits that are going to be issued under SARA will act as a trigger for the Canadian Environmental Assessment Act. This will require an amendment to the law list regulations pursuant to the Canadian Environmental Assessment Act. This amendment should be made concurrently with the proclamation of SARA.

Secondly, we have concerns with clause 79 of SARA. This clause requires that every person required by federal legislation to conduct an environmental assessment of a project notify the minister if a listed species or its critical habitat is likely to be affected.

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We agree that a project proponent must notify the minister if a listed species or its critical habitat is affected. However, we feel this provision is too narrow. Critical habitat is a technical legal term that's defined in SARA. In a particular case, it's unlikely that habitat, within the parameters of a proposed project, will be designated critical habitat. Accordingly, clause 79 should apply where a listed species, its residence, or its habitat, whether or not critical habitat, is affected.

Finally, we have concerns with the proposed amendment to the definition of environmental effect in CEAA. This amendment will add to the definition of environmental effect a change to a listed species, its residence, or critical habitat. Unlike the other items listed in the current definition of environmental effect in CEAA, this is an obvious environmental effect. An effect on any wildlife, residence, or habitat is an environmental effect. Since this is so, any effect on a listed species, residence, or habitat is an environmental effect. Our concern is that by specifically including a change to a listed species, its residence, or its critical habitat in the definition of environmental effect, the provision will become limited, if not in law, then in practice. The provision may become limited to consideration of effects on only listed species, rather than on all species of wildlife.

The amendment proposed to CEAA can significantly affect the operation of that act. So we suggest it might be more appropriate that such a significant change should not be made as a related amendment under SARA, but rather as a direct amendment to the Canadian Environmental Assessment Act. This would better ensure proper consideration of the implications of changing the definition in CEAA. We note that the committee will be soon considering a revised version of the Canadian Environmental Assessment Act in connection with the five-year review. Perhaps this would be a better time to consider such an amendment.

If the federal government determines that SARA will contain amendments to the Canadian Environmental Assessment Act, the amendments should provide that any adverse impact on a listed species, its residence, and its habitat is deemed a significant adverse environmental effect for the purposes of section 16 of the Canadian Environmental Assessment Act. This will mean that every screening, comprehensive study, mediation, or panel review must consider whether effects on a listed species, its residence, or its habitat can be mitigated. If such an effect cannot be mitigated, then the deciding authority cannot take federal action unless the unmitigable effects on the listed species are otherwise justified in the circumstances.

The rationale for this treatment of listed species is the urgency and the irreversibility of the situation of species at risk. Effects on species at risk should not be treated in the same category as all other environmental effects.

I would like to turn now to some of the other comments that were made in our written submissions. They've been mentioned here today already.

The first matter is political listing. It's our view that SARA is weakened by having a political listing process. Failure to list a species that has been scientifically determined to be at risk will mean that species derives absolutely no benefit from SARA. This means there will be no prohibition against killing the species, no recovery plan to canvas protection alternatives, and no financial support for conservation. In addition, public awareness and voluntary efforts that follow upon listing may be curtailed.

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The determination of listing is not the appropriate stage at which to consider social and economic concerns. Rather, such concerns should be addressed in formulating the appropriate response to the scientific fact that a species is at risk. It is our recommendation that the species at risk list developed by COSEWIC should be adopted in its entirety under SARA. At the very least, the current list should be adopted as the initial list under SARA.

We also have concern with the overly restricted application of the general prohibitions against killing species and harming residences in the act. It is our recommendation that the prohibitions in SARA apply to all species at risk, wherever they are located. At a minimum the species at risk act must broadly construe established federal jurisdiction over migratory birds, fisheries, and transboundary wildlife throughout Canada.

We also have concerns with the federal safety net that is to provide protection of critical habitat as it is outlined in SARA. Our recommendation is that SARA abandon the federal safety net approach and instead directly mandate critical habitat protection for all listed species throughout Canada. If the federal government will not take this approach, then we have several recommendations for the federal safety net approach that's proposed.

First, it should be a mandatory safety net, not a discretionary safety net, that is, when all possible stewardship efforts and incentives have proven insufficient to protect habitat, the safety net must be implemented.

Further, there should be a limited time period for determining whether or not possible stewardship incentives and programs have failed to protect critical habitat, and there should be mandatory interim protection until this determination has been made.

Finally, we believe SARA can be strengthened by the addition of public participation provisions. A provision should be made to allow citizen petitions to drop the critical habitat safety net. As well, there should be provision made to allow citizen suits similar to those that are allowed by the Canadian Environmental Protection Act.

Those are my comments. Thank you.

The Chair: Thank you, Ms. Powell.

We start right away with the first round, short questions possibly. Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, CA): Thank you, Mr. Chair.

Citizen suits certainly were a part of the previous bill, but it's not anywhere really a part of this bill. I will stand corrected by other advice, but since it's not really part of the scope of the bill, any such recommendations are moot. We can't at this point inject any such concept into the bill, because it's not there. It's really off the table. The government has decided it's not there, and there's no point even going there.

Some of the other things I would like a bit of discussion about include this whole concern about compensation, related to expropriation. There's quite a warning that compensation be very narrowed, and there's been other testimony concerned that compensation should be broadened to make the whole intent of the bill appear less threatening, producing as a result much more cooperation, rather than resistance. Perhaps you can outline your recommendations to address a concern about compensation being very narrow, concern about providing a new right, and so on. What are you afraid of? I think it was Karen Keenan who mentioned that, and I think also Mr. Attridge in his presentation had a reference to compensation. So maybe I could have some answers on that particular topic.

Ms. Karen Keenan: Our suggestion for compensation was to limit it specifically to expropriations of real property. The concern is that governments have the right and use their right in all sorts of circumstances to limit people's use of their property. So for example, zoning bylaw amendments may be brought in that restrict the use of my property or change the use of a neighbouring property such that my property's devalued. Property next to my property could be rezoned and a land fill could be permitted, and that would arguably decrease the value of my property. I'm not compensated for that.

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There are lots of situations where proprietorial interests are not compensated. We don't understand why that should be the case in this bill. It's not as if there's a rule whereby if usurped, any kind of proprietorial interest is automatically compensated. It's the contrary under our legal system. We don't understand why here there should be an exception made for that. We'd like to see it restricted specifically to expropriation.

Mr. Ian Attridge: I can understand why compensation is attractive. I think recognition of the need to provide “compensation” or some assistance to landowners is probably what you're hearing in other testimony.

I would agree with the Canadian Environmental Law Association, the Environmental Law Centre, and I'm sure most other lawyers in the country that, as Ms. Keenan has described, there is no right to compensation except for expropriation, where the government actually takes a property interest. We have at the federal level an Expropriations Act, and that deals with that circumstance. Where government takes full control of a property and that ownership interest, certainly those landowners should be compensated.

With regard to the regulatory aspect, if one thinks of the airport regulations, do we provide compensation to people who live close to airports? We don't. We say that this is part of the land use regulations within legitimate federal authority.

Politically, I can understand why it's attractive. I think one of the main issues is whether it creates a legal entitlement to compensation or it remains at the discretion of the minister or the cabinet. I think keeping it within that discretionary function rather than a legal entitlement would perhaps provide the political balance you may need to see.

Mr. Paul Forseth: So what do you say to the aboriginal groups that came here yesterday and were quite concerned about compensation, especially if all of a sudden they had to abandon certain traplines or were no longer allowed to hunt a particular species or had a greatly reduced hunt, which changed their traditional interactiveness of living off country food? What do you say to them? They're looking for either compensation or the continuation of their traditional knowledge saying that they can live in harmony with the land. They are saying, one or the other, but be careful and don't disturb our livelihood. What about compensation for that?

[Translation]

Mr. Pierre Valiquette: I have something to say about that. The problem lies in the fact that compensation has to be applied across the board and to everybody. In the case that you have described to us, if protection is being sought only for Amerindian territories, I'm sorry, but there's a problem. It is they and they alone who are being asked to assist with protection.

In our North American society, we live under a system of private law where private ownership is sacred. As soon as we say that private ownership is sacred, we must say that everything concerning ownership will be governed by market forces. This is how the system operates.

When we adopt zoning regulations in a municipality... I live in Montreal. When I have permission to build a 30-storey building, the value of my property is very different from that of the property beside mine, where the owner cannot build a building that goes beyond two storeys. This is negotiated. Very important political battles are waged on this front.

The fact that somebody owns property located in the downtown core and this property becomes more valuable because of economic activity is understandable. Yes, the property owner will be able to sell his property for more money and yes, he had business savvy when he chose to buy his property in the downtown area. Perhaps he may have been willed the property, it doesn't matter. But as soon as the market forces come into play, when the government intervenes and passes regulations to create different classes of citizens or property owners, I have a problem. We have to be very careful. If you are going to provide compensation, you must ensure that all of those with property to protect receive equal treatment and this must be applied everywhere where the government wants to intervene in order to protect.

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This is more or less the situation with the Aboriginal peoples. If we were to target the Aboriginal territories and say that important species live on these territories and that they are going to be protected, the taxes used for protecting these species will be only for them, and I do not think that I can agree with such a situation.

[English]

The Chair: Thank you.

[Translation]

Mr. Bigras, please.

[English]

Ms. Karen Keenan: I would like to add a comment about the first nations specifically, if I can, because I think it's very relevant. It will be very short. There is a body of jurisprudence particularly in British Columbia. I'm sorry, but the name of the seminal case escapes me right now. Maybe someone else will remember it. That specifically says that yes, first nations have resource extraction rights but they are subject to conservation laws and restrictions. We have to bear that in mind as well. The courts in this country have made declarations that they too are subject to conservation, given that where first nations live in Canada, the habitats of a lot of species, particularly endangered species, often coincide with first nation areas or areas that are subject to land claims. I think it's important to keep that in mind.

[Translation]

The Chair: Mr. Bigras.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Thank you, Mr. Chairman. First of all, I would like to thank all of you for coming to the committee. I would also like to thank Mr. Girard and congratulate him on his presentation.

Most of your comments pertained to the private and community stewardship approach. You told us that Quebec has conservation agreements based primarily on the mechanisms and tools found in the Civil Code of Quebec. You were very clear on this matter.

Given the wording of the current bill, which to a certain extent is derived from criminal justice and which, as well, makes reference to a double safety net, I would like to know to what extent it is felt that the province or Quebec is not doing its bit in terms of protection, despite the fact that it has legislation. The federal law could be enforced. As drafted, do you feel that the bill that is currently on the table could harm or discourage the stewardship approach you're advocating?

Mr. Jean-François Girard: Indeed, in my presentation I wanted to provide an adequate explanation to the people present of the private or community stewardship movement on the ground. The people who are involved in private or community stewardship, namely, the people who are involved in voluntary conservation, are used to acting on their own initiative, for themselves, and amongst themselves.

If they had enough money to do everything that they planned to do, they would not turn to the government for services or assistance. We are not saying that the government should be totally excluded from these projects. What we are saying is quite the opposite: the government should be a partner and an important partner.

Mr. Bernard Bigras: In Quebec's law on threatened or vulnerable species, Quebec is not simply acting as a partner.

Mr. Jean-François Girard: Quebec's legislation on threatened or vulnerable species does not deal with stewardship or voluntary conservation, or it does cover it in very little detail in section 7 or 8, I believe. It is not on today's agenda in terms of stewardship.

As for whether this bill could threaten the stewardship movement in Quebec, that is a question that is difficult to answer, but one thing is certain: this bill must not ignore what is currently being done in the field.

Mr. Bernard Bigras: As drafted, does the bill contain provisions that might compromise this approach? That is my question. I'm thinking, for example, of section 97.

Mr. Jean-François Girard: There are two things. Inasmuch as the bill does not recognize stewardship activities, voluntary conservation activities that are undertaken by private parties in the field and in which the government is not involved, then there is no financial assistance. Yes, this could compromise this approach, because money is at the heart of the matter. Obviously we need the government to get the money. As I stated, if we could do without it, the movement would sustain itself independently.

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The other issue is that voluntary conservation has, until now, settled its disputes through civil law mechanisms. If a landowner entered into a conservation agreement and did not respect it, there were means available to groups to settle the issue, whether through mediation, arbitration forums, or the courts. This is how disputes are currently settled. Things are resolved. There is no criminal conviction, there is a civil liability. The owner either respects of does not respect the agreement entered into. If the owner does not respect the agreement, then there may be damages or there may be an injunction ordering the owner to comply with the agreement.

Until now, voluntary conservation has not been a criminal justice matter, and we are very uncomfortable with the criminal justice aspects of this. We do not see how we will manage to convince landowners to enter into voluntary conservation projects when they are being told that if they do not respect the agreement, that they will be taken to a criminal court and fined.

[English]

The Chair: Mr. Comartin, please.

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

A couple of the delegations mentioned the law list and the need to amend it. I'm sorry, I have to plead ignorance. I don't understand what that is about. So could we have some comments on that?

Mr. Attridge, both in your brief and I think when you were giving your presentation, you were calling for a reduction in consultation, and here you actually want some amendments to add the term “to the extent possible”. Over the previous two days we've had extensive evidence or testimony from various groups of first nations calling for exactly the opposite, for what would be very extensive consultation, both prior to the legislation going ahead and even more so after it's passed, with regard to the regulatory process that would be established. I'd like some comments on how we deal with that as a committee when we're getting contradictory comments.

Ms. Keenan, you had a fallback position if we took out clauses 34 and 35, and parts of clause 60. I'd like some more comments on that, because I didn't understand that in your presentation.

Could somebody do the law list first? Thank you.

Ms. Brenda Heelan Powell: The law list regulation is a regulation under the Canadian Environmental Assessment Act. This regulation says that if a federal authority is making particular types of decisions, the Canadian Environmental Assessment Act will be triggered and an assessment will be required.

Currently, there are decisions made under the Fisheries Act. That would be one example. So if a permit is being issued under the Fisheries Act, that's considered to be a federal decision that triggers the Canadian Environmental Assessment Act, and it requires the project proponent to conduct an environmental assessment under that act. We are proposing that if a permit is going to be issued under SARA, and permits can be issued to harm or harass an individual of the species in limited circumstances, then that should also trigger the Canadian Environmental Assessment Act.

Mr. Joe Comartin: Thank you.

Mr. Ian Attridge: Regarding our concerns about excessive consultation, generally CIELAP is very supportive of public consultation, and with governments, local, provincial, territorial, our sister nations, and certainly first nations. So I can appreciate the value of having that in the act. I appreciate the work of the department to have extensive consultations in advance of preparing the bill and bringing it forward, and I certainly would recommend ongoing consultations.

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Within that context, however, I think our comments focus on a number of sections where there is a procedural requirement to consult with everybody, certainly every other competent minister, and at times, every other minister from each territory and province on the Canadian Endangered Species Conservation Council, and that certainly takes an extensive amount of time and may not permit the expeditious decisions that may be necessary for species that are at risk, particularly in emergency situations.

Also, when one looks at the agreement powers that Mr. Girard was speaking to, particularly in clauses 11, 12 and 13, it may be appropriate to have that level of consultation for national or national-provincial types of agreements. But if this is the only means to accomplish stewardship—and we've heard in several of the presentations today about the value of stewardship—if we are talking about agreements with landowners or other kinds of commitments that don't involve land, and some of the other powers later on in the act, then that becomes a very cumbersome process for dealing with local-level delivery of stewardship, which was very capably described by my colleague.

So that reflects the recommendation I made to have specific stewardship authority in agreement powers vested with the competent ministers, independent of these larger national types of agreements that are contemplated here. There needs to be some specific powers included, either within these sections or in new sections.

I think it's within the spirit of the bill, but it really will streamline it and allow for effective delivery in the private sector in a timely fashion that means landowners will be willing to participate, rather than get caught up in lots of bureaucracy.

The Chair: Thank you, Mr. Comartin.

For the second round, Madame Kraft Sloan, Mr. Reed, and Madame Scherrer, unless—

Mr. Joe Comartin: I had another question, which I had asked of Ms. Keenan.

The Chair: Sorry.

Ms. Karen Keenan: It's okay.

With respect to clauses 32, 33, 34 and 35, just so you have the reference, this is discussed on page 17 of our submission. I did go through it quickly. I thought I had less time than I did for my presentation.

If clauses 34 and 35 are deleted, we're happy, and we want clauses 32 and 33 strengthened so that they include all species that are endangered and all critical habitat.

If they're not, then what we'd like to see happen is that clauses 32 and 33 apply to species and habitat on not just federal land that's found in the provinces, but all provincial land, and that there be a provision established by regulation such that provinces and territories can apply not to have those provisions apply to them if they can establish that their legislation is as protective or more protective than Bill C-5. So there would be a default application of the federal provisions to provinces and territories, pending establishment through this process that would be established through regulations that their provisions are as protective. Okay?

Mr. Joe Comartin: Yes, thank you.

The Chair: Thank you.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you very much, Mr. Chair.

We had Dr. Pearse come before our committee this week. He had conducted a study on compensation for the federal government. Unfortunately, I was unable to stay for the full hearing. There were a lot of questions in the back of my mind around some of the issues he raised, and certainly a number of the witnesses today have raised those concerns.

First, given the current wording of the section regarding compensation in the act as it is before committee, and given the fact that we do not have precedent in Canada for compensating for land use versus expropriation, I wonder what the witnesses feel the effects will be on other pieces of legislation, for example, the Fisheries Act. I think you hinted at this or talked about it indirectly, and certainly Madame Heelan Powell asked, do we compensate half a project if half of it is under the Fisheries Act and half of it is under the SARA legislation?

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So does this mean that the government will be subjected to suits requiring compensation for actions that have had to be stopped under the Fisheries Act, in regard to income flows? I'm wondering if the witnesses would care to comment.

Ms. Brenda Heelan Powell: I'll comment on that.

I think that is our concern with having the compensation provision in the legislation. It will create that precedent. Currently, we're able to say there is no precedent for giving compensation if we decide to rezone your land or to regulate your activities in another fashion. Our concern is once this precedent is in SARA, then the precedent has been set and there will more of an argument to say that since you are regulating my use of land by telling me I can't emit toxins into the air as I want, I should be compensated for it. So that is our concern, that this is what's going to happen.

Mrs. Karen Kraft Sloan: Do you think this will build a case in the courts for companies to sue the government for compensation under CEPA or under the Fisheries Act? What is the effect here?

Ms. Brenda Heelan Powell: I think for future legislation it creates that precedent, certainly. It may create an argument in the court, and that's our concern.

Mrs. Karen Kraft Sloan: On Monday there was a discussion about this. One of our members has been involved as a local municipal councillor and raised the issue that municipalities undertake zoning changes and people aren't compensated for that. I'm not a lawyer, so you have to forgive my ignorance on this, but would this have potential precedent-setting for municipal governments with zoning if the federal government has a particular condition in federal legislation? Or is this not a possibility?

Mr. Brenda Heelan Powell: I think generally right now the view is unless a piece of legislation provides compensation, it is not required. But given that the federal government has taken a step to compensate people for regulation of their land, it can create that precedent. It enforces the view that a lot of people hold, that as a private landowner, I'm entitled to do with my land what I want to do with it, and if anybody tells me otherwise, I should be compensated. A lot of people hold that view. I think having a piece of federal legislation that compensates people for regulation enforces that view. And that view, then, could be taken up by the courts.

So it's not entirely clear that the courts will do this or they won't. It's hard to say how they're going to react to it.

Mrs. Karen Kraft Sloan: Are you saying there is a greater impact for future legislation as opposed to legislation that is currently on the books?

Ms. Brenda Heelan Powell: I think in the future it will make it much more difficult to not have compensation incorporated into legislation if it already has been in SARA. It may also, for legislation that exists, create an argument that there should be compensation. And certainly when you run into a situation where people are being required to do the same type of activities under SARA and under the Fisheries Act or some other piece of legislation, there could be an argument made that the government has an obligation to treat people fairly. How could they give one person compensation and not another if they're doing the exact same activity, just because one person happens to have an endangered fish species and one has just fish habitat?

Mrs. Karen Kraft Sloan: What about—

Ms. Brenda Heelan Powell: So there's an argument there.

The Chair: Sorry, Madam Kraft Sloan, we have to leave this room at eleven.

Mr. Reed.

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

I would like to zero in on recommendation 39 specifically, and I'll preface it by telling you a little story.

A colleague of mine was doing a project in Ontario. He had received all of the approvals for that project and was in the midst of building when two people trespassed on his property, and under the legislation as it was, they were able to stop the project. He received a phone call from the approving body, the Ministry of Natural Resources, saying we know we've given you all the approvals, but would you please hold the project up while we resolve this.

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Six months later it was resolved. The charge that was being made was specious, and the cost to the proponent of the project was $50,000 in lost interest plus the fact that he ended up pouring concrete at minus 40 degrees.

Now, there was no citizen liability in that particular situation, but there was the ability for any person to hold up a project of that nature. I see this recommendation about citizen suit provision, but I see nothing about citizen responsibility. It seems to me if we're going to allow citizen suits, citizens must also be responsible if the charge is specious and not based on fact.

The Chair: Madam.

Ms. Karen Keenan: That's a really important concern. The piece of legislation that I know best that grants citizen suit provisions is the Environmental Bill of Rights in Ontario, which may have been the legislation to which you refer.

I don't know, because there is a provision in that statute that tries to prevent the type of situation to which you've just referred. In addition, there's a body of common law that restricts these types of suits if they're frivolous or vexatious.

So there are tests to determine when people are bringing these suits just to try to stop a proponent from proceeding, and when they're genuine or bona fide interests in the potential impacts.

We didn't provide in our recommendations specific provisions that we'd like to see included in a citizen suit portion of the bill. We've done a lot of work on that at CELA and have a lot of materials about the specifics that we would see. But certainly we want to see included some kind of provision that allows for an assessment of a potential action to determine whether it was brought in spite or simply to stop a project, or whether there were bona fide legitimate concerns about the potential environmental impacts.

I'm not sure what legislation was applicable in the case you're speaking to, but certainly it's a valid concern and we would want to see that incorporated.

Mr. Julian Reed: In this situation, it never got to the suit level, you see. In other words, the capability was there to sue, and that was known. So the request was made by the approving body, would you please hold up this project while we get this sorted out. It was another six months before it was “sorted out”, and the loss to the proponent was substantial.

Ms. Karen Keenan: Right. That may actually have been an ability to challenge the granting of some kind of licence or some kind of approval, and not an actual suit for a potential violation of the act. I'm not sure, I'd need to know the specifics, but it's a valid concern, and we would want to see some kind of provision preventing people from bringing frivolous or vexatious cases, absolutely.

Mr. Julian Reed: Thank you.

The Chair: Thank you, Karen.

[Translation]

Ms. Scherrer, if you please.

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

During the presentations, and in particular during Ms. Keenan's presentation, you stressed the need that the identification of the species at risk, in other words determining which species will be on the list, should be done according to scientific criteria only, and not political criteria.

Over the last two or three days now, as we mentioned, we have heard from a number of First Nations' groups who have stated that we must also call upon their traditional knowledge when establishing this list, because we cannot establish this list solely based on facts. According to them, we must also base any decisions on the First Nations' traditional knowledge of how species live, which brings a whole new dimension to this work. Seeing as you are quite strict in how you think this list should be established, would you be prepared to recognize that this traditional knowledge has some sort of scientific value and would you be prepared to use it? If yes, how can we use this knowledge?

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[English]

Ms. Karen Keenan: Thank you.

Under subclause 15(2), it says:

COSEWIC must carry out its functions on the basis of the best available information, including scientific knowledge, community knowledge and aboriginal traditional knowledge.

So it appears that COSEWIC already takes that information into account, which I think is a really valid point and obviously useful information, and I thank you for bringing it up.

Ms. Hélène Scherrer: Do I have time for another one?

[Translation]

My second question is also on the subject of compensation. I think that you were quite clear in specifying that compensation should only apply in cases of expropriation.

I do not think that it is the government's objective with this legislation to acquire lands or buy back parcels of land in order to protect species, but to allow people to realize that there can be cohabitation and that the landowner should remain such.

I do not think that the government should try to buy these lands, but that they should remain the property of the owner, and the government should try to foster a social conscience, perhaps through financial incentives. The government should help landowners ensure that the habitat of species at risk living on their property is protected. I support providing incentives so that people preserve their land and develop it with conservation goals in mind, rather than taking over their lands.

However, I fear, and I would like to know what you think, that if, in fact, compensation only applies in cases of expropriation, then people will, out of spite, prefer that the government expropriates them all together. I think that the goal of the legislation is to recognize that there are species at risk and to ensure, if necessary, through certain financial incentives, that people fulfil their responsibilities. I prefer private stewardship to abandoning property to the government under the pretext that it would be too much work. I would like the people involved to have that sort of attitude.

Mr. Jean-François Girard: I thought that you were asking Ms. Keenan first. You spoke of encouraging a social conscience through financial incentives. There are other incentives than direct compensation, as we mentioned in our brief, for example, abolishing capital gains for donations of eco-sensitive or ecological property. This type of incentives could help conservation.

We mentioned those incentives, but there are other financial incentives directly related to conservation activities; these would be municipal tax and property tax incentives. Currently, the most common approach is to tax properties based on their value if they were to be developed for housing or other uses, but we could take into account their ecological value and tax them accordingly. This would diminish the taxes that owners pay.

There are some ridiculous situations where owners who want to preserve their properties—these would be wooded properties—are forced to cut down the wood in order to pay their taxes, when that is not what they want to do. This type of situation is ridiculous.

When it comes to taxation that is consistent with conservation, it means that you need to consider all of the taxation input and output involved in conservation, whether it be municipal property taxes, or personal and tax laws. I mentioned capital gains, but there are other incentives to help conservation groups, even giving them money to allow them to hire legal counsel. Forgive me for looking out for my own interests. They may also want to hire land surveyors, chartered appraisers, and biologists who can undertake the characterization of the property, which will then encourage the owner to embark on the conservation process which will ultimately benefit the owner.

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Ms. Hélène Scherrer: Then you would say that we should anticipate other methods of compensation than those that would apply in the case of expropriation.

Mr. Jean-François Girard: Expropriation is a means that exists in Canada, at least I am aware of the provisions in the Quebec Civil Code. When you expropriate someone, you are depriving them of rights that they would normally be able to exercise. Therefore you must compensate them, and this is beyond any specific legislation. It is about a mechanism to compensate, that we are not talking about expropriation for now.

The Chair: Thank you, Ms. Scherrer.

[English]

Madam Redman

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

I would like to direct a question to Mr. Attridge and Ms. Keenan. Species at risk requires the critical habitat to be identified in the recovery strategy or the action plan whenever feasible. For some species, quite frankly, we don't have the information, or for others not listed by COSEWIC because of a loss or degradation of habitat. The concept of identifying critical habitat really doesn't apply. Are you suggesting that species at risk require the identification of critical habitat even when it's not feasible or useful to do so?

Mr. Ian Attridge: In the assessment of the status of species by COSEWIC, in most cases it will have an identification of that critical habitat, at least at a general level. Once the recovery strategies come into play, that will have some more resolution. There may be some cases where the exact extent of that may be difficult to determine. But I think we can follow the precautionary principle enshrined in the Convention on Biological Diversity and referred to in the preamble to this bill. We should take a precautionary approach in the way we define that, at least in a general and an interim fashion. That's one of the points I believe one of my colleagues made, that there also needs to be some interim protection until such time as those full details come into play.

One of the suggestions I make in my more detailed pieces in here is that federal land managers should be identifying where species occur and where their critical habitat is, particularly in the review of any management plan or land use plan involved. So there may be review functions where there is a directive to go out there and actually determine the extent of that habitat and eventually finalize that critical habitat determination.

Ms. Karen Keenan: I'm not entirely certain I understood your question. There is a provision in the bill, paragraph 41(1)(c), that deals with the requisite contents of a recovery strategy. It does says it should be identified unless it is not possible to do so. So there is, if I understood you correctly, that option if it is impossible or irrelevant because of the nature of the species or the types of situations in which it lives—the bill does make allowance for that.

Mrs. Karen Redman: Okay.

Ms. Karen Keenan: That was your question?

Mrs. Karen Redman: Yes.

Ms. Karen Keenan: Okay.

Mr. Ian Attridge: I think we'd have some indication, given that the scientists at the table will have an understanding of the biology of that species—at least a general indication, if not, in a few cases, the critical habitat determination.

The Chair: Thank you. We have to vacate at 11.00 a.m. The remaining time we'll share between Mr. Mills and me.

Mr. Mills, go ahead.

Mr. Bob Mills (Red Deer, CA): I'll go very quickly here. I'll make some comments. You can reply if you want to or get back to me later.

First, we want a species at risk act that will work. A lot of what I've heard here—and I apologize for being late—will give us legislation that won't work. In fact, it will endanger the endangered species. I think you also have given me at least, from what I've heard and what I've read—I've read your briefs—a reason for things like compensation being in the bill. To simply say trust us and leave it in the regulations obviously would be then subject to the sorts of things you recommend.

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I believe mandatory protection, whereby you overrule the provinces, will create nothing but havoc; whereby you overrule first nations, will create nothing but problems. Mandatory protection whereby the feds are all powerful just won't work in today's Canada.

I trust the people. The people out there on the ground want to protect species, they want to cooperate, and they want to work. But if their very income or existence is going to be threatened, they still want to own their land, but they do need some compensation. To not have compensation there avoids that issue. Ducks Unlimited and the Canadian Wildlife Service have been doing compensation for many years, and it has worked on the ground. I think you're wrong to simply say it won't.

As for citizen suits—Mr. Reed's point—that's right across Canada. You will hear that same story over and over again. We can't have citizen suits that lead to things like what Mr. Reed was talking about.

Thank you.

[Translation]

Thank you very much for your presentation, your assistance.

[English]

The Chair: Ms. Powell.

Ms. Brenda Heelan Powell: I just wanted to comment on what was said about compensation.

There is a distinction between creating a legal entitlement to compensation and voluntary organizations like Ducks Unlimited using financial incentives for people. We fully support the use of financial incentives. We think those should be backed by the government. There should be funding available for that. But we are worried about the creation of a legal entitlement to compensation. It's a different situation.

Certainly if somebody is going to be burdened by having to protect critical habitat on their land, we should be giving them tax breaks. We should be recognizing a donation of a conservation easement as cultural property under our tax system. We should be giving financial incentives to help people along. That is not the same thing as giving somebody a legal right to compensation.

The Chair: Let us remember also that when he appeared before the committee on Monday, Dr. Pearse made the points that compensation for regulatory intrusions is a drastic departure from the current government policy, and that there is no precedent for that. He made those points before us. He even went so far as to caution the government about doing that. It may therefore be worthwhile for us to go over the evidence of Monday, and over what Pearse said in his report.

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I have a final question, if I may, Mr. Attridge. You made reference to your study on the accord. That is a very helpful initiative on your part. Could you tell us how many provinces have lived up to the commitment of protecting habitats?

Mr. Ian Attridge: I can't tell you, because no one has done a study to say which species are scientifically listed, what the habitat is, and how well those species and their habitats are protected. That's the study that needs to be done. In most cases, it's discretionary. In some cases, it is mandatory. The latter is the route we're recommending, because that is critical to the survival of the species.

The Chair: All right, then, let's take the other side of the coin. In your opinion, does Bill C-5 live up to the accord?

Mr. Ian Attridge: In some respects, it does. But I think the real issue is the discretionary or mandatory feature. With discretion, there's considerable concern that it will not meet the accord because there will not be full implementation of the habitat protection provisions in the accord—and that's reflective of the international convention, as well.

The Chair: What would be your recommendation?

Mr. Ian Attridge: The recommendation is to have mandatory habitat protection. Our suggestion is to then permit that it would be the default situation, with the Governor in Council being able to make exceptions. And the recommendation would also be certainly to have an equivalency test with respect to provincial jurisdictions. That equivalency test would be based on some of the interpretation language of the accord, as further elaborated in consultation with the provinces.

The Chair: Finally, is the mandatory habitat protection provision being implemented by the provinces? If so, which ones?

Mr. Ian Attridge: I believe there is. Ontario certainly has a mandatory provision. Manitoba has a provision. I believe Nova Scotia does. I'm not sure of the others. Certainly Mexico and the United States also have those mandatory types of provisions. They provide for some limited exceptions, but that is the critical aspect of the effect, and that's the way that those acts have gone.

The Chair: Do they have the capacity to implement that commitment?

Mr. Ian Attridge: Yes. In Ontario, certainly, there is a provincial planning policy that guides taking that direction of protecting habitat and identifying it in planning documents.

The Chair: Well, time forces us to leave this room. I apologize.

Madam Kraft Sloan, I am sorry.

Mrs. Karen Kraft Sloan: I have two quick requests to ask of the witnesses, if they care to respond in correspondence.

First, given all of the information and concerns you've brought forward on perverse incentives and precedent-setting for compensation, if there are other measures that would help private landowners—notification, incentives, those sorts of things—could you let the committee know about those?

And secondly, a lot of the clauses in this bill are based on the assumption of the “shoot, shovel, and shut up” syndrome. I'm wondering if you have any pieces of documentation or sources for that documentation, and if you could send those to the committee as well.

Thank you.

The Chair: Thank you.

[Translation]

Mr. Pierre Valiquette: What is important, is that there be a national organization that is able to identify threatened species and thus reassure everyone. We need to be able to say which species are threatened.

It is true that if we intervene and try to regulate everything, it does not work. I would remind you that there are only problems in two situations, and we spoke of this earlier.

The first situation is when there is a conflict of use. In such cases, you have to respect the market. I have worked in this field for 15 years now. My work involves protection, I purchase islands and land and I negotiate agreements. When there is a conflict of use, when a landowner wants to build where there are threatened plants and species, I have no choice. I have to be able to negotiate with that person in order to protect the environment, but it is not always possible. It only happens in very rare and specific situations.

My colleague Jean-François spoke about the other situation, when a landowner wants to protect a resource, but is lacking the means to do so. This is frequently the case in urban and very urban areas, where property values and the value of buildings is very high. Often, these owners even have difficulties paying the taxes in order to stay there. In such cases, the natural thing to do, and this is often what religious communities that own large lots do, is to subdivide the property and sell it to real estate developers.

These are the only two situations. If the legislation allows for incentive measures to assist groups and organizations from the area, the provinces, the towns, etc. to settle conflicts of use through market laws, then we are in business. If we are able, through positive incentives, to assist owners in protecting their buildings, in cases where they do not wish to sell but no longer have the resources to maintain them, then again we will be in business.

[English]

We look forward to further conversations.

This meeting is adjourned.