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, June 7, 2001

• 0913

[English]

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

[Translation]

Good day, ladies and gentlemen.

[English]

We have today a round table discussion on the second of the subjects chosen to examine in depth the implications and the purposes of Bill C-5, the bill on the protection of endangered species. We had one, as you know, on Tuesday, in which we examined the issue of compensation. Today we will examine the issue of habitat, a very nice word, sometimes preferable to the word “environment”, because it conveys more.

Before starting the discussion, which will be freewheeling, as on Tuesday, I have two items for this committee as reminders.

One is that on Tuesday next we will be sitting with the Commissioner on the Environment and Sustainable Development, who will appear before this committee for the first time, because it's a new official, and the purpose will be to exchange views with her. She will bring to committee her ideas and anticipations regarding her report, which is scheduled to be published in September of this year.

• 0915

Second, Dr. Schindler has sent us a paper as an alternative to his appearing before this committee. As you know, Dr. Schindler is a very respected scientist, well known internationally in the field of freshwater research. His paper is in your offices, I'm told, and also on the website. It is a remarkably interesting paper. It deals on the first page with the critical need for habitat protection. It deals with the provincial dimension. It deals with regional populations. It deals with specific problems of fresh water. It deals with the myth of “shoot, shovel, and shut up”, and it concludes, on page 4, that, in his view,

the incidence of troublesome altercations between regulators and landowners involving the U.S. Endangered Species Act was very low.

It deals with public support for stronger legislation, the importance of compensation, and it has some very interesting charts, including one that I recommend to you all, table 1, “Provincial listing of COSEWIC's endangered and threatened species”.

Having said that, let me welcome you all to the committee this morning. I will outline the areas we could discuss and allocate 20 minutes or so to each area. On Tuesday we had a session of four hours, and we want to watch our time. But before doing so, let me welcome back to the committee one of our members who distinguished himself last night as a goaltender for the MPs' soccer team, Mr. Herron, who managed to save us from a major debacle.

Mr. John Herron (Fundy—Royal, PC): Thank you very much, Mr. Chair.

The Chair: Congratulations on the fine work in keeping—

Mr. John Herron: We didn't win, and I did let the last two goals in, so I'll admit my share of the responsibility there, sir.

The Chair: He's always very modest.

Let's see whether we can start our discussion today on the definition of habitat, which would be a good way to start because there are good views. I see in the audience Ms. Wilson. If she would like to join us at the table, she may, by all means. There are others who participated on Tuesday who are here for the second time, so you need not be shy in making yourself comfortable at the table.

So we could start with the definition of habitat. We could follow that with a discussion of mandatory versus voluntary protection. Then we could go into recovery strategies and interim habitat protection, an item that was raised a few times by witnesses as a desirable feature.

• 0920

Then we could perhaps move on to observations on the adequacy of the bill and the federal role. And we could conclude with provincial performance so far, an item that has been raised by several witnesses, including, as I mentioned a moment ago, Dr. Schindler, who added that chart, which most of you are familiar with.

If that is agreeable as a sequence, and I don't see any hands raised, then let us start with habitat as a definition, as it stands in the bill. Maybe it is an item that does not require further elaboration, but if it does, this is an opportunity for it. I invite panellists who wish to kick it off to raise their hands, so that we can get going.

Mr. Findlay.

Mr. Scott Findlay (University of Ottawa): Thank you.

Are we defining residence or habitat, just so I'm clear?

The Chair: If you want to make part of the discussion the definition of residence, by all means do that, but as you know, those are two separate concepts.

Mr. Scott Findlay: I think in the scientific context, the term “residence”, as it is defined in the bill, is probably of little relevance to many, if not most, species. Although it's probably appropriate to talk about residence with things like a potential nest site for a bird or a den for a mammal, for a great many species the idea of a residence, as we understand it in the vernacular, is probably not very appropriate, particularly for many taxa, such as plants.

If we're talking about critical habitat, which I understand to be one of the key elements in the bill, a reasonable working definition, from a scientific perspective, would be the set of biotic and abiotic resources necessary to achieve a species recovery target, as specified in a recovery strategy or in an action plan. This definition, I think, is rather important, because it ties the notion of habitat to the notion of caring capacity. When we talk about recovery of a listed species, what we're really talking about is trying to ensure a certain population size or distribution for that species. Of course, the target level will determine how much habitat one requires.

So when we talk about critical habitat from a scientific perspective, we need to talk about how much critical habitat, and that is tied in with the notion of what we would like the target recovery population size to be.

The Chair: Would you like to complete your thought?

Mr. Scott Findlay: That is the completion of the thought. The idea is that in definition of critical habitat, we have to tie that directly to the targeted recovery population size for whatever the species is.

The Chair: We are aware of that, but it would be helpful if you would go into greater depth.

Perhaps Mr. Elgie can help us.

Mr. Stewart Elgie (Managing Lawyer, Sierra Legal Defence Fund): Thank you, Mr. Chair.

I have three specific comments, I guess. First, with the definition of habitat in the bill, the committee will note that there's a different definition for aquatic habitat and non-aquatic habitat. That arises from a quirk in Bill C-65 that probably isn't worth getting into.

• 0925

One of the things the committee may want to look at is there's an inconsistency between the definitions. If you look at the definition of habitat for aquatic species, what you'll see is missing, but which appears in the other definition, is the idea of habitat that was formerly inhabited by the species. The reason for that is this definition was simply taken out of the Fisheries Act and plunked into the endangered species act, and the Fisheries Act doesn't deal with recovering endangered populations.

If you want to recover endangered species, which are down to, sometimes, a few hundred, the habitat includes the areas necessary for them to recover. So all you need to do is literally lift some of the wording out of the definition for non-aquatic species—in other words, the area where the species “formally occurred and has the potential to be reintroduced”. Those words are missing in the aquatic side simply because that definition was plucked out of the Fisheries Act, which wasn't intended to deal with recovery and reintroduction.

Similarly, if you go to the non-aquatic side, the definition for terrestrial, it's missing an important concept that is found in the aquatic definition—that is, the idea of habitat that the species depends on “directly or indirectly” to carry out its life processes. So the aquatic definition includes not just the area the species actually currently uses, but the other areas it depends on. You might want to take that phrase from the aquatic definition and graft it into the non-aquatic. If you do that, the two halves of the definition of habitat will then be consistent with each other. At the moment, they're inconsistent for those two reasons.

I would make one point on residence, too, just to follow up on Mr. Findlay's comments.

I share his thoughts that residence is inapplicable, obviously, to many types of taxa. Obviously a fish doesn't typically have a residence, nor does a plant. But one thing the committee could do that would make the definition somewhat more inclusive would be to restore what was the final wording in Bill C-65, once it had gone through all levels of review and the government accepted it, and that is, by taking out the word “similar”.

It says:

“residence” means a specific dwelling place, such as a den, nest or other similar area

The committee and the government took out the word “similar” in 1996, the reason being that there are species like bison or caribou that do have a fairly well-defined and critical breeding ground, for example, but which is not similar to a den or nest. In other words, they have a habitually occupied breeding site, but it's not similar to a den or nest. So by taking that word out, you don't explode the definition; you expand it slightly so it includes a few more taxa, and you end up being consistent with what the government did in 1996 in the previous version of the bill.

The Chair: So, Mr. Elgie, you're recommending the removal of the word “similar” from the text?

Mr. Steward Elgie: Yes.

The Chair: Can you take us through the aquatic and the terrestrial deficiencies again? In the aquatic, you are suggesting that an addition be made to the definition in the form of words like “and has the potential to be reintroduced”.

Mr. Steward Elgie: Yes. I can put it in writing, if it's easier for the committee members, and follow up with it, but it's essentially the words from the terrestrial definition, which includes in the last part of it, “occurs or formerly occurred and has the potential to be reintroduced”—in other words, the idea of recovery habitat, which is obviously essential when you're dealing with a species that is down to its last couple of hundred. You find that in most other endangered species acts around the world. I think it was just an oversight.

The Chair: Yes.

And on the terrestrial side, can you read again the deficiency that you would like to see corrected?

Mr. Stewart Elgie: It's simply the words found in the aquatic habitat definition, which includes areas that the species depend on to carry out their life processes, not just the ones that they are physically inhabiting at the moment.

In the fisheries, the best example is if you clear-cut a forest 30 yards from the edge of the stream, that has a dramatic effect on the fish even though the fish aren't living in the trees.

The Chair: Thank you, Mr. Elgie.

Mr. Affleck, please.

Mr. Peter Affleck (Manager, Forestry, Interior Lumber Manufacturers' Association, Council of Forest Industries): Thank you, Mr. Chair.

Following along the lines of the discussion and the outline that was given to us in questions from staff, and addressing the issue of residence first, I share some of Mr. Elgie's and Mr. Findlay's concerns about the definition of residence. I think it has the potential to produce some unintended results.

• 0930

Clearly the intent of the application is understood, but being one who's representing the practitioners who are going to try to lay this on the landscape, I'm not sure that we'll be able to do that as intended. Obviously the concern here is the relationship both between the definition of residence and the prohibitions that come with that, and the definition of critical habitat and the prohibitions that also come with that.

It seems to me there's a concept that has been expressed to environment staff before—and I think Ms. Smallwood might also have some comments about this—a process that's used in British Columbia. It's new, it's developing, but I think it has some significant merit and I'd ask that the committee consider it. It's called the identified wildlife management strategy.

I appreciate that there are probably some issues related to the criminal law power and constitutionality, and all those things that I'm not comfortable speaking to because I'm not a lawyer, but it seems to me that it goes to the intent of the bill but with a bit more precision, and it certainly makes it a lot easier for both the people who are involved in trying to make this fit into real-life, real-world situations, as well as regulators and those other interested parties. It allows them to clearly understand the intent of trying to protect what is in the current draft as “residence”.

It goes to an actual siting of an identified species—in B.C., of course, we have a separate list, which is another issue—and then initially through policy direction, it starts laying down a fairly clear—certainly understandable from a practitioner's point of view—framework of how the initial concerns about protecting that specific site are addressed, and then how that eventually, over time, would and could develop into a much larger recovery strategy. I think that concept is something that would be extremely useful for the committee to address.

The Chair: Perhaps you may want to submit material for the committee to read or become acquainted with.

Mr. Peter Affleck: I would be most happy to send you the documentation, Mr. Chair. I would just alert the committee, though, that because it identifies a number of habitat management rules for the species that are currently listed in the document, it's a fairly thick piece of literature.

The Chair: Thank you, Mr. Affleck.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you.

Unfortunately, Dr. David Schindler has been unable to attend our session, but I just want to read something to you from his brief, and I was hoping for a response.

He says:

The very weak provision for habitat protection is the major flaw of the proposed legislation. The fact that species need habitat in order to survive is one of the most fundamental principles in all of ecology. There is no controversy whatsoever on this issue among scientists. Several hundred ecologists have written to both the Prime Minister and various Ministers of the Environment over the past several years, stating that any legislation that does not explicitly include habitat protection would be fatally flawed. Legislation that does not protect habitat would be both scientifically and politically embarrassing in international circles. It would be as absurd as legislation declaring that the earth is flat, or that humans and dinosaurs walked the earth together.

I wonder if the witnesses can comment on what Dr. Schindler has said with regard to the scientific and political embarrassment in international circles if we do nothing to improve habitat protection in this bill.

The Chair: Thank you.

Mr. d'Eça, please, and Madame Smallwood.

• 0935

Mr. Michael d'Eça (Legal Counsel, Assembly of First Nations): I actually was going to address another point, so if you don't mind I'll go back and perhaps then we can do a round on what was just mentioned.

First of all, I agree with Mr. Elgie's suggestion that the word “similar” be dropped from “residence”. It certainly makes sense from the Inuit perspective. Looking at species such as caribou and whales, the definition of residence does raise considerable problems, and this would go some way to relieving that.

Looking at critical habitat, I note that the present definition talks about:

habitat that is necessary for the survival or recovery of a listed wildlife species

So the competent minister must in each case decide whether the critical habitat covered by a recovery, strategy, or action plan contains recovery habitat, which I would argue must necessarily include survival habitat, or the more narrow concept of survival habitat.

Jumping ahead to interim measures, it seems to me that given that definition—

The Chair: Do you mind leaving that for later, interim habitat?

Mr. Michael d'Eça: Perhaps I could just take a minute, Mr. Chairman, because it has to do with my take on the present definition of critical habitat.

You could have a requirement in a recovery strategy and an action plan that talks about an identification of the critical habitat necessary for the survival of the species and, to the extent possible, an identification of the critical habitat necessary for the recovery of the species. So you split those. Then, in interim measures, you could have a situation where, once a recovery strategy has identified the critical habitat necessary for the survival of a wildlife species that is listed:

No person shall damage or destroy the critical habitat necessary for the survival of one or more individuals of that species.

So you have protection of the residence and protection of the critical habitat necessary for survival, and all this arises out of the opportunity that is presented to us by the present definition of critical habitat.

Thank you.

The Chair: Could you, for our benefit, then bring this to a further elaboration?

Mr. Michael d'Eça: I'm certainly open to hearing what others have to say about the definition of critical habitat, but my point is, given the present definition, which splits critical habitat into survival for an unlisted species and recovery, “habitat that is necessary for the survival or recovery”, that provides an opportunity in the interim protection clause of the bill, I think it's clause 33, to have “protection of residence and protection of critical habitat necessary for survival”.

One of the problems with critical habitat is it takes quite a while to get around to identifying it and finding the appropriate measures to protect it, at least for recovery. For survival, it should be more straightforward—and perhaps the scientists can comment on that—to ascertain the habitat necessary for the survival of a listed wildlife species. That would give more protection in that interim period leading up to recovery strategies and action plans and a more solid approach towards protecting critical habitat.

The Chair: Madam Smallwood, please.

Ms. Kate Smallwood (Campaign Coordinator, B.C. Endangered Species Coalition): Mr. Chair, I would like to respond first to Karen Kraft Sloan's question and then to follow up on the identified wildlife management strategy, which Mr. Affleck referred to. I think it's a good point, as we come into the Rio plus 10 summit in June next year and at the meeting on the Convention on Biological Diversity in Montreal in April.

When we're looking at Canada's international obligations, in addition to article 8(k), which requires species legislation generally, it's worth referencing, as both Goeff Scudder and I think David Schindler did in their briefs, that article 8(d) of the convention requires that:

Each Contracting Party

—which includes Canada—

shall, as far as possible and as appropriate:

(d) Promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings;

That is an international obligation upon Canada.

• 0940

When you look at what this bill actually does, and you've heard from Mr. Findlay on this, and you've also heard previously from Dr. Goeff Scudder, I would like to reference what this bill does and why it does not meet article 8(d).

Dr. Scudder noted in his brief, and I quote:

Species exist in habitats, that are part of communities in ecosystems. Species are part of food-chains and food-webs that are essential parts of the ecological pyramid.

The flow-on from that is that he then says:

It is not possible to protect and save species, without also preserving the food-web and ecological pyramid. It is not possible to save a species without the habitat in a community and ecosystem.

So what does this bill do then with the concept of residence? I refer to Dr. Scudder again, because the scientific critique of what is an artificial concept—there's no definition of residence in science—supports the argument from a large number of environmental groups and certainly the scientific community that if we're going to do the job properly, as Dr. Scudder has said, we have to protect critical habitat, not a residence. End of story.

Dr. Scudder says: “The term `residence' is nonsense for many vertebrates”, and as Dr. Findlay also said, “and does not apply to plants and most invertebrates”. He then gives an example around a butterfly in the different stages of its growth.

The prohibition should be against the damage or destruction of critical habitats, namely, the habitat that is necessary for the survival of the individual. They should be easy to identify from status reports, because these consider critical habitat.

So the flow-through from Karen Kraft Sloan through to the definition of residence is that we have international obligations around ecosystems and habitat protection. Basically, residence just doesn't cut it. We have to protect a species' critical habitat.

I'd like to briefly follow up on the identified wildlife management strategy, which Mr. Affleck referenced. I'll certainly provide the clerk of the committee with a copy of my detailed critique of the strategy.

In terms of our main concerns with the strategy, they are primarily policy in that the strategy, in our belief, is driven by timber supply considerations, not wildlife management. The entire strategy is subject to a 1% cap so the protective measures under the strategy have more than a 1% impact on provincial timber supply. That's it. The measures are capped.

There are also specific caps on protection of certain wildlife habitat areas by forest district. So ironically enough, if your forest district has more northern goshawks than another one, you get to protect fewer.

I won't go into further detail around our ongoing concerns with the strategy. What I did hear from Mr. Affleck's message is that they would like a clear framework within which to work. You can legally protect critical habitat and provide the degree of certainty and clarity that industry needs, which is why the Species at Risk Working Group has signed onto some clear provisions regarding their preference, which is residence and interim habitat protection.

I think you can achieve certainty around habitat protection without taking the measures that have been adopted under the identified wildlife management strategy.

I would be happy to answer further questions on our concerns with that strategy.

Mr. Scott Findlay: I would like to return to this issue of critical habitat for survival versus recovery. When biologists talk about the survival of a species, you always need to talk about a timeframe, because the provisions that need to be in place to ensure that the risk of survival over 10 years is at a certain acceptable level, versus over 100 years, are quite different.

One of the operational problems of Mr. d'Eça's suggestion is that when we talk about critical habitat for survival, we're talking about survival over some period. We explicitly have to talk about survival over some period.

The reason we have recovery targets for species that are listed as endangered is because the current population size or distribution is such that the likelihood of survival, over even the medium term, is very low.

• 0945

Although it might be useful in the context of the bill to distinguish between critical habitat necessary for survival and for recovery, I worry about the operationalization of it, because it's not immediately clear to me that those are not the same things.

If you have a species whose current population size is 100 or 200 individuals, I can assure you that if its critical habitat—the critical habitat required to maintain a population level in the long term of 500 individuals to 1,000 individuals—is not met, that species will not survive.

Back to the point I made before, in terms of the definition of critical habitat, critical habitat should be tied to a recovery target because, according to the best scientific information available at the time, that's the amount and quality of habitat—the scientists would then say—we need in order to ensure the long-term survival of this species.

The Chair: Thank you, Mr. Findlay.

Mr. Elgie.

Mr. Stewart Elgie: May I just switch places? Mr. Décarie hasn't yet had the chance to offer his views. So I'll let him go first and then I'll speak after.

The Chair: Fine.

Mr. Décarie.

Mr. Robert Décarie (Forest Products Association of Canada): Just a short comment on the residence, and then maybe I'll get to Mrs. Kraft Sloan's question.

I share the concerns with residence. I'm not an historian. Perhaps the appearance of residence in the act is an artifact or a bias from the Canadian Wildlife Service, who deal with birds and nests. I would be reluctant, as Stewart suggested, to open the definition of residence to imprecise sites, especially if the word “area” is in there.

If you remember, yesterday there was an interesting discussion between Mr. Lincoln and the lawyer on the word “area”. That word could be expanded to habitat. I think the intent here is not to have habitat here and have habitat there. I see the residence in fact as an extension or a complement of the individual. I'd rather remove the word “residence” than open it up.

As far as protecting habitat, if you remember a couple of weeks ago when the Alberta Forest Products Association made their presentation, Dr. Bonar presented a concept of two types of habitat. When a habitat is a fixed, very localized calcareous outcrop—you mentioned the Banff snail site—it's rather easy and probably won't be an issue to prohibit—a blunt tool—and it would be protected.

When you're dealing with species that are in part of a dynamic habitat, habitats for instance that are driven by fire—and we made a social decision a couple of decades ago to control fire—we automatically become a player with the disturbance. The need is to achieve management of the habitat in order to ensure its availability through time. I'm not sure whether, if we use the criminal law power and prohibit, we can prohibit for a couple of years, then move it elsewhere....

The Chair: Thank you, but we don't want to go into that legal discussion at this stage.

We have Mr. Elgie, followed by Mr. Reed, and then Mr. Mercredi.

Mr. Elgie.

Mr. Stewart Elgie: Thank you, Mr. Chair.

• 0950

It seems to me that perhaps we're moving beyond the initial phase of defining habitat and into some of the next questions, if that's appropriate, Mr. Chair. Or do you want to finish up with comments on definition? It seems like the discussion is moving past that, and I want to address....

The Chair: Yes, you are right. I would prefer to wrap it up before we move into mandatory versus voluntary.

Mr. Stewart Elgie: I'm happy to defer then, because I'd like to follow up on some of the others. But if you want to finish up on definition, I'll hold my spot.

Mr. Julian Reed (Halton, Lib.): That is the same for me too, Mr. Chairman, because I do believe that my questions really apply more to our next segment.

The Chair: Mr. Mercredi, do you want to make a comment on this phase of the discussion or on the next?

Mr. Ovide Mercredi (Political Adviser to the National Chief, Assembly of First Nations): Mr. Chairman, what is the bill for? What is it trying to achieve? This discussion we're having about definitions can only be addressed if the bill before you accomplishes the mission Parliament has with respect to endangered species.

For one thing it's hard to get a blunt instrument on any matter in this country to compel people to do things in the interest of society or, for that matter, in the interest of wildlife and, in my case, in the interest of aboriginal people. Law making is not a science, as you've discovered over a century of trying to make law as parliamentarians. In fact, if we followed the real law, the natural law, the earth's law, we wouldn't be having the discussion with major species.

In any event, we were involved to some extent in trying to influence this bill. Since most of the endangered species are to be located and found in aboriginal territories across the country, the last thing we wanted to see was an intrusive approach by Parliament on our lands and our territory, especially when we're not accountable for the destruction to habitat that has resulted in the depletion of species on this planet—in this country. So we greatly supported, and still do, the approach of the Minister of the Environment for cooperation as opposed to a blunt instrument. The bill itself shouldn't be judged now, because it hasn't been given a chance to work.

The protection of endangered species is the responsibility of governments and individuals and societies in this country. We take that responsibility seriously as aboriginal people. We don't think we need lessons from the federal government on how to do it, for one thing. We don't have forest companies with licences do whatever they want in our territory. We don't give them those licences. We don't issue licences to mining companies to do the same. And we're not responsible for the rise of agriculture in North America. So the depletion of habitat is not our doing, as aboriginal people of this country. We don't take that responsibility.

But we take pride in the fact that many of these species that are endangered elsewhere in Canada are surviving in our territories. We want to be able to have the capacity to rule over that, not to be told by Parliament how to conduct our affairs with respect to our land and our territory. So a less intrusive bill is our preference.

When I said we supported the minister's approach to cooperation, this is because a lot of decisions on endangered species are political decisions. The protection of endangered species will be a political decision. The listing may be done by scientists who now have to listen to our people as well, because traditional knowledge is part of this bill. There's no such thing as white science any more. There are aboriginal people and their knowledge and their science have to be taken into account before listing is completed.

• 0955

The listing is done by COSEWIC, but who is responsible for protecting the species? Ultimately, it's the governments, the people of this country. And we include ourselves, as aboriginal people, in the definition of our governments.

The minister, or the competent minister, whatever the endangered species is and whatever the consideration is for habitat, whether it's critical or residence, has the mandate under this legislation to consider the entire habitat of that species. He has that power to take into account the critical habitat of that species, not just the residence, when it comes to the idea of making recovery plans.

This bill is designed to seek the cooperation of individuals and groups to protect endangered species. To my knowledge, it's a new experiment. It means that a landowner has to be consulted and involved. It also means that forestry companies have to be somehow consulted and involved. Although there's no law telling industry that they must do this or that, it'll be in their economic interest to do something about protecting the endangered species. This is the essence of the bill.

It's too early to say if the definition of residence or habitat is going to destroy the bill when it hasn't had an opportunity to work. And that's my point, that we're not into definitions as a people. We don't much care what definitions you put there for habitat and all that. What we're concerned about is the preservation of our way of life as indigenous people, and that includes the protection of endangered species. That's what we're interested in.

Ultimately, if someone from government comes to us, as a first nation, and says “We have this species in your territory; can we work out an arrangement with you for its survival?”, then that's when we'll start working together with the government to make sure that endangered species has recovery prospects, that it survives and multiplies.

This is how the bill is going to work in our territory. Ideally—and we argued for this as well—when it comes to industry there should be punitive measures taken if they don't comply, if they don't cooperate. Ultimately it is industry, not the ordinary citizen, that must be held accountable for the depletion of habitat that results in the issue of survival for endangered species in this country.

But why place the blame there? Why point fingers if we can do something together? Our people are interested in working with industry for the survival of endangered species in our territories. Cooperation is more likely to work than a blunt instrument. That's the essence of the bill, and that's why we supported it.

The Chair: Thank you, Mr. Mercredi.

We have been joined at the table by a policy adviser for the Department of the Environment, Ms. Ruth Wherry, who should feel free to participate and comment and offer her views in the course of the discussions this morning. Welcome to the committee.

I can't think of a better way to wrap up this discussion on habitat. I see that Mr. Friesen would like to make a brief intervention, but I would like it not to be a rebuttal of what someone else has said.

Mr. Friesen, I would like you to make an intervention, if you like, to speak on habitat so that we can conclude this item.

Mr. Bob Friesen (President, Canadian Federation of Agriculture): I'm certainly not here to rebut anything that anybody has said, Mr. Chairman. In fact, I would like to thank Mr. Mercredi for his very eloquent comments. I support them 100%.

I am clearly not here to make any comments on the definitions of habitat or what is needed for recovery. I'm not a scientist. If I made comments in those areas, I would have to quote C.S. Lewis, who used to say: “I justify my willingness to speak on subjects I know very little about with the assurance that I represent a large group of people with similar misunderstandings.” Rather, I am here to say that we support this bill based on several criteria.

• 1000

The first criterion is scientific justification. I believe that's why we have scientists around this table, to tell us what is meant by some of these definitions, what is meant by recovery strategies, etc. We support it based on scientific justification. If scientific proof isn't available, then we support it based on scientific evidence as opposed to allegations or political/subjective decisions.

We support it based on consultation, as Mr. Mercredi has just mentioned. Consultation with landowners, with aboriginal people, with the people who are close to the land is important. So we support it based on consultation, cooperation, and partnerships.

We also support it based on what is included in the bill, objective, socio-economic analysis of what is required to maintain our species or to recover our species. Of course, an objective socio-economic analysis requires that we look at how it affects society, who benefits, and what is the cost to society and to those who will be caught right in the middle of the preservation of our species.

The scope of the definition of habitat and the scope of the definition of recovery strategies and criteria have a bearing on potential economic costs. We've said before that we support the four-step process: listing species, consulting landowners, creating recovery strategies, and putting in place action plans. Of course, the fifth and very important step is to ensure that those who carry the biggest responsibility to make sure these recovery strategies happen are compensated to a level that ensures cooperation, and to ensure that this bill in fact can be successful.

Thank you, Mr. Chair.

The Chair: Thank you, Mr. Friesen.

We have heard a number of important interventions in the last 40 minutes on definitions, on residence, and on critical habitat. We will certainly examine them very thoroughly.

At this stage I would invite you to move on to the next topic before us, and that is a discussion on mandatory versus voluntary protection. The two approaches have been discussed and raised during the last three months before this committee, and it would be helpful if we could perhaps develop a synthesis of the two approaches as seen through your respective perspectives.

Who would like to start?

Mr. Elgie.

Mr. Stewart Elgie: Thanks, Mr. Chair.

Following on your synthesis suggestion, to say that we have to choose between mandatory and voluntary protection—and I know you're just putting out a category—is a bit like saying we have to choose between the economy and the environment. I think you really have to have a synthesis of the two.

I've handed out to people just some of the tabs that were in the brief I submitted to the committee earlier, in the expectation that you aren't carrying all of your submissions around with you daily. What I would recommend to you is this. At the end of the day, I think you need an approach that has both a carrot and a stick. I don't think you can go for one or the other. It's like saying you have to choose between speed limits and safe driving programs on highways. You don't have to choose between them, because one is essential to the other.

In this case the committee has the benefit of not having to construct the plan from whole cloth, because about six years of work have been put into debating these concepts by the various individuals and groups that have worked on this issue, going back to 1994.

I perhaps would ask you, if it's useful, just to look at the whole process, because you can't just say mandatory or voluntary. It's much more complex in terms of how you get to protection. The second page of the little package I handed out includes a chart, and it has three columns in it. The first column on the right is how habitat is protected under most endangered species laws in North America. The middle column is how it was protected under Bill C-65. The column on the left is how it's protected under SARA.

Let me just say that, starting from the end point, which is really the key to this whole thing.... The end point is what happens on the ground to protect those species. I would hope that there is a fairly wide degree of agreement that the end point we all want to get to is some sort of plan or management framework on the ground that says this is the habitat this species needs; how are we going to manage that species to conserve the critical elements that allow that species to recover? This management will obviously involve some degree of human use of that habitat. It doesn't mean we're creating a bunch of parks everywhere, but it means it has to be managed in a careful way so that we're not wiping out other forms of life through our use.

• 1005

The issue is, how do you get to that point if you accept that this is the point you want to get to? We use the word “mandatory” habitat protection, and I think it's sometimes a bad word. I think it scares people off. You get the sense that someone's going to come in and put a park on your land, which of course is not what we're trying to achieve with this act. It's the National Parks Act that does this.

Anyway, coming back to the chart, the one model, and the one that's been used in most jurisdictions, is very simple. Once you list an endangered species, you bring in an immediate protection for all habitat of that species. This is the model that's used in four of the six provincial endangered species acts in Canada right now—in Manitoba, Ontario, New Brunswick, and P.E.I. The moment you list an endangered species, there's an immediate prohibition on any destruction of that habitat. It's the model in the U.S. It's the model in Mexico.

I was fortunate to be a member of the endangered species task force, and the Canadian Federation of Agriculture, with a previous executive director of the Pulp and Paper Association, was also on it. We went back and forth on these issues for a year, and the Species at Risk Working Group continued and really fleshed out that discussion for a couple of years after that.

I think there's fairly broad agreement that this approach isn't the one that most people want to use to get to the end point of a conservation plan for the habitat.

What people would prefer is that once you list a species, you then use the recovery planning process to identify the critical habitat to involve and engage relevant stakeholders. At the end of that recovery planning process there is a requirement—and I use the word “requirement” very deliberately—that critical habitat be conserved, but it's done in a way that involves other stakeholders. It's done in a cooperative way. It isn't somebody just showing up on your land the day after listing and saying they have the answers.

But there has to be a stick at the end of that carrot, because we don't live in a perfect world; we don't live in a world where everyone altruistically wants to do the right thing all the time. People have different economic and private motivations that sometimes require a bit of nudging to get them to the table.

Anyway, I will wrap up by saying this. I've included in the next three pages after that the exact wording of the habitat protection provisions in the four Canadian provincial acts and the Mexican and U.S. endangered species acts, and on the next page I've included the habitat protection wording in current federal wildlife and land use laws: the Fisheries Act, the Territorial Lands Act, the National Parks Act, and the Canada Wildlife Act. What you see in all of those is that they all provide stronger habitat protection than this bill does. In other words, they all ensure that habitat will be protected.

This bill doesn't do that as it's currently drafted. Its predecessor, Bill C-65, did. The problem is at the end of the consultation process, at the end of the involvement process, instead of saying “we will protect habitat”, it says “we might”. Even where there is no cooperative agreement in place, even where there's no conservation plan, there's an option to do nothing at all, to do zero.

That's weaker than all the existing federal land use laws for non-endangered species. So this bill will be irrelevant in some ways for habitat protection because the Fisheries Act, the Territorial Lands Act, and other existing federal laws already provide stronger habitat protection than this bill includes. That's the opposite of what it should be.

This should be a bill that actually provides an extra degree of protection for species that fall into the cracks of those general wildlife and land use management laws that we've had on the books for decades. And it doesn't take radical surgery to do that. The basic framework is the one that's been developed and agreed upon by a number of organizations.

What's needed is to make sure that at the end of the carrot there really is a stick, and that's as much for corporations, I would say, as for environmentalists. I've certainly heard a number of companies say, look, we're quite prepared to protect endangered species' habitat. One of our concerns is unless we know that our competitors are required to do that as well...it's risky for us to go out on a limb and do something that involves costs and expenditures if I know my competitor might be able to get away with doing nothing at all.

• 1010

So having that stick there ensures a uniform playing field, recognizing that our goal is not to use the stick. Our goal is not to actually have these prohibitions be the way we protect habitat. Our goal is to encourage people to enter into conservation arrangements, to come to the table on recovery plans, and to work out ways that will conserve the habitat in a way that allows for sustainable use.

Anyway, that's pretty general. I haven't gotten into some of the specifics, like interim habitat, because we should come back to that, I note from the chair's chronology of issues.

The Chair: That's a good way to launch this round of discussion. We have Mr. Reed, Madame Carroll, and Mr. Affleck.

Mr. Julian Reed: I'd like to move a step back. We're talking here about habitat protection and so on, and there are obviously some instances where species are in danger of becoming extinct but where it is not through the actions of humans. So the ability, in my view, to be able to do nothing should be there. I think of a species called the mountain caribou, which are being killed off by predation, not by human activity. Habitat and land has been set aside to try to maintain that species, but predation is taking them.

The question there, I suppose, is do we as humans have the right to launch a recovery program and kill off half the wolves that are taking this species? Is that part of this mix, or should we not have the option to say, this is a natural occurrence and this species is cycling in a particular way over time and it's going to happen? Species have come and gone over the millennia, as we know.

So there are instances where some concerned citizens will say, this species is being killed off by these wolves and we have to manage this thing, manage these wolves, and so on, to recover the species, when in fact humans are taking no part in the natural evolution of things.

Does anybody want to comment on that?

The Chair: There may be some comments as we move through. Madam Carroll.

Ms. Aileen Carroll: Thank you, Mr. Chair—

Mr. Stewart Elgie: I would like to respond to Mr. Reed's concern, because there may be a part in the act that does address this. It was an issue that came up on the task force. My understanding is that if you look at clause 6, the purposes of the act, there were words added in precisely as a result of the concerns such as the one you raised. It says the purpose of this act is to prevent species from becoming extinct as a result of human activity. And I know the concern was raised that, to some extent, extinction has been a natural process of evolution over the years. We know that 99.9% of modern extinctions are human caused, but where they're not human caused, we're not trying to reverse the role of evolutionary history. So the words “as a result of human activity” are embedded in the fundamental purpose of the act because of the very concern you raised.

The Chair: Thank you. Madame Carroll, please.

Ms. Aileen Carroll: Thank you, Mr. Chair. While Mr. Reed is dancing with the wolves, I am going to tell you that yesterday I felt like I was dancing with shadows with the Department of Justice. And, Ms. Wherry, I'm going to ask you to respond to Mr. Elgie. I'm really going to ask you if you would speak right to what he has said now in pointing out what legislation is like in the other provinces. He made reference to the Species at Risk Working Group and how it is similar to the American and Mexican types of legislation. But then he moved quickly on to—there's no page number—five pieces of federal legislation, and I'm asking you, from the Department of the Environment, to tell me and this committee why we did not go down that road with SARA.

Ms. Ruth Wherry (Policy Adviser, Department of the Environment): With respect to having habitat protection mandatory, as soon as you list a species, we know that in the United States they're having a major problem because they don't—

• 1015

Ms. Aileen Carroll: Okay, let's go with what he talked about.

Ms. Ruth Wherry: Okay, I'll do my best.

Ms. Aileen Carroll: It's important.

Ms. Ruth Wherry: Okay.

The Chair: We couldn't hear the exchange. We couldn't hear what you said.

Ms. Aileen Carroll: I said I thought Mr. Elgie already addressed that, so I don't want her to go over there; I want her to stay with Mr. Elgie and help me out here.

The Chair: Thank you.

Ms. Ruth Wherry: Then the other thing, just in case he didn't mention it, is that with some of the provinces that have it also, the difficulty is that they don't list species right away, if at all, because of the difficulty with the automatic protection of habitat.

With reference to the bill, the habitat protection, and the whole notion that there is complete discretion, if the critical habitat is not protected under some federal legislation, or if it's not protected under provincial or territorial legislation, then there is a requirement for the minister to recommend to the Governor in Council that the prohibition be brought in against destroying the critical habitat.

There is also an important clause, clause 63. If, in the opinion of the minister, any of the critical habitat that is identified is not protected, the minister has to report on it every 180 days. That means the minister will have reached the opinion that the critical habitat has not been protected. So it's not nearly as discretionary as it's made out to be.

There is a whole major effort, as Ovide and many other witnesses have said, to try to do this in as cooperative a fashion as possible. It isn't going to work unless we have cooperation, not for this piece of legislation. That said, there is some stick in it. It's not 100% prescriptive, but there is a lot of onus on the minister and the Governor in Council to do something. So there are sections in the act.

Ms. Aileen Carroll: I think Mr. Elgie pointed out that the recommendation to species at risk was indeed a recovery plan, was a multi-stakeholder approach, and what you said was what he said they recommended. But he has emphasized that at the end of that—they use this wonderful Ottawa expression, “at the end of the day”—we need a stick. And the stick that is in this legislation does not compare to the sticks that are in these other pieces of legislation, the former Endangered Species, the Fisheries Act, the Territorial Lands Act, not in the National Parks Act, not in the Canada Wildlife Act, not in the Migratory Birds Convention Act. Why are we making this bill less than those? Have they been found not to work? You can tell me that.

If those bills are flawed as a result of that kind of protection, we don't want to go down that road again and make another piece of federal legislation that's equally unworkable, equally flawed—share that with me. But if those are working, why are we coming out with this bill that doesn't contain the same kind of stick? I, for one, am getting inundated in my office by communications from people all across this country, as well as the organizations and people who come here, telling me that without that, this piece of legislation is a sham. So help me out, so I can answer them—and I'll tell them, look, we've got six pieces of really bad legislation, guys, we don't want to go there again.

Ms. Ruth Wherry: I thought I did just try to help you out, by telling—

Ms. Aileen Carroll: You didn't help me out, Ms. Wherry. Maybe you're helping out other members.

Ms. Ruth Wherry: I would just reiterate what I said, that there are requirements for the minister to act when it's not protected; there is clause 63. I'll reiterate that it is not completely discretionary, and that a completely 100% prescriptive, mandatory requirement, with absolutely no flexibility, for a piece of legislation.... I'll reiterate what Ovide said, because I totally agree with him. We need some experience in implementing this legislation. There's a lot we don't know yet about the recovery part.

• 1020

The Chair: We have Mr. Affleck, Mr. Décarie, then, I believe, Mr. Comartin, Mr. Mills, and Mr. Friesen.

Mr. Peter Affleck: Thank you, Mr. Chairman.

I too fully agree with what Mr. Mercredi said, the spirit and intent of this bill is cooperation. My concern is that with the linkage of precautionary principles, not very well defined definitions of residence, not very well defined—

The Chair: What is the linkage with the precautionary principle?

Mr. Peter Affleck: It is that the precautionary principle is to be used where there isn't good solid scientific evidence of what should be done. So my concern, Mr. Chair, is that when we're trying to establish how to define a residence, when we're trying to establish how to define critical habitat, as I think has been said—and I'm sure the biologists in the room would agree—we don't have that information readily available. When you put that precautionary principle linkage to those definitions, to the prohibitions, and those kinds of things, it does create concern.

It takes away from the real requirement. As Ms. Wherry has said, the requirement is that we must cooperate. Mr. Mercredi said we must cooperate. We, representing the B.C. forest industry, have said we fully intend to and do want to cooperate. I believe there's evidence that we are trying to cooperate. But when you put all those linkages together, my concern is that we'll have a number of unintended results, because of the language that's in the bill.

As a person who works more operationally in the real world trying to make this thing work, sir, I think we do need to get precision on how this is going to play out on the land base. As Mr. Décarie tried to point out and Dr. Bonar pointed out on May 10 when he presented to the committee, that critical habitat is easily defined for some species at risk, for example, the Banff snail, and he had some pictures to show you. That's easily done. But to come back to Mr. Reed's point, critical habitat for mountain caribou is not easily defined. In fact, we have attempted to define it, and not with a prohibition that we can't destroy any of it, because again I'm not sure, sir, what the word “destroy” means—it's a question that we didn't get to answer in the first series of questions. But there are literally hundreds of thousands of hectares put into a definition in the southern part of the province of British Columbia attempting to manage mountain caribou, the example Mr. Reed brought up.

So I think what we really need to get at is a consideration that we are dealing with a dynamic resource, as Mr. Décarie has said. I don't disagree that there should be a stick. As Mr. Mercredi has said, if we do screw up with intent, we should suffer significant consequences. But I'm very concerned that when you put all the prohibitions in this bill with the lack of clarity of definition, and we try to fit it operationally on the ground, whether we're ranchers, cattlemen, wheat growers, forest industry, whoever it is, the consequences will create a lot of unintended results. I caution that we should be very serious about how we attempt to define things like habitat, when they're really not that definable, and the kinds of prohibitions we attach to those definitions.

The Chair: Thank you.

Mr. Décarie, you have something to add to what Mr. Affleck said also on your behalf.

Mr. Robert Décarie: Not necessarily, but I am more following Stewart's comments.

SARWG has been often quoted, sometimes with creativity, sometimes very precisely, on the habitat issues, and I think Ruth was a witness of many of our discussions. We spent months and months trying to define ways to get at that. I think Stewart was quite right in describing the process. If you remember our presentation, we were not that unanimous on the final outcome.

• 1025

What we asked was that the federal government should take care of its own house. If it ever wants to step in others' houses, it would certainly be in a better position. We were concerned. There was this idea of having an inclusive recovery team with a strong scientific basis to identify critical habitat, all the threats, the needs, how to address them, and then find a solution that mitigates the impact, so that people can cooperate to achieve something.

We were concerned with the legal tools. Unless there are some things I don't know about that the federal government has, if the prohibitions kick in right from the start, it will be very difficult to manage. If they come at the end for unsolved situations, that could be okay.

I would like to give you an example.

The Chair: Briefly, please.

Mr. Robert Décarie: At present, with regard to woodland caribou in Manitoba, Pine Falls, one of our companies is teaming with the Model Forests first nations conservation organization of the area and Manitoba Hydro. They've been following since 1995 a little herd of woodland caribou, 60 animals. As I said earlier, there has been a fire control in this area for a long time, so the forest is aging. Together they came out, they've been collaring, they've identified a core area for the species, and they have decided, in order to make sure they have some habitat in 20, 30, or 40 years, that they will, on an experimental basis, log an area. Eventually, they would like the herd to move into an area that would be more suitable, because the site they're using, in 20 years, won't be available, won't be useful for them any more.

If the prohibitions had kicked in, it would have been very difficult to log, destroy critical habitat, in order to make sure there is some later. This project has wide support. It was funded by the World Wildlife Fund. I think it's possible to achieve a management solution. A tight, legal, blunt solution should be used as a safeguard at the very last moment.

The Chair: Thank you, Mr. Décarie.

Mr. Herron.

Mr. John Herron: I want to go back to where Ms. Wherry came from, the sort of chicken before the egg situation.

First, I applaud the government's position in not wanting to have an American-style piece of legislation. That's why the heavy emphasis has been on a graduated approach, in particular with stewardship. So we'll set aside the American debate. I applaud your government for actually going in that direction, having a stewardship regime, rather than a heavy-handed, American-style approach.

That said, as Mr. Décarie mentioned, it's fundamental that we get our own house in order. When we were arguing before about having mandatory protection of critical habitat within federal jurisdiction, as the provinces do when they do it immediately, you made the very specific point that they don't list. That's why individuals have been advocating all along that you need to have those two criteria on mandatory scientific listing to complement the mandatory protection of critical habitat within federal jurisdiction. There's a massive credibility gap if you're not going to look after your own house, but you might make an intervention in provincial jurisdiction or on private lands. I think that really answered that particular point.

• 1030

I'd like to hear from Ms. Wherry and Mr. Elgie on that very obvious dichotomy.

Thank you, Mr. Chair.

Ms. Ruth Wherry: Just briefly, I would say that if the reason they don't list is because they have the automatic habitation protection...there's a good reason. It's not just because they don't have a lack of will or a lack of desire to protect it. The problem they have is that they may not know what the habitat is, and it takes time to identify it. In some cases—

Mr. John Herron: That's not what you said, though, just a minute ago.

Ms. Ruth Wherry: No, but that's the intent of why I was saying it. In many cases it can take a long time to identify the critical habitat. Everything has to be scientific. It has to stand up in court. That's the reason why they often don't list, because they don't know yet what the critical habitat is, and that's the difficulty they have in the United States.

Mr. John Herron: Don't you see a credibility gap there at all?

The Chair: Mr. Elgie, please.

Mr. Stewart Elgie: I'm actually going to agree with what Ms. Wherry just said. When we were on the endangered species task force, one of the first things we did was invite the chief adviser to the then Secretary of the Interior, Bruce Babbitt. He said that one of the problems in the U.S. act is that in the U.S. you identify critical habitat at the moment you list. He said that's a tough thing to do, and often it bogs down the listing process because you don't know at that time, which is one of the reasons why the task force and then the Species at Risk Working Group recommended that you identify critical habitat and then protect it through the recovery plan. In other words, we've given some time to work this out. That leads us to the issue of interim habitat protection, which we'll come back to later on.

I agree with Ms. Wherry that you don't want to have to identify critical habitat the moment you list, and certainly I don't hear anyone here recommending that.

There are two things. One is, you're right, you can't suck and blow at the same time. You can't say the provinces don't list because they don't know habitat at the time of listing and then put a political listing regime in your own act, plus discretionary habitat protection. That's the worst of both worlds.

There's so much discretion in this act. I'd love to go through and count the number of “Governor in Council may” in this act. It's almost like there was a stick function that was broken in the printer that printed it and they had to print that over and over. There's just so much discretion in this act that you really could do very little. Anyway, I'm digressing.

Provinces have a spotty listing record. This is not a hearing about listing, I recognize, but for the most part it's not because of habitat. For the most part it's because if you leave listing up to cabinet—species don't get on the cabinet's agenda very often. In Ontario, if you look at the majority of species that aren't listed, they're small plants and things like that that don't have major economic implications. It's just that when you're preparing the agenda for cabinet each week, those tend to drop off the bottom. Furbish's lousewort doesn't tend to make it onto Mike Harris' cabinet agenda each week. So why leave it up to cabinet to decide on each of the 380 species in the act?

The final thing I'd say in terms of identifying critical habitat is this. We've heard from a number of people and other witnesses who have raised the issue of identifying critical habitat, and that's truly very important. I think one of the things that's come out of the various task forces and working groups on this is that we don't have perfect knowledge of what habitat is. Some species we know pretty well; others we don't know as well.

The best we can do is put the best scientific minds and people with traditional and on-the-ground knowledge of that species in the same room and say, you folks do the best you can in identifying the critical habitat of this species. If it happens to be a snail that lives in one pond, it's easy. If it's a caribou that roams all around, you have a bit tougher job. But all we can do is the best we can do.

That's why we have recommended that in the recovery planning process, the best experts should identify the critical habitat the best they can. If we learn more about that in the future, we'll refine that definition.

One of the flaws of this bill, unlike Bill C-65, is it leaves open the option of not identifying critical habitat at all. Bill C-65 said the recovery team “shall” identify critical habitat, and that was consistent with the recommendations of the task force and all the groups on it. This bill leaves an escape hatch, a loophole, that says “unless the minister determines it's not possible”. Well, if you leave that escape hatch, basically, it's a scientific uncertainty escape hatch: we're not certain, so we're not going to identify it at all. That's a crazy way to do it. You should do the opposite and say, identify it to the best extent you can, and if you learn more as time goes on, refine it. But don't start by doing nothing, or leaving the option of doing nothing, simply because you have uncertainty, because you're always going to have a degree of uncertainty. These things are going extinct. You can sit around and wait until you have certainty, and you'll be certain because they'll be gone.

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Certainly in 1996 the federal government thought it was able to identify critical habitat in all cases because it made it mandatory. I don't know what's happened between 1996 and 2001 that they no longer think they're able to identify critical habitat in all cases. I would urge them to reconsider that.

The Chair: All right.

Mr. Mills.

Mr. Bob Mills (Red Deer, Canadian Alliance): Thank you, Mr. Chairman.

Just from listening to what we've been talking about this morning, I think we should always remember that we want legislation that's going to work. I think that probably Ms. Wherry and Mr. Mercredi put it the best of anyone I've heard in terms of really addressing that cooperation, consultation, and working together.

I see some members of the committee here wanting a hammer instead of a stick. By having a hammer you can make sure this legislation is not going to work, because you're going to create conflict between the provinces and the federal government. You're going to create conflict between the federal government and first nations. You're going to go at them with this hammer, and you'll be sure that you will end up with legislation that will not work, and the things that will suffer will be the endangered species.

So if I summarize what I've heard, I think that, as I say, two people here have presented a point of view that well might save endangered species and work toward that. Taking a stronger approach and starting to tell the provinces or the first nations, “This is the habitat; you must protect it”—man, it's just not going to work.

The Chair: Thank you, Mr. Mills.

We'll go very briefly to Mr. Findlay and Mr. d'Eça.

That's going to wrap it up because we have just been told there will be a vote around 11, which will interrupt our proceedings, so now we have to attempt to compress as much as we can.

Yes, Mr. Friesen.

Mr. Bob Friesen: Thank you very much, Mr. Chair.

I'd just briefly like to go back to the frustration of being able to come to grips with the stick. I believe in large part that frustration is there because we have inadequately defined the carrot. While science may have something to do with the hesitation in the U.S. for defining critical habitat, I believe there it may also be a matter of lack of a carrot.

So I suggest that while we may have to hold our noses doing this, we may have to admit that commitment to this bill and the commitment to paying the costs of making this bill successful may be part of the problem. I think that's something we need to recognize, because we seem to be always going back to that same subject.

The Chair: Thank you.

Mr. d'Eça and Mr. Findlay, and then we will wrap it up. Please speak briefly.

Mr. Michael d'Eça: Mr. Chairman, I am here on behalf of the Inuit Tapirisat of Canada, who represent Inuit across Canada. Inuit are stewards of approximately one-third of the country's land area, and they're also governed by land claims agreements.

I think that's a unique situation, which I very much hope the committee will take into account. The bill to a certain extent does. We presented submissions to you for changes that we think are required.

The Chair: Yes. In that context, yesterday the Department of Justice gave us an answer in the affirmative when asked whether the land claim provisions will be adequately respected through this bill. You may want to see the proceedings—“the blues”, as they call them—of the meeting yesterday.

Mr. Michael d'Eça: I'll definitely want to look at them. Did you discuss the non-derogation clause with them?

The Chair: There were questions on that subject, yes, and answers.

Mr. Michael d'Eça: To continue, Mr. Chairman, Stewart Elgie brought up the examples of the U.S., Mexico, and provincial endangered species legislation. I doubt—although I'm not familiar with them—that they have to take account of concerns like land claims agreements.

Inuit are committed to protecting the environment. If you look at the provisions of land claims agreements and the instructions for wildlife management boards, their requirement to protect habitat and to ensure the protection of species and the recovery of depleted species and habitat is very, very strong—stronger than this bill. Inuit want to make sure that whatever you decide in terms of mandatory habitat protection—and we can see, certainly, some very, very strong arguments—you take into account that the bill respects, recognizes, and reflects the provisions of land claims agreements. Those provide the tools over the whole of the north to properly protect habitat and to protect species. That's the number one concern for Inuit—that tools and arrangements we've already worked out with the crown should be fully respected as you put into place the necessary provisions of this act.

• 1040

Thank you.

The Chair: Mr. Findlay, briefly.

Mr. Scott Findlay: I have just two points. The first thing is, as Dr. Schindler pointed out, if we don't protect critical habitat, we won't have to worry about the problem because there will be no problem left.

The second thing is that in terms of the scientific basis for defining critical habitat, some of the other speakers were exactly right. For some species, it's quite easy to do. For others, it's much more complicated to do. I agree with the suggestion that we tie the notion of the definition and the operationalization of critical habitat into the process of constructing the recovery strategy and identifying the critical habitat through that process.

I would also agree with Mr. Elgie that what we really need at the end of the day is some assurance that the government will in fact act upon those specifications of critical habitat for protection. My experience as a scientist and as a lay person is that if you leave an out, people take it in droves.

The Chair: Thank you.

We now could move, were it not for the bell.... This is a 30-minute bell, isn't it?

A voice: Yes.

The Chair: Well, this phase of our discussion has brought out a number of very important points, and we will have to reflect on them. That's all I can say at this stage.

We have now before us the possibility of discussing recovery strategies, action plans, and interim habitat protection. We could have time for one or two opening interventions before we break off briefly for the vote. Who would like to somehow set the tone of the discussion for you people so that we have something to build upon?

Ms. Smallwood.

Ms. Kate Smallwood: Just briefly, Mr. Chair, we have been focusing on the importance of critical habitat, and the current mechanism we're relying on to protect that is the recovery strategy and action plan. I think it's worth stressing at the outset that there is no guarantee under the process in this bill that we will get definition of critical habitat through the recovery process. So first we would very much like to see that, as a mandatory requirement, critical habitat be identified.

Secondly, in our discussions around critical habitat, the definition currently doesn't reflect a major source of information on what is critical habitat. That is the status report prepared for COSEWIC, which generally references—the amount of knowledge varies—what critical habitat is involved. I'll just quickly say, because we didn't address it at the definition stage, that the definition of critical habitat should not be solely referenced to the recovery strategy. It should be critical habitat as identified in a status report, a recovery strategy, or an action plan. Just finishing that definition, it currently reads “survival or recovery”. Critical habitat is habitat that is necessary for the survival and recovery of a listed wildlife species.

I'd just put those issues out in terms of the process currently under the recovery strategy, which is not going to guarantee that critical habitat would be protected, and it should be. It should be defined through the recovery process.

The Chair: Thank you.

Mr. Affleck.

Mr. Peter Affleck: I'll take the opportunity. Thank you, Mr. Chair.

• 1045

I think the issue Ms. Smallwood brought up about the identified wildlife management strategy in B.C. is a B.C. government application rule and really shouldn't take away from the committee's review of the concepts that are addressed in that strategy.

I think, Mr. Chair, it does create a very nice linkage between a species identified and found on the ground and the required habitat that is necessary for the immediate survival of that species. If you have a chance to look at how the process works, it does provide that interim habitat structure that allows for management of that species as you are building the recovery plans and as you're getting to, as Mr. Elgie, Mr. Findlay and others have mentioned this morning, the necessary data to establish what in fact would be critical habitat and the rules that may be invoked as a result of that establishment.

Again, I urge the committee to take a serious look at how that process works. I think there is a lot of application and a lot of utility to what we're trying to do in the spirit and intent of managing species at risk federally.

The Chair: Thank you.

Mr. Comartin, followed by Mr. Elgie.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Mr. Chair, I'll pass.

The Chair: Mr. Elgie.

Mr. Stewart Elgie: Let me just make a couple of brief comments. In terms of the recovery strategy, there are a few points. I'll just touch on them because we don't have time to go into them. There is one I've already put out, which is that identifying critical habitat should be a requirement. There should be no loophole that lets you escape the task of identifying it.

Also, there needs to be a time limit for taking action. Bill C-65 had a time limit within which government must put in place habitat protection in its own areas of jurisdiction. This new bill simply has a time limit for reporting back to Parliament and talking about it in cabinet, which is a much different thing from a time limit for actually doing something.

Turning to the issue of interim habitat conservation, first of all, I think it's encouraging in listening to the members of this committee, and I think it reflects what has happened over the six years, that you hear a fairly strong coming together around the.... I haven't heard anyone say they don't agree that the end result of this bill should be a plan or agreement for conservation of the habitat an endangered species needs to survive. I think that's remarkable. Certainly, if you brought people from the U.S. up here and had this kind of interest at a table, you'd probably have to duck the buns. So I think it's a good thing that this type of dialogue has happened over the last six years and that there has been an understanding of each other's perspective.

In terms of interim habitat conservation, the one quid pro quo is if you delay habitat protection, if you don't do it at the moment of listing, you create a potential perverse incentive problem. If you list an endangered species, and there is, for example, a valuable mineral claim—I use that because the Mining Association doesn't happen to be here, but you can talk about any resource—that may be affected by the steps you will take in a year or two to protect the habitat, you create an economic incentive for that company or individual to move quickly to exploit that habitat in order to avoid the cost of having to conserve it. That's not to say they are bad people, but you create that economic motivation. We have seen that kind of thing happen. I won't name names, but in B.C., for example, once a park is identified as a potential candidate site, we've often seen logging plans accelerated in that area.

Mr. Peter Affleck: I'd like to disagree with that, because I don't think that's fair.

Mr. Stewart Elgie: I don't want to get into naming specific things. Let's just say that it creates the potential and the incentive for that kind of situation.

The way to avoid that—and it's a way that has come out of recommendations of the task force, the Species at Risk Working Group, and somewhat different models—is to have some kind of interim habitat conservation power. At the moment the only thing you have in the bill in an interim way is residence protection. It's a pretty hit-and-miss way of giving interim protection. It only applies to some species. It doesn't cover anything more than their actual dwelling site. To answer some of the questions about why it's in there, that's one of the reasons. It's an imperfect and inadequate way of at least giving some degree of small habitat protection until the recovery plan is done.

The better way of doing it, though, is to actually deal with the problem head on. I'll let Mr. Décarie speak to it if he wishes. SARWG has recommended that you define core habitat, I think it's called, or a buffer zone around the essential habitat features of a species and you conserve that buffer zone until the recovery plan has done its job. That's certainly one viable model.

The other model I think the committee should consider, which comes from mining legislation, is called notice and comment. That is, within, say, 60 days after you list a species, you could have the recovery team identify what you might call the essential habitat.

• 1050

Mr. d'Eça used the term “survival habitat”.

In the U.S., the National Academy of Sciences brought together some of the best scientists in the country to look at how the Endangered Species Act was working, including industry scientists. At the end of that process the committee recommended that you don't protect habitat at the time of listing in the U.S. either. They said identify essential habitat—in other words, based on current knowledge, those elements the species needs just to keep alive and not to decline until we get the habitat protection done. They said conserve that essential habitat to the best we can identify it until the recovery plan is done.

The way you could do that here involves two steps: one, you have to identify it. If you don't identify it, you don't know what to conserve. So have the recovery team identify essential habitat within 60 days.

Two, if you want to encourage cooperation and conservation, don't start by slapping a prohibition on someone's land while you're asking him to come to the table and talk to you. Instead of putting a prohibition on that essential habitat, you could look at what mining legislation does and just say that if someone intends to develop or destroy areas that have been identified as essential habitat, they must at least notify the federal or provincial wildlife ministry. That will allow an opportunity for negotiation and the development of a conservation plan and some sort of interim measures on that land, which will actually involve an interaction with that person.

So don't start with the prohibition. But if you don't have a requirement to at least notify some wildlife official, then people can go ahead and actually harvest, exploit, and destroy that habitat in the process of developing the recovery plan.

Simply put, you need some kind of interim habitat conservation. All this bill has is emergency orders. In other words, there is the possibility of interim action only if there is a threat of the species being wiped out. You need to broaden that a little bit to make it interim habitat conservation. Otherwise, you'll have a perverse incentive in there.

The Chair: Thank you.

Madam Redman, please.

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

I was going to bring up clause 80, which is the emergency orders, and the fact that they do exist in the bill, but Mr. Elgie has already touched on that.

The Chair: All right.

Mr. Comartin.

Mr. Joe Comartin: Mr. Elgie, just on that, because I was going to do the same thing as Mrs. Redman, you don't see clause 80 as being sufficient in terms of the emergency orders to deal with that situation. That's obvious from your comments, but I'm not quite sure why. Perhaps you could be more specific. Why isn't that sufficient to deal with the abusive situation?

Mr. Stewart Elgie: I won't get into too much of the detail. Basically, the emergency order power deals with an imminent threat to the survival or recovery of the species; in other words, only if you have a threat that the species can't survive or recover. That's a really high bar. There are lots of things you could do to a species habitat during a recovery planning process that wouldn't pose a threat to its entire survival but that would definitely move it well down the escalator. There's no reason not to do interim habitat conservation. The various groups that have looked at this have all thought it's a good idea, but dealing with emergencies that threaten the actual survival of the species only deals with a small part of the problem.

The other thing I'd say is that unless you define in some way what the essential habitat is at an early stage, you're not actually going to know when a project is going forward that threatens the survival of the species. You haven't identified what the habitat is, nor have you put in place any mechanism for the minister or wildlife department to find out when a project is about to go forward that might do those things. Typically, they'll find out afterwards. They'll say, somebody just destroyed habitat that was essential to the survival of the species. But how the heck else are they going to know?

So you have the root of a good clause, but you have to put a bit more limbs and leaves on it to make it actually do the job.

The Chair: Thank you.

On my list is Madam Smallwood, Mr. d'Eça, and Madam Redman.

Ms. Kate Smallwood: I'll hand it off to him, Mr. Chair.

The Chair: Mr. d'Eça.

Mr. Michael d'Eça: Mr. Chairman, what Mr. Elgie describes sounds very appealing. He talks about a recovery team identifying the essential habitat within 60 days and so on. It would be essential to have within the statute or in the land claims areas of wildlife management boards requirements for the full participation of aboriginal peoples.

• 1055

So many of these species are on aboriginal lands that you have to have that kind of provision in the bill. And I would go further. If the committee or department is considering this, please share the kind of drafting you're thinking about with aboriginal peoples and wildlife management boards. Let us work with your drafters. We did that to a certain extent in the development of the bill and that's the best way to go about it; otherwise, people tend to not capture what's required. If we can work with them then everybody's happy, and we can go forward in that way.

The Chair: Madam Redman and Mr. Comartin.

Mrs. Karen Redman: For greater clarity around the emergency orders, because I realize that today's round table is being televised, I would actually like to point out that the emergency order is to provide for the protection of listed wildlife species when they face imminent threats to their survival or recovery. So it's somewhat broader than has been outlined.

I would also point out that there is an obligation on the part of the competent minister to make those recommendations. So I would contend that there is a fair amount of certainty to this emergency order as listed in the bill.

The Chair: Mr. Comartin.

Mr. Joe Comartin: Mr. d'Eça, following up from what Mr. Elgie is saying, and perhaps taking some issue with Ms. Redman, as I see clause 80, if we put in an interim protection process that builds in the points you were raising about consultation and collaboration, that would be a better methodology to engender cooperation than clause 80 would be by itself. Would you agree with that?

Mr. Michael d'Eça: Yes, especially because clause 80 is not in Bill C-33, the last version of this bill. You had section 80 being subject to land claims agreements. You had to take that into account under what is now subclause 83(3). It was dropped for some reason between Bill C-33 and Bill C-5. Now there is no connection between land claims agreements and the processes that go on there, which fully take into account these kinds of circumstances and emergency orders.

Cabinet can go ahead and do the emergency order and not have anything to do with land claims areas, and we went through all of this. Our submissions fully lay that out. So we're concerned about clause 80 and this other arrangement. Again, the bottom line for us is we have to have wording in the bill that is explicit, that recognizes and respects our land claims processes.

The Chair: Thank you.

Mr. Findlay, Ms. Wherry, and then Mr. Décarie and Mr. Mercredi.

Mr. Scott Findlay: Perhaps I could just follow up on Mr. Elgie's comment. My suggestion about interim habitat protection was along the same line. In the area of environmental impact assessment, and particularly biodiversity assessment, we have a procedure called a rapid biodiversity assessment. This procedure is used when you're going into an area of land that you don't know much about and there's a format for providing a first order approximation to what's there. That type of model might be used in the context that Mr. Elgie proposed for this rapid assessment of critical or essential habitat within the first 60 or 180 days.

Ms. Ruth Wherry: There is one thing for interim habitat protection that's not being talked about here, the whole approach of the bill and stewardship. You don't have to even wait until a species is listed for the whole stewardship and cooperative approach under the accord, etc., to work. So the whole notion of interim protection is built into that whole approach.

I would also point out that if you're going to talk about interim habitat protection in the legislation, not to open another debate here, you have to remember what the jurisdiction is and what you can do with respect to habitat protection in this legislation. Again to raise the notion of stewardship here, a lot of interim habitat protection can be done through policy. It does not all have to be in legislation.

• 1100

The Chair: That is an excellent point. I thank you for making it because I was very tempted to make it earlier as well. I'm very grateful for that.

Mr. Décarie

Mr. Robert Décarie: I guess what I say will compliment what Ms. Wherry has just said. In fact, SARWG discussed this question of using interim protection. We were very quickly confronted again with this jurisdictional issue using criminal law power to put in place an interim protection and then removing it. It looks a lot like managing, and that could make life difficult.

We step back and rely again on this cooperation, the spirit of the act, and the national accord; to try to have this put in place by the provincial and territorial jurisdictions.

The Chair: Thank you, Mr. Décarie.

Look, this is certainly a topic that could take us into several days of discussion, no doubt. We have had a good exchange so far, and a number of very helpful points have been made.

We now have to interrupt because of the vote. When we come back—I suppose in half an hour at the most—we could go into the fourth topic of the morning. It has already been touched upon by various interventions. Nevertheless, we will give it a short window. It is the adequacy of the bill and the federal role. If there are additional interventions you wish to make, we could devote some time to that. But then we would like to move on and complete our tour d'horizon by discussing for a moment, for those of you who are familiar with it, the adequacy of the provincial performance, because many of you, as also on Tuesday, keep urging that we do rely heavily on the provincial role. Therefore we need to know from your experience or your views what are your conclusions on the provincial performance so far.

This meeting is suspended for a short while, and we'll resume as soon as possible. Thank you.

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• 1133

The Chair: May I invite you to resume your seats? We should have now some uninterrupted time ahead.

Before launching the next item for discussion, I've been made aware—and it is an oversight on my part—of the fact that Mr. Mercredi indicated his wish to speak on the issue of recovery strategies, interim habitat protection, and the like. Therefore, I am more than happy to invite Mr. Mercredi to make his intervention.

Mr. Ovide Mercredi: Thank you, Mr. Chairman.

On the issue of critical habitat, the concern we have, as first nations, is that we have very little land, and a mandatory designation of critical habitat of endangered species found on our property is going to shrink our land. We don't want the federal government to dictate those decisions in our communities. We prefer the process that's already contemplated in this legislation, that they will seek our cooperation in designating an area for critical habitat protection. That would require discussions about resources and things like that, which are critical to our participation in measures to ensure the survival of endangered species.

• 1135

But the other concern we had we shared with the government before. Don't forget that the national chief meets with the Minister of the Environment from time to time and that this bill has been in the works for some years, and different national chiefs have had input into this bill already, through political discussions with your minister. All national chiefs have said to your government, don't wait until it's too late to do something about endangered species, we would prefer a front-end approach to the protection of species at risk. The federal government, to some extent, listened to us, and they have in the bill a provision for stewardship, which is the idea of conservation agreements for the protection of species at risk.

As far as I'm concerned, that's where the emphasis should be, to protect the habitat and the species before they become endangered and listed, when desperate measures have to be taken after the fact. The federal government should, in our view, place a lot of emphasis on stewardship, with a lot of resources, because there we have the opportunity, as first nations people, to enter into agreements with the Government of Canada that include things like developing and implementing recovery strategies, management plans, and protecting the species habitat, including its critical habitat.

So it's wrong to say there are no provisions in the bill to protect critical habitat. There are, but they require the government to put its resources at the front of the process, not at the tail end of it. And that means, when it comes to industry people, who are concerned about issues of compensation if they lose ground, they themselves have to make a commitment to protecting habitat. This stewardship system is the way to go. This is the approach I think would work best.

As far as we're concerned, as first nations, we don't have much land to give you any more. We don't want to lose any more. A prescriptive requirement for habitat protection could result in the reduction of our land base, as a people. We can't afford to reduce the land base of our people. We have very little as it is, less than 0.3% of the country.

Those are the comments I wanted to make, Mr. Chairman, and I thank you for the time.

The Chair: Your comments are very welcome, Mr. Mercredi. We have had, in the course of these three months, discussions on the importance of stewardship, which nicely overlap with what you also said. So there is here a convergence between what you are telling us and what is in the minds of the committee members and of those who prepare the legislation.

If I understand you correctly, what you mean by front-end approach is putting as much emphasis as possible on stewardship, hoping that will be so successful that other measures may not be necessary. Is that a fair way of summarizing your point?

Mr. Ovide Mercredi: My point is this. The federal government has land under its jurisdiction. They claim our land to be part of their jurisdiction, reserve lands. But a lot of the property we're talking about with endangered species is under provincial jurisdiction, over which the federal government has no authority, so we're told. Yet the mining industry, the forestry industry, hydro development, most industries get their authorities from provincial jurisdictions to exploit the natural resources. It's the exploitation of natural resources that depletes the habitat of species.

But it's not just the exploitation, because even making cities, towns, villages, and residences for human beings creates less habitat for other species. Just the fact that we're there, 37 million people, is going to affect the environment and therefore other species.

• 1140

But the point I wanted to make is this. This bill provides for measures within federal lands. There's a very big hole there, and that is what happens in other jurisdictions, the territories and the provinces, who have their own legislation, who we are told have stronger pieces of legislation, and that's fine. But when it comes to industry, this is an issue for us as first nations. We've never been champions of industry, as you know. We've been very strong opponents of things like hydro development on our lands, because they destroyed so much of our environment and our way of life. But in spite of that, we don't see how we could change industry's mind with a blunt instrument. Across the country, as I speak, many of our leaders are beginning to talk to government and industry about cooperative measures, to address these issues in a different forum, in a different climate, to produce a result that is satisfactory to all parties.

Maybe this bill is not quite perfect, but it does provide for that process of dialogue, discussion, and compromise that the parties have to make. Industry has been given property that belongs to us as aboriginal people, and our rights have to be front and centre for them as well. Industry is not there yet, but they're beginning to move in that direction, recognizing that not only have aboriginal people to be provided for in respect of social-economic benefits from developments, but their rights have to be recognized and protected in whatever they do as industry.

I think that's a good sign, a very positive sign for aboriginal people in this country. That's why I said earlier that we would prefer maintaining that system of cooperation, where the onus is placed on our leaders at the ground level to talk to industry and government, to protect their property, to protect their way of life. This bill, as drafted, allows that to happen now. It doesn't recognize everything we want, but we're practical people and we know that in the end, anyway, if a law is going to have any impact on people at the ground level, it's because they allowed it. If they don't like the law, they won't follow it or they'll try to change it. That's the reality. If our people, when it comes to laws like this, see an infringement of their treaty and aboriginal rights, they will resist it automatically. That's the nature of our relations with this country.

What more can I say? Don't intrude on us any more than you have. This legislation is permissive, maybe not to the satisfaction of the environmental movement, but the environmental movement has been absent in regard to the protection of our treaty and aboriginal rights and our way of life. So we can't always support them.

The Chair: Thank you. That's an important statement, which we will take into full account.

Now we move to the next topic, which has been partially dealt with, but there may be other observations that panellists wish to make, on the adequacy of the bill and the federal role, followed by a discussion on the provincial performance so far.

Who would like to lead into the first of these two topics, if there is still a wish to examine it?

Mr. Elgie.

Mr. Stewart Elgie: I'll take a start, I guess, at sticking my neck out on this one.

• 1145

First of all, I don't disagree with Mr. Mercredi. The ideal goal of this bill should be to promote prevention, to promote stewardship. At the end of the day, if it does that effectively, that will be the most important result this bill will have achieved. Certainly on aboriginal lands, partnership, respect, and cooperation must be the rule. So if you've heard any environmental group saying things other than that, then they're not ones I would agree with.

In terms of the federal role, to me, most of the other questions we're talking about you could look at from the perspective of a species and say: What's best for this species? Does it need habitat protection? Does it need scientific listing? The question of federal-provincial jurisdiction, though, becomes obviously more of a political one.

From the perspective of an endangered fish or an endangered bird, they don't know that the King of England and the U.S. President or the different Canadian provinces have carved up lines on their traditional habitat over the years. They just know that they lived here and there. As Pierre Trudeau said, fish swim. He may have also said birds fly and grizzly bears roam.

So at the end of the day you're necessarily dealing with a political question rather than a biological question, once you get into federal jurisdiction. Let me frame my remarks in that context. What's the best political goal?

It seems to me there are two things the federal government can and should do and has begun to do with this bill, though probably not far enough. One is it can set an example in its own jurisdiction. To me that's probably the single most important thing the federal government can do. Before it goes on to provincial lands, before it goes on to private lands, before it goes into aboriginal lands and tells them what to do with their habitat, it needs to have clean hands. It needs to have its own house in order and it needs to be able to say, we've set the high bar high in our jurisdiction, now we're going to talk to you about what you can do in your jurisdiction.

So before you talk at all about this safety net and invoking federal authority outside of its own jurisdiction, the federal government must get its own house in order. We've talked about that before, and as it currently stands, this bill sets a lower high bar in federal jurisdiction than exists in most of the provinces that have legislation as well as in other countries.

In terms of federal jurisdiction, the federal government must take responsibility for the areas where it has authority. There are some specific areas in which this bill actually reneges on areas of federal jurisdiction. Let's start with the most obvious one, that is, fisheries habitat.

The Fisheries Act currently applies to all fish habitat. In other words, if you're a logging company in Alberta and you want to log on the edge of a fisheries stream, the federal Fisheries Act governs what you do. You have to involve the Department of Fisheries and Oceans in ensuring that you're not destroying fish habitat.

In this bill federal jurisdiction is defined as only the actual water course itself. It says “federal lands”, which includes waters in that definition. In other words, this bill has defined federal jurisdiction more narrowly than the Fisheries Act currently defines federal jurisdiction.

It strikes me that this must be some sort of drafting oversight, because it couldn't possibly have intended to be assuming less jurisdiction than there currently is already. There are other examples of that same issue. Ones that are probably a little more debated after yesterday's session would include migratory birds' habitat.

There are only about 15 or 16 endangered or threatened migratory birds on this list, and in most cases there are only a few hundred of those birds left. Since 1916 the federal government has had the responsibility to ensure the protection of migratory birds, based on a treaty with the United States.

This bill protects the birds from actual killing. It prevents you from destroying their actual nest, but it doesn't prevent you from wiping out the critical habitat those 15 or 16 birds need to survive. That's absurd. You've had letters from a number of esteemed U.S. senators pointing out that absurdity and saying: What are you guys doing up there in Canada? Why are these birds protected in our range, and Mexico could say the same, but you're not protecting them when they fly into Canada?

The same is true for transboundary species. One of the interesting things is that in the 1996 bill the federal government included a prohibition against killing any transboundary species.

One of the absurdities of the migratory bird treaty of 1916 is that it excludes birds of prey. For some reason, the treaty excluded eagles, hawks, owls, raptors. So you have a bunch of other species, including those, that actually migrate across the Canada-U.S. border, and again they are international species. Their survival depends upon the actions of both Canada and another nation.

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In 1996 the federal government viewed that as an area of its jurisdiction. This bill makes no mention of them. I don't know what happened between 1996 and 2001 that this ceased to be an area of federal responsibility, but it would be an interesting question for someone in the federal government to address.

Federal lands, of course, are the bedrock of all this. The federal government is the single largest landowner in Canada. There is no government, individual, or corporation that owns more land in Canada than the federal government.

I take Mr. Mercredi's comments as true. How they came to be owners is a whole different story and a lot of it is subject to claims, many of which I would be very sympathetic with.

Given the current status quo as we see it, the federal government is considered the largest landowner in the country. It must set an example, as the largest landowner in the country, before it marches onto other people's land and tells them what to do with their jurisdiction. So I'd say getting their own house in order is point one.

The second issue is the safety net. What role does the federal government play in terms of serving as a watchdog for other parts of Canada? This to me is probably the most politically sensitive issue in the whole bill. It's a really tough one. It's 135 years of Canadian history, recognizing the fact that these types of interjurisdictional issues are tough.

Probably what I and other members of the environmental community would have recommended was a stronger approach than the one you see in this bill. We would have liked an approach like the one in CEPA, which says that all species and their habitat are protected everywhere, but where a province has in place equivalent legislation, that federal protection will be removed. In other words, an opt-out formula.

At the end of the day, the benefit of that is there's an assurance that all endangered species and their habitat in Canada will have a certain minimum degree of protection. Instead, what this bill has done is created an opt-in formula that says we will scrutinize provincial legislation, we will scrutinize actions taking place on private lands, and we may elect to opt in with federal protection, based on the recommendations of the Minister of the Environment. That creates a whole layer of discretion.

I have a chart, which I've attached in here, which people may be familiar with. There are similar discretionary clauses in four other pieces of federal environmental legislation saying the federal government may opt in on federal-provincial environmental issues, where a province is not doing an adequate job: the Canada Wildlife Act, the Canadian Environmental Assessment Act, the Canada Water Act, and CEPA.

If you go back 29 years, those powers have never been used once. They've probably been brought up in negotiations and there's been a certain degree of clout by having that stick in your back pocket, but they've never been used once in 29 years. I would venture to say that in those 29 years there may have actually been situations where the province was not doing an adequate job of dealing with the transboundary environmental issue somewhere in Canada.

So having that discretion, we know, will result in some instances, hopefully not all, in a species being left completely unprotected by either level of government. This bill does not provide assurance that all endangered species in Canada will be protected by one level of government or another. It creates the discretion to do that, but not the assurance.

I think most environmental groups would prefer that the safety net be mandatory. At the very least, though, what it needs is accountability.

At a minimum, if the Government of Canada is going to make that decision, it must have an obligation to actually turn its mind to the issue. They must say, “Okay, we've looked at province A. It is not protecting this endangered species at all. We've looked at their laws and there's no protection. Either they're killing it or they're destroying its habitat with impunity.” Let's hope we don't get to that situation, but we might be there.

There must be an ability for someone to say, province A is doing nothing. The government must then have a duty to look at what that province is doing and to look at more than what the law says on its face. It must look at the implementation and the enforcement, and finally, there must be a duty to give reasons if the government decides, we are not going to apply the safety net, even though a province is doing nothing and a species is going extinct. At a minimum, we will provide reasons and be accountable for what is, in effect, an extinction decision.

The Chair: Madam Carroll, followed by Mr. d'Eça.

Ms. Aileen Carroll: Ms. Wherry, your body language seemed a little like mine.

I'm the hammer lady, right, Mr. Mills?

• 1155

I was observing you when Mr. Elgie was talking about the opting in and that this is a change in federal legislation. He said that, in this case, unlike with other pieces of legislation, the federal government may opt in where provincial legislation is not doing the job. Would you like to comment on that? Do you think that's not correct and that he's giving perhaps his particular perspective? Do you want to give yours, if it's different?

Ms. Ruth Wherry: Well, he was using the example of the CEPA, and I'm quite familiar with CEPA, obviously.

In the area of wildlife protection, there is a whole long history of the provinces doing wildlife management and the provinces and the federal government working together. The long history of working together is not the same as in the area of environmental protection.

The provinces hate the equivalency approach. The approach in this bill was to build again on what works and try to get it to work better. It's to build on what the provinces are doing. It's to build on what the landowners are doing.

So yes, it does give the provinces the first chance to cover it with their own legislation, etc., and if it isn't covered, then the approach used is that the minister must make the recommendation. Again, the minister must make the recommendation. Again, I will refer you back to clause 63, where there is some accountability, because if, in the opinion of the minister, it's not protected, the minister must report. But that also means the minister has formed the opinion that it's not protected, so the minister would....

Again, I'm pointing to building on what works in the area of wildlife protection and what at the end of the day will achieve the most protection for species and for their habitat. There are no guarantees at the end of the day that any species is protected or has a home, and that includes human species.

Mr. Stewart Elgie: Could I just ask Ms. Wherry if she can address the three things I suggested, though? One is that there should be an ability for someone to request that the minister actually look into whether a province is protecting. Secondly, what does the word “protecting” mean? Should it include the implementation of the legislation or just the surface words? Three, should there be a duty to give reasons where the Government of Canada decides to do nothing when it's determined there's no protection? What do you think about those three accountability measures?

Ms. Ruth Wherry: I'm not here to form an opinion on some possible, potential, suggested changes that you might be coming up with. I'm certainly prepared to speak to anything that is in the bill now.

Mr. Stewart Elgie: So you're not going to comment on whether this will be good or bad for wildlife?

The Chair: This is becoming interrogatory. I think Ms. Wherry's answer is adequate and fair enough.

Madam Carroll, would you like to conclude?

Ms. Aileen Carroll: If I could, if that's your ruling on that one....

Ms. Wherry, I don't know if it's unfair to ask a federal bureaucrat whether in your view the provinces' track record to date has been very strong.

The Chair: This will be the subject of discussion in the next item.

Ms. Aileen Carroll: Okay, but I think in talking about CEPA, Mr. Chair, I too sat here for 96 hours of CEPA and got a sense of where we come from on equivalencies, but still we have elected in this legislation not to go there. Yet we've had considerable evidence brought forward to indicate that the track record of the provinces is dismal. It's rather objective rather than a point of view there.

So I'm just wondering, where that is common knowledge, why have we still elected to put in the act a trigger that only happens when they're found wanting?

The Chair: Again, it's a policy question, I think. But anyway, try to give it an answer.

Ms. Ruth Wherry: I was going to give it a one-word answer, which is simply that we're trying to build on cooperation. “Cooperation” is the one-word answer.

Ms. Aileen Carroll: Thank you, Mr. Chair.

The Chair: Mr. d'Eça, followed by Mr. Décarie, Mr. Knutson, and Mr. Affleck.

Mr. d'Eça.

Mr. Michael d'Eça: Mr. Chairman, related to this issue of provincial jurisdiction is also territorial jurisdiction, and of course territories cover a huge portion of Canada.

For the most part, this bill permits easy federal intrusion into territorial jurisdiction. It essentially requires consultation with a territorial minister, and then the feds can move in.

Inuit to a great extent are found in the territories, and the view is that this threshold for federal intrusion into territorial jurisdiction should be at a much higher level. Really, that threshold should only be crossed if the laws of the territory don't adequately protect species at risk or their critical habitats. We've made submissions to the committee with respect to that.

• 1200

There are a number of reasons for taking that position, but one is a very practical perspective. Within Nunavut, the Department of Sustainable Development has developed a strong wildlife and habitat management capacity. They have lots of people on the ground dealing with, for instance, polar bears, caribou, and so on. If the feds were to intrude into territorial jurisdiction, the Department of the Environment has very little capacity in Nunavut at all to exercise that kind of jurisdiction.

Just from that perspective, the bill should recognize that and recognize the job that's being done. We're presently working on a Nunavut wildlife act. Included within that act, or possibly as a piece of separate legislation, will be endangered species legislation. The whole process of developing that will have the Nunavut Wildlife Management Board; the main Inuit organization, Nunavut Tunngavik Inc.; as well as the territorial government, working together in a partnership to come up with an appropriate act, so it looks very good.

The point I'm making is that this act should not allow easy federal intrusion into territorial jurisdiction, and we have specific recommendations to you to make sure that doesn't happen.

Thank you.

The Chair: Thank you.

Monsieur Décarie, s'il vous plait.

Mr. Robert Décarie: Yes, I would certainly express or support.... I was certainly impressed by the way Mr. Mercredi, I think, expressed the intent and the scope of the approach of the legislation. Certainly I would not be able to do as well.

Our jurisdictional system is very complex and certainly does not make the life of the federal government an easy one. I don't know if you have received the letter that the president of our association sent to you, and to all the other members of the committee, on the relationship between forest management and SARA. One area that will be key, in order to improve and to achieve results, will be that of those bilateral agreements between the federal government and provincial governments, to make sure that what comes out from a recovery strategy and recovery action plan gets some ground and connection to be implemented.

They will not all result in a protection. They'll result in all sorts of management solutions. For those solutions to find their way into provincial processes for approving forest management plans, there must be a linkage through those bilateral agreements, and they're certainly an essential part of the process.

The Chair: Thank you.

Mr. Knutson, please.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): I'd just like to ask a question to Ms. Wherry.

For the sake of argument, let's assume that I agree with or I understand the reasoning that you want to give provinces first crack within areas of their own jurisdiction, and we would step in only if they're not doing the job. What about the second half of that argument, which is that, within areas of federal jurisdiction...let's say that we agree that we'll give the territories first crack of doing the job within there, and wildlife management boards and....

At the end of the day, we come down to national parks. That's all that's left. I'm just wondering why we don't have strong and aggressive legislation for mandatory habitat protection within areas of federal jurisdiction and that are solely our responsibility. There is no other person or no other entity that we're going to give first crack to. We're the sole players over that piece of geography. Why wouldn't we put in pretty strong language showing that we're going to take leadership and lead by example within areas we have control over?

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Ms. Ruth Wherry: I would just point out again that in the area of federal lands the critical habitat prohibition is fairly strong. If it isn't covered by some other federal legislation or the conservation or the stewardship, it does require the minister to make the recommendation. Again I'll refer to clause 63. So it is pretty strong language to begin with.

Mr. Gar Knutson: Okay. That's all.

The Chair: All right. Thank you.

Mr. Affleck, followed by Mr. Findlay.

Mr. Peter Affleck: Thank you, Mr. Chairman.

To go to Ms. Carroll's comments about the track record of provinces, as I mentioned to the committee in our presentation on May 10, I'm a bit worried that we get misrepresentation of the reality that's out there if we look at just the legislative packages provinces may or may not have. I'm not sure you'll get a reflection of what is happening on the ground, the kinds of things that are happening, as has been said eloquently by Mr. Mercredi and others, with the kinds of stewardship, the kinds of cooperation, the kinds of activities that are going on, specifically directed to species at risk.

I can only speak to my experiences in the province of British Columbia, and I would agree that we have a pretty limited history of regulation specifically directed at managing or setting up obligations or rules concerning species at risk. I would also ask that the committee take into consideration the fact that we do have a long and I think very positive record of addressing issues, when we're aware of them, and developing those partnerships and that stewardship, and in fact working towards managing species at risk.

My point is that there's a significant difference between the real world of what's going on and what may be set up in legislation provincially.

The Chair: Thank you, Mr. Affleck. I'm sure you are not including in that fine record a history of clear-cuts in British Columbia. But this is history as well, and we want to look at the future. I wouldn't emphasize too much the achievements over the past without including that consideration.

Mr. Peter Affleck: I'm not sure there have been, with respect, Mr. Chairman, any clear-cutting activities in the province of British Columbia that have put a species into an endangered or threatened position.

The Chair: Well, we could have a long debate on that, Mr. Affleck.

Mr. Findlay, please.

Mr. Scott Findlay: I would just like to make one point. I don't profess to be an expert on jurisdictional issues. I'm a scientist, and the foremost quality a scientist has is eternal skepticism. For scientists what matters is the evidence. If we look at the issue of protection of endangered species in the provinces, we can ask a simple question. With those provinces that have had endangered species legislation over the past few years, what is the record that they have actually been effective at protecting endangered species?

We could use various endpoints. For example, we could use what has happened to those species that are listed. Have their populations declined, or have they increased?

• 1210

I can't speak to all species; I can only speak to the species with which I am familiar, but in Ontario, which is the jurisdiction I'm most familiar with, the answer is that a number of those species that have been listed under the Ontario Endangered Species Act have continued to decline. If this is the case, then we can say, based on the evidence, there is a problem.

Then the obvious next step is to say, okay, that experiment has been done and found to be wanting. For whatever reason, the evidence seems to suggest that it hasn't been very successful. Therefore, maybe we should try a new experiment. Should we persist in an experiment that to date does not seem to have borne much fruit? Maybe it's time to try something else. This, I think, is exactly what Mr. Elgie is getting at. One thing we can do is to ensure that we have an effective federal safety net for experiments that don't seem to be working.

The Chair: And you can provide this committee with some specific examples, perhaps, in the future days?

Mr. Scott Findlay: Of species that have—

The Chair: Yes, in Ontario that led you to this conclusion.

Mr. Scott Findlay: Oh, sure.

The Chair: If you would, it would be helpful.

We have Madam Smallwood, Madam Carroll, Mr. Mills, and Mr. Comartin.

Ms. Kate Smallwood: Just briefly, Mr. Chair, in response to Mr. Affleck's concern that in assessing adequacy of provincial measures to protect species and habitats at risk, we should look at non-regulatory measures, I would like to refer again to the document I referred to the committee in my testimony, which is the State of the Environment Reporting Office for British Columbia, entitled “Environmental Trends in British Columbia, 2000”. That report, over a series of indicators, looks not just at regulatory measures, but also at voluntary and other programs the B.C. government has in place. They concluded, as I indicated in my testimony, that the poorest performance across all the indicators from British Columbia is in the protection of natural diversity. That conclusion was based on an assessment not just of regulatory measures, but of voluntary and policy measures as well.

What we need to see, as I stressed in my testimony, is a measure to ensure that we have a base level of protection for species and habitats at risk across Canada, so that, as Stewart was indicating, species at risk in this country don't fall through the cracks. The measure to do that, Mr. Chair, is an effective safety net, and the discretionary mechanism we have in place will not do that.

The Chair: Thank you.

Are you familiar with that document, Mr. Affleck?

Mr. Peter Affleck: Yes, I am.

The Chair: Thank you.

Madam Carroll.

Ms. Aileen Carroll: In the absence of Dr. Schindler, since he has submitted his report to us, it might be useful to hear his partial answer to the question, why not leave species or habitat protection to the provinces?

The provincial record on protection of species at risk is execrable. Most provinces list far fewer species than COSEWIC, despite widespread recognition among scientists that COSEWIC's committees include many of Canada's leading experts on particular species.

Equally unimpressive is most provinces' record on protection of habitat. Again to use Alberta as an example, the province's own Special Places reports show that little habitat has been protected in the foothills and boreal regions, despite the list of species mentioned above that are jeopardized. Indeed, in the foothills region industrial development is actually greater in so-called “protected areas” than it is in adjacent unprotected areas. Further, Alberta has indicated it will honour all previous existing industrial dispositions on protected lands, thus even in the event new lands are formally set aside, significant degradation of these areas will continue for decades to come.

Thank you, Mr. Chair.

The Chair: Mr. Mills.

Mr. Bob Mills: Yes, Mr. Chair. I have a question for Mr. Findlay.

You talk about the Ontario experiment failing, and you talk about Alberta. I've talked to all the environmental groups and to a great many of the industry groups in Alberta, and they seem extremely happy with the legislation that's there. They have told me that it's working—and some of these are environmental groups that I've known for a great many years and respect.

• 1215

But that aside, we talk about the experiment that hasn't worked. What about the U.S. experiment of 35 years of using the hammer approach to preserving species and of the 1,200—or whatever the number is—species that have been listed? How successful has that been after all these years?

Mr. Scott Findlay: Well, I guess the question of success begs the question of how you measure success.

Mr. Bob Mills: In your terms, though, you said it's by the number increasing. You identify the species, and its numbers now are greater than they were when it was identified.

Mr. Scott Findlay: Yes. That would be one measure of success. So you could look at the proportion of species, for example, that were initially listed and follow their progress over a few years to see whether in fact their population numbers have increased.

Mr. Bob Mills: Now the numbers that I've seen say that of that 1,200, over the 35 years, 11 of them have moved—

Mr. Scott Findlay: Up categories.

Mr. Bob Mills: —in any appreciable sense up. So I think that's a pretty dismal failure of an experiment as well.

Mr. Scott Findlay: I don't feel competent to provide any assessment of the U.S. Endangered Species Act and its success.

All I can speak with respect to are the issues that I know of in Ontario. For example, if you look at the province of Ontario's record on protection of wetland habitat—which, as we know, is an extremely threatened habitat in Ontario and is part of the critical habitat of a number of species listed in the Ontario act—we did in fact have an Ontario wetlands policy at one stage. We have it no more.

And so, in fact, if you look at the changes in wetland habitat under Mr. Harris' government, the provisions for wetland habitat in Ontario, which, however you want to define it, is a critical habitat for a number of listed species in Ontario—and, by the way, some that are not listed, but COSEWIC would list and has listed—that habitat has declined.

Now we've all agreed that critical habitat is important for the survival of species. Yet here we have a beautiful example of where a provincial government has revoked a policy that would in fact help to sustain the habitat of species that it itself has listed or have been listed by COSEWIC. Now that, to me, says something.

The Chair: Sorry, Mr. Décarie was on the list, provided Mr. Mills is finished.

Mr. Bob Mills: Yes. That's fine.

The Chair: Yes.

Mr. Décarie and Mr. Elgie.

Mr. Robert Décarie: I have just a short comment because it's not necessarily positive to point fingers. Provinces are often pointed at. Being skeptical, I would just be curious to know how many of the fish, birds, and marine mammals have improved compared to the provincial situation.

I think this act is an opportunity for the federal government to play a strong leadership role by preaching by example.

The Chair: Yes. That's a good point. Thank you.

Mr. Elgie, followed by Mr. Reed.

Mr. Stewart Elgie: I have just a couple of things. First of all, just to respond to Mr. Mills' question, I certainly wouldn't defend the U.S. act as a perfect act. I think we should look at what they've done well and learn from it, but also look at what mistakes they've made and not repeat those mistakes.

The mere fact that the U.S. has an imperfect act doesn't mean that every single thing in their act is imperfect. You, of course, would agree with that, too. So we should look at the things they've done well.

In terms of the success rate, I have just the raw numbers to help you out. Out of all the species that have been listed in the U.S., over 40% of them have either recovered or are recovering or stabilized since listing. So if you figure that all those species were going this way when they were listed, over 40% have either stabilized or are moving back up. That's not a perfect record, but when you consider that, without the act, presumably all of them would have kept going that way, it has made a significant difference for a lot of wildlife in the U.S. It hasn't done as much as it could have and should have, and I think we should try to have an act that gets a much higher percentage than 40% in Canada.

• 1220

There have been a lot of reasons in the U.S., which we don't need to go into here. One of them, though, has been chronic underfunding. There were some years in the Reagan administration when he offered a budget to Congress of zero dollars for the endangered species program.

The other problem the U.S. has, though, just to respond to your question—and I think it's an important one for Canada, because it means our news is better news—is that if you look at what I guess you could almost call the demographic profile of their endangered species, they've got about 1,000 species in the endangered category, which is the critical care ward of the hospital. They've got about 200 in the threatened category. Ours is exactly the opposite. If you look at our list, the big bulk of species are in the vulnerable category, or what we now call “special concern”. Then you've got threatened, and you've only got a few over 100 in the endangered category. So the U.S. has almost 10 times as many species that are in the critical care ward of the hospital as we do.

In Canada, we've got many more species that are showing signs of bad health initially and are going to be in the critical care ward in 10 or 20 years, and we don't do anything about it. But the benefit is—and this comes back to Mr. Mercredi's point—that we have a chance in Canada, if we put in place a meaningful act that addresses the real questions species face, to prevent all of those species that are not yet in the critical care ward from getting there. It's a lot cheaper, it's a lot easier, and it's a lot less conflictual to do that in a preventative way than to wait until they're on life support in the hospital.

The biggest mistake the U.S. made is that it waited until too late before it passed a meaningful Endangered Species Act. They might say they did it 30 years ago, but in terms of the profile of their species, there were already 250 million people or something in the U.S. by that point. They already had a really, really dramatic endangered species problem. I think the best lesson we can learn from them is to address your endangered species problem seriously before it's a crisis, the way they have it across the country.

From a federal-provincial perspective, just to touch on the issue we're debating here, I think one thing that's worth mentioning is that in this case we have the benefit of the governments of Canada already having set the test by which they themselves say they should be measured. They agreed to a national accord in 1996, which all wildlife ministers endorsed in 1997. You can get into technicalities about who signed it, but they all stood up at the press conferences and said, “Yup, we signed this; we're going to do it”.

I've got a report card in my brief that we put out every year, measuring them against their own commitments. I think we all agree with the ideal solution. The ideal solution is that each jurisdiction in Canada puts in place effective legal and non-legal protection for species at risk, including adequate funding. At the moment, measured by their own standards, no province has done that yet. About half of them have a grade of D or worse, and only a few are up above C minus. So, by their own standards, they're not meeting the test they've set for adequate protection. The federal government is in no position to brag at the moment, though, I might add, nor will it be with this act. That's why I say “getting its own house in order”.

Here's what I think is a difficult question that you come to at the end of this. The federal government, by the nature of being the federal government, is the only one in Canada with the ability to ensure protection of all endangered species in the country. There's no other government in Canada. That's why we have a national government, right, by definition, that has the authority to ensure that no species fall through the cracks. There's no debate that the federal government has that constitutional power, as a result of the Hydro-Québec case, if it wants to use it.

I recognize it's a difficult issue. It may well be faced with a choice, and this is a scenario we all hope won't happen. A species is going extinct; a province says, “I'm not willing to protect it”, and the federal government has to choose between angering that province or letting the species go extinct. I know where I come down on that choice, but that's the choice. As the only government in Canada with the authority to ensure that no species fall through the cracks—particularly species that we share with other nations, where they are actually protecting them—it has to choose between potentially angering a province or ensuring that species doesn't go extinct in the worst-case scenario.

The Chair: Mr. Reed, followed by Mr. Mercredi.

Mr. Julian Reed: Thank you, Mr. Chairman. When the subject of wetlands was brought up, it came to mind that, especially in terms of prevention, there are opportunities to recover wetlands, but they are being ruled against by biologists in government who simply belong to another ministry—it may be a provincial ministry versus a federal ministry. The argument made by creating new wetlands is the quantity of methane that's going to be discharged and the level of mercury that will emanate as a result of the creation of wetlands. These are statements made by otherwise, hopefully, well-informed biologists—I'm speaking from totally personal experience here.

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The question is, and we need your help on this, how do we get the message into government, other branches of government bureaucracy, to say that it's okay to create a wetland, that it's all right?

I had the argument put to me when I quizzed this particular biologist about beaver ponds, of which there are many in this particular area.... I asked, do you really want all the beaver ponds removed? She said, no, those beaver ponds were made by nature.

So I pose the dilemma to you. We want new wetlands, we want more wetlands, but there is resistance inside the approval areas of government that prevents the creation of wetlands.

How do we get the message through to governments and to the approving body and tell them it's okay to create more wetlands? And I would apply that to anything else when you're dealing with a restorative exercise.

The Chair: A brief answer, please.

Mr. Scott Findlay: I don't know.

The Chair: Thank you.

We have to wrap up this meeting soon because some of us have a meeting in a short while in another room.

Mr. Mercredi, would you like to make your intervention now?

Mr. Ovide Mercredi: I just want to put my contribution into this debate on which government is acting in the best interest of endangered species, the federal or provincial governments, and what the role of the federal government is in relation to our people, the first nations, in ensuring this legislation works as intended.

The remark I'll make is just that throughout Canada there are a lot of outstanding areas where there has been no final settlement with respect to our land and our resources. Our people too are endangered. All the socio-economic conditions show that.

Our capacity to govern our communities is interfered with by the federal government regularly. In fact, the federal government is now considering unilaterally amending the Indian Act without even the consent of the leadership of the first nations in Canada. So we know what intrusion is and why we oppose federal power or provincial power on our lands and our resources.

We'd like to think we've done well in the area of endangered species. We don't have any standing legislation to protect them, but we can say with confidence that we did not contribute to their decline—all that without a law.

So it's about a way of life that our people live and how they relate to their environment. I don't know if you can make a law to change how Canadians behave. I don't know if that's possible.

In my view, this bill is a compromise approach. It may be, in the end, the best approach possible. You'll find out in five years' time, when you review the impact of the bill, whether it has worked or not.

But for our purposes as first nations, the federal government can take leadership by ensuring that we have our land rights acknowledged and resolved as quickly as possible, so that whatever territory remains under our stewardship, we will ensure it is done consistent with our way of life as a people, that allows for the species to co-exist with us in a manner that our culture has done since time immemorial, as they say in British Columbia.

• 1230

The other recommendation I want to make is, at the front end of the bill, the idea of stewardship. There are provisions in there for agreements, that the minister or the government can enter into agreements with the provinces, and we hope with first nations governments, Inuit governments, and Métis governments, for conservation measures for species at risk. The federal government should take the leadership by providing a lot of fiscal resources to give capacity to first nations people and other aboriginal groups to manage their lands and their resources, and also lands outside their immediate territories, so that they can be involved in the preservation of species.

Look towards the idea of creating models for the protection of endangered species, model agreements or model approaches towards their protection, and then the bill will also give the federal government the opportunity to find other fiscal resources for other measures such as recovery plans and action plans. There again, first nations should be involved in deciding what becomes a strategy, what becomes an action plan, and they should be involved in the implementation of these measures so that capacity is built into these approaches for the preservation of species.

The final point I want to make in terms of the responsibility of the provinces is that the provinces have the best of all worlds when it comes to aboriginal people. They have all the resources, all the land, but none of the responsibilities in relation to dealing with our issues as a people within their jurisdiction, because of the constitutional provision that says that Indians are the responsibility of the federal government, that Indian lands are the responsibility of the federal government. The provinces have hidden behind that jurisdictional issue for a long time, and when it comes to taking measures for our people in anything, including the economy, child welfare, or health, they defer to the federal government, and when it comes to endangered species, they will defer to the federal government.

So it's important for the federal government, in the power they have in this bill to enter into bilateral agreements with the provinces, to ensure that our people are included in those agreements, not as subjects of the agreements, but as participants and as equal parties to what measures are going to be taken in provinces where federal-provincial agreements are entered into.

In other words, I'm recommending that if the Minister of the Environment engages in some kind of a bilateral process with the Ontario government involving endangered species that are on the COSEWIC list but not a provincial list, for example, the first nations in Ontario be involved in those negotiations and be given the opportunity to state their approaches for the preservation of this particular species within the province of Ontario, as an example, and that example can be given out to other provinces as well.

The point I'm making is that federalism itself is a weak government. It has clearly shown that it cannot deal with issues, all issues, because of jurisdictional debates between federal and provincial governments. So expand it. Recognize our governments as aboriginal people. Use our knowledge, our experience, our perspective, and let's move forward in terms of what the bill intends to do, and in five years' time we'll evaluate whether we have succeeded or not.

The Chair: Thank you, Mr. Mercredi. I appreciate your intervention.

We might now have to conclude our discussions. I would invite each one of you to make a very brief statement, if you wish to do so, and then I will conclude.

Ms. Smallwood, would you like to make a brief statement?

Ms. Kate Smallwood: I think the brief statement is, as the scientists have said in their briefs and as Mr. Findlay has said today, that habitat is the nub of the issue, and if we don't address habitat in a meaningful way, we can forget about endangered species as an issue.

The Chair: Thank you.

Mr. d'Eça.

Mr. Michael d'Eça: If the federal government or others are looking for a model to follow, I highly recommend what's going on in land claims areas. The wildlife management boards work in partnership with the appropriate government departments, either territorial or federal, with not enough resources, but with a commitment to the protection of wildlife and wildlife habitat that is unequalled in other parts of the country.

• 1235

I invite everyone to have a look at, for instance, the Nunavut Land Claims Agreement and to look at some of the things going on in the Nunavut Territory, again, with insufficient funds but with much determination.

The Chair: Mr. Mercredi.

Mr. Ovide Mercredi: I made my points, Mr. Chairman. I'll pass.

The Chair: Mr. Affleck.

Mr. Peter Affleck: As I said to this committee a few times already, the essence of this bill, the spirit and intent of this bill is cooperation, and building those foundations for cooperation. And I don't think I've heard anyone dispute that today. In fact, its all been supportive of that. I would only ask that the committee seriously look at how the relationship between the prohibitions that are in the bill and some of the concerns expressed today may impact that spirit of cooperation.

The Chair: Mr. Décarie.

Mr. Robert Décarie: The protection, the conservation, of species at risk is a key aspect that we need to take into account if we want to achieve our goals, that is, to get to sustainable forest management. And we certainly want to be engaged, active, and make a difference.

The Chair: Mr. Friesen.

Mr. Bob Friesen: I'm tempted to respond to Mr. Findlay's comment earlier when he said that scientists are the leading skeptics in the country. If that is true, then I would like to submit that farmers are probably a close second.

I stated this before in my testimonial when I came in front of the committee that farmers support the intent of this bill. We support the way the bill is written.

Again I want to refer to Ms. Wherry's comments that this bill is based on cooperation. And again I say that cooperation, good stewardship, building partnerships, and consulting with farmers for recovery strategies do not preclude a very well-defined, adequate carrot, or some kind of compensatory reimbursement to farmers who have to undergo extra costs because of what they are doing for the public good.

Whether a farmer drives around the badger holes used by the burrowing owl as a residence, whether he cultivates through the holes, around the holes, or whether he leaves the entire field as critical habitat, again, depends on a well-defined carrot.

We've often talked about transition programs in the agricultural industry. Perhaps setting aside green areas as a transition program dovetails well with the intent of this bill.

So we spent a lot of time and energy trying to develop new and better tools for the agricultural industry to move it beyond crisis management, to move it to a place where they can be less dependent on farm income support. So we cannot now develop a tool that will unload the majority of the cost of a public good initiative that will only in fact increase their costs and keep them in the crisis management area.

So that begs the question: How committed and how willing is the government to pay for the achievement of what this bill is trying to accomplish? And the level of the government's commitment in providing that cost is also going to dictate the level of appreciation and importance for this bill among farmers.

The Chair: Mr. Elgie.

Mr. Steward Elgie: I'd like to conclude by coming back to the big picture.

Ironically, and I guess somewhat sadly, it was almost nine years ago to the day that the nations of the world came together to sign a convention recognizing that the loss of nature's diversity of life was one of the major threats we faced as a planet—the Biodiversity Convention.

We've talked today about a lot of the difficulties involved in protecting endangered species, but this is the easy part of that challenge. Preventing the few species that we know are endangered from going extinct is a small part of the challenge, compared to the larger issue of preserving the diversity of life on the planet and learning to live sustainably as a people.

Certainly if we can't get our head around and muster the courage to deal with this aspect of the challenge, we're in a lot of trouble on the bigger issues.

• 1240

We have to look around the world and recognize that other countries, like Russia, for example, which has passed an endangered species law, are wrestling with these same issues and in some ways are coming up with legislation.

I look at Mexico. That actually goes a little further than Canada's.

Those countries have many more serious social and economic problems to deal with than we do. Even though we have our own problems, compared to them, we're awfully fortunate.

Canada has to look at being a world leader on this issue, not a world trailer. We were the first western nation to ratify the Biodiversity Convention. When we show up at the Rio plus ten summit we should come out as a country that can hold up our own law and programs to protect endangered species, and also as a world leader.

To finish on a note of optimism, we certainly have a better chance than almost any nation on earth to conserve our biodiversity. We have a land mass and a population on that land mass that allows us the ability to actually do that in ways that other countries can't necessarily.

I talked about the U.S. problem and how they have ten times as many species in the endangered category.

In Canada we still have room for options for saving species. There will be some pain, but the pain is minor compared to the pain we'll endure if we bury our head in the sand for another ten years and don't wrestle with the real issues we need to take on to prevent species from going extinct.

It'll be like governments ignoring deficit problems for years, only to wake up years later and recognizing that we have really painful decisions. It'll be like ignoring preventive health care for years and recognizing that you have a lot of patients in the critical care ward whose recovery is expensive.

In my view, passing a meaningful endangered species law, supported by a meaningful funding program, would be a proud legacy and one of the most important things this Parliament could do for nature. It would be an investment in the future of Canada, in the future that still includes grizzly bears, beluga whales, and marbled murrelets living in the wild for our grandchildren to enjoy. And I hope you'll do it.

The Chair: Mr. Findlay.

Mr. Scott Findlay: I'd like to make two comments, both from the perspective of the scientist. The first one is that scientists in Canada can tell us, using the best available information, what we need to conserve endangered species, and that is, to protect critical habitat. The task before you is to decide the best way to do that.

The second issue, though, has to do with what the scientists would like to see out of the bill in terms of accountability. The Canadian public, in the context of COSEWIC, is asking scientists to provide expert advice. If that expert advice is not taken, then the scientific community would like to see the government held accountable for it. In other words, there has to be public recognition that scientists have made whatever recommendations they have made, and for reasons which may transcend science. And I appreciate there are all sorts of other issues involved here besides scientific issues. We would like to see clear accountability on the part of the federal government that if it does not take the scientists' advice to heart, we want to know why.

The Chair: Thank you.

Let me now attempt to conclude very quickly by saying this committee and its members have benefited tremendously from your contribution this morning, and also on Tuesday.

I will ask the department, as I did on Tuesday, to examine very thoroughly what is in the proceedings so that what has been said this morning is thoroughly analysed and taken fully under consideration over the summer by the department and us.

I would like to indicate my own personal dismay, when reading the figures in the provincial listing of COSEWIC's endangered and threatened species. Because of the emphasis that has been placed during these discussions on the role of the provinces, I would invite you to lend any comments, if you have any, to members of the committee over the summer on the figures that are shown and that are attached to Dr. Schindler's paper.

Perhaps there are reasons for that very poor performance. Perhaps there are explanations that can be given. I don't know. I would certainly appreciate an indication on your assessment of that particular table, which I'm sure the clerk will make available in case you don't have it.

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Finally, what brings us here to this table and to this room today, and in the preceding months, is human actions. And the bill, as some of you have said, is an honest effort to moderate or prevent conflict. Every time humans come in contact with wildlife, even in the case of the native people, there is conflict, and we have to learn how to deal with that.

With that very profound observation, I'm sure you will be glad to know that it's time for lunch. I thank you very much again for your contribution.

This meeting is adjourned to the call of the chair.