ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, October 3, 2001

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[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Mesdames et messieurs, welcome to our meeting.

[Translation]

On our agenda today, we have Bill C-5, an Act Respecting the Protection of Wildlife Species at Risk in Canada.

[English]

Today we have the honour of the presence of the Minister of the Environment and the deputy, and the assistant deputy, I presume. We welcome you all.

We are looking forward to your message, Mr. Minister, after several months of hearings during which we have learned the views of the people who are keen on a workable piece of legislation.

Without further delay, we give you the floor. Perhaps you might wish to introduce your officials and indicate how you wish to proceed.

Mr. David Anderson (Minister of the Environment): Thank you, Mr. Chair.

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I believe you and I entered the House together in 1968, a long time ago. We both have longstanding personal commitments to environmental issues, and I must say it's a pleasure to be back before you as chair, and also the other members of the committee. In fact, I believe I founded the first environmental committee of the House of Commons, a special committee on environmental pollution. I did so over the objections of the House leader of the government and every other party in the House—and one day I'll tell you how. That was three years before Canada became the second country in the world to establish a department of the environment.

Certainly it's a pleasure again to be with you, as a former Minister of the Environment for Canada and for your work... I certainly appreciate in particular the work on the Parliamentary Centre for Environmentally Sustainable Development. In fact, you were doing that long before most legislators had even heard of the term “sustainable development”.

I think this may be historical to some members, but really it's legacy. I prefer to call it legacy, and I think it's in fact what brings us all together in this room at this time.

Around the table there are, of course, others who have demonstrated their conviction and also demonstrated by action their commitment to environmental stewardship in Canada.

So the task before you, a way to protect Canada's endangered species, is a goal that I believe virtually all Canadians share.

We in Canada are not like other countries. Other countries generally have manmade monuments as national symbols, but we in Canada look to our geography and to our wildlife: caribou, beaver, polar bear, the maple leaf, the loon. Those are our national symbols. Our nature is very much our heritage and our legacy. So what we are really talking about today is indeed the protection of species, but also very much the protection and the continuation of the legacy of this country.

The aim of the Species at Risk Act is to ensure that no more species go extinct by reason of human activity and that species at risk recover. We all know the legislation has had a lengthy and contentious history. We've had seven years of serious debate about how to best protect species, and in that setting it's sometimes easy to lose sight of the immense amount of goodwill that exists and the good faith of everyone involved. I think we have to remind ourselves that we all care sincerely about the issues at hand, and that many of us in fact have a lifetime of action to prove it.

I know every member of Parliament understands the necessity of protecting endangered species, and I do not know of one who is not committed to thoughtful measures to achieve that goal. In fact, I personally have not yet met a single Canadian who wants any species to disappear from our nation at all. So as we move forward on this legislation, I hope we can keep that positive reality in mind.

We also need to keep in mind that we have a small population living in the world's second largest country, with the world's longest coastline, and we represent the northern-most extreme range for many species. So the challenges and the responsibilities of protecting species at risk are huge. We need everybody we can to be enlisted to play a role, and that means we need to build a system of trust and cooperation, a system of mutual stewardship of as many people, organizations, and governments as we can. Certainly what we must not do is jeopardize that spirit of trust and cooperation.

Given the lengthy history of this bill, I will not be reviewing every aspect of it in detail today, and I will not be outlining for you each element of the legislation. As you mentioned, the committee is already seized of the issues at hand and knows them well. Instead, I would like to concentrate on what I perceive to be the primary areas of divergence.

I believe the first big point of contention is well illustrated by the Scientists for Species letter that came to the Prime Minister some weeks ago. Some 1,300 academics signed a letter to the Prime Minister describing changes they would like to the bill.

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I've had a look at the list of people who signed, and I looked at the list carefully. Of course, they are all people of high repute from our universities and other institutions in the country, but it must be noted that fewer than 3% of them are known to be involved in research on species at risk. There are few, if any, experts on farming, on fishing, or on trapping. There are extremely few economic experts or social scientists with detailed knowledge of the psychology of rural communities.

I taught at university myself for a number of years. Of course, as many of you know, I'm married to a university professor. But I certainly do not think that qualifies me to comment outside the area in which I taught or outside my area of specialty, such as on the Vancouver Island marmot's reproductive cycle. It would not, simply because an academic background does not qualify you to talk about all aspects of endangered species. But as a politician, like every one of you, I do know something about public attitudes. These eminent scientists insist that the final decision to list a species at risk for legal protection should be made by scientists, with no review by elected officials or any other group knowledgeable about rural society or the other social and economic aspects that may have a major bearing on recovery.

I've been thinking about this seriously. I telephoned a few of the scientists who signed the letter and had lengthy discussions with them. It was hard to telephone many, because there were so many interesting things to talk about. I found a genuine concern for species at risk and a serious resolve to help Canada pass a solid law. I know those people who signed the letter did so in good faith, and I also know they readily acknowledge—those I spoke to—that they had little intimate awareness of the details of Bill C-5. They asked me for copies, because they basically didn't have copies. They were unaware of the role given to science and to scientists by the legislation.

The Committee on the Status of Endangered Wildlife in Canada has provided advice to the governments of Canada for the last 23 years. For the first time, however, through Bill C-5, we're going to establish COSEWIC as a legal entity. It will not be up to the minister of the day to determine whether he or she will continue with allowing COSEWIC to exist. The existence will be part of the law and the legal process.

The assessment will also be scientific. It will also be expert, and it will be completely independent, conducted at arm's length from the government—any government—and from social or economic pressures. In fact, the scientists in Environment Canada advise me that the level of scientific advice built into this process is in fact as good as any anywhere in the world in this area of activity.

The decisions made by COSEWIC will be published, they will be freely available through public registry, and all the scientific assessments, all of the information, all of the recommendations, will be available via the Internet. Every action taken by myself or by any subsequent minister in response to the scientists will be equally open and transparent to the public, to members of the committee, to other members of the House and Senate, to the academic community, and to the Commissioner of the Environment and Sustainable Development. Citizens will have the opportunity to apply to have the status of a species assessed or reassessed by the scientists.

I think it is important to be clear. The decision to legally list a species automatically leads to prohibitions against destroying the species and its residence, and it leads to mandatory recovery planning and actions. As an elected official, I am not prepared to say the final decision on the legal listing of a species, a decision on habitat protection, or decisions on recovery actions should be made by non-elected scientists who are and should be barred from considering social and economic factors in arriving at their decision, no matter how talented those scientists may be.

This is a serious matter. I can understand why there is a certain simplistic appeal in entrusting the final decisions on species at risk or some other area of public activity to scientists, but it does go against the grain of our democratic foundations.

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This committee has heard many people explain why scientists should have the final say, but there weren't many who explained that the other voices must be heard.

Disraeli said “...that all power is a trust; that we are accountable for its exercise; that from the people and for the people all springs, and all must exist.”

The American scientist, Stackman has said “...nobody should expect scientists to do all the thinking for the country”. More simply, in the words of another politician, and for politicians like ourselves, we have the famous phrase of Harry Truman “The buck stops here”.

So democracy requires accountability—accountability is built in. Quite frankly, I do not see the concern of scientists. When I explained that and discussed it with them, they themselves agreed—those I spoke to. Some said it would be improper, or they said it would be beyond their competence to get into the areas of social and economic... I think that is an important fact.

If I can depart from my text, I remember once apologizing to an American senator for complaining about some American policy. He said to me—this was 35 years ago—“Son, in our system if you don't squeal, you ain't being gored”. I think we have to remember those words.

People in Canada have a right to be heard, if their economic future is being affected. A process that automatically leaves it to scientists, who only consider the endangerment issue, would not allow that to happen.

A bit of history can make that point.

[Translation]

In the mid-1980s, the government of the day decided to override scientific advice with respect to tuna. The government decided to clear tuna for export because the fish was edible even though tainted. The tainted tuna affair dominated the House of Commons for weeks.

You will recall, Mr. Chairman, that it was a major scandal for the Conservative government, all because the government could not justify, to the satisfaction of the public, its decision to ignore the advice of scientific experts.

So, while the Minister of the Environment will have the authority to act on scientific advice, he or she will ignore that advice at real political peril.

[English]

So we must recognize that when arm's-length scientists offer advice that is wrong or damaging, they are protected from the ramifications that face politicians. Bluntly, they have tenure; bluntly, we don't. As I said, despite disagreements on the bill, we have to show good faith and good will.

I'm certainly open to suggestions from the committee on the means to make the process more open, or to guarantee faster ministerial responses to scientific recommendations. I would also like to advise the members of Parliament that if and when this bill becomes law, I will immediately accept and implement the current list of 198 species at risk, as recommended now by COSEWIC—every one.

On the day that Bill C-5 becomes law, every mammal, bird, fish, plant, and insect that the scientific panel currently says should be protected will therefore receive protection. This commitment to accept and implement the current list of species at risk is a demonstration of cooperation, trust, and bona fides. It is also a demonstration that perhaps some of the concerns expressed to you about this issue of the COSEWIC list and the legal list are exaggerated.

Of course, we will continue to consult with those Canadians who can provide the important advice on how best to protect these species—mainly fishermen, aboriginal peoples, landowners, trappers, other governments, and industry. While scientific listing will continue to be determined by scientists, the final power for future legal listing decisions must rest with the government and in the hands of elected officials.

That brings me to the second area in which there has been vigorous philosophical debate about this bill—very important and constructive debate.

Do we want a bill based on cooperation, or do we wish to go the other route and have a bill that is essentially based on coercion? Do we want a bill that's based on looking tough or a bill based on building trust?

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We all agree that habitat is essential to protecting and recovering endangered species. The issue is whether the federal government right off the bat issues orders to protect critical habitat to help a species recover or works to build voluntary efforts, mutual respect, and cooperative actions to achieve that protection.

Now, the proposed legislation gives the federal government the power to order action to protect critical habitat of a threatened or endangered species when other measures fail. The point is, though, Mr. Chairman, that such enforcement of the federal will is the last step, not the first. My determination is to work with the provinces and territories, to work with private landowners, to work with conservation organizations, local authorities, aboriginal peoples, farmers, fishermen, trappers, ranchers, and any other organization that might be willing to assist in the task of protecting endangered species.

We have all seen, as politicians, what happens when people get fearful of their government or angry with government programs. We've all seen the damage that's done to public trust when perfectly reasonable people suddenly decide the government has some hidden and nefarious agenda. There is no reason to stir up those kinds of concern with this legislation.

We know, and I think everyone who's looked at the bill knows, that the power for federal government action under criminal law is in the bill. Criminal law is there. But so is the commitment to coordination, to complementary action, to inclusion, and that is what I want to stress. Like it or not, the vast majority of lands in Canada are under provincial or territorial management and private ownership.

If we want to stop the destruction or degradation of habitat, it seems to me that partnership with provincial and territorial governments and private landowners is crucial. At the end of the day, the protection of an endangered species and its home may, in fact, fall even on one individual. But realistically, that individual will not be me.

In fact, it will not be any politician or government official or judge, or any enforcement officer. The front-line soldier of the campaign for endangered species will be the fisherman, the farmer, the person who works in the woods, or the trapper, to name only a few. These are the people who are out there where the habitat is and the endangered species are. If we want to succeed in the protection of habitat for species at risk, we need to maintain the support and cooperation of Canadians who work and live on the land and on our waters of Canada. And that is where the action is needed.

Mr. Chairman, committee rooms like this or courtrooms or classrooms are all very well, but it's not where endangered species are found. There are ample international and national examples of why a cooperative approach works and why the confrontational approach fails when it comes to the protection of species at risk. There is an extensive literature in this regard.

[Translation]

Some of you have been reading about the failures and successes of species protection elsewhere. In Zimbabwe, villagers are actively involved in the management of elephants which roam near their communities. Elephant herds in Zimbabwe are large and growing. In Zambia, elephant conservationists have persuaded the government to adopt a different policy: they shoot poachers on sight. In some places, wildlife preserves resemble war zones, but communities are not involved in the decisions. Elephant herds in Zambia are small and shrinking.

Those lessons from Africa teach us that we need the support of landowners, we need the support of communities. Indeed, biodiversity and wildlife conservation in Africa have become increasingly dependent on private landowners and a cooperative approach with villagers.

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[English]

Many of you may have seen Richard Leaky, the former director of the Kenya Wildlife Service, on television a few days ago. He underlined and underlined how the future of the Horn of Africa depended not on the national parks, but on private landowners and on the peasants, who had to know that there was some benefit to them in protecting wildlife.

I have chosen some of these examples from Africa, but the literature is vast. You can go to any continent and find the same stories. Without the support of people who are on the land, your programs, generally speaking, become either extremely coercive or they fail.

Many witnesses before this committee have argued that Canada should adopt a law similar to the American Endangered Species Act. That 23-year-old law takes a command-and-control approach to the issue, ordering people to act at their own expense, despite what counter-incentives they may face. Since the bill was introduced in the House, we have witnessed powerful proof of the problems with the American approach.

The United States Fish and Wildlife Service said that it lost control of the species protection process because it was overwhelmed by court orders. The 2001 listing budget was virtually consumed with legal fees and court costs related to settlement agreements.

It has been a bonanza for the 25,000 United States environmental lawyers. But as the Secretary of the Interior said,

For too long, we have been spending precious resources on paying lawyers' bills, fighting in court—instead of protecting species, fighting to bring them back from the brink of extinction.

Because resources were used up in those court battles, Harper's Index—I believe it was last month or maybe the month before—in its list of astonishing statistics, stated that there were some 240 court orders of the United States courts that were not being implemented by the United States administration because of lack of funds.

This summer you saw the dispute in Oregon's Klamath Basin, which led to some ruined crops on some 200,000 acres, I understand. But it also led, more importantly for us, to civil disobedience and an atmosphere of political poison.

As of a month ago, a truce was negotiated in the United States, and the concerned parties are now committed to cooperation rather than the courts. They've essentially put aside the legal process and gone to the very approach we're advocating in this legislation in Canada.

In other words, both sides realized that the U.S. legalistic approach, which some witnesses want to adopt in Canada, simply isn't working any more south of the border. There is a major environmental cost caused by the earlier wrangling, and it's going to take some time for these issues to be resolved.

Incidentally, precisely because of the atmosphere of mistrust between the landowners and the United States government, there is no information available on the status of more than half of the endangered and threatened species found on United States private lands. That is their estimate—more than half.

When you have an endangered species law based on punishment and prohibition, it is hard to use, and even harder to use effectively. I simply do not want that to happen in Canada, and I do not want to go down that road.

Let me give you, if I may, two more examples. I was Minister of Fisheries and Oceans for Canada three years ago. Much of my work involved dealing with other nations, particularly the United States. I had some first-hand experience then, as minister, on how the United States legislation works and doesn't work.

For example, when our endangered upper Skeena River coho salmon stock was being destroyed by fishing pressure from U.S. and Canadian fishermen, the United States did not use the Endangered Species Act. I asked why. I was told the political and industry forces were far too strong for that. The law was too Draconian and wouldn't get used until you got right down to the last few fish. You could only use it when the numbers were so far down that the species was essentially eliminated.

The United States fishermen continued to kill 50% of that stock of endangered coho. But on the Canadian side, I'm pleased to report, we were able to get our mortality down to 2% of the overall catch.

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We did that in a cooperative way under the Fisheries Act, and even without species at risk legislation. We did it by allowing limited fishing for sockeye, but in ways that dramatically reduced the bycatch of coho. It wasn't easy, but it worked. Coho have a three-year cycle, and the runs this year are exceptionally good.

A second example is on the Atlantic coast. In 1998 we eliminated commercial fishing of salmon on the Labrador coast, and I made a deal with Greenland to eliminate commercial fishing on the Greenland coast, as well, for three years. It took time, effort, cooperation, and incentives. It wasn't easy, it wasn't perfect, but it did produce results.

In the case of the United States, with respect to Atlantic salmon, when the U.S. finally overcame the resistance I described to the use of their law, the results were so delayed that the American authorities reported to me that there were only 200 fish returning to the seven river systems of Maine, as opposed to the 35 systems that used to have salmon. There were just 200 fish, and that doesn't mean—let me assure you—100 each, male and female. They had number problems that were dramatic.

So I've had practical experience with the United States legislation. In both of those cases, ministerial discretion in Canada was a great deal better than the hard law of the United States.

On Pelee Island in Lake Erie we saw a comparable problem. Some farmers took voluntary measures to conserve the habitat of the endangered blue racer snake. But when those positive steps came to the attention of the Ontario government—and I'm not critical of the Ontario government here, let me assure you—the government responded by restricting activities on private land that contained the blue racer habitat—the normal knee-jerk government response. The farmers responded by bulldozing the land and destroying the habitat. That wasn't really a helpful situation.

This story was brought to light by Kate Jaimet from the Ottawa Citizen. She did a series of stories over the summer about public attitudes on endangered species, which are well worth reading. She's a reporter whose previous articles—I may feel a little sensitive here—were not uncritical. They suggested in fact, in my view, sympathy with the view of those who wanted tougher legislation. But when she went out and looked at the habitat, where things actually occur, her view appeared—to me, at least—to change. Her message was powerful: consultation and cooperation are the right routes.

Through cooperation, we have recovery activities underway for 108 endangered and threatened species. Since your committee started the examination of this legislation, we have had new recovery plans and actions for the eastern prickly pear cactus, the seaside centipede, the pitcher's thistle, and the channel darter.

[Translation]

Under our Accord for the Protection of Species at Risk, the provinces and territories are making progress. The accord commits Canada's government to provide both legal protection for threatened or endangered species and protection for the habitat of threatened or endangered species.

Nova Scotia has put new legislation in place. Newfoundland is in the final stages of drafting legislation. Saskatchewan and Alberta have made improvements to existing legislation. In the Northwest Territories, they are at the public consultation phase in preparation of a draft bill.

In anticipation of passage of this legislation, 18 months ago, the federal government allocated $180 million over five years for the National Strategy to Protect Species at risk, of which $45 million is targeted for stewardship activities.

[English]

We've also provided a more favourable tax treatment for the contributions of ecologically sensitive lands. We need to encourage that public-private cooperation, a sense of individual responsibility and shared responsibility.

In the south Okanagan, for example, there are 19 groups from differing sectors of society who are cooperating to protect an ecosystem of some 3,900 square kilometres. I had the honour of presenting a cheque for $1.5 million last summer. But I do stress that we were only part of a big team. On the prairies, farmers and landowners and conservationists are cooperating to protect some two million hectares of the Missouri Coteau, where the piping plover nests, the burrowing owl makes its home, and the northern leopard frog lives in the wetland.

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In the first year of the habitat stewardship program we have seen the formation of over 60 partnerships with landowners, resource users, nature trusts, the provinces, first nations, and conservation organizations, and 20,000 hectares have been donated as ecological gifts. Canada needs that voluntary action. Canada needs those partnerships. Our country is simply too big, too diverse, too sprawling, to do otherwise, and the challenges for habitat protection are simply too large.

There are, of course, cases where the habitat that needs to be protected is very localized or very specialized. The Banff Springs snail, for example, is found only in five hot springs on Sulphur Mountain. Incidentally, those five springs are all in a national park.

The situation is far more complex for migratory birds and other non-sedentary species. The eastern loggerhead shrike, for example, may be found in a vast area. There aren't many of them, but the area they may be in is vast, in southern Ontario and southeastern Manitoba, and also in Saskatchewan, where I saw my first loggerhead shrike last year.

It moves around from different habitat, in different places at different times. Acting to protect that range of habitat requires remarkably difficult cooperative efforts. Most species simply don't live within certain set boundaries that we can just cordon off and protect. We need wildlife sanctuaries, but we also need cooperative efforts for the large areas that we cannot turn into sanctuaries.

I call these the lands in between—the lands in between the parks or the protected areas. But we must work with the farmers, the ranchers, the trappers, and the people who work in the woods to find means to look at the total land and to include the total land in our concepts of habitat protection. We need to look at recreational and commercial uses in harmony with habitat protection. These are simple realities if we're going to build the trust and enthusiasm we need. I think that is the approach we should take.

When it comes to compensation—a very important issue—let's submit that we are going into new territory. Views vary widely, and let me admit, it has proved far more complex than I expected two years ago. We need more real-life experience on which to base a final system. There are too many concerns from two many quarters. I recognize and respect that.

So I suggest that we recognize and determine eligibility for compensation for the next little while on a case-by-case basis. We can develop more comprehensive guidelines when we have the relevant experience and knowledge of those individual cases.

That is why, in the interim, I'm proposing to develop very general compensation regulations, to be ready soon after the legislation is proclaimed, so that the provisions in the bill could be used should an extraordinary situation arise or should an individual feel that they had been affected economically in an unfair or extraordinary way. We all need to be committed to thorough consultation with everybody who can give us experience and who has a stake in a fair and effective system.

Let me stress again, we need the territories, we need the provinces, we need the resource users, we need communities, small communities, and we need farmers. We need all those who are out there on the land where the habitat and the animals and plants that we wish to protect actually occur.

We have much to do together. I'm serious about protecting species at risk, as you all are as well, as indeed I believe all Canadians are. In fact, it is the will of Canadians that has brought us this far. There may be 17 or so of us in this room reviewing the proposed bill, but I know there are millions of Canadians who want us to pass effective legislation. There are thousands of Canadians who are continuing to do what they can, even as we talk, to protect species.

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There is no question that right now, somewhere across our country, there's a fisherman fishing, a rancher with his cattle, a family walking through a national park, a forester working, a biologist, an elder sharing her or his knowledge of the land, and even a child watching the birds fly overhead, and each one of those individuals represents to me the will of Canadians to keep species in our waters, on our lands, and flying overhead.

So I look forward to moving ahead with this legislation just as quickly as possible so that we can fulfill our commitment to Canadians, to the species we're concerned about, and to the legacy of Canada.

Thank you.

The Chair: Thank you, Mr. Anderson. We are certainly impressed by your detailed knowledge of wildlife, and your message has been very clear.

As is customary, we will now proceed with five minutes each to ensure at least one round of questions, if not more—starting with Mr. Mills, Mr. Bigras, Mr. Comartin, Mr. Herron, Mr. Reed, Mr. Laliberte, Mr. Knutson, and Mr. Rajotte.

Mr. Mills, you have five minutes.

Mr. Bob Mills (Red Deer, Canadian Alliance): Thank you, Mr. Chair, and I thank the minister for appearing before us.

First of all, I'd like to congratulate you on having a lot of things there that make a lot of common sense. I think the idea of cooperation and consultation is an excellent approach. You know the third “c” is the one that's the big problem. You also know there is another “c” that we're quite concerned about, and that, I think you would agree, is the whole area of communication out to people.

I would ask the minister his time constraints on this bill, giving us the opportunity to communicate to people exactly what he has told us, and what we end up with after clause-by-clause... I guess I'm concerned about that nasty “c” called closure.

The second area I should talk about is the compensation aspect. Of course, you know we would have liked to have had that in the bill, that we don't think regulations are going to be... That's sort of like saying trust us, we're going to deal with it; it's not in the bill.

The people we're really talking about, as you are talking about, are those farmers out there, those ranchers, those little guys who can't afford to absorb any kind of a cost because they have an endangered species on their land. They are already in economic difficulty, and they're the ones we're most concerned about.

So when I read in your press release that we're going to develop general compensation regulations and I read a lot of fuzziness there... I just know how that's going to be accepted at a meeting where we have a bunch of those farmers, ranchers, and so on. They are going to turn off right now because it's not in the bill, and you're promising something maybe after we learn how it works. That's the big concern.

I really felt we could go out to our people and convince they should support this bill, because we want endangered species legislation, but we want a bill that works, and I put to you that without that compensation in the bill, we are running a real big risk of having legislation that just won't work.

My two questions, then, are on closure, which would again be a negative thing, and the concern about this compensation issue.

Mr. David Anderson: Thank you, Mr. Mills. First, may I thank you for your prompt reply to my letter asking for your concerns. I did in fact get your letter, and I appreciate very much having that heads-up.

I agree with you with respect to compensation. I would dearly like to have regulations in place that, as you described, lay out the pattern. Of course, the efforts made started even before. Dr. Peter Pearse was commissioned to write a report.

If you recollect, Dr. Pearse's report was criticized from a number of directions for a number of different reasons. We then got deeper and deeper into this and it became more and more the proverbial swamp, more and more difficult to do, partly because governments can't, or at least should not, pass legislation that is open-ended in terms of funding. We have fiscal responsibilities that, as you can well imagine, are fairly strict on us—$45 million a year is what we've been given to run the process. That's what we can expect, and that's it.

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We certainly intend later, if necessary, to have the funding level reviewed, but that's what we have for the next three years. There we had the dilemma of getting stuck in a situation where we might be robbing the recovery plans or indeed shifting the balance in a difficult way. So that was a second factor. Uncertainty was certainly the first.

We have come up with something that, I entirely agree with you, is not the best, but it's the best we can do now. That is, we must make the regulations dealing with the approach. We have the examples, which I think may come reasonably quickly, and I think there will be a comfort level re-established. I agree with you that we would have a higher level of comfort if we were able to put out full regulations on compensation. This is such an unusual piece of legislation in that it even offers compensation. Bill after bill after bill that comes before us doesn't. Think of the agricultural bills and natural resources and fisheries legislation. They just don't, so this one that does is unusual, and that's why we've had such difficulty writing it in anticipation.

Mr. Bob Mills: Can I interrupt?

If I may speak just briefly, Minister, the problem is with that farmer out there who is saying you can come up with $160 million for the airline industry and you can come up with these other figures for other things. However, he says, when you're talking about our land, the land that has sometimes been in the family for 100 years—and we want to protect that species—you're asking us to stop putting cattle in there, and we can't afford that 10% of that pasture. Meanwhile, you're saying you can't find any money to compensate the farmer.

Compensation would just be the last resort. They would love to work with you on land swaps and in all kinds of other ways. They can't afford to give that up, and that's the problem. That's the communications problem we're going to be facing.

Mr. David Anderson: Again, Mr. Mills, I'm certainly not trying to minimize the problem. I agree with you that there is a problem here. What I am saying, however, is that the bill does not rely only on compensation after the fact. There are the stewardship arrangements. We have incentives and we have opportunities to take a number of other measures that would assist the rancher or the farmer. It is not only a question of compensation after the fact. There are other ways of getting effective programs going with some stewardship money involved.

In addition, it may be possible—I hope it will be possible—to use some of the approaches with the Department of Agriculture so some of the things that are done that are beneficial in the environmental sense for endangered species will also qualify in terms of some of the agricultural programs. This is an area we have to work on, and I'll just repeat, it is not possible to organize these things in advance. It is too unusual a piece of legislation. The provinces are also watching this with intense care, particularly the Province of Alberta, and they do not want to see a system out there that they might have to emulate. So we have to learn by doing.

[Translation]

The Chair: Mr. Bigras, please.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Thank you very much, Mr. Chairman. May I first join my colleagues in thanking you for appearing before our Committee.

During our hearings, we heard many groups of witnesses oppose Bill C-5 or call for major changes in the Bill, including environmental groups and industry groups, as well as some provinces, including Quebec.

My first question is very straightforward and the answer should also be straightforward. I would like you to reassure us on your colleagues' and the Cabinet's position. I would like to know if you have the support of your colleagues on this Bill, if your Cabinet colleagues support the initial Bill as tabled?

Mr. David Anderson: Yes, the other ministers support this Bill. My colleagues are expecting me to table some suggestions after I have heard yours. They are waiting for my advice on the suggestions made by your Committee. In other words, we have not yet come to the final decision.

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I have already got their support for this Bill, but we are still waiting for the outcome of your Committee's work. Once you have completed your study, I will of course appear before my colleagues in Cabinet to explain whether amendments suggested by your Committee may or may not be accepted.

Mr. Bernard Bigras: Mr. Chairman, I am rather surprised to hear the Minister say that he has had the support of his colleagues for the Bill as drafted initially. I have here a letter dated September 19. This letter, which was therefore written about 11 days ago by Mr. Herb Dhaliwal, the Fisheries Minister, was sent to Mr. Ralph Goodale, who is of course a minister, but who also chairs the Cabinet Committee on the Economic Union. A copy of this letter was sent to Mr. François Guimont, from the Privy Council. On the issue of compensation, the language of that letter is quite clear, and I quote the Minister of Fisheries:

On the issue of compensation, I join others who may be concerned about both the precedent-setting nature of the legislation and the potential costs [...] Removing compensation from C-5 altogether would be the ideal case from my point of view, but this is unlikely given the expectations of resource users.

I would like to know if you read this letter and what your views are about it.

Mr. David Anderson: Mr. Bigras, I do not have a copy of this letter in front of me.

Mr. Bernard Bigras: I'm going to table it...

Mr. David Anderson: Thank you.

Though this letter may have been written and sent, I can assure you that, since it was written, I've had the support of my colleagues.

Mr. Bernard Bigras: I have another question dealing with the enforcement of the act.

As you certainly know, we have had in Quebec since 1989 an Act Respecting Threatened or Vulnerable Species and an Act respecting the Conservation and Development of Wildlife. My question is simple. How do you view the implementation of this federal Bill in the context of already existing regulation and legislation in Quebec?

Mr. David Anderson: I thank you for this question.

First, I would like to express my appreciation to the province of Quebec and especially my colleague Mr. Boisclair, for this very important legislation. This is just what we want to have. We want to have efficient legislation at the provincial and territorial levels. This is what we want to have, and if we have them, there will be a far lesser need to have safety nets. If the provincial legislation, whether in Quebec or in any other province, is good and effectively protects species at risk, no one will have to be concerned with possible federal interference. If required, we will be able to provide scientific support and possibly funding or compensation. We may be in a position to provide other forms of assistance. But the basic principle of this Bill is that wherever provinces operate in an effective and efficient way, the federal government will stand back.

Mr. Bernard Bigras: I have a final short question. I would like to switch subjects and go back to my earlier question on compensation. Do you agree with your Cabinet colleague that everything in the Bill dealing with compensation should be deleted? Do you agree with your colleague? This is clearly not what you think since you are supporting the Bill today as initially tabled. In the spirit of a collective Cabinet responsibility, your colleague should also be supporting this Bill as initially tabled by the Minister of the Environment.

Mr. David Anderson: Mr. Bigras, Cabinet always speaks with one voice once a decision is made, but until decisions are made, discussions obviously take place and different points of view are expressed. We are not talking about some thirty clones.

Mr. Bernard Bigras: So what you are in fact saying is that you do not have a consensus on the initial Bill.

The Chair: Thank you.

[English]

Mr. Comartin, please.

[Translation]

Mr. David Anderson: I can assure you that the Cabinet's position is clear. Compensation will remain in the Bill unless the Committee wants to delete that provision. That is another issue. We will decide later, but that provision is in the Bill.

Thank you for expressing a view which clearly differs from Mr. Mills' views. I must say it is closer to Mr. Mills' statements and to the views of those who do not wish to have compensation in the Bill.

Mr. Bernard Bigras: I was simply quoting the views of the Minister of Fisheries.

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Mr. David Anderson: We do have discussions in Cabinet, I can assure you.

Mr. Bernard Bigras: Thank you.

[English]

The Chair: Mr. Comartin, please.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Thank you, Mr. Chair. And thank you, Mr. Anderson, for appearing today.

Let me take you up on both the issues you started with, the role of COSEWIC and protection of the habitat, and do it in reverse order. With regard to habitat, I was interested to see that the material with regard to Pelee Island was passed. It would have been interesting if they had done the final piece, which was the Province of Ontario—and I will be critical of them even if you won't. They conducted themselves in a gross and inappropriate way, but they did go back finally after this article in early September and did begin to meet with the farming community and the other residents of that island. I'm hoping there will be some positive response. I know Mr. Tiessen, Mr. Hooper, and Mr. Porchuk quite well from past experience, and I think they're all reasonable enough that if the province had conducted themselves properly from the beginning, we would never have had that fiasco. But it's certainly not one you should refer to, Mr. Minister, as a justification for the legislation you've proposed.

Let me go to that. It seems to me that whenever we propose legislation, there's always the stick-and-carrot approach. Are you not, by using the carrot almost exclusively here, allowing for people to take advantage of those people who will be cooperative? As a sort of a supplementary to that, is the other issue not really how it is conducted? If Ontario—in this case on Pelee Island—had used their legislation properly and had in effect operated under the spirit of that legislation, which is cooperation, and only used the stick as a final resort, would that not have been a better approach?

Mr. David Anderson: Mr. Comartin, I would agree wholeheartedly that the best approach is a cooperative approach. I think that was very much the tenor of my message. But I will say this with respect to Ontario: you can't always simply say, oh, that's an exception; somebody screwed up. Really, people who are concerned should not think about it. They do think about it.

Kate Jaimet, in her series of articles... I agree with you, all the articles should have been presented. I think that was a good series. When she was on the prairies, she also discussed some of the concerns Bob was talking about earlier. It is not simply related only to three farmers on one small island, the most southerly part of Canada. It was more than that. She was describing concerns she ran into elsewhere as well.

Certainly, I think we should not take advantage or give the impression of taking advantage of those who are cooperating or doing things on their own in a positive way. This bill has to be viewed as facilitative for the good people you talked about.

Mr. Joe Comartin: Bearing in mind the time, let me go on to COSEWIC. As I understand the structure of this bill—and I quite frankly don't understand your argument, Minister Anderson, with regard to the expertise issue versus the political decision, especially on deciding the socio-economic component of this—the scientists make the scientific decision. Rather, that's the way we would like to see it, I'm sorry, not the way it is. The scientists make the scientific decision: is this species at risk? And that's the way the bill operates now. The second part of it is that the politician then says that we can't afford to protect this species.

So why don't you just let the scientists do their job and let the politicians and policy-makers do theirs?

Mr. David Anderson: That's precisely what we will do. Totally unrelated to these social or economic aspects, the scientists do their job. They come up with their list. Thereafter, we proceed with the involvement of the government. Let me give you an example from another piece of legislation passed by this committee—actually, before you were on it, I guess—CEPA, a listing of toxic substances. If you say the listing is to be done by scientists and that's all, there's not going to be this second intervening phase and the scientists will be subjected to lobbying. I am being asked by people who are interested in salt, for example—the issue of salt under CEPA—to inject views into the scientific process, ones I believe to be actually inappropriate. They are concerned about a listing. They say “Look, I know it's just a first step in a long process”. But there is political pressure, which I feel, not my scientists.

• 1630

Now, if we had a system where you take out the minister, that pressure hits the scientist, inevitably, and that's something that scientists don't want. As one said to me this morning, “That's not our area of expertise. We don't want that; we want to just decide on the animal.” Well, that's what's done, and then we have this intervening section where there can be an opportunity for your constituents—on Pelee Island or wherever—to have their views heard.

You cannot have a system where you launch your system on the basis only of the science activity and there is no chance in your democratic process for people to have their views heard. I think around this table, as democrats—we're all democrats in this regard—we would not want that to happen, where you would have to go and say to constituents, “Sorry, it's a bunch of people in ivory towers somewhere else in the country making decisions that affect your livelihood, but I can't do anything about it; I can't even get your views heard.”

The Chair: Second round. Mr. Herron, please.

Mr. John Herron (Fundy—Royal, PC/DR): Thank you, Mr. Chair.

There are some things in this bill that are much better for protected species at risk than we had in Bill C-65. Principally, I'd like to compliment the approach and the emphasis on stewardship and cooperation. Those issues, we can categorically concur, are the right direction to go with. I think we have an enhanced tool kit in that regard.

In the minister's final remarks he referred to needing the provinces and the territories to have good laws. Well, we also need the federal government to carry its own weight. As an illustration of that, on the principal issue of having mandatory protection of critical habitat within federal jurisdiction, the provinces do that in their regard. They've had that in place in some cases for as long as three decades. They've been able to have mandatory protection within their jurisdiction, provincial jurisdiction, without having the strong emphasis that you've had in terms of stewardship, which is to be applauded. They've been able to do that without even having a compensatory regime. Yet the federal government chooses not to act within its own federal jurisdiction.

I know you've probably been briefed on some of the Hansard we've had here in committee. We've heard from a clear consensus—not unanimity, but a clear consensus—that mandatory protection of critical habitat within federal jurisdiction, or at least on federal lands, has been supported by radical environmentalists like the Canadian Mining Association, the Canadian Pulp and Paper Association, or the Canadian inter-federationists teamed up with them in that regard.

If I look across the way, the line of questioning we've heard from the government members—at least half the members who are here—and some great questioning that we heard from Aileen Carroll have clearly gone in that direction.

I asked you when you were here before in committee why we couldn't we have mandatory protection of critical habitat within federal jurisdiction. At the time you said that we can't have a hierarchical approach. We have that under CEPA, and during committee the justice department folks said that's not the issue.

So I guess my question is why do we want to have a lower bar at the federal level than the provinces have set in their regard? Moreover, outside of government, whose interests are served by the federal government not ensuring that habitat protection within the areas of federal jurisdiction is served?

Thank you, Mr. Chair.

Mr. David Anderson: I appreciate your remarks, Mr. Herron. I certainly appreciate your response to my letter, which you responded to a few days ago.

Look, there aren't many mines operating in national parks. It's pretty simple and pretty cheap for the Mining Association to say “Okay, on federal lands we back off”. You pay a price for that, I have to add.

We're not even quite sure what federal lands are. Is the Indian reserve federal land? I think you'd find a lot of Indian bands objecting to a different level for their property, as opposed to the adjacent area. I'm not sure that lands north of 60 degrees could be described as federal land any more. We've had debates as to whether migratory birds' landing areas, feeding areas, nesting areas could be federal lands. There is a lot of debate as to what constitutes them.

• 1635

I just want to have a simple system. I do not agree with you that the provincial lands would somehow be in any superior position—not at all. Our approach with this legislation is to treat all lands the same.

Furthermore, you have on the prairies the Prairie Farm Rehabilitation Act lands, which are very extensive. Bob may be able to correct me, but I think the largest landowner on the prairies is that agency. A lot of the people Bob is talking about have cattle on the land. Interestingly, they've discovered that running cattle on the land is better in terms of protecting natural original ground cover than leaving it ungrazed.

So you have a lot of people who have an interest in this who happen to believe they're on federal lands. We just don't want that complication. We want a simple system. We move in there and we don't have to argue about what are federal lands. We will simply proceed on a straightforward basis.

Mr. John Herron: I guess the problem is that we have a chance to have a really pioneering bill here. The concern I have is some of the rationale that we initially had on some of these planks—and you raised migratory birds in that regard... Chief Justice La Forest's opinion is that's clearly within federal jurisdiction. When the justice officials came here they said “We have a difference of opinion”, but when asked for any further rationale, it's never been offered.

When we look at the critical mass of issues in terms of having a pioneering bill—not including birds, not including critical habitat or federal jurisdiction—we might have a better tool kit than we had before, but we're missing an opportunity of a pioneering bill.

That's my comment, Mr. Chair.

Mr. David Anderson: To that I would say I repeat my request for an effective piece of legislation. Pioneering is fun, but sometimes it's not effective. We had pioneering legislation, but unfortunately we weren't as successful as you would have liked in protecting endangered species. Maybe this is a cautious approach on my part, but I want to make sure we have the most effective legislation possible. That is the test—not whether it is attractive to scholars of legal processes who say “Ah, this is pioneering and unusual”. Maybe it doesn't work.

I mentioned migratory birds. You've mentioned La Forest. Obviously other people disagree.

Furthermore, you're a politician, and I'm a politician. You would have no end of political trouble on the prairies and elsewhere if the thought were out there that the federal government was going to somehow federalize land if a Canada goose migrating from the north to the south, or a snow goose, or a mallard, or a black duck, if somehow they landed, that federalized the area they started to feed on or that they happened to use. I just think you're creating a problem, which is unnecessary.

Politically, we're going to leave it to the provinces, as I told Mr. Bigras, just as far as we can, as far as they want to go. We are the backstop. We are the safety net.

Yes, we might be prouder if we had some pioneering piece of legislation, but it might not be the most effective legislation to protect endangered species.

The Chair: Thank you.

Mr. Reed, followed by Mr. Laliberte, Mr. Knutson, Mr. Lincoln, and the chair.

Mr. Reed.

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

Minister, you've laid it out in excellent terms, with your intent on preserving the elements of stewardship, consultation, cooperation, and so on, and being really all-inclusive, if that's ever possible, of all kinds of land, down to and including privately held land where this bill will apply. I commend you for that.

This bill strikes out in a new direction, and you laid out the reasons for it: that other legislation that has been in place is not deemed to be working very well, especially the American legislation. So we're on a new course. That new course may be a little bit adventurous, and we will be accused of perhaps not putting enough hammers into the bill and all the rest of it. But if we succeed in bringing the population of Canada with us hand in hand, we will do something that has not been done in any other country.

• 1640

I do believe that if this bill is allowed to go through the way you have conceived it, it can be reviewed in five years' time or four years' time, or whenever, and then we can look back at it and say, “Okay, what did we do right and what did we do wrong? After all, the thing's been under deliberation now for seven years, for pity's sake.” It seems to me that this is the appropriate time to move ahead.

I would also, if I had my druthers, really like to see a consciousness-raising of the vast majority of the population of this country, the urban dwellers. I'd like to make urban dwellers aware that every time they have flushed a noxious substance down the toilet or allowed a motor oil to go down the drain into a body of water that we have right here in Ontario, where half of the endangered species are ensconced, they, as urban people, are contributing to the degradation of this country. I don't know whether this bill addresses that very well or not, but I certainly would like to see that consciousness raised in every urban dweller in this country.

The question was raised about compensation. There are some patterns for compensation in existence, and I don't know whether you've been able to examine those patterns.

I think the Ontario forest management agreement is one where, if certain environmental actions are undertaken on privately owned property, there are certain positive tax relief consequences because of that. We have some forest management agreements in the riding of Halton where I serve at the present time. I don't know whether that's the kind of compensation pattern that has been thought out or thought through, but I only throw it out as a suggestion.

Quite frankly, while this legislation may end up not being perfect, certainly we're on a new departure, we're on a new course, and we can go back after a period of time and review it and decide then where it was right and where it was wrong.

Mr. David Anderson: I certainly can agree that the time has come to pass a bill. Long term, you've described as seven years; short term, we know we're going to have other legislation coming before us of considerable importance. We don't have the luxury we had even a few weeks ago in terms of time. So I just think, let's go. If you're right, four years from now we undoubtedly will be making changes.

I was critical of the American legislation, but when that legislation came in it was motherhood. Nobody, nobody but nobody, objected. Everybody fell on board to approve it. It's later, as it got working...

I was talking to a fellow who's now the director of the Vancouver Aquarium, but he was a staffer on the Hill for congressmen in Washington way back 23 years ago, and he said to me, “When that legislation, which I worked on, was passed, we didn't know what was going to happen.” They knew it was like launching a ship, but the ship was drifting off and they didn't know where it was going to wind up. He wasn't surprised that there was a criticism.

It really is interesting to know that many of the things we may be focusing on now may turn out to be no problem at all, and something that nobody has even considered may turn out to be the biggest problem of this legislation. I think the suggestion of getting together and figuring out the improvements four years hence really is the way to go.

Mr. Julian Reed: Thank you.

The Chair: Thank you, Mr. Reed. Mr. Laliberte, followed by Mr. Knutson.

Mr. Rick Laliberte (Churchill River, Lib.): Thank you Mr. Chair.

Minister, the perspective I'd like to share with you is not only for your benefit but I think for the benefit of Canadians. The Species at Risk Act is a very crucial juncture in our history of Canada because we're looking at a relationship we have with all the species—birds, animals, reptiles, fish, and plants. In my language we call it ni waklcomakanahk. It means all our relations; we are related to the plant world, to the animal world, to the insect world.

• 1645

This act reflects our consciousness, and as human beings we're the ones gifted with consciousness. If we carried that too as an instrument on how to protect these species in own own life... because that's what's connected here, our own livelihood for our future. When we speak of the history of Canada within 100 and 125 years, the aboriginal people of this country have had an existence beyond memory.

I must commend you on the efforts you've made with the aboriginal representation on the aboriginal working group. You have worked towards an accord to create an involvement. But I'd also like to take it a step further in terms of the decision-making. A lot of the decision-making will be done by the Governor in Council, by the provincial ministers and the federal ministers. When those decisions are made, I would like to ask that the aboriginal consciousness and history be part of that decision-making body and that exercise.

You don't necessarily have to answer if that's possible or not. But I'd like to explore this in the next week or so, through the review process in the amendments, and to work with my colleagues to understand that there is an opportunity here with a very remarkable act that could mark this history at a turning point on how we have relationships with the species, on how we have relationships with the indigenous populations of this country, and for how Canada can have a proper consciousness and a connection with the species we so much depend on. That is more of a statement than a question.

I'll close off with a question specifically, though, because I see a gap. You raised the issue of Point Pelee. Do you see the need for interim habitat protection? There's a due process in the act for habitat protection. Then you have emergency protection. But do you see a need for an interim protection in between, just in the case you raised?

Mr. David Anderson: Thank you. If I could, I'd like to echo your words about the good work done by the aboriginal working group. They really did take this extremely seriously and did excellent work.

I don't know what the figures are—figures vary—but probably 40% of our endangered species would need protection on aboriginal lands, which is one reason why I was talking earlier about the difficulty of defining federal lands. We want to have those people working with us and we want to have the opportunity, of course, with stewardship and, ultimately, as I mentioned to Bob, compensation provisions. But the initial work done was excellent.

I should add that in the Canadian Endangered Species Conservation Council, five of the 14 ministers have an aboriginal background; there's one Inuit, there is one Métis, and three with aboriginal first nations status. We have a fairly good representation within the council, the 14 people, with five being representatives of aboriginal peoples. I'm going to discuss with them and we'll see whether there are better ways of improving, of working things in along the lines you've suggested, because I think we have some real opportunities.

I have to say I was very proud of the assistance of aboriginal groups at the wildlife ministers' meeting in Iqaluit last year; we had eight aboriginal groups. They included, I might add, both the aboriginal women's groups, the status and then the Métis National Council of Women, but also the Inuit Tapirisat, the Métis National Council, the Assembly of First Nations, the Congress of Aboriginal Peoples, and other groups who were up there.

They said they'd never had such good consultation since in fact some of the constitutional debates of I think Charlottetown and Meech. Whether that's true or not, whether everyone agrees or not, nevertheless, I was proud that we'd had a very effective system of consultation. I'd like to thank Ovide Mercredi for working that out for us. He did a great job.

That said, I agree with your concept that we may want to go further. You mentioned the relationship to the land. I've sometimes thought we don't really need this legislation at all; we just have to have the 104th psalm, verses 26 to 32. That's all you really need for endangered species protection. There are other religious or background approaches that we could work into legislation, but I won't go down that line. We have to separate religion and politics.

• 1650

I will say, however, that we want to work as closely as we can, and the concept you outline—species being part of an integral whole with humans who are on the land—is a concept that obviously is extremely attractive to Canadians generally.

So I think we can work together, and I'd be happy to discuss it with you further. I'll be talking to those five ministers along the lines you've suggested, and it may be possible to work out some more effective mechanisms to make sure participation is as full and as cooperative as we can work out.

The Chair: Thank you, Mr. Laliberte.

Mr. Knutson, please.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Thank you, Mr. Chairman.

Mr. Minister, I want to begin by commending you for agreeing to the rolling over of the lists that have been assessed to date. I think that's an important step, and I think you're right. It will send the right signal about the honest attempt of the government. However, by way of preamble—and I hope you don't take this criticism too seriously—I'm one who has never believed automatic listing was really on the table. I think elected officials should remain ultimately accountable for the decisions that flow from legislation. I think that argument would have been sufficient, rather than what I thought was an overly ad hominem argument against the scientific community. But I think that's minor in the grand scheme of things, and I hope you take that criticism for what it's worth.

I do want to turn your attention, though, to clause 32, which is a general prohibition against killing wildlife species that are extirpated, endangered, or threatened, and combine that with clause 34, which says clause 32 will not apply in the provinces unless you make an order otherwise. Why wouldn't it make sense that, on the day the bill is proclaimed, we at least prohibit killing? I'm not talking about habitat protection and socio-economic consequences that might flow from that, but at a minimum level, we should prohibit killing endangered species throughout the country.

Mr. David Anderson: The concern is essentially as we described earlier: to sort out the relationship between federal and provincial systems, and to try to have the federal one as a safety net. There are dilemmas here in provincial governments. You'll notice what has happened in my own home province of British Columbia with respect to the grizzly bear hunt, through a change of government. There is a strong feeling—whether it's true or not, I'm just describing it as strong feeling, not commenting on its validity—that the endangerment of the grizzly or the lack of endangerment of the grizzly in British Columbia, or any region of British Columbia, became something that was not related to science and more related to an ideological position with respect to the killing of the bear.

I think we would have to be particularly careful about getting involved in a situation like that. The concern in the relationship of these two sections is that safety-net effect, in that we would come in later rather than getting involved in a battle with the provinces immediately.

That's the explanation I'll give you.

Mr. Gar Knutson: As a starting point, we're not even prepared to prohibit killing. I'm not filled with a whole lot of confidence that we're actually ever going to go the final step and that the safety net will ever be triggered. I don't know how to put it any more simply than that. If we're reluctant to prohibit killing from the get-go across the country because of negative provincial reaction, surely to goodness I don't know how we're going to convince Canadians that we would ever be willing to trigger the safety-net provision.

Mr. David Anderson: Okay, I can see that. We have a number of protected animals for which some killing is allowed within the federal jurisdiction. The bowhead whale is an example. As Minister of Fisheries, I'm well aware of that. One bowhead is permitted for ceremonial and traditional reasons.

Mr. Gar Knutson: By permit.

Mr. David Anderson: Yes, by permit.

I believe that, in any particular province, the province would be requiring a permit for killing, would it not? I'm trying to think of a species that would be in that situation—I just can't think of one—for which its killing would be legitimate without some provincial permit. I can't think of an example, so I think there would be pretty effective protection there. I'm not sure we have to repeat that provincial protection.

• 1655

Mr. Gar Knutson: Correct me if I'm wrong, but we don't have endangered species legislation in every single province. In provinces without endangered species legislation, presumably you could kill them because we haven't put in the provision to prevent the killing, and neither have they.

Mr. David Anderson: Well, they do have wildlife acts. Generally speaking, I don't know of a single province without a wildlife act. Is there one?

Ms. Karen Brown (Assistant Deputy Minister, Environmental Conservation Service, Department of the Environment): Not that I know of.

Mr. David Anderson: A wildlife act is normally a licensing act for the killing of animals in the sense of game animals, so I think there would be provincial legislation in every case to prohibit the killing of an animal that was not permitted. Obviously, an endangered species would not be permitted. If a situation did arise, of course, an order would be made under subclause 34(2). As I understand it, the Governor in Council may, on the recommendation of the minister, etc., put out an order. Am I correct on that? In other words, we would do it then.

Mr. Gar Knutson: That's after consultation with the province. It's not an easy thing to do. Presumably, we put the line... the safety net can be triggered after consultation with the province. But a province might perhaps sue us and say we haven't consulted with it enough. I think that discussion is beyond my five minutes.

Mr. David Anderson: Again, there is an element of trust and good faith with provinces. They all have wildlife acts, as far as I know—and Karen agrees that she knows of none without. I would think the situation is... I just can't visualize how it would arise.

Mr. Gar Knutson: Maybe Madam Brown wants to answer this. Are you telling me that every wildlife act prevents the killing of endangered species? That's the suggestion.

Ms. Karen Brown: They may not say so in so many words, but most of the provincial legislation governing game birds and large animals all basically says thou shalt not do this without a permit. It's all regulated. And it may or may not be an endangered species act. Some provinces have incorporated the provisions for endangered species protection into their existing wildlife regimes.

Mr. Gar Knutson: Let me just ask this in one final way. Once this bill is proclaimed, will it be illegal throughout the country to kill an animal or plant on an endangered species list? If not, why shouldn't we make it so?

Ms. Karen Brown: The proposals that are before us would see the species that are classified as federal as subject to clause 32. Presumably, after a period of time, if a provincial government failed to put in the protection under clause 34, then after consulting with the province, we would make recommendations on putting a safety net in place.

The Chair: Thank you, Mr. Knutson.

Mr. Lincoln, followed by Mr. Tonks.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): Mr. Minister, like Mr. Knutson, I must state that it's great news that you are rolling over the start-up list of endangered species into the new legislation. But in regard to the future, did I hear clearly that you are prepared to consider some kind of timeline for the Governor in Council to decide when to accept or refuse? I thought I heard that, so I would like a clarification on that point.

I was wondering, too, what led to the change of philosophy from Bill C-65 to now. Was there a feeling that the Bill C-65 approach was wrong? You gave us one of the reasons, that being lobbying of the scientists, which I've heard before. That can't help but make me smile as a political person, because if anybody's subject to intense lobbying, it's certainly us.

So I was wondering if you could confirm that you would consider some sort of timeline or some sort of reverse onus for the GIC on listing.

Mr. David Anderson: Thank you.

• 1700

I think we could work in some sort of timeline, if that's helpful. I have to say, if it's possible to accept 198 out of 198 species on the list, I suspect we're arguing about something that in practice is not to be a major issue in the future.

That said, you ask about Bill C-65 and the differences. There have been enormous delays in this legislation. I guess the silver lining on that dark cloud has been that it's been possible for the scientists to do a great deal of work on reassessing the list and the new criteria of the International Union for the Conservation of Nature. That is why there's been some change. It's a clear list now—a very substantial number of animals and plants. I can see no problem with anything on that 198 list, and certainly, if it's helpful, we can suggest and discuss some sort of timeline for ministerial reaction.

I think the reverse onus is going to be rejected for a number of technical reasons that are a little beyond my ken. One is, government should not be bound by a non-decision. I think it should be bound by decisions, but that's a concern I'm sure we can overcome by use of an effective timeline for action to indicate how something might proceed. So I'm sure we could work out something, if that's useful.

Mr. Clifford Lincoln: On the question of federal lands, you said it's hard to define what a federal land is. Is it not a bit of a contradiction that in the law itself we do interpret what a federal land is? Surely, when we interpret our land and we say this is land and internal waters and so forth owned by the federal government, when it comes to interpreting what federal land is, it's subject to what we say here, and the court will decide what is federal land. What seems to me is that on the question of provinces and the federal government, the approach is we let the provinces do their thing, and then wield the safety net if they don't.

On the question of our own federal lands, we say, oh well, it'll be cooperation with farmers, fishers, with all the people who occupy the particular land or area. What happens if it doesn't work? Why can't we have a safety net of some mandatory clause that kicks in, in case cooperation doesn't work? Now we are left without any protection at all, although we have gone to the trouble of interpreting what a federal land is. We leave it to cooperation. What happens if cooperation doesn't work?

Mr. David Anderson: Thank you. First, there is a problem of definition of federal land, for instance, with Indian reserves. I'm not sure, but my understanding of Indian reserves is that ownership is still retained by the provincial crown, but the management of those lands will go to the federal crown. If, for example, an Indian reserve was extinguished, I do not believe the federal government would have title to the land. I understand it reverts to the provincial crown. I don't know. I must say, this is my understanding. I can't give you a legal definition of it—and I don't particularly want to.

I think you could clearly say national parks are federal lands. Probably you could say military reserves are federal lands, but once again, sometimes those have been expropriated with differing orders of expropriation. The Municipality of Esquimalt keeps pointing out that the federal government expropriated the municipal golf course to create Work Point Barracks, and they'd like it back.

I don't know whether it is so easy to define federal lands. Certainly lands north of 60 would not be federal lands, in my view, although some would argue they are. The argument that migratory birds' habitat could come under federal regulatory control would be opposed by many people. I think we'd have a lot of dispute as to what constitutes federal land.

With respect to there being no protection at all if the cooperative approach doesn't work, not so. Exactly the same procedure would be followed as with other lands. If you can't work out an adequate voluntary cooperative approach on federal lands, provincial lands, and private lands, you would proceed with the safety-net provisions and the federal legislation would kick in. So it would be treated exactly the same. I know there are, again, differing views on this.

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My own belief is we're better off constitutionally if we treat all lands alike and if our focus is entirely on endangered species and not on who owns the land. It's my belief you'll do better in the minds of judges if you keep that concept simple. I hope no one accuses me of making an ad hominem remark, or a disparaging remark, but I do think if you can keep these concepts clear, you'd probably do better in your court analyses.

Mr. Clifford Lincoln: If, for example, your premise is correct, that we have problems with reserves and so forth, then we should amend our definition of federal land, which we've put in the act itself. We've put in the act what federal land means. How can we say we don't know what it is, when we put it in?

Mr. David Anderson: Again, I'm quoting earlier discussions on whether we had federal powers by reason of migratory birds. I think there's room for debate here. And my own experience has been wherever you give room for debate, you generally give room for an enormous amount of energy devoted to definitions and less for working on the ground protecting the species. I still believe firmly that with goodwill, quite pedestrian legislation will probably be very successful; with bad will the best legislation in the world will be unsuccessful. It's basically a question of attitude that is going to protect endangered species, not law.

The Chair: Thank you, Mr. Lincoln.

Mr. Tonks.

Mr. Alan Tonks (York South—Weston, Lib.): Thank you, Mr. Chairman.

Minister, it's always a balancing act when, generally speaking, one is making legislation in the public interest that impinges on individual rights, and the whole notion of compensation, obviously, is a mechanism that recognizes it's always a difficult line to tread.

I note that Mr. Dhaliwal, as has been raised by our colleague, has indicated he accepts the notion of compensation if it is implemented in a case-by-case manner. However, he also indicates that the automatic rollover of the list gives him concern on the basis that regardless of compensation, there hasn't been, to his satisfaction, the degree of dialogue and consultation and so on.

You've indicated you're going to recognize the list. Does that not raise the issue with respect to Mr. Dhaliwal's concern? And does that give you any further concern, or are you satisfied that by doing it by regulation, his concern has been accommodated?

Mr. David Anderson: I think his concern has been accommodated, by reason of the fact that I'm here, able to say with some confidence to Mr. Bigras and to you that this is a cabinet position. Obviously, there is vigorous discussion in cabinet; differing views are expressed.

I think sometimes around this table, some of the concerns of the fishing industry have not been given perhaps the... some of the witnesses have not understood the concerns of the fishing industry. So I think it's very appropriate for Mr. Dhaliwal to continue to offer comment as he did.

Even though there may be differences of opinion between the senior minister for British Columbia and the number two minister for British Columbia, I assure you I'm going to have dinner with Mr. Dhaliwal and we're going to discuss this further. But I can assure you right now, as far as I know, he's convinced, and the decision of my colleagues and me, which includes Mr. Dhaliwal, is to proceed as I have indicated. I have no concerns at all about this letter.

Mr. Alan Tonks: In a more general nature, if we then go into the future and there are additional species brought forward—and I'm looking to be educated on the process here—under this legislation, there are those who would like to see there be more mandatory provisions with respect to time for recovery acts, linking that with the listing process, and so on. How do you see the act actually being implemented with respect to additional species?

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Mr. David Anderson: Once the backlog is dealt with, which, as I mentioned earlier, time is taking care of—the delays in the legislation are taking care of that—I think additional species will keep coming in a fairly steady way. Each year we are going to have the COSEWIC committee meetings—I believe there are two per year. The subcommittees, which are generally, I believe, three to five scientists, would be meeting, and sometimes they call in other people to assist them. So I would expect a fairly steady process as these committees keep working. We have, of course, under the new money, provided more resources to COSEWIC, so that they have the opportunity to do more.

I expect they will be looking at some species that probably have been overlooked before. So when you see numbers go up, it may just be recognition of species already in trouble, rather than a species coming into trouble at a certain point in time.

I would see it as a fairly straightforward process from then on, working quite effectively. Again, there will be scientific differences. Just as in climate change we have conventional scientists who support the intergovernmental panel on climate change, you always have people who disagree. You will find industry come forward sometimes with absolutely good scientific people criticizing a decision and suggesting changes. You will always have some scientific uncertainty. Scientists, of course, come from many disciplines. Again, I hope I am not being ad hominem or critical. I am simply describing reality. You will never have the certainty that some people think comes when three scientists get together and say, this is what it is. Science works that way. It is theory, which is in turn attacked, and so you expect a certain amount of debate and activity.

So I would expect that process to go ahead. I would expect the government, in turn, to develop fairly quick and effective personal relationships with provincial governments and territories.

Mr. Alan Tonks: But with an emergency situation, where there is a report to the cabinet with respect to a species that is endangered—following up from what my colleague Mr. Knutson said—is there any way the legislation could be tightened up, for those who would find some sort of procrastination, no action being taken, or not the appropriate action? Is there any way that could be firmed up?

Mr. David Anderson: Sorry, Alan, I think I was on a wrong tack here.

Certainly, we could immediately, within days, through a decision of the Governor in Council, amend the list. We could simply take it to the regulation committee of cabinet, it would be approved, and it would proceed directly. I don't think we are talking, in an emergency situation, of anything more than a few days. If you can't even get the group together, you can always circulate through the signature system. You can work pretty fast when you want to or have to.

Mr. Alan Tonks: Thank you, Mr. Chair.

The Chair: Thank you, Mr. Tonks.

Mr. Anderson, you frequently mentioned Governor in Council this afternoon. That is a feature of this bill that is unique, namely, the fact that you and your successors will have to turn to cabinet for approval on every major decision the Minister of the Environment may want to take in future, except perhaps for the writing of the yearly report, which is exempt from a Governor in Council requirement. But otherwise, on a major decision you and your successors will have to turn to cabinet. What will happen if the Minister of Fisheries or the Minister of Industry or the Minister of Agriculture says no to your request? Is it a good bill that puts the Minister of the Environment in the hands of the entire cabinet, rather than Parliament passing legislation that entrusts the Minister of the Environment and his successors with carrying out the will, the basic intent, of that bill?

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Mr. David Anderson: I don't think a piece of legislation that would require three people—me, Fisheries and Oceans and Parks, the heritage sector—and to have—

The Chair: The clause refers specifically to Governor in Council. It means the entire cabinet.

Mr. David Anderson: Yes, but again, we work in a committee system, and I do not feel that a system that has full input from people with other responsibilities, who will also represent different parts of the country, not just, of course, their line responsibility as a minister, is any worse than having a single individual involved. A single individual could be above or below the committee, but I don't see why one should expect, as a matter of the system, the cabinet committee to be any less effective than a single minister. Intellectually, I can't see why going to a group of cabinet ministers would create major concern.

The Chair: The other question I have has to do with a report produced a couple of years ago by Judge La Forest and Dale Gibson, which our committee has at times examined. It deals with the constitutional authority for the federal protection of migratory birds and cross-border species. In their conclusion—and I will read it—they say:

...the Parliament of Canada, under its [peace, order and good government] power, has the undoubted authority to enact legislation protecting not only all migratory birds, but all cross-border endangered species, as well as the habitat they depend upon. Apparently this view was shared by the drafters of Bill C-65, in 1996, since that Bill would have explicitly protected all cross-border endangered species...

Would you like to comment on the view of Judge La Forest and Dale Gibson?

Mr. David Anderson: The comment I will make is this, and it goes back to my earlier comment about keeping the bill clear and simple. Take the grizzly bear that goes south, then turns east 100 metres north of the Canada-U.S. border, ambles along for a couple of kilometres, and then comes north again into Alberta. Take another bear that does the same trip, but goes 100 metres south of the Canada-U.S. line. If the bear is endangered as a species, not as an individual animal, should we be giving different protection to those two bears, one of which was entirely Canadian and one of which ambled into the United States for a few minutes or hours? I just can't see that somehow the transborder aspect is important, unless you're looking, because you suspect that the bill is badly founded in constitutional law, for another hook to perhaps protect a little part of it, namely transboundary species.

So that is my major concern, that you're creating a new and unnecessary category that complicates the bill and leads to enormous discussion as to what constitutes transboundary—some species will not be simple to determine. Therefore, I just don't think it's necessary to have that distinction in the piece of legislation.

If you think the legislation is on weak constitutional ground, and when it is shredded by the courts—this is a hypothetical I'm giving you—you want to preserve a few little pieces, you may want to go this route, but I wouldn't touch it otherwise.

The Chair: Thank you, Mr. Anderson.

Second round, Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance): Thank you, Mr. Anderson.

As time is running out, I'll ask three really short, sharp questions, and then I'll let you answer. The first question is, when we get to the Commons after we report this bill, will you make a promise that you won't invoke closure or time allocation for third reading or report stage?

Second, clause 100 of the bill, on page 49, says:

Due diligence is a defence in a prosecution for an offence.

Would you be prepared to replace that with the common Criminal Code provision mens rea, guilty mind?

Clause 64, on page 30, says:

The Minister may, in accordance with the regulations, provide compensation to any person...

Can you say that section, as is, is going to stay in the bill, and you're going to continue to try to flesh that out in the regulations to come? That was the original message we received, and I just want some clarification as to whether there has been some change since the bill was introduced.

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Those are my three questions.

Mr. David Anderson: Thank you, Mr. Forseth.

On the first question, I can't give such a guarantee because of course it's not within my power to give it. The business of the House depends on a lot of factors. We are in a time when certain people obviously have major concerns with respect to security. I just don't know what the agenda of the House will be. I don't know how this will fit in. That really is a decision to be made by the House leader.

But I certainly hear you, that you would prefer not to have this. I can take that as a representation, but I can't give such a guarantee.

Second, with respect to compensation, of course I'm in the hands of the committee. You may be more attracted to Mr. Dhaliwal's letter than I have as yet suspected—I don't know—but my belief is that we should have compensation in the bill. My wish is to have compensation in the bill. If it's there we will continue with that. However, I did go into, and at some length, a description of the difficulties of trying to frame the parameters under which compensation would be granted.

I guess all I can say is that I stand by what I said on that. This has proved to be far more difficult than I ever expected, or in fact anyone else expected.

Finally, due diligence is in the Fisheries Act and the Migratory Birds Convention Act, which is where we picked up the language. I would have to check to find out the legal impact of a change. I could certainly do so and bring back to you information to answer that question. Not being a lawyer, I couldn't do that myself.

Mr. Paul Forseth: Okay.

I'll just leave it at that, Mr. Chair.

The Chair: Thank you.

Mr. Comartin, please.

Mr. Joe Comartin: Thank you, Mr. Chair.

Minister Anderson, just for the benefit of the committee as we go through clause-by-clause, perhaps I can ask you these direct questions.

First, as I understand it, you're not prepared to change the designation of how we list the species other than to recognize the existing 190-plus that have been reviewed to date. Is that correct?

Mr. David Anderson: Yes. Certainly I'm willing to recognize 198, but as I have explained, I do not wish to have a change that would eliminate that second-stage listing. I think it has a purpose. I think it's a purpose that is beneficial in terms of the democratic principle of representative government. I think it's of benefit in terms of protecting scientists from lobbying on issues outside of their scientific competence.

Mr. Joe Comartin: Similarly, with regard to the definition of habitat, which has had some criticism, you're not prepared to make changes to how we define it?

Mr. David Anderson: I do not think the definition of habitat needs to be changed. I also think defining habitat is extraordinarily difficult. You're dealing with everything that flies, everything that swims, everything that moves, and everything that's stationary, root balls in the ground. Habitat is just such a difficult concept.

Again, if definitions of habitat are suggested by the committee, I would be happy to go into the specifics, but I know it's extremely difficult to define habitat effectively.

Mr. Joe Comartin: With regard to the mandatory habitat protection provision, which we've heard a lot about today, you're standing pat on the bill as is?

Mr. David Anderson: That's correct. That's my position.

Mr. Joe Comartin: Finally, with regard to federal lands, you're not prepared to extend the provisions of this bill to all federal lands?

Mr. David Anderson: If I knew what were all federal lands, I might be in a better position to agree with you. I don't. I think this is another land mine area, and I would prefer to avoid it completely.

Mr. Joe Comartin: There actually is some provision in here—I saw the clause a minute ago and then let it go—that does refer to federal lands. I'm not sure if you're aware of that.

Mr. David Anderson: Well, the bill obviously applies to federal lands. By definition, what is not under provincial regulation would be under federal. I hope I don't offend any aboriginal organizations by saying this, but this would be my general feeling. So it would have to refer to lands not under provincial jurisdiction.

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I did indicate that I thought national parks and military reserves... I think you'd have to include railway lands. The railway land grants that are not alienated would probably still constitute federal lands. I think you would have some question concerning Indian reserves, because they probably by origin have come from both the federal and the provincial side. If one were ever extinguished, I'm not sure where the land would wind up afterwards. I just don't know where the jurisdiction would be.

Mr. Joe Comartin: Thank you, Mr. Chair.

The Chair: Thank you, Mr. Comartin.

Mr. Herron.

Mr. John Herron: That wasn't the line of questioning I wanted to follow, but I'd like to state out loud that you can't have it both ways. You can't say in one aspect that this is what applies in federal lands and then in the other say “We really don't know what it is”. There's a very obvious contradiction there. Maybe we'll have some chance to flush that out, but I want to go through different issues, maybe following where Gar was heading in his questioning.

There's an immense concern about the discretionary aspect of the bill. To use the illustration Gar touched on, he said that if we're not at least going to prevent the killing of a species at risk... That's the minimum good faith gesture people who are concerned about preserving species at risk would want.

In keeping with the cooperative approach, which I applaud the government for utilizing, what would be so wrong with our adopting a perspective that, instead of saying the Government of Canada “may” protect the species after cooperation breaks down, said that, after cooperation breaks down, we will? The first, cooperative approach didn't work; we couldn't cut a deal with the landowner, the provinces, or whatever. What's wrong with saying that we will protect the species, after using the initial tool kit beforehand? The discretionary aspect causes a very obvious concern amongst most people who don't support the bill.

Mr. David Anderson: Thank you.

The discretionary aspect is, of course, the major concern of groups that have opposed the bill. Without the discretion—and the ability to have views heard and considered, and interests that are affected at least taken into account—you would put the word “will” in there and have a piece of legislation that removes such opportunities. So that's why discretion is there.

I personally think the discretion in the bill is a good thing, sir.

Mr. John Herron: Can I give you an example of why even industry proponents really want to have protection in this regard?

In a situation where a species may be threatened as opposed to endangered, there isn't an automatic intervention by the federal government, because the very survival of the species isn't necessarily at risk. But what may happen is that you have two companies side by each and a species at risk that is threatened residing in both those land spots. What may happen is that, by virtue of your not having an engagement from an interim habitat perspective, and not saying you won't protect the species from being killed, one company, A, may accelerate its logging while company B does the right thing, putting itself actually at a disadvantage. That's why they like to have rules enshrined saying “will”.

Mr. David Anderson: Views differ on that. I think companies that are disadvantaged in the way you describe would prefer to have a swift and effective levelling of the playing field by the regulatory authorities. If you put in requirements and legal benchmarks of the type described, you probably will be creating disparities rather than levelling the playing field.

Incidentally, in subclause 34(3), to answer your question with respect to the province—it's also Gar's point:

the Minister must recommend that the order be made if the Minister is of the opinion that the laws of the province do not protect the species.

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This is the exception to clause 31.

Mr. John Herron: I guess my final comment is that we're headed to our clause-by-clause process, and we want to really give value in reflecting the largest consensus we've received from the witnesses. We're going to see amendments, I know, from this side that will reflect a sentiment expressed by government members as well.

We really want to make Parliament and the committee work. We're hoping that if amendments are made at the committee level with respect to mandatory protection of critical habitat within federal jurisdiction—if something is done with respect to listing, or if there's an inclusion with respect to the Migratory Birds Act...

Mr. Forseth made a comment saying the closure issue is mostly out of your hands because the House leader has that in his play. I would like a commitment from you that if we have a situation such as we had in CEPA, where we passed amendments, and then they were reversed at the clause-by-clause stage... Will you respect the will of the committee if we make amendments at the committee stage, or will we have a repeat process of CEPA?

Mr. David Anderson: Again, I can't give that guarantee.

Mr. John Herron: That's in your hands, not the House leader's.

Mr. David Anderson: I can't give that guarantee. The fact is if a committee of the House of Commons, acting as a committee of the House of Commons, comes up with amendments that the House itself rejects in subsequent votes, it seems to me the committee should think to itself, well, maybe we exceeded what we were meant to do.

You're meant to reflect the House, not just the witnesses who come before you. You're a committee of the House. So if you or any committee proceeds to put in amendments the House itself rejects, I think the committee should take it as a salutary lesson that they have exceeded the will of the House. That's why the House voted down those committee amendments.

Mr. John Herron: How about the will of PCO?

Mr. David Anderson: Obviously I can't give the guarantee. It's very clear from letters people quoted that plenty of interests are very concerned about this legislation, with perfectly legitimate concerns. It's very clear that the provincial-federal-territorial issues are at a high level of concern. There are many aspects to this that would prevent me from giving a guarantee that any amendment of this committee would be automatically accepted in the House. I can't give that guarantee.

Mr. John Herron: Thank you for coming today.

The Chair: Thank you.

Mr. Laliberte.

Mr. Rick Laliberte: I'd like to go back to the question I posed before on interim habitat protection, suggesting that, if at all possible, you consider a time when the listing takes place, before the recovery plans. If there's an opportunity, you should empower yourself as a minister to have an opportunity to make interim plans.

The other aspect I wanted to raise to you is this. As the minister, you have a lot of delegated authority under this act, not only in the bill itself but in the Canada Wildlife Act. I just wanted to raise a caution there. Maybe you will want to review that delegation of power and put some provisions in about how that delegation would be used, because it's pretty widespread. You're working with the Governor in Council for a lot of your approvals, and then you have the opportunity to delegate these powers. I would like to see the minister retain some of those powers and exercise them.

Mr. David Anderson: Thank you very much. With respect to critical situations, we have emergency powers under clause 80. It reads:

80.(1) The Governor in Council may, on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed wildlife species.

(2) The competent minister must make the recommendation if he or she is of the opinion that the species faces imminent threats to its survival or recovery.

So we do have the emergency power in subclauses 80(1) and (2). It goes on, I might add, for a page and a half. I won't read the rest of it.

With respect to the issue of delegation, yes, it is always a concern in legislation. Delegation has to be done with prudence and discretion. That said, I don't think this delegation is unusual in terms of wildlife legislation, but I would be happy to have a closer look at it at your suggestion and go over it to see whether that is the case.

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So I only have to mind the time—as I'm told from this little note—as I have another engagement at 5:45 p.m.

The Chair: If you will forgive the committee, there are still a couple of questions, and if you don't mind, we will complete the round. Mr. Mills has a question, and I have one also.

Mr. Bob Mills: Very briefly, on the due diligence, the answer to my colleague's question, when a chemical is being dumped into a river and you have a company that you need to go after, I can see where due diligence might apply. But again I come back to my farm family that goes out there and ploughs up a piece of habitat, not knowing they have just broken a law. It seems now due diligence doesn't fit, because you're saying, well, you should have known it was there. But nobody told them. Maybe the Department of the Environment or the wildlife people knew it was there, but they didn't tell the farmer. That's where the mens rea becomes significant, because then you have to show that they intentionally did it. Then obviously we'd all agree that they should be charged. So I would just ask you to look at and answer that.

The final thing is, can you give us the message we should take back to that family about compensation, from what we read in clause 64?

Mr. David Anderson: On the compensation issue, I have to go back to the first question you asked, and I have to express my regret that I'm not able to give the precision you have asked for.

I think, though, your request for precision is perfectly legitimate. I really would like to be able to give it. Unfortunately, it simply has proved to be one of those things that has escaped us, and the approach is now to be on the basis of individual cases. We'll work out what the regulation governing entitlement should be. Regulations will be there governing application, but not entitlement.

Again, there are some disadvantages, not being a lawyer, on this issue of due diligence, but I understand that in a situation such as you described, of the innocent, the law normally is that to prevent the constant claim that a person didn't know, there is this issue of “knew” or “ought to have known”. I can only answer that one by saying I'm going to have to take it to someone who is more familiar with the ins and outs of this aspect of criminal law. I don't know. Fortunately, I've not been faced with a case where I'm at fault, so I haven't learned it that way, nor can I remember what I was taught in law school, so I can't help you that way either. But I will try to get an answer to you.

Mr. Bob Mills: It's something we heard a lot of from people.

Mr. David Anderson: Yes, I can understand that. It's a legitimate matter for concern. The accident, the unwitting destruction—it is a concern, and we want to give the maximum protection we can to the legitimate and honest person who makes a mistake, who unwittingly does that. But it's so often used by those who do it deliberately and claim lack of knowledge later that maybe that's why it's in there.

The Chair: Thank you, Mr. Mills.

I have one final, simple question, which is to ask you whether you would support an amendment that would make it a mandatory requirement to identify critical habitat in the recovery strategy without having to go through the Governor in Council for approval.

Mr. David Anderson: Again, putting aside all difficulties of determining mandatory habitat, the process has been to go to GIC. I think it would be very difficult for me to give such a guarantee without indeed returning to my colleagues, who, as you members have pointed out to me, are not always of clear mind on this. We're not always exactly in the same situation.

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We could put in a change, which I think might be useful in clause 38 and paragraphs 41(1)(c) and 49(1)(a), where the words occur “is not possible to do so” with respect to the recovery strategy identifying the species' critical habitat. The wording is that the recovery strategy must include “an identification of the species' critical habitat, unless it is not possible to do so”. We could vary those last words, talking about, if scientific uncertainty exists on critical habitat, the recovery strategy or action plan would include... I'm happy to discuss possible variations.

We could make changes of that type. But we are into a pretty technical area of wording, and I would like to see what legal draftsmen say. Certainly if those words, “if not possible to do so”, worry you, I'm sure we could find a different formula.

The Chair: Minister, my colleagues and I would like to thank you for appearing before us, and we include in our expression of thanks Madame Brown and your loquacious deputy minister. We look forward to seeing you again.

The meeting is adjourned.