ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, November 20, 2001

• 0912

[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good morning. Bonjour.

I have a few announcements. The clerk has distributed the budgetary requirements for the meeting in Washington, which is being negotiated for the end of January, as I mentioned to you the last time. The budget could be discussed briefly at our meeting tomorrow so that you have adequate time to examine it. The meeting is shaping up in a very cooperative and promising manner. The agreement is that we will have a number of meetings, one of which will last three hours with our parallel committee in the Senate chaired by Senator Jeffords.

We are also inviting the European Parliament environment committee to participate in this encounter so as to make it into a trilateral meeting. But at this stage it's too soon to know and to say whether they will accept the invitation to attend. But I will keep you posted.

As to the work related to our bill, you will find already distributed a clause-by-clause list as to the status of all amendments—those that are carried, those that are stood, and those that haven't been touched yet. It's the overview. You will find as well a document that was requested by the committee from our researchers, dated November 15, which is also at your place. The title reads in part “Selected Clauses as Amended.”

• 0915

Then there is another document, yet to be distributed, which was delivered to my office and which may be of interest. It's a report by the Canadian Nature Federation, I believe, and other NGOs on progress that has been made since the signing of the Biological Diversity Convention. It has an interesting chart in the middle examining issue by issue the performance by provinces and other levels of government, which may be helpful to you in evaluating what is going on in your respective regions. I'm giving it to the clerk for distribution. Unfortunately, the organizers of this paper have produced it only in one official language.

Today we are going to resume with the amendments on clause 61. To facilitate the discussion and the speed of our progress, our researchers have grouped them in a manner that will allow, first, a brief discussion and then possibly a decision as to whether we approach them in the groups, as indicated on this one-page paper, which has them listed by name, beginning with Mr. Knutson, followed by Mr. Bigras, followed by the government, followed by Mr. Comartin, and finally by Mr. Herron. As you can see, the application of each mover differs from the application of the other mover. The application of their amendments differs from member to member.

To give you an example, what Mr. Knutson is proposing with his six amendments deals with critical habitat on non-federal species or provincial or territorial land, etc. The amendments by the government are focused on the removal of aquatic species. You can see the application of each group of amendments differs from one to the other.

I invite the various representatives of these amendments to make a brief intervention outlining their approach. Once we have done that, we will see whether there is a convergence of opinion on how we tackle clause 61, whether we go by the grouping or whether we go page by page, as it is in our binder.

Mr. Knutson, could I invite you to perhaps make your presentation first since you are listed first in this group of amendments. I refer to this paper here, the one that has been prepared by the researchers to facilitate the discussion.

(On clause 61—Destruction of critical habitat)

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Clause 61 is the protection of habitat clause. Again, the legislation is written in such a way... If you just read the introduction, subclause 61(1) says:

No person shall destroy any part of the critical habitat of a listed endangered species or a listed threatened species that is in a province or territory and that is not part of federal lands.

The Chair: So that we are on the same wavelength, what Mr. Knutson is doing is looking at page 6 of the English version. Hopefully, it is in the French as well. On that page you will find a grouping of amendments by member.

Please continue, Mr. Knutson.

• 0920

Mr. Gar Knutson: The first amendment on page 234 ties clause 61 back to clause 59, which lays out that the government may make regulations to protect habitat on federal lands.

Page 253 will probably be the most substantive in terms of debate where it says:

The Governor in Council must make an order under subsection (2) where Governor in Council determines, based on the recommendation of the Minister, after consultation with the appropriate provincial or territorial minister, that the laws of the province or territory do not effectively protect the particular portion of the critical habitat.

So we're introducing mandatory language on page 253.

On page 255 we're introducing criteria to determine whether the provincial laws provide effective protection.

And on page 258, if the minister is of the opinion that the province has brought in legislation or regulations to protect critical habitat, then if we brought the safety net into effect, this amendment would require the minister to repeal it.

The Chair: In essence describe the impact of your group of amendments.

Mr. Gar Knutson: They provide for mandatory protection of critical habitat rather than discretionary, and the bill outlines criteria in which that habitat protection would be triggered. So I would in essence describe them as the height of reasonableness.

The Chair: Thank you.

[Translation]

Mr. Bigras, the floor is yours.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Thank you, Mr. Chairman.

We are therefore presenting three amendments found on pages 235, 238 and 250. Our vision is totally different from that of Mr. Knutson. It is clear from these three amendments that we do not agree with a double safety net. On page 235, it is clearly indicated that aquatic species and migratory birds, which we feel fall under federal jurisdiction, must be protected. There is a substantial amendment to the legislation found on page 238 and another on page 250. The general significance of these three amendments is, therefore, that this legislation should be strictly applied to those areas that we feel are under federal jurisdiction, particularly migratory birds.

The Chair: Thank you, Mr. Bigras.

[English]

The government.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chair. I will be speaking to all the amendments, so I would be happy to wait until Mr. Herron has put his forward, if you want. Or I can speak to it and then he can speak after, or Mr. Comartin.

• 0925

When you look at this bundle of amendments, there are several different things happening. I think the previous two speakers have shown two different reactions to what the government still maintains is a balanced approach. Mr. Herron's amendment removes the GIC's role and removes the discretion of the minister to recommend prohibitions, and it lists what criteria will determine whether the prohibition is put in place.

The role of the environment minister is to assess whether critical habitat is protected or not. The role of the GIC is to take this advice and determine whether legal prohibitions are warranted. Under this bill, the environment minister has a duty to recommend legal prohibitions if critical habitat is not protected, and by involving the GIC, we bring in the perspectives of the socio-economic questions, which definitely impact both landowners and provinces. By removing the discretion of the minister, as some of these amendments would do, it guarantees that every time a province or territorial minister requests a federal order, the order is automatically made.

This change really sends a strange message to the provinces and the territories, because if a province or a territory doesn't want to make that tough decision to put prohibition in place on lands under their jurisdiction—and I would underline again that this could well include, and would include, private lands—then they need to request the federal government to do so, and we will have to do it.

The federal government must be accountable for federal actions to protect critical habitat especially if this means legal prohibitions. We cannot allow the province or territorial government to dictate the measures the federal government will take.

To assess whether the laws of a province provide effective protection makes more sense in the case of general prohibitions against killing or harming or destruction of residence, because it is clearly only the laws that provide that protection. The protection of critical habitat, we would contend, is far more complex. Prohibitions will be a last option.

Our goal is to see critical habitat protected through voluntary stewardship efforts that are encouraged through the sharing of knowledge, as well as financial incentives. The proposed amendments jump right past this first approach, which is stewardship, and go directly to the question of prohibition and whether or not a province has strong enough laws. The entire structure of this bill is based on cooperative stewardship with landowners, with provinces, and with territories. The proposed amendments take that cooperative approach, that proactive approach, that invitation to be part of the solution, and jump right past it. That's why we feel that the critical habitat is protected. We have the appropriate incentives in place, as well as the backstops to make sure this piece of legislation is effective and will work on the ground.

I don't know if Ms. Wherry or Mr. Near want to speak to this.

The Chair: Thank you.

Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): If I can just briefly summarize what my amendments would do, I think the heading that staff has put together in terms of treating this as an equivalency agreement scheme is pretty accurate. In effect, what it does, Mr. Chair, is to say to the provinces, if you're not doing the job, we'll review it; if you're doing it, we won't.

If, on the other hand, we went with just the scheme as is set up in the bill now, it's simply too broad, too discretionary, for the federal minister to step back and not proceed. The amendments I've put forward in several places make it mandatory that the minister, when determining that the provinces have not acted or that a cooperative endeavour with the provinces cannot be reached, must move ahead at that point and protect the species.

I don't know if I can say much more than that. The difference between the amendments of Mr. Knutson and myself, I would say, is that—quite frankly I tend to lean to prefer his, but as a fallback—his is absolutely mandatory throughout and mine is in keeping with the thrust of this legislation—maybe too much of the thrust of this legislation is cooperative—but with the message to the provincial authorities that if in fact they don't do the work that's necessary to protect species, then the federal government must in fact step in at that point and protect the species.

The Chair: Would this be the real instance in which a Liberal is to the left of an NDPer?

Mr. Joe Comartin: It's just that he put his amendments in first, Mr. Chair. What can I say?

• 0930

The Chair: Thank you.

Mr. Herron.

Mr. John Herron (Fundy—Royal, PC/DR): There are two aspects of the group of amendments that the Progressive Conservative Party are presenting.

The first aspect is the issue of ministerial accountability. There is a thought that the government has been advocating that by including the GIC in the decision-making process, as opposed to actually having the minister accountable, we will know, as a single point of contact, who's made the decision, for better or for worse.

There's a strong sentiment among the Canadian public that politicians, regardless of level of government, provincial or federal, are not identifiable or accountable for actions or inactions. This fallback of hiding things within the GIC, which usually means we never get the decision process actually made, is against the accountability aspect that our party is trying to restore to politics. That's one debate.

I recognize there is a concept where people believe that the socio-economic implications can take place if they're done through a former process of the GIC. If anybody thinks for even a minute that a minister can unilaterally make a decision without having dialogue within a cabinet environment, then clearly they're misleading themselves. That's why we're trying to have more ministerial accountability versus the GIC.

On the second aspect, it's best to be genuine, upfront, and deliberate in terms of establishing with the provinces when they engage and when they do not engage in lands outside of traditional federal jurisdiction. I think it's better to actually have a road map giving the criteria for engagement, as opposed to treading on the provinces' territories on occasion, as they are saying.

If the federal government is forthright and has the courage to be able to set down some guiding principles about when it engages and when it doesn't engage, I just think that makes a whole lot of sense. It does not deny the flexibility to have a cooperative regime between the federal and provincial governments. It does not deny the flexibility to have voluntary initiatives on stewardship.

These are amendments that have been brought forth by industry and environmental coalitions alike. That contingent has been built. I don't know why the Government of Canada insists on going forward with an approach that has been panned by both sides.

Thank you, Mr. Chair.

The Chair: Thank you.

Briefly, Mr. Mills.

Mr. Bob Mills (Red Deer, Canadian Alliance): I wonder if Mr. Near could tell me about the constitutional place for safety nets. Where does that fit, or what sorts of terms of reference exist between provinces and the federal government? Have they agreed to these safety nets, and are they used often? Are there other places, other examples?

Mr. David Near (Legal Counsel, Legal Services, Department of Justice): The short answer is no. This is something we've created for purposes of this legislation, to implement the policy intention of working cooperatively with the provinces before the government asserts the criminal law power to bring in a general prohibition. There may be one that I'm not aware of, but we researched it and this is a fairly interesting concept we've created for this legislation.

Mr. Bob Mills: What kind of work have you done with the provinces, to determine if they think it's innovative, creative, and exciting?

Mr. David Near: I think it's fair to say that the provinces may take a slightly dimmer view of our creativity, but we think we're on safe constitutional grounds in terms of the operation of the safety net.

Part of that safety is the involvement of the GIC, especially with respect to clause 61, because we are talking about provincial lands here. In terms of the possibility of an attack on the legislation, this is the most vulnerable part, from our perspective.

• 0935

That's why, especially if you leave out the GIC and the designation of a specific portion and just talk about the critical habitat as designated by the recovery team, if that involves a large portion of the province, it will open us up to a constitutional attack. Whether or not we're successful has a greater risk associated with it on this particular section.

The Chair: Mr. Bailey.

Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance): How many times have we in this committee used the word “cooperatively”? I want you to think about that, because accountability has to be attached to that as well.

I envisage while at first we may have more disagreement between the federal and provincial governments, in time, if this bill is properly presented and exercised, I can see a provincial government saying to the federal government, who is the author of the bill, “We need to exercise more control here”. That may even come from the lowest of the spectrum—the landowners, the farmers, and so on.

I don't like putting in the federal government or the provincial government. We do so because we can identify them, but I see this thing in a different light. If it's properly approached, any one of these four could conceivably come back and want a change in the regulations, or insist that the regulations aren't sufficient to fulfill the act in its entirety.

I suspect there's going to be difficulty at first between the legislation and some provinces. But if they also have an input, that will make a big difference. We need to have the act. Making it totally acceptable would be ideal, but we have to keep in mind that if it's going to be successful, the accountability will have to flow back and forth between the various players.

The Chair: Thank you, Mr. Bailey.

[Translation]

Mr. Bigras, please.

Mr. Bernard Bigras: Thank you, Mr. Chairman.

Like my colleague Mr. Mills, I too would like to deal with the issue of the double safety net. It is all well and good to talk about collaboration, partnership and co-operation, but if you talk about two partners, that means that they are equal. If there is no equality in the partnership, we can perhaps talk about co-operation, but we certainly cannot talk about partnership.

My question is as follows: when should the safety net kick in and when should it stop? Does this happen as soon as a province has its own legislation? Does this happen as soon as the federal government is of the opinion that the legislation does not meet the requirements? Who would be responsible for determining whether the triggering of a mechanism, either through legislation or by any other means, protects the species? My questions are, therefore, as follows: when does the safety net stop and when does it begin? Who, at the end of the day, determines when the double safety net should be implemented?

[English]

The Chair: Mr. Near.

Mr. David Near: Under the current scheme, the arbiter is the minister, who would make a recommendation to the GIC on whether or not the laws of that particular province were protecting the critical habitat of that particular species.

The Chair: Thank you.

Mr. Herron.

Mr. John Herron: I would like to seek some remarks from the parliamentary secretary about the group of amendments proposed by Mr. Knutson. Although most of her remarks focused on the debate about GIC versus ministerial accountability, when I review Mr. Knutson's set of amendments—in the same stead he's had throughout the course of this process—it seems to be a compromise approach. I don't see where it actually denies the flexibility of cooperation with the provinces.

I'd like to find out specifically, with respect to Mr. Knutson's group of amendments, what concern the Government of Canada has on his block.

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

• 0940

When you look at the grouping of Mr. Knutson's amendments—and I'm assuming you want to deal with them as a group—you'll see that to raise the standard of protection, the GIC must make the order to apply the safety net if this is recommended by the minister. In our view, the effectiveness test in this grouping is basically too stringent, as are the efforts to focus on whether the legislation and the actual wording of the prohibitions and the permits are equivalent.

It's the intent of this bill to make sure we have a piece of legislation that works on the ground. To do that, we've used stewardship and we've had the provinces and territories coming in.

This group of amendments basically changes the focus to whether or not the laws are equivalent. The worst-case scenario is that critical habitat protection is now going to be assessed in Ottawa by government officials who have to look over every word of pieces of provincial legislation. The intent of this bill is that it will be wildlife officers out at the site of the critical habitat who are informing us on species and on whether or not the habitat is protected. In essence, it changes the entire focus of how we approach critical habitat.

Do you want me to go through it piece by piece and tell you exactly what it does?

The Chair: That is sufficient for an overview, if you don't mind, because we want to move on.

Let's see whether we can conclude this very helpful discussion with Mr. Knutson's comments, if he has any.

Mr. Gar Knutson: Thanks very much, Mr. Chair.

I want to make a couple of points. I don't understand in logic how, if you see the concept of safety nets as part of a cooperative approach, you can see spelled-out criteria for the application of those safety nets as somehow undermining the cooperative approach. If I were worried about the use of federal power, the last thing I'd want is absolute discretion without any written criteria from Parliament as to how it's going to be used.

To suggest, as the parliamentary secretary suggested, that somehow bureaucrats will be involved in determining whether provincial laws are working on the ground, that's what they're going to have to do anyway to see if the safety nets are working or whether the safety nets should be invoked. Who's going to make the decision, then? If you look in the language I've put down on page 255, I use the word “equivalent”. That doesn't mean exactly or word for word, it just means it generally does the same thing. There has to be effective enforcement.

Anybody who's read a newspaper in the last few days—and I've made this point before—knows that the provincial government in Ontario is about to go through massive cuts again. It's all very well and good to have endangered species legislation, but if they lay off all their enforcement officers so they're not enforcing their own laws, then maybe the federal government should act. If you were to support my amendments, we would lay that out and Parliament would direct the government to consider that criterion.

The other point I want to make, on page 253, is that the minister should be obliged to consult with the provinces before he recommends that we invoke the safety net. That consultation would be done in a spirit of giving the province due notice, which is a cooperative approach. I think my amendments actually increase the level of cooperation because they lay out criteria.

The Chair: Thank you.

Mr. Herron.

Mr. John Herron: I'll comment very briefly, Mr. Chair.

I think a synopsis in terms of Mr. Knutson's group of amendments would be twofold. The first aspect he touched on toward the end of his remarks is that it would oblige the government to consult—they must consult. The second thing is, all it does is establish criteria as to when a federal law may be utilized versus a provincial law. It's not a matter of equivalency; it has a menu of criteria, so you're actually obliged to be upright and forthright with the provinces about when a federal engagement may or may not occur. I see nothing wrong with actually listing criteria, especially combined with the fact that the group of amendments has clear wording as to where the federal government is obliged to consult the provinces.

• 0945

[Translation]

The Chair: Ms. Scherrer, the floor is yours.

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

It really bothers me a bit when we talk about partnership and co-operation between two levels of government, when one of these levels is entitled to intervene, assess and punish if something should not work properly. Under such circumstances, we are no longer talking about partners, because they are not, as Mr. Bigras pointed out, on the same footing. Indeed, this is what will happen if the federal government were to retain, as a final step, the power to intervene or to enforce. We are no longer really talking about equal partners.

If the provinces adopted policies that they deemed to be appropriate at the time they were drafted, I think that, while the federal government does have the obligation to set an objective, it must not, in my opinion, intervene with respect to policies that have already been adopted. Should this be done, we must realize that such action will not really promote co-operation, which is a very important objective. The federal government should not, therefore, intervene in an area where policies are already in place.

The Chair: Mr. Bigras, please.

Mr. Bernard Bigras: Thank you, Mr. Chairman.

I will continue along the same vein as Ms. Scherrer. You have just told us that the federal government essentially has the power to trigger the double safety net. Are you familiar with the Loi sur les espèces menacées ou vulnérables du Québec (Quebec Act on Threatened or Vulnerable Species) which was passed by the Quebec National Assembly? All parties voted for this legislation, including the Liberal Party and the Quebec Party. Are you familiar with the legislation that was passed in 1991? That is the first part of my question.

Mr. Simon Nadeau (Head, Endangered Species Recovery, Environment Canada): Yes.

Mr. Bernard Bigras: On the basis of the bill before us, do you feel that the federal double safety net could be triggered in Quebec? You have some knowledge. You have, of course, reviewed the provincial legislation. Do you feel, on the basis of what is before us and what may be adopted, that the double safety net could be triggered in Quebec?

I would nevertheless like to have a clear answer.

Mr. Simon Nadeau: If you read the legislation that Quebec passed in 1989, you will note that this legislation protects a certain number of species. It does not protect even half of the species designated by COSEWIC as being in danger or threatened. Given that the safety net ensures that all species are protected, it must be said that the federal safety net could be triggered in cases where the species are not protected.

Mr. Bernard Bigras: The federal legislation would therefore apply.

Thank you, Mr. Chairman.

[English]

The Chair: Madam Redman.

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

I would just make some points in response to some of the comments made earlier, and I think Ms. Wherry would also like to speak to this. In the legislation as proposed, I would turn everybody's attention to page 29 and subclause 61(4), which reads:

The Minister must make a recommendation if he or she is of the opinion, after consultation with the appropriate provincial or territorial minister

So there already is consultation built into this, and I would ask Ms. Wherry if she would like to make a comment on this.

Ms. Ruth Wherry (Director, Species At Risk, Canadian Wildlife Service, Environment Canada): I would like to point out first of all that we're not only talking about government land here, we're also talking about private land. The provision in the bill provides for making stewardship agreements as a first approach, so it's not just a question of whether the legislation of a province protects it. It's that we're trying to do it through stewardship with the private landowners, and that's the basis of the whole approach here.

I would also like to make the comment that the wording of Mr. Knutson's motion doesn't just say that no person shall destroy habitat; it says that no person shall “adversely modify” habitat. I believe that David Near could certainly speak to that better than I to the effect that it would probably go beyond what we believe can be defended through the use of the power of criminal law.

I would just like to make one more comment, and that is, if you have something like this put in the bill, the motions by Mr. Knutson or some others, there's always a certain risk. The risk is that since those prohibitions would apply right away, the provinces wouldn't bother to try to work cooperatively with the federal government but would simply upload the responsibility.

• 0950

The Chair: Are there any further comments? Madam Redman.

Mrs. Karen Redman: Mr. Chair, if I could, I'll just reiterate what Ms. Wherry is saying. There is a substantive change in Mr. Knutson's bundle of amendments, but what is just as significant as those is also the timing and the opportunity to invite stewardship agreements with landowners, the people on the land who will make this legislation work.

Mr. Knutson's argument about setting out criteria is fine if you're dealing with the legal wording of pieces of legislation in isolation. The intent, the focus, and the structure of this bill are centred on what will work on the ground. We need to find out what is effective and what works on the ground, not to wrangle over whether or not the legal wording is finely tuned.

The Chair: Mr. Bailey.

Mr. Roy Bailey: I just have one question. It's on topic, and it's a question that has to be answered now.

In the province I come from, there are huge acres of land under the control of various groups such as Ducks Unlimited, the Wildlife Federation, and so on. They themselves by their own bylaws have designated huge sections of land for the very purpose we're talking about here today. How does this bill fit into that? Will they be left to operate as they do at the present time, or will they come under the purview of this bill?

Mr. David Near: The short answer is, for Ducks Unlimited, for example, that if they have a migratory bird on any of their acreage, the law will apply. They don't have a sort of independent little sanctuary all on their own. The provincial law and the federal law will apply in those instances where there's a migratory bird, which in the case of Ducks Unlimited there's likely to be.

Mr. Roy Bailey: Is it the same for the Wildlife Federation and the land they have taken over?

Mr. David Near: Assuming they own it, the laws would apply, yes.

Mr. Roy Bailey: Thank you.

The Chair: Mr. Knutson.

Mr. Gar Knutson: I'm not sure where to begin, but I want to begin with a huge “give me a break”. The way the legislation is drafted, it's entirely up to the minister's discretion. That's what the words “is of the opinion” mean. If the government wants to put criteria in as to what it's going to invoke based on what works on the ground, then why don't we spell that out? That's not what the legislation says. It just says, if the minister “is of the opinion”, and none of us knows who the minister is going to be 10 years from now or what might influence those opinions. You might have a minister who's extremely aggressive. That's one point.

As to this business about uploading, the provinces can do this now just by not doing their job. Presumably, if the provinces don't do their job, that's going to trigger the safety net. If it's not going to trigger the safety net, then this whole discussion about a safety net and standing behind it is fraudulent. It's as if there's a straw man that's been put up, where if we put this language in, the provinces may not do anything and thereby upload to the federal government. But that exists in this legislation now. That's what the safety net does: if they don't do their job, we're going to step in.

As to this third point, that if we change a few little words to “adversely modify”, the bill will be struck down in court as overstepping our federal jurisdiction, again I'd like to say “give me a break”. If the government is truly of that opinion, I'll take the language out, and let's just talk about “destroying” habitat.

Those are my comments.

The Chair: Mr. Reed.

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

I'm in grave danger of repeating myself, and I've done it a number of times in these deliberations. The ministerial discretion is not only valid, but, in my view, absolutely essential. The minister is accountable to the public. It's as simple as that. Any time you remove that discretion, you remove accountability.

• 0955

The Chair: Thank you.

Madam Redman.

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

In response to Mr. Knutson's comments, there are provincial governments that have brought in species at risk legislation. They have done that in anticipation of this piece of legislation coming forward. So to assume that any or all of the provinces may deal with this in bad faith is, I think, probably premature at best.

There certainly is a review mechanism in this piece of legislation. I think Mr. Bailey made the point very well that we need on-the-ground experience. By inviting landowners, through stewardship agreements, as well as provinces and territories to step up to the plate, it will allow us to see if this cooperative method will work as well as we think it will.

I would ask Mr. Near and Ms. Wherry if they'd like to comment.

Mr. David Near: I have just a brief comment with regard to “adversely modify”. It would make me and the department a lot happier if those words were to be taken out. That would be consistent with what Mr. Knutson did in clause 58, where we were dealing with federal lands, which is much less of a contest than clause 61, where we're dealing with provincial responsibilities.

The Chair: Ms. Wherry.

Ms. Ruth Wherry: I just want to make one small point in response to Mr. Knutson. It is not totally discretionary, as you perhaps laid it out, for the minister to form his opinion. I would refer you to clause 63, where the minister has to report every 180 days on whether or not the critical habitat is protected. That has been identified. So the minister has to report every 180 days on whether or not it is protected.

Mr. Gar Knutson: It says “If the minister is of the opinion”.

Ms. Ruth Wherry: He would still have to give some evidence that it was or was not protected.

The Chair: It seems to me that there has been a thorough discussion. If you are in agreement, I will start by calling the first amendment in Mr. Knutson's group of amendments. I'll deal with them group by group.

Mr. Knutson, if I understand him correctly, has indicated his readiness to drop “or adversely modify”. Is that correct?

Mr. Gar Knutson: That's right.

The Chair: So the amendment on page 234 would read “No person shall destroy any part”, etc.

If this amendment carries, the consequence will be that B-12, which is the amendment on the next page in the name of Mr. Bigras, cannot be put. That's the only consequence I'm aware of.

I'm told by those at the table here that from the point of view of clarity, on the fourth line of Mr. Knutson's amendment on page 234 the word “and” should be inserted between “territory” and “that”. So the last line would read “province or territory and that is not mentioned in subsection 59(1)”. The purpose of that is greater clarity.

• 1000

If I don't hear any comments on this amendment, I will take it that is understood to be the case.

Our attention is being drawn to the fact that in Mr. Knutson's amendment to clause 58, which was carried, after the words “extirpated species”, the following words were inserted: “if a recovery strategy has recommended the reintroduction of the species into the wild in Canada”.

We are now informed that we should do the same in the amendment on page 234 immediately following the words “extirpated species”, so as to keep that in harmony with what we have already done in clause 58. I'm told that this is a technical adjustment that is required because of a previous amendment adopted by this committee.

So to make a long story short, the amendment before us on page 234 would read as follows:

No person shall destroy any part of the critical habitat of a listed, endangered, threatened or extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada that is in a province or territory and that is not mentioned in subsection 59(1).

• 1005

I repeat that this is a requirement by virtue of the fact that when this committee adopted the amendment of Mr. Knutson to clause 58, it did insert those words after the words “extirpated species”. Have I reproduced the situation correctly?

A voice: Yes.

The Chair: So if you are ready for the question... I will put it in a moment.

First, we'll hear from Madam Redman and Mr. Bailey.

Mrs. Karen Redman: Mr. Chair, I'd like clarification. If we are voting on a package or a bundle of amendments that are seen to be consequential, could we have those reiterated so that everybody's clear on what we're voting on, please?

The Chair: I indicated earlier that because of the discussion we had and certain political logic that emerges, we could proceed by way of voting on them group by group. We are beginning with the first group, the one produced by Mr. Knutson.

Mrs. Karen Redman: And that group includes—

The Chair: It is as indicated on page 16 of the researcher's paper, which is before you.

Mrs. Karen Redman: Is that page 6?

The Chair: Yes.

We are doing it group by group because there is logic to each group. There is a certain consistency. Some are more stringent, to use Madam Redman's term, and some are less stringent, so we have a certain cohesion group by group.

The first one by Mr. Knutson is before you, with two technical amendments, as I indicated.

Mr. Bailey, do you want to ask a question?

Mr. Roy Bailey: It deals with technical amendments. Through you to your members, if we accept on page 234 the words “or adversely modify”, would we not have to go back to clause 58 and include those words there as well?

The Chair: Those words have been deleted, Mr. Bailey.

Mr. Roy Bailey: Oh, they have been deleted.

The Chair: Yes. Mr. Knutson announced that he is dropping those three words. They're not before us. The amendment reads “No person shall destroy any part of the critical habitat”, etc. Is that right?

A voice: Yes.

The Chair: Good.

(Amendment negatived)

The Chair: We now move to page 241.

It's an amendment in the name of Mr. Knutson.

Are you ready for the question?

The vote on the amendment on page 234 applies to the rest of the group. In other words, the defeat of the first amendment of that group means that the balance of the amendments in that group are also defeated.

Is that agreed?

Some hon. members: Agreed.

The Chair: We then move to Mr. Bigras' amendment on page 235. A vote on this amendment applies to the amendments in Mr. Bigras' name on pages 238 and 250. Are you ready for Mr. Bigras' amendment?

Mr. Bernard Bigras: Yes.

(Amendment negatived—See Minutes of Proceedings)

• 1010

The Chair: We come now to the government amendment on page 236.

(Amendment agreed to—See Minutes of Proceedings)

The Chair: We come then to Mr. Comartin's amendment on page 239. The vote on this amendment also determines the fate of the other four amendments in the name of Mr. Comartin.

Mr. Mills.

Mr. Bob Mills: I'd like to add a friendly amendment to take out—

Mr. John Herron: Only if you vote for it.

Mr. Bob Mills: —“recovery strategy” and put in “and the portions of the critical habitat that the Governor in Council may on the recommendation”, and then carry on.

So that would read:

(2) Subsection (1) applies to critical habitat that is identified and to the portions of the critical habitat that the Governor in Council may on the recommendation include in the public registry.

An hon. member: Is that instead of “recovery strategy”?

Mr. Bob Mills: Yes, that's instead of “recovery strategy”.

The Chair: Would you mind telling me again, Mr. Mills?

Mr. Bob Mills: Okay. Let me take one second here.

I'm taking this from a previous one we did:

(2) Subsection (1) applies to critical habitat that is identified and to the portions of the critical habitat that the Governor in Council may on the recommendation include in the public registry.

That's what's in the bill now.

The Chair: Where is it? Which section are you reading from?

Mr. Bob Mills: I'm going back to page 29.

The Chair: It's on new language, Mr. Mills.

Mr. Bob Mills: Yes. Possibly, Mr. Chair, it was in an earlier discussion when I made the notes. I must admit I thought it was page 29, but obviously that isn't where it's from.

The Chair: It might be wiser to leave the amendment as it is, Mr. Mills. We have never adopted this kind of language before.

• 1015

Mr. Bob Mills: Okay. I'll pass.

The Chair: The amendment remains as it is, proposed by Mr. Comartin.

Are you ready for the question?

Madame Redman.

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

I'd like to point out that this again is bundled. Despite the friendly amendment, we're still having the same objections to this grouping as we did to the previous one.

The Chair: Yes.

(Amendment negatived—See Minutes of Proceedings)

The Chair: We now come to Mr. Herron's amendment on page 240.

The outcome on this amendment will determine also the outcome of the other two amendments in Mr. Herron's name dealing with clause 61.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 61 as amended agreed to)

(On clause 62—Acquisition of lands)

The Chair: On clause 62 we have an amendment by Madame Kraft Sloan on page 259.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): Yes, Mr. Chair.

This is a very minor amendment. Essentially what clause 62 deals with is the acquisition of lands so that the minister can enter into an agreement with any government in Canada, or organization or person, to acquire land or interests in land for the purpose of protecting the critical habitat of any endangered or threatened species. All the amendment I have on page 259 would do is to include all species in this, so it would also include extirpated species or species of special concern.

It's a very minor amendment, and it would just allow the ministers to enter into an agreement for persons or governments to acquire land to protect the critical habitat of all species, as opposed to just endangered or threatened ones.

The Chair: Any comments or questions?

• 1020

(Amendment agreed to—See Minutes of Proceedings)

(Clause 62 as amended agreed to)

(On clause 63—Progress reports on unprotected portions of critical habitat)

The Chair: We come to page 260, an amendment in the name of Mr. Bigras.

[Translation]

Mr. Bernard Bigras: I will withdraw my amendment, Mr. Chairman.

The Chair: Thank you.

(The amendment is withdrawn)

[English]

(Clause 63 agreed to)

(On clause 64—Compensation)

The Chair: We now are on page 261. We are on clause 64.

Mr. Mills.

Mr. Bob Mills: Would it be possible to deal with this one tomorrow?

The Chair: Yes, it would be possible.

We will stand clause 64 and tackle clause 65 then on the request of Mr. Mills.

(Clause 64 allowed to stand)

(On clause 65—Preparation of management plan)

The Chair: We have an amendment by the government on page 268.

Madam Redman.

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

I'd be happy to read it but I'm sure everybody has it before them. If I can just provide some rationale, this amendment is part of a package of amendments aimed at strengthening the protection of species at risk by recognizing species already assessed by COSEWIC with the new criteria as the legal list when the act is proclaimed.

The purpose of adding the new subsection is to clarify that the species of special concern on the schedule at the time of proclamation...and the timeline for the preparation of management plans would be five years. The proposed timeline would be two years longer than would be required for species that are legally listed following the proclamation of the act.

However, they are consistent with section 133 of Bill C-5 that would apply a five-year timeline for any species of special concern on the current schedule 1, which is the current COSEWIC list that will be assessed by COSEWIC within 30 days after proclamation. The longer timelines are proposed in recognition of the large numbers of species being proposed for inclusion in the new schedule to the act and to which statutory obligations will apply on proclamation, including the requirement for the preparation of recovery strategies and management plans.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: If this amendment passes, how does it affect my amendment on page 270? This amendment replaces line 1, and it also includes line 9, and so does...

The Chair: There's no line conflict.

Mrs. Karen Kraft Sloan: There's no line conflict then?

The Chair: No.

Mrs. Karen Kraft Sloan: Okay.

The Chair: Thank you.

Any further comments or questions on the amendment on page 268, G-15?

I'm told it would have a certain consequential effect on G-7 on page 81.

Mrs. Karen Kraft Sloan: This clause has already passed.

• 1025

Mrs. Karen Redman: Could we get a comment from Mr. Near and perhaps Ms. Wherry on whether or not this affects 81.

Mr. David Near: It doesn't affect 81. It's my understanding that 81 wasn't moved because of the amendments of I believe it was Mr. Knutson that were carried with respect to clause 27.

With respect to the amendment at page 268, the important point is that it's commonly understood by the committee that schedule 1 will be the list of species that have already been assessed by COSEWIC, the famous 198, that will be broken down into three categories of endangered, threatened, and of special concern. This is the management plan aspect of it.

So if there's a common understanding that this is what schedule 1 is going to be, then this has no other consequential effect in my view.

A voice: Other than a longer time.

Mr. David Near: No, none whatsoever.

The Chair: Somehow we need some clarity here in tackling this particular amendment, for reasons related to the consequential impact and for the reasons raised also by Mr. Near a moment ago. I think it would be safer to proceed by way of standing this amendment so that we have a clear understanding from the government as to what its position is and the consequential impact, so that when we call it we have a very clear map ahead of us.

Madam Redman.

Mrs. Karen Redman: Mr. Chair, I would respectfully ask when would we then deal with this amendment?

The Chair: Whenever you will be able to give us a clear indication of its consequential impact.

Mrs. Karen Redman: I would perhaps ask if Mr. Knutson is ready to speak to that now.

The Chair: And also to answer Mr. Near's points, because it seems to me that there is too much unclarity.

Mrs. Karen Redman: I asked as well for Ms. Wherry's comments.

The Chair: Ms. Wherry.

Ms. Ruth Wherry: As Mr. Near pointed out, by adopting this it does not have a consequential effect on any other motion in here. Both the motion on page 268 and the one on page 161 that was deferred earlier are related to whether you add the 198 species in the schedule. Both of them are tied to that one. They're not consequential, but the intent and the explanation for them is linked with that.

The Chair: The advice that is emerging at this end of the table is that we deal with these amendments when we will deal with schedule 1.

Mrs. Karen Redman: Can we do that now, Mr. Chair?

The Chair: All right, we could do that.

• 1030

Could the government officials please indicate to us, before we start on schedule 1, which are the other amendments by the government that this committee would be agreeing to when passing schedule 1. We need that clarification.

Mr. David Near: I think the best place to start would be the definition of “list”, which is in the definition section at page 13 of your binder, where it basically just says, “Risk set out in Schedule 1”. There is no actual definition of schedule 1, but that's the legal list that will be in place upon the coming into force of the legislation. That one could be dealt with.

The Chair: Is that the only one?

Mr. David Near: There is another one at page 161 that is similar to this one except that it deals with recovery strategy as opposed to action plans, where there is an additional time given to the government to generate all of those, the first lump of recovery strategies. That's at page 161.

The Chair: What is the number, G...

Mr. David Near: G-9E is what I have.

The Chair: All right. And that is all?

Mr. David Near: I should specify that they're not actually consequential, but they're related to this issue.

Then the final one is the actual list itself on page 350, where we replace the old 1 and 2 and now make it 1.

The Chair: And how do you identify that amendment? Which number on page 350?

We'll call it G-22, for clarity.

It would seem to make sense if the amendment by the government would read...by way of tackling schedule 1 and by way of another amendment tackling schedule 2; in other words, splitting the motion on page 350 since we're dealing with two separate schedules.

Is that agreeable?

• 1035

Mrs. Karen Redman: Can I ask Ms. Wherry to comment on that?

The Chair: Ms. Wherry.

Ms. Ruth Wherry: I think the other one you're looking for is on page 338. The one on page 338 would change the current 1 and 2 to 2 and 3. The later one, the G-22, would put in the new schedule 1.

The Chair: So how would it read then, the one on page 350, the amendment?

Ms. Ruth Wherry: Exactly the way it says.

The Chair: So you would keep the two schedules together.

Ms. Ruth Wherry: We would replace schedules 1 and 2 on pages 68 to 86, and we would just call that schedule I. That would be the whole list of species that's there, the 198. Then the motion on page 338, which talks about clause 130, which refers to the remaining species on the current COSEWIC list, would become the new schedules 2 and 3. So what is in the current 1 and 2 would become 2 and 3, the leftover ones.

The Chair: Keep in mind that when we deal with amendment G-20 on page 338, if it carries, the motions L-38, 39, 40, 41, and 41A cannot be put. The movers of those motions need to be alerted to that fact.

L-38 can be found at page 273 and the subsequent ones in subsequent pages, which need to be identified one by one—L-43, for instance.

It's L-38, L-39, and 40, and 41 and 41A, and the pages are 340, 342, 343, 344, and 345. Thank you.

• 1040

Mrs. Karen Kraft Sloan: You're talking about the amendments on page 16 and all of the amendments under clause 130. Is that correct?

The Chair: What is your question?

Mrs. Karen Kraft Sloan: The amendments that you say will be affected by the government amendment are all the amendments on page 16, clause 130. Is that correct?

The Chair: Those are the others, yes.

Mrs. Karen Kraft Sloan: So it's all of those amendments?

The Chair: And amendments L-38, L-39, L-40, L-41, and L-41A, yes.

Mrs. Karen Kraft Sloan: And what about the Alliance amendment? It's not affected?

The Chair: I've not been notified to that effect, so I presume it's not.

Mrs. Karen Kraft Sloan: So that's the only one that's not affected. And you said something about an amendment on page 270 or something? That was a mistake? All right, thank you.

The Chair: I don't think we are at the stage where we can deal with a vote on clause 130. At this stage, there are too many unclear points. I will have to ask for a deferral on the discussion on this particular clause until the table is ready, in cooperation with the officials, to be absolutely clear on the path we have to adopt.

• 1045

To be consistent, the same applies to amendment G-15 on page 268. We will stand that as well, to have a procedural map ready, possibly by tomorrow.

We could move to page 270 and deal with the amendment by Madam Kraft Sloan, which stands alone and is identified as LL-36A.

Would you like to present it?

Mrs. Karen Kraft Sloan: Yes, thank you, Mr. Chair.

This clause essentially deals with the development of management plans for species of special concern. This amendment changes lines 5 and 6 to read:

habitat designed to prevent the species from becoming threatened. The plan must include measures for the conservation of the species and its habitat that the

It would include habitat within the preparation of management plans for species of special concern.

The Chair: Madam Redman, please.

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

I would ask Monsieur Nadeau to speak to this.

Mr. Simon Nadeau: I think the first part of the amendment would be fine in most cases, but in some cases we would like to be more optimistic, if you will, in managing the species.

As it stands, actually, it speaks to maintaining the species at its current status of special concern. But in some cases we want to bring a species at a lower level of risk to being not at risk, because some of these special concern species are actually prey species for other listed species, like endangered or threatened species. I'll give you an example.

In the Grasslands National Park, we have the black-tailed prairie dog, which is a special concern species, and it's the main prey of the black-footed ferret, which is an extirpated species that is still present in the U.S. If we want to reintroduce the ferret, we'll actually need to bring the black-tailed prairie dog below special concern. So in some cases, management plans will have to aim at more than maintaining the current status of the species—delisting it in some cases.

The Chair: Are there any further comments or questions?

Mr. Mills.

Mr. Bob Mills: I think my only comment would be it seems to me you should worry about your species at risk first. By broadening it even further, that just opens it up to less chance of it really working. That would be my concern with broadening it to this extent.

The Chair: Madam Redman.

Mrs. Karen Redman: Thank you.

Just further to Mr. Mills' comments, it's our view this actually would be more limiting rather than broadening, and we would not support this amendment for that reason—and in the spirit of the black-footed ferret and its fate, which I know is near and dear to Mr. Tonks' heart.

• 1050

The Chair: Mr. Tonks is nodding.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Actually, this clause, if we were able to amend it, would be similar to Bill C-65. I think a lot of this debate just revolves around the government's reticence to protect habitat.

The Chair: Are you ready for the question?

(Amendment negatived—See Minutes of Proceedings)

(Clause 65 allowed to stand)

(On clause 66—Cooperation with other ministers and governments)

The Chair: We're on page 271, the amendment in the name of Mr. Mills.

Mr. Mills, you may recall that you changed the words “resource users” to “lessees” earlier.

Mr. Bob Mills: Yes. And what this does is simply confirm that this is for landowners, lessees, and other persons directly affected. It includes anyone who's affected by this particular piece of legislation.

The Chair: Have you agreed to replace the word “directly” with “whom the” for clarity purposes?

Mr. Bob Mills: Yes.

The Chair: Would you mind, then, reading the entire line again, please?

Mr. Bob Mills: Okay. The subclause begins: “To the extent possible, the management plan must be prepared in consultation with any landowners, lessees and other persons directly”—

The Chair: —“whom the...”?

Mr. Bob Mills: Oh, yes, “whom the competent minister considers to be directly affected by”, and so on.

The Chair: You will be replacing “directly” with “whom the”?

Mr. Bob Mills: Yes.

The Chair: Fine.

Any questions or comments?

A voice: It sounds reasonable.

The Chair: Are you ready for the question?

(Amendment agreed to—See Minutes of Proceedings)

(Clause 66 as amended agreed to)

(Clause 67 agreed to)

(On clause 68—Public registry)

The Chair: We come now to page 272, an amendment in the name of Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Thanks, Mr. Chair.

What this amendment on page 272 does is set up the amendment on page 273. I'm not sure why these were split, but they were. Perhaps we should turn to the amendment on page 273. What the amendment on page 272 does is add a (1) after the clause number, 68, because the amendment on page 273 adds a new subclause (2). Essentially what this does—

The Chair: Yes. We'll deal with both those pages at the same time.

Mrs. Karen Kraft Sloan: We'll deal with both, if I can make it clear to members they would be supporting the amendments on pages 272 and 273.

The Chair: Yes. Please proceed.

Mrs. Karen Kraft Sloan: What this does is require timelines and opportunities for public comment and depositing the final copy of the management plan in the public registry. It provides opportunities for the public to comment on management plans, Mr. Chair.

The Chair: Thank you.

Madam Redman.

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

This deals with management plans. They are consensus documents developed in consultation with the stakeholders, who include all the people on the land who will make this legislation work. Opening up these documentations to further consultations would mean further discussion, and we could well see a breakdown of the kind of consensus and cooperation that's already been forged.

• 1055

I would add that this, again, would have been done in a consultative manner. We see this amendment as unnecessarily delaying the production of a final management plan—and in fact, delaying implementing the management plan, which obviously is in the best interest of the species at risk.

The Chair: Thank you. Mr. Knutson.

Mr. Gar Knutson: If further discussion can break down the consensus, it's not a very strong consensus. The government seems to go back and forth: discussion is a good thing—it promotes cooperation—and yet discussion is a bad thing because it might break down consensus.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I would just like to point out to members that we supported an amendment on page 182 that did a similar thing for action plans. I think it is important to give people an opportunity to make comments on these management plans. It's not requiring that the minister build in the comment; it's just that the minister has to consider the comment. It doesn't really affect the consensus process. What it does is enhance it, because there may be something other people can add to the process.

The Chair: Thank you. Are we ready for the question?

(Amendment agreed to—See Minutes of Proceedings)

(Clause 68 as amended agreed to—See Minutes of Proceedings)

(On clause 69—Existing plans)

The Chair: We come to page 274 and an amendment in the name of Mr. Mills. If this amendment carries, then the next amendment on page 274A in the name of Madam Kraft Sloan cannot be put. Mr. Mills.

Mr. Bob Mills: The intent of this is consultation. If the bill is going to work, we need to consult as widely as possible, and adding this I think specifies exactly who's included and broadens it. Consultation is what we're looking for.

The Chair: Are there comments or questions? Are you ready for the question?

(Amendment agreed to—See Minutes of Proceedings)

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: The only problem is that my amendment on page 275 has already been carried in a variety of other places. We should have had a discussion on the two amendments together.

The Chair: We move now to page 275 and the amendment in the name of Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: It's been withdrawn in favour of my amendment on page 274A, which was the amendment—

The Chair: As I indicated earlier, if the amendment by Mr. Mills carried, then the amendment on page 274A could not be put.

• 1100

Mrs. Karen Kraft Sloan: But the problem is that this amendment has been carried in other places in the bill, so now we have an inconsistency. We should have discussed both of them.

The Chair: The amendment is still valid, because it would apply to line 12 and would replace “may” with “shall”. But it's up to Madam Kraft Sloan to decide whether she wants to move it.

Mrs. Karen Kraft Sloan: Are you talking about the amendment on page 275?

The Chair: Correct. I said the amendment on page 274 has been taken care of by the previous vote. We are now on page 275.

Mrs. Karen Kraft Sloan: But isn't it the same as Mr. Mills' amendment? Mr. Mills' amendment has this idea incorporated in his amendment, and the line as well—

The Chair: It says “shall, after consultation”—

Mrs. Karen Kraft Sloan: His is on lines 11 and 12 and this is line 12.

The Chair: This says “shall include a copy of existing”. Oh, yes; that's correct. Well, then, it's not required.

We then move to Mr. Mills' amendment, to page 276.

Mr. Bob Mills: Again, Mr. Chair, this is in line with the way we have been looking at the consultation process. I believe this would satisfy the affected parties. Again it specifies the parties and satisfies the existing plan and I believe should be added at the end of this.

The Chair: Madam Redman, please.

Mrs. Karen Redman: I believe Mr. Nadeau would like to speak to this one, but the amendment includes a reference to clause 65, which would mean existing plans that were not completed within three years could not be used. We see that as a limitation.

The Chair: Mr. Nadeau.

Mr. Simon Nadeau: There are already requirements to consult and cooperate with people under clause 66, and as Ms. Redman said, adding a reference to clause 65 would prevent us from using plans developed in the past, because we wouldn't be able to meet the three-year period following the listing of the species as of special concern. It would prevent us from using existing plans.

The Chair: Mr. Mills.

Mr. Bob Mills: Mr. Chair, if I removed reference to clause 65 and just left clause 66, I think it would accomplish what I'm looking for and eliminate the government's problem then with clause 65.

Yes, I'll propose that we just leave it as “section 66”, removing the 65.

An hon. member: Yes.

The Chair: It would say “as outlined in section 66”, then?

Mr. Bob Mills: That's correct.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I'm wondering if Mr. Mills would be amenable to a friendly amendment to remove “substantially”, because my concern would be that this would be very difficult to replicate. As long as the requirements are met in clause 66, I think it would satisfy his ends, Mr. Chair. It's also similar to an amendment I made earlier, on page 186, which removed “substantially” as well and which the committee agreed to.

Mr. Bob Mills: I can remove “substantially”.

Mrs. Karen Kraft Sloan: Is that okay? It may be too high a bar.

The Chair: Thank you. Would you please read the amendment, then, Mr. Mills?

Mr. Bob Mills: Okay.

This would add, after line 18 on page 32:

the species, insofar as that existing plan meets the requirements as outlined in section 66.

The Chair: Thank you.

You have heard the amendment. Are you ready for the question?

(Amendment agreed to)

• 1105

(Clause 69 as amended agreed to)

(Clause 70 agreed to)

(On clause 71—Regulations)

The Chair: On clause 71, page 277, there's an amendment in the name of Madam Kraft Sloan.

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

Clause 71 deals with the development of regulations for the implementing of measures included in management plans. My amendment would add transboundary species, one of the favourite topics of discussion at our committee.

The Chair: Mr. Herron, I would draw to your attention that if this amendment carries, your amendment on page 278, which describes transboundary species, cannot be put.

Madam Redman.

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

We once again are looking at the issue of transboundary species having a distinct category within this legislation. I again point out that that includes, I believe, 93% of all endangered species and makes the federal government the first authority. Therefore, by definition, that would ensure that the habitat and welfare of all endangered species were the jurisdiction of the federal government and would preclude the cooperative nature of this legislation involving landowners, provinces, and territories.

The Chair: Thank you.

Are there any comments or questions?

We have now before us the amendment on page 277 in the name of Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I'd be happy to defer to Mr. Herron's amendment on page 278, so he can be shot down.

Some hon. members: Oh, oh!

The Chair: Would you like to withdraw your amendment then?

Mr. John Herron: No, it's fine.

Mrs. Karen Kraft Sloan: No?

Mr. John Herron: We'll take two like that.

Mrs. Karen Kraft Sloan: Yes, that's true. There is different language in yours. You can be shot down twice. Very good, Mr. Herron.

Are you a transboundary species?

Mr. John Herron: Yes, we are.

Some hon. members: Oh, oh!

Mr. John Herron: You can't use lead shot either.

I'd just like to comment very briefly on Ms. Kraft Sloan's amendment. I think the minister should have the power to make regulations implementing the management plans of all federal species, whether they're transboundary or whatever they are. If they're federal species, why would we want to deny the capacity of the federal government to make a management plan for that particular species? Critters don't know where international borders are. They don't check in at customs. So it just makes a lot of sense.

The largest issue here is that if 93% of the species are transboundary in nature, isn't that more reason for us to actually include transboundary species?

The Chair: Mr. Near.

Mr. David Near: I believe this has been dealt with a number of times. I think this is the last time it comes up. If you do it here, it's inconsistent with the other half dozen references that have already been dealt with.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: If it passes here, I'd be happy to reopen those other clauses so we can be consistent throughout the legislation. It would a great opportunity to make this bill one that really protects endangered species.

Time and time again we've been told we can't categorize species. Well, let's take a look at clause 71. We have a category of species called aquatic species. We have a category of species that are birds, and not only are they birds, they're a category of migratory birds. Then there's another category of migratory birds, as protected by the Migratory Birds Convention.

So I find it really odd that in some respects we're willing to protect certain categories, but in other respects we want to exclude categories simply because there are so many of them. That's the shame, Mr. Chair, that's the true shame.

The Chair: Are there any further comments?

Madam Redman.

• 1110

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

Just further to the logic that endangered species and all wildlife do not carry passports—and I think that's irrefutable—the people who are encroaching on the welfare of wildlife and indeed endangered species are actually of the two-legged variety. In order to engage cooperation from the people on the land, as well as provincial and territorial governments, this is a fundamental shift and one that should not be taken lightly.

The Chair: Final comments, Mr. Mills and Madam Kraft Sloan.

Mr. Bob Mills: We're repeating what we've talked about many times. I just think it broadens it so widely that our chances of success, as we've said so many times before, just become that much less. We want to focus on this. We want to save those endangered species, and this just opens up a whole different intent of this bill. I don't think we can deliver on it, even if we have it in there.

The Chair: To conclude, Madam Kraft Sloan.

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

I think there are many layers and levels of cooperation. Certainly the cooperation on the ground in Canada is vital to the implementation of this bill. But we also have to remember that there is cooperation with different federal governments, different national governments.

I would ask you, Mr. Chair, that if this government is refusing to acknowledge its responsibility for transboundary species as a federal jurisdiction within the context of this legislation, who's negotiating with Washington?

(Amendment negatived—See Minutes of Proceedings)

The Chair: Next is the amendment on page 278 by Mr. Herron.

Mr. John Herron: It probably will come as no surprise to the committee that this amendment pursues the same objective Ms. Kraft Sloan was pursuing.

I'd like to remind the committee that this aspect of transboundary species really became one of the principal debating issues around the Bill C-65 debate. At the time, the Government of Canada was amenable to considering the issues surrounding transboundary species. I don't quite understand why the Government of Canada is willing to make regulations and management plans for some species that are within federal jurisdictions and others that are not.

Having this aspect included in the bill does not throw out the cooperative regime we need to have between the provinces and the federal government. The federal government would still have to decide, through Order in Council, to apply its law. Although it would have a first right of refusal perspective, it wouldn't have to engage in any amount of energy—legislative or on the ground—whatsoever. If there were a provincial law in place, the provincial law should apply unless the federal government, through an Order in Council, decided to utilize its act.

We're just saying the federal government has a moral and legislative obligation to provide leadership for protecting species at risk that migrate between international borders. That's clearly in the purview of the federal government, should it exercise that right. Just because it potentially affects 93% of the species in play, it still has to exercise an Order in Council to use the federal law.

I don't understand why we've been negligent as a committee in including this aspect of transboundary species. It was a very important issue when Bill C-65 was debated. This is the last opportunity for us to have it. It's the last opportunity for this committee, given the scope of the amendments we have, to exercise the federal legislative responsibilities on transboundary species.

I so move this amendment.

• 1115

The Chair: Thank you.

Any comments or question?

Mr. Laliberte, please.

Mr. Rick Laliberte (Churchill River, Lib.): I have just a point of clarification where Madam Kraft Sloan left off.

Who does negotiate with international countries then? Is it left with the provinces, and the burden of responsibility is now stuck with the province if a transboundary species is found in their jurisdiction? This amendment and this whole debate on transboundary issues brings it to federal jurisdiction and I think that's the rightful place for international negotiations.

The Chair: Thank you.

Mr. Near.

Mr. David Near: In order to have international negotiations as such, the federal government would continue to represent Canada in those negotiations. Simply because the Government of Canada enters into a treaty, for example, it does not automatically have jurisdiction with respect to the domestic breakdown between the federal government and the province.

I hate to dwell on this issue too much, but Mr. Herron indicated—or seemed to imply—that the province would have jurisdiction with respect to these species. If these species were to become federal, the province would not have jurisdiction to deal with them. It's not a right of first refusal, if you like.

The Chair: Now the order will be Mr. Bigras, Mr. Bailey, and Mr. Herron.

[Translation]

Mr. Bernard Bigras: Mr. Chairman, I would like to know, for my own information, whether or not any agreements have been signed. I seem to recall that an agreement was signed between Quebec, for example, and other States about border or other types of zones. Have any agreements been signed between the provinces and certain American States? I am asking this question for my own information.

Mr. Simon Nadeau: I do not know whether or not there are any agreements between provinces and the States, but an agreement was reached between the Minister of Environment and the Secretary of the Interior with respect to the protection of species at risk. This agreement enables the Department of the Environment to discuss such issues, to establish partnerships and resolve problems that could involve species under provincial jurisdiction. The 1996 Accord for the Protection of Species at Risk in Canada also identifies the federal government as a facilitator or as the government level responsible for international relations.

[English]

The Chair: You're next, Mr. Bailey.

Mr. Roy Bailey: I think we have to clarify something here.

Last week at home I saw thousands of Canada geese, lesser Canada geese, and snow geese. These are migratory birds. But we also have another migratory bird that went by in a smaller number, and I'm making reference to the whooping crane. Because the whooping crane has a summer home mainly in Saskatchewan and a winter home mainly in Texas, the Province of Saskatchewan is much more involved, as is the State of Texas, and yet the federal government is still in control of that species.

I think there's a misunderstanding here, because when the home of any migratory bird exists within the province, the province then plays more of a lead role than the federal government, but it isn't taken off the federal list.

The Chair: Mr. Herron.

Mr. John Herron: Mr. Chair, I want to raise the accountability icon in terms of public policy here as well.

If this species is transboundary in nature—whether it migrates between the United States' border and the Canadian border, or potentially a migratory bird that goes to Mexico, or even through the Soviet Union, a particular species—and that species becomes extinct, who is accountable? Who's responsible? Well, “It was the Americans who did it”, or “It was the Russians”. Who is accountable? If the federal government does not exercise its leadership aspect on species that are transboundary in nature, no one is accountable, and the only thing we will have left is a hollow bill on this particular issue.

The Chair: Are there any further comments or questions?

I go now to Madam Kraft Sloan to conclude.

Mrs. Karen Kraft Sloan: Mr. Chair, I would also wonder about Canada's international reputation. How can we go into international negotiations with other levels of federal governments when we don't have our primary legislation containing protection for transboundary species. It puts us in a very unenviable position.

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(Amendment negatived—See Minutes of Proceedings)

The Chair: On page 279 you have an amendment in the name of Mr. Mills. I'm told it's actually already been agreed to because it is a consequential amendment.

(Clause 71 as amended agreed to)

(On clause 72—Crown corporations)

The Chair: We come now to G-16 on page 280. Here is an amendment that actually is not required. All the movers of this amendment need to do is to vote against the clause of that particular...

Mr. Gar Knutson: Let's do that.

(Clause 72 negatived)

[Editor's Note: Inaudible]

Mrs. Karen Redman: ...crown corporations and the fact that the government was treating them as any other corporation, not giving them an interim measure of using regulation.

(On clause 73—Monitoring)

The Chair: All right, on page 282 we have an amendment in the name of Madam Kraft Sloan.

Would you like to present it?

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

The amendment on page 282 refers to clause 73. Clause 73 deals with the monitoring of the implementation of a management plan, requiring the minister to do an assessment of the implementation. Unfortunately, it neglects to ask the minister to report on this monitoring and implementation, so this amendment adds a subclause (1), a condition of reporting, which I think is very helpful for accountability and public access.

It also adds a subclause (2) requiring that management plans are implemented, which is also a really good thing to do. It's fine to develop these things, but we'd really like to implement them, Mr. Chair. I would welcome a friendly amendment, or I can just do it myself, to delete “or crown corporation”.

So the second subclause, (2), would read:

The competent minister and every agency shall ensure that the measures within their authority in a management plan are implemented, and may use any powers that he, she or it has under any other Act of Parliament for the purpose of doing so.

Thank you.

The Chair: Thank you. Members of the committee should know that if this amendment carries, the amendment on page 283 in the name of Mr. Mills cannot be put.

Mr. Near.

Mr. David Near: I would like briefly to bring to your attention, Mr. Chair, that subclause (2) of this amendment was defeated when we dealt with the one on page 198; it's the identical wording.

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Mrs. Karen Kraft Sloan: Mr. Chair, I would like to understand what Mr. Near's point is in identifying this.

Mr. David Near: I would just like to point out that the exact wording was defeated with respect to action plans, and now we're dealing with the same wording with respect to management plans.

Mrs. Karen Kraft Sloan: Are you suggesting the amendment is out of order?

Mr. David Near: No. I'm just bringing the information before the committee that the identical wording was defeated when dealing with action plans, just as similar identification has been brought to the attention of the committee before.

Mrs. Karen Kraft Sloan: Well, thank you, Mr. Near.

I would also like to bring to the attention of the committee the fact that we've had this inconsistency throughout. Here's an opportunity to ensure that management plans are implemented. Actually, under the topic of action plans, we passed an amendment requiring the making of regulations, so that is in effect implementing action plans. It's not that as a committee we didn't want to implement action plans; rather, we chose to do it through the regulatory process.

Proposed subclause 73(2) provides for another kind of process to ensure that management plans are implemented. I think committee members would see the importance of implementing these plans. It would be a really sad state of affairs if all this work that has been done on the ground, all this cooperative effort and the development of a consensus through working with organizations, individuals, landowners, and the provinces, were put on the shelf. Also, I think it's important, Mr. Chair, when the assessment of how these plans are implemented is made, that it be reported on so the public can also be aware.

The Chair: Thank you.

Madam Redman.

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

The publication of the five-year assessment report is a good idea, and the five-year reassessment of the management plan implementation is also consistent with what is required within the recovery plans. Looking at the amendment before us, as well as Mr. Mills' amendment on page 283, we would prefer Mr. Mills' amendment. We think the intent and the wording are very consistent and would allow for those plans that are already in place to be put in the public registry.

(Amendment negatived—See Minutes of Proceedings)

The Chair: We'll move to page 283. Mr. Mills.

Mr. Bob Mills: We've probably pretty much said what needs to be said. Our key thing here is that the report be printed, which will then allow for a full understanding of what's on the table. Pretty much everything that was said for the last one would apply here. It's just a little cleaner, we feel, and simpler.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Just for clarification, it would include the assessment of the implementation five years after the plan is included in the public registry. That's included in the amendment. What about a friendly amendment that says “and every five years thereafter”?

Mr. Bob Mills: Could I get Mr. Near's or Mr. Nadeau's opinion on that?

Mr. David Near: It's purely a matter of policy as to whether or not you wish to obligate the government to report every five years. It's not a legal question, I'm afraid.

[Editor's Note: Inaudible]

Mr. Simon Nadeau: ...clause 46 in the case of actions plans, saying something to the effect of, until the plan has expired, it has been replaced, or the species has recovered. We could have something similar to that. It could say, until the management plan has expired, the plan has been replaced, or the species' status has improved, which would actually bring the species to the not at risk category.

The Chair: Madam Redman.

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

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I would just direct the committee's attention to clause 126, which deals with annual reporting. The five-year review would be initial, and then there's an annual report to Parliament that would encompass updates.

The Chair: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I think for clarity and for comfort and assurance—and certainly, we've encountered this many times in this bill, where language has been provided for comfort and assurance to different interests—I don't see that there is a problem for including wording that is similar to what is in clause 46.

Why did it say this in clause 46? If it is covered off in clause 126, what was the rationale for that? Let's just say it in clause 73.

The Chair: Mr. Mills.

Mr. Bob Mills: If I could just take a look at...

Mrs. Karen Kraft Sloan: Mr. Chair, the report mentioned in clause 126 is a summary report. It doesn't provide the specific detail that would be the case with clause 73. That's why I would suggest, Mr. Chair, that clause 46 was worded the way it was. That is a specific report dealing with that particular subject matter. A lot of these issues would be lost in a summary report, and I think it's important to clarify that.

Mr. Bob Mills: Could we just have Mr. Nadeau repeat his suggested wording?

Mr. Simon Nadeau: Subclause 73(1) would read:

The competent minister must monitor the implementation of the management plan and must assess its implementation five years after the plan is included in the public registry, until the plan has expired, has been replaced or the species status has improved.

Mr. Bob Mills: Mr. Chair, I can accept that. I think that already goes with the wording of the bill and clarifies it.

Are you then eliminating, “must include a report of this assessment in that registry”?

Mr. Simon Nadeau: No.

The Chair: Let's be quite clear about what we are discussing here. Mr. Mills' amendment reads:

after the plan is included in the public registry, and must include a report of this assessment in that registry.

What is now being suggested is that in addition to that, after the word “registry” it would read, “until the plan has expired, has been replaced or the species status has improved”. Is that correct, Mr. Nadeau?

Mr. Simon Nadeau: Yes, and then we would add what Ms. Kraft Sloan has suggested, “and every five years thereafter”.

(Amendment agreed to—See Minutes of Proceedings)

(Clause 73 as amended agreed to)

(On clause 74—Powers of competent minister)

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The Chair: You will find on page 7 of the researcher's paper, dated November 15, a very helpful arrangement by groups, in the name of Kraft Sloan, Mills, Herron, the government, and Comartin. Mr. Comartin is not here, but perhaps someone else could speak on his behalf. Mr. Herron perhaps might be so kind as to do that.

I would propose that we have a discussion now without a vote, because by then it will be twelve o'clock. Then we resume on clause 74 tomorrow. Would you be agreeable to that?

Some hon. members: Agreed.

The Chair: All right. In that case, we will start with a discussion, with a presentation by Madam Kraft Sloan on clause 74.

Mrs. Karen Kraft Sloan: Essentially, my amendment on page 283A would require that anyone who was engaging in an activity affecting a listed, endangered, threatened, or extirpated wildlife species would be required to get an agreement or a permit under subsection (1.1) or section 75. Subsection (1.1) enables the competent minister to enter into this particular agreement or issue a permit when the activity affects the wildlife species or any part of its critical habitat or the residence of the individual.

The Chair: So indicate which alternative you intend to move or—

Mrs. Karen Kraft Sloan: That's on page 283A, Mr. Chair. Page 284 has been deleted and 285 has—

The Chair: Is page 284 deleted?

Mrs. Karen Kraft Sloan: Yes, and page 285 has been deleted as well, Mr. Chair.

The Chair: Yes, you're right—pages 284 and 285 are deleted. Fine. So we are discussing pages 283A and 292.

Mrs. Karen Kraft Sloan: Yes. The amendment on page 292 requires that the competent minister must provide reasons for the termination and include that in the public registry. That's it for clause 74, Mr. Chair.

The Chair: Thank you. Could we now hear Mr. Mills' approach, please?

Mr. Bob Mills: Basically, with my first amendment we're looking at specifying individuals of the species, as opposed to being more general. We're concerned in the next one—and we've heard this from a number of the people who are looking at this in industry, that the government may use this bill as a way of breaking contracts with them. So if a species at risk is there, there won't be any negotiation; it would simply break the contract.

In the third one of ours, on page 289, we're concerned that all factors be included—that we look at the socio-economic impacts, cost-benefit considerations. We think that all of those should be there whenever a decision is being made. That just simply broadens it out so that we consider every element.

The Chair: Thank you.

Mr. Herron, would you like to present your amendment?

Mr. John Herron: I would. As we know, clause 74 is with respect to permit provisions. The amendment we have in place, by the Progressive Conservative Party, forces the government to publicly justify why it is granting an exemption for the provisions of the act. Public scrutiny will prevent open-ended abuse of exemptions so that the public will have a chance to see how often the Government of Canada is using the exemption provisions under clause 74.

• 1140

It would in turn have to be published as well in the registry. I know my friends in the Canadian Alliance are big fans of this public registry these days. I don't know if it's because they're trying to get one of their sons or daughters to have a paper route with the public registry itself...

It's quite simple. If you're going to make an exemption, you may as well tell the public why.

The Chair: Thank you.

Government amendments, Madam Redman.

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

Because we're having a general discussion, I would like to comment, if I may, on the proposed amendments before us, in addition to the government amendments.

Basically, when we look at the substance of the amendments put forward by members around the table, there's a creation of a new general prohibition, and this is confirmed by a proposed addition to clause 74, which allows for a penalty for provisions for prohibitions. The new prohibitions are a very low threshold—“affecting” is far lower than the words “harm” or “destroy”, in our view. It means that a permit would have to be issued for any activity that would affect listed species, residents, or critical habitat, whether this would be positive, negative, or in fact even minimal.

For example, on PFRA lands, walking your cows across federal lands could affect a listed species and could therefore lead to the need for a permit if a landowner or rancher wanted to access that area, even though it may have very minimal impact. We could use the example of taking pictures of endangered species and whether or not that indeed would be something that would require a permit. We see these amendments as creating a huge workload for additional regulations.

[Editor's Note: Inaudible]

Mr. John Herron: —

Mrs. Karen Redman: Because we're having a general discussion and we're not dealing substantively with each individual bundle, that is our view on...

Mr. John Herron: I'd just like to say for the record that this argument has zero to do with my amendment on page 288.

Mrs. Karen Redman: I'm more than happy to speak individually to each and every one of your amendments, Mr. Herron, as the committee deals with them, either individually or as bundles.

The Chair: Could we come to your amendments now, Madam Redman?

Mrs. Karen Redman: Mr. Chair, the amendment on page 290 basically, in our view, achieves the intent of Mr. Herron's amendment, that is, providing for transparency and accountability in issuing permits and entering into agreements. It would require the competent minister to include in the public registry an explanation of why an agreement was entered into or a permit was issued. So it's our view that the government amendment does indeed achieve the intent of some of the other amendments, specifically Mr. Herron's.

The Chair: Mr. Bailey.

Mr. Roy Bailey: Thank you, Mr. Chairman.

I would like to ask a question in general here, not just on what Madam Redman has talked about. There was an investigation one year ago—or last March—about the amount or allotment of cattle on PFRA land. It was reduced and I asked why—I finally got up to the top—and they told me it was agreed upon because of a particular species, with or without this bill.

The question I want to get to is this. The government may issue a permit to, let's say, a filming company, Mr. Chair, and in this permit they're going in to produce something—and these are big films, major films are big on TV—but they violate the permit. They've extended themselves over what the permit allows them to do. Now, we have a public registry that includes why the permit was issued and the purpose thereof. If there's a violation, do we also register and make that violation and why this permit was discontinued... Is that also to become a public document?

Mrs. Karen Redman: I'd prefer Mr. Near perhaps to answer that specific question.

Mr. David Near: If there's a system in place that required a permit, and they violated the terms of the permit, then the usual course of action is to prosecute them, as if they didn't have the permit, because they wouldn't be exempt from the general prohibitions of the act.

• 1145

Madam Kraft Sloan's amendment on page 283A creates an obligation to have a permit for all activities with respect to listed species, and in effect creates a general prohibition that thou shalt do nothing that may affect a listed species without a permit. The actual prohibition has been added to page 327.1 to reflect that.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, if we take a look at clause 97, offences and punishment, it says every person who contravenes subclauses 32(1) or 32(2), clause 33, subclauses 36(1), 58(1), 60(1), or 61(1), clauses 91 or 92, or any prescribed provision of a regulation or an emergency order, or who fails to comply with an alternative measures agreement the person has entered into under this act is guilty of an offence. I don't see clause 74 listed.

So you don't have to have a permit, and neither do you have to comply with the terms of the permit.

Mr. David Near: What I have in front of me is page 327.1.

Mrs. Karen Kraft Sloan: There's no requirement for permitting under the act.

Mr. David Near: That's right.

Mrs. Karen Kraft Sloan: There's no requirement for complying with the permit, Mr. Chair.

Mr. David Near: Well, if you don't have a permit you're subject to the general prohibition. So there's no need to add clause 74 in clause 97, because if you don't have a permit that acts as an exemption to general prohibitions in clauses 32, 33, 58, and 59, then you're liable for prosecution.

Mrs. Karen Kraft Sloan: Except, Mr. Chair, that clauses 58 and 59 are not included in clause 97.

I'm sorry. Subclause 58(1) is included.

The Chair: We come now to Mr. Comartin's amendment. Is there a volunteer who could briefly elaborate on it in his absence?

Mr. John Herron: Mr. Chair, I can make a very brief intervention.

Mr. Proctor may be prepared to have a brief discussion, but I would ask the committee if we could afford a brief opportunity to Mr. Comartin tomorrow, just before we actually proceed with the amendment on clause 74 in brief.

Maybe Mr. Proctor might be amenable to making a brief comment at this point.

The Chair: Yes, we can do that, on the understanding that after Mr. Comartin has made his brief presentation we'll proceed with the vote.

Mr. Dick Proctor (Palliser, NDP): On those grounds, Mr. Chair, I don't think there's any need for me to speak to it. If you're going to accommodate Mr. Comartin tomorrow, then we'll leave it there.

The Chair: Fine.

With that in mind, we will stand clause 74 for a brief intervention by Mr. Comartin tomorrow and the vote.

(Clause 74 allowed to stand)

The Chair: Mr. Laliberte.

Mr. Rick Laliberte: Mr. Chair, I just wanted to raise a question on wording in a government motion. Why is there a word...I can understand “revoke” in that one amendment, but they use “vary” as opposed to “amend”. It changes the heading of that clause.

The Chair: Which page are you on?

Mr. Rick Laliberte: Page 293.

“Revocation and amendment” is the heading, and then “vary” shows up. “Revoke or amend an agreement” should follow the heading. I haven't seen “vary” in the act before. I've seen “amendment”, but “vary” is very strange here.

Mr. David Near: Well, first of all, to give this some context, the term “amend” would be to get rid of it, I guess, revoke or vary it, presumably if it's in the interest of the species. Beyond that, it was just to provide additional flexibility and some clarity to the term “amend”, which would be to revoke or vary the terms of the permit.

• 1150

Mr. Rick Laliberte: In my interpretation, “amend” applies to something that's existing. You're changing the context of it. “Revoke” is total; it's gone. There's no amendment there. So “revoke and amend” seems to flow here, instead of “vary”.

Mr. David Near: I think it's consistent in that “revoke” would get rid of the existing thing, and “vary” would vary the existing thing. The issue was, did the term “amend” include the possibility of revocation? There seemed to be some question about that, so we specifically inserted the term “revoke”, and the term “vary” is to cover off what's left of “amend”.

The Chair: Mr. Laliberte's question would be better managed or replied to if you were to explain why the word “vary” is inserted in the amendment rather than the word “amend” so that it would read “may revoke or amend an agreement”.

Mr. David Near: We could do that. We were replacing the word “amend”—

The Chair: I'm not asking you to do that, but I think that is the essence of his question.

Mr. David Near: Yes.

The intention was to illustrate clearly that you could revoke the permit if you wished.

The Chair: Is this fine, Mr. Laliberte?

Mr. Rick Laliberte: No, it had a subamendment. It says “Revocation and amendment” as a little subtitle on the side there, and then it goes into:

74.(8) The competent minister may revoke or vary

So “vary” comes out of the blue.

I think “amend” would be—

The Chair: Mr. Laliberte has a point. He's trying to establish some discipline and consistency between the title and the amendment.

Mr. David Near: There's no problem with changing the term “vary” to “amend”. The intent was to make sure we could revoke a permit. That was the question.

A voice: That's just for explanation.

The Chair: All right, that can perhaps be proposed tomorrow by Madame Redman as an adjustment. We will now conclude.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I have a question for Mr. Near.

While subclause 58(1) is listed under clause 97 as originally drafted, subclause 58(1) is discretionary. How can you have a discretionary clause attached to the contravention section?

Mr. David Near: Clause 58 is not a discretionary clause; it's a mechanism to get to identification of the critical habitat. Once the critical habitat has been identified and under what was the current scheme the GIC passes an order invoking the prohibition, the prohibition applies. It's not a discretionary prohibition. So once that mechanism is finished, the prohibition applies and the penalties in clause 97 would apply as well.

Mrs. Karen Kraft Sloan: The GIC doesn't ever have to identify critical habitat as in need of being protected. I think we've heard some interesting testimony from many witnesses to suggest that the federal government is really eroding its power by making this clause discretionary, because subclause 58(1) is qualified by what follows. Subclause 58(1) says “No person shall destroy”, but if critical habitat is never identified, then you have a hollow prohibition.

There is much debate as to whether this is really mandatory or discretionary, Mr. Chair.

The Chair: Thank you.

Madam Redman.

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

I actually have two requests. First, can we review what we are going to be doing tomorrow, just so we're all on the same page and prepared? Also, I wonder if we could seek clarification, if we could perhaps sit until 6 o'clock or a little bit later tomorrow.

The Chair: We always sit until roughly 6 o'clock, or sometimes beyond, so there's no need to explore that question.

As to what we will do, I think from now on it would be wise to be prepared for any part of the bill, because we are now in a phase whereby we have to be flexible and move ahead.

So as I have already indicated, we have to deal with clause 74 and then go back to clause 64, and then we'll progress as we can. So be prepared for anything. That's the answer.

Mrs. Karen Redman: When will we deal with schedule 1, then?

• 1155

The Chair: We'll deal with it when there is some clarity of purpose between the officials and the table.

This brings our meeting to an end. Thank you for your cooperation. The meeting is adjourned.