ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, March 28, 2001

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[Translation]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good afternoon, ladies and gentlemen. As you know, we are continuing our work on Bill C-5, an Act respecting the protection of wildlife species at risk in Canada.

[English]

For those who are new to this effort in this room, a brief explanation. We are in the hearing of witnesses stage on Bill C-5, a bill on the species at risk, which is the object now of hearings preceding the clause-by-clause examination, which will take place at a later date.

Today we have, and we are greatly honoured by having as witnesses, officials from two departments: Canadian Heritage and Fisheries and Oceans. You are evidently ready to go, so make your choice as to who will go first. Would you please, perhaps, contain or limit your remarks to some 10 minutes or so each so as to allow for sufficient time for a good round or two of questions, depending on how provocative your remarks are?

Who would like to go first? Mr. Amos, welcome to the committee.

[Translation]

Mr. Bruce Amos (Director General, National Parks, Department of Canadian Heritage): Thank you, Mr. Chairman, ladies and gentlemen, members of the standing committee,

[English]

Good afternoon, Mr. Chairman and members of the standing committee. I'm pleased to be here today to offer Parks Canada's perspective on Bill C-5, the Species at Risk Act. Copies of my remarks have been made available to the clerk in both official languages.

With me is Mr. Nik Lopoukhine, who is the executive director of the ecological integrity branch at Parks Canada.

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Our message will be that this bill would complement our existing legislation and increase our capacity to protect and recover species at risk found on all lands under the administration of the Parks Canada Agency.

The Parks Canada Agency was created by an act of Parliament in 1998, which took effect in April 1999. In general, the agency's mandate is to protect and present nationally significant examples of Canada's natural and cultural heritage, and to foster public understanding, appreciation, and enjoyment in ways that ensure their ecological and commemorative integrity for present and future generations.

The Parks Canada Agency currently manages 39 national parks and national park reserves, three marine conservation areas, 132 national historic sites, and nine historic canals. This network covers almost 250,000 square kilometres, which is more than 2% of Canada's land base.

Parks Canada has been working for many years to protect and restore species in the national parks. Through the Canada National Parks Act and its regulations all plants, animals, and natural objects in national parks are protected, whether or not they're at risk. This statement that I'm going to cite from our act is from the revised act, which was proclaimed on February 19, passed by Parliament a short while ago. The act now states, and I quote:

Maintenance or restoration of ecological integrity, through the protection of natural resources and natural processes, shall be the first priority of the Minister when considering all aspects of the management of parks.

The clear implication of this clause is that national parks are to be managed in ways that protect species at risk. Almost half of the species currently listed as being at risk in Canada can be found in our national parks. There they are protected, as is their habitat. We intend to continue activities that have contributed significantly to the protection and recovery of several species such as the bison, the whooping crane, and the swift fox.

New funds that were made available in the March 2000 budget have allowed us to develop a more comprehensive program for the protection and recovery of species at risk in and around national parks. This past year we have added 16 full-time experts on species at risk to our staff and have initiated recovery actions for many species. This includes the construction of a $2 million fish ladder at the St. Ours national historic site of Canada—a project aimed at recovering the threatened copper redhorse and other fish stocks of the Richelieu River.

For this project, we had significant financial and technical support from other federal departments, notably Fisheries and Oceans; from the Government of Quebec; from academia; and from non-government organizations.

[Translation]

In our opinion, Bill C-5 would enhance our ability and our effectiveness in protecting and recovering species at risk in a number of ways: first, by requiring the preparation of recovery strategies and action plans in co-operation with others and within specific time lines; second, by setting out new requirements for permitting activities that could be detrimental to listed species; and third, by strengthening protection for listed species on all sites we manage.

I would like to briefly explain each of these advantages.

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[English]

The bill requires the preparation of recovery strategies for all listed species according to fixed timelines and in cooperation with all other interested governments, aboriginal organizations, and stakeholders. Parks Canada will be an active participant in the development of strategies for all species that occur on lands administered by our agency, and we will take the lead in some cases.

The new requirements for recovery strategies and action plans will ensure that our efforts to protect species and their habitat are not limited to the national parks but are part of a broader, cooperative, knowledge-based approach addressing the overall habitat needs of the species which are at risk. This is the best way not only to protect and recover these species, but also to contribute to maintaining or restoring the ecological integrity of the national parks, consistent with the recent recommendations of the panel on the ecological integrity of Canada's national parks, and, I might add, consistent with the recent changes to the Canada National Parks Act, which I cited before.

Secondly, Bill C-5 would formalize strict requirements for authorizing activities on lands we administer, where the activities may negatively impact a listed wildlife species, any part of its critical habitat, or the residences of its individuals. The bill would limit the purpose of such activities and would set a number of preconditions, as well as terms and conditions to be considered in an agreement or permit. This proposed legislative requirement is consistent with and strengthens our current policies and practices.

Thirdly, Bill C-5 would complement the conservation provisions of the Canada National Parks Act and regulations by strengthening protection directed at species at risk. The general prohibitions with respect to listed species in Bill C-5 would augment the specific prohibitions in the Canada National Parks Act. Further, the penalties proposed in Bill C-5 with respect to listed species offences are much different from the general penalties under our act.

Finally, I'd like to say a word about public education and communications. Although this is not strictly related to the subject of Bill C-5, I would like to emphasize to the committee the role that Parks Canada plays in making the Canadian public aware of species that are at risk.

If we are to slow the rate of species loss in Canada, public understanding of the importance of biodiversity conservation and public support for concerted action will be essential. With over 20 million visits to our parks and sites each year, and even more visits to our website, Parks Canada can play a major role in public education about species at risk through our interpretation and outreach programs. We look forward to collaborating with other partners in this work.

Mr. Chairman, members of the committee, this concludes my remarks. Thank you very much for the opportunity to address.

The Chair: Thank you, Mr. Amos.

Who is next? Mr. Davis. Welcome.

Dr. John Davis (Assistant Deputy Minister, Science, Department of Fisheries and Oceans Canada): Thank you, Mr. Chairman.

[Translation]

Good afternoon, Mr. Chairman and members of the standing committee.

[English]

I'm pleased to be here today to offer DFO's perspective on Bill C-5—the Species at Risk Act, or SARA. At your invitation, I presented our perspective on former Bill C-33 last September, and my remarks will cover much of the same ground.

As the department responsible for the conservation of all aquatic species in Canada, DFO supports the protection and recovery of species at risk.

In many ways, the proposed SARA would be a logical extension of our already strong commitment to conserve aquatic species, a commitment that's spelled out in other important federal legislation such as the Fisheries Act and the Oceans Act.

Over the last several years we've worked with Environment Canada, Parks Canada, other federal departments, other governments, and a wide range of stakeholders to develop and refine the proposed legislation. We've been involved in consultations with numerous interests including aboriginal groups, environmental groups, other governments, industry, and NGOs on how best to implement it. We've heard from many key DFO stakeholders, and their views helped shape the legislation as it progressed.

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While we recognize that not all these issues raised can be accommodated in the act, we feel that the text of the legislation, as it is now, gives us the balanced approach that we need. Through the bill's development, we upheld three priorities that we felt were essential to make it work and that would meet our needs and goals as a department.

In our view, Bill C-5 had to recognize the leading role of the Minister of Fisheries and Oceans for aquatic species under federal jurisdiction; be written so that its provisions could be administered effectively; and ensure that the sustainable fisheries and aquaculture can proceed as long as they do not put species at risk. The proposed Bill C-5 meets these three requirements.

First of all, on the role of the minister, under the proposed SARA, the Minister of Fisheries and Oceans would be designated as the responsible federal minister for aquatic species. SARA would make this designation very effective by giving DFO new and enhanced responsibilities in many areas: species monitoring and assessment; enforcement powers; preparation and implementation of recovery strategies and plans; and a range of other activities such as mandatory investigations and public information initiatives.

Currently, the Committee on the Status of Endangered Wildlife in Canada, or COSEWIC, has designated six endangered and five threatened species in discrete populations of marine mammals. These include the Atlantic right whale, the Arctic bowhead whale, certain populations of beluga whales, and a resident population of Pacific killer whales on Canada's west coast.

In inland waters, the committee has designated nine endangered and sixteen threatened species or fish populations.

Other listed endangered and threatened species under our responsibility include the leatherback turtle and the northern abalone.

Under the act, the Minister of Fisheries and Oceans would participate in the Canadian Endangered Species Conservation Council, joining other federal and provincial ministers responsible for wildlife. The department would continue consulting its many stakeholders, including governments, industry, NGOs, and aboriginal groups, to gauge their priorities and concerns regarding Canadian species at risk.

[Translation]

Since this act has significant implications for three federal departments—and will concern many others—interdepartmental coordination and collaboration are essential. That's why we have established a formal joint management framework for delivering the provisions of the act with our colleagues from Environment Canada and Heritage Canada. We have developed a formal agreement outlining our respective responsibilities and we meet regularly to discuss the best ways to deliver programs based on the federal species-at-risk strategy and the new act.

This joint approach will be of great value as we make decisions on how best to protect our species at risk.

[English]

Indeed, consultation and collaboration at all levels must be at the very heart of this work. The cooperative approach that was used to develop the act must also, by extension, play a role in implementing it.

In terms of workability, our second priority throughout the bill's development has been, quite simply, its workability. We feel that the proposed bill is workable as written.

As I mentioned, DFO would have significant new responsibilities under this act, and we've prioritized our approach to ensure we're able to meet our obligations under the legislation. This means identifying the most critical issues, the species, the populations, and doing as thorough a job as possible on the top priority items.

Fiscal prudence dictates that we take a balanced approach and deal with each issue or species on a prioritized case-by-case basis. We need to select those areas that need our attention the most.

Another challenge will be to deal with the inland fisheries arrangements that exist in some provinces. Generally, under Canada's Constitution and the Fisheries Act, the federal government is responsible for conserving all species in fisheries. But in some provinces, agreements are in place that allow them to manage inland fisheries on the federal government's behalf. We need to work with the provinces to ensure that the roles and responsibilities for protecting endangered fish are clear and consistent with existing jurisdictional arrangements.

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In keeping with the wide range of cooperative arrangements provided under Bill C-5, we're now working with the provinces to develop the co-operative mechanisms we need to ensure that freshwater species receive the protection they need.

On maintaining sustainable fisheries, our third priority in developing the act was to ensure that sustainable fisheries and aquaculture can proceed as long as they do not put species at risk. Conservation is the paramount priority of our fisheries management strategy. We want to ensure that the fisheries we manage are not put at risk. If species are found to be at risk, as we've seen recently with some stocks of Pacific coho and Atlantic groundfish, the Fisheries Act authorizes us to implement management measures to ensure that these species do not decline further.

For instance, we have the authority to limit or shut down a particular fishery if it poses significant adverse impacts on marine species at risk, and we've exercised this authority. Since 1998, for instance, DFO has closed or restricted certain Pacific salmon fisheries because of the by-catch risks posed to endangered coho stocks in the Skeena and Thompson rivers.

Therefore we see SARA's species protection and recovery provisions as being complementary to our existing authority. They represent a strong additional tool that can help us better meet our conservation responsibilities.

SARA's proposed critical habitat provisions would also complement the fish habitat protection powers given to us under the Fisheries Act. With SARA, the minister's ability under the Fisheries Act to authorize the alteration of fish habitat, in the case of bridge construction, for instance, would be understandably limited if that habitat is found critical to species at risk.

On the importance of science, to make decisions like this, the federal government has always relied on sound scientific advice. Under SARA as currently written, we would do the same. DFO supports a broad-based, transparent scientific advisory process to assess whether a species is at risk and to make recommendations to ministers. We support COSEWIC's efforts to develop and implement the rigorous, consistent, and transparent scientific processes needed.

Our own departmental processes for the scientific review of stock assessment, through which recommendations to the minister are made, now include participation by both academic and industry experts. DFO is committed to publishing the results of our assessments rapidly and in easily available formats, and we support the efforts COSEWIC is making to publish the assessments rapidly.

In conclusion, DFO has worked with our federal partners, the provinces, and the non-government organizations to ensure that Bill C-5 takes a balanced approach to the wide range of concerns expressed. The aim of the proposed Species at Risk Act is to ensure that these species do not disappear.

In our day-to-day work, DFO is already taking measures to ensure the protection and recovery of threatened marine species. Along with other federal departments, we received new funding in Budget 2000 to develop endangered species protection and recovery activities, and we have been building our internal capacity and supporting species protection with these new resources. This new act provides the extra measure of authority and clear federal guidelines we need to ensure the long-term survival of those species that are at critically low abundance levels in Canada.

That concludes my remarks. Thank you very much for the opportunity to speak before you.

[Translation]

Mr. Chairman, members of the standing committee, that concludes my remarks. Thank you.

[English]

Joining me at the table is Dr. Howard Powles, DFO's director of biodiversity science; and Ms. Darlene Smith, senior adviser, biodiversity science. We'd be pleased to answer any questions you may have.

The Chair: Thank you, Mr. Davis.

Are there any further speakers? If not, we will proceed to the questioners. The list is fairly long: Mr. Mills, Monsieur Bigras, Mr. Comartin, Mr. Herron, Madam Kraft Sloan, Mr. Reed, and Madam Carroll.

Mr. Mills, you have five minutes.

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

My first question would be to DFO, to Mr. Davis.

First of all, something I'm very aware of with this piece of legislation is that we must communicate it clearly, and it must be very clear with regard to cooperation and the importance of that. Yet I find there are a few things that DFO have done or said in these things that might lead me to believe that might not be the case. I wonder if you could address those.

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I'll pinpoint a couple of examples and then show how this could be a problem or cause suspicion amongst people across the country. I'll speak about cases I know, and I'm sure they exist in other places I don't know about.

You emphasize the importance of working with the provinces, and yet I question how well that's going, given that, for example, this past year 70 DFO officers showed up in Alberta. These are federal fisheries officers challenged with enforcing DFO rules. I've heard the same happened in Manitoba and in Ontario. I'm sure you have an answer for that and a reason, but the problem is the perception that creates about the heavy hand of Ottawa coming down on the province. It doesn't say cooperation.

For a second example, you mentioned bridges. That's a really sore point in my particular constituency, where a bridge was put across which didn't touch the river at all. In fact, it was away up on the banks. It was put in during the winter and the banks weren't touched at all. It was put in as a logging road. The reason DFO gave was that it put shade on the river at some times of the day, and the fish swimming by might in fact be affected by that shade on the river. These kinds of rules certainly don't build cooperation amongst land users and landowners.

I asked a question about aquaculture, about how the introduction of genetically modified fish might affect endangered species.

I could go on, but I'll give you a chance to answer those.

Dr. John Davis: You're absolutely right, Mr. Mills, communication does have to be clear and has to be better, and I think it's in everyone's interest to work towards clearer communication and to make sure our working relationships with provinces are effective.

With respect to the situation in Alberta, my understanding is that there are 31 conservation and protection people across the prairies and around 15 in Alberta. So it's not 70; it's about 15. That's a process where we are rolling out some new habitat offices across the country. I think there probably will be some start-up difficulties, and issues like this flag the need to more clearly set out how the two jurisdictions are going to work together. There is a massive job in habitat areas, and it's so essential that we be clear and that we be complementary. So I think it's important you bring those kinds of things to our attention.

As to the specific case of the bridge, perhaps what should have happened there was a more clear explanation of what was behind the biologists' thinking, and it's important to have better communication with people who are involved in the impacts of such things. I think we really do have to strive to improve that whole area.

Mr. Bob Mills: That communication went to the minister, it went to the department, many letters were written, pictures were taken, it was on the front page of all the newspapers, and everyone, including environmentalists in the area, couldn't quite understand how shade on a river might affect the fish breeding. But obviously that was the case. That sort of stuff sets you back a very long way, sets us back a long way in trying to bring forward species at risk legislation. It creates a fear about, again, the heavy hand of government, and that, I think, is the worst enemy of this bill.

Dr. John Davis: Yes.

Mr. Bob Mills: Regarding parks, in our area we have a lot of questions about how effective... And maybe some of your statements indicate that you haven't been extremely effective in protecting species at risk within the parks. The example that's often used is one that's in my area again, and that is the Banff hot spring snail. Many environmentalists use that and say the snail is there, it's an endangered species, and we've known that for a very long time, and yet Parks Canada has done nothing to protect it, has done nothing to fence it off, or anything else.

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So it's a fairly common question as to whether, since you're not protecting something that's as obvious as that, you would protect all those other species that may well be within the park.

You mentioned the Internet and so on, and I agree with you as to how powerful that can be. But I think Parks Canada is in a position to help with the education and the information process, getting out knowledge about Bill C-5 and species at risk. I wonder if you have any specific plans, other than use of the Internet and what you use already.

Mr. Bruce Amos: I'll take the last question first, if I may. We haven't finalized any specific plans, but I wanted to illustrate the capacity there. We intend to dedicate some of the additional resources we received in Budget 2000 specifically to the communications and public education task. The kind of thing we could do, in collaboration with DFO and Environment, is make better use of our website, where, as I say, we have many millions of visitors from Canada and elsewhere, and make that a centre for information about endangered species in Canada.

Also, I think there's an excellent opportunity for us to develop, with others, new public education materials, which would be available in our parks and sites, to incorporate endangered species into our interpretation programs, whether they be in the campgrounds or elsewhere in the parks. In our outreach programs we're increasingly realizing that we do a reasonably good job of reaching those who come to our parks, but many Canadians don't always have that privilege, and we want to make better use, not only of the Internet, but of other means. We're working with education departments to try to influence school curricula in a number of provinces. So there is a variety of ways like that whereby species at risk information could be integrated more effectively into our public education programs.

On the question about species at risk in the national parks, I would not deny that we can do a better job. We have some excellent advice from the recent panel on ecological integrity, which gave us some clear recommendations that our minister is moving ahead with as quickly as possible.

On the specific issue of the Banff snail, I'd ask Nik Lopoukhine to speak to that, because my understanding is that we took a number of specific steps to address the issue as soon as we learned about it.

Nik, you might say a few words about that.

The Chair: We have to wait until the second round. We are over time.

[Translation]

Mr. Bigras, please.

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

First of all, I'd like to put some questions to the representatives of the Department of Fisheries and Oceans.

The present Fisheries Act contains a fairly broad definition of fish which includes mollusks and aquatic animals. This definition will inevitably be included in the definition of aquatic species in Bill C-5.

You said that Bill C-5 will clearly enhance your powers to act. For us it is clear that species without any commercial value or of no interest to sports fishermen do not come under federal jurisdiction.

Here's my question: if the federal government decided to intervene on the basis of Bill C-5, through your department, in order to protect species without commercial value, do you not think that you would be exposing yourself to a legal challenge on the basis of federal jurisdiction?

Mr. Howard Powles (Director, Biodiversity Science, Department of Fisheries and Oceans Canada): I'll attempt to answer your question. As far as the oceans are concerned, it is our view that all species in the oceans are, for all practical purposes, under federal jurisdiction since the oceans are considered to be federal territory.

When it comes to inland waters, however, the power arrangement between the federal and provincial levels gives the federal government jurisdiction over species related directly or indirectly to the fisheries.

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We consider that the bill does not give us any new powers except for the application of the safety net. In the case of species that are not under federal jurisdiction, it will be possible for the federal government to intervene if the province does not apply equivalent measures.

Mr. Bernard Bigras: So you confirm that based on the principle of the double net, and the present wording of the act, the federal government could quite easily intervene.

Mr. Howard Powles: Yes, if the province does not apply the appropriate measures.

Mr. Bernard Bigras: Excellent.

I have another question for Mr. Amos. Some people fundamentally believe that on the basis of the federal jurisdiction and federal land, the federal legislation should be stricter and stronger, including different aspects. Several witnesses have told us that there was very little co-operation from departments with Environment Canada in matters of federal jurisdiction. We can think of the example of migratory birds, that apparently are not covered by the present bill.

In your presentation you say:

In our opinion, Bill C-5 would enhance our ability and our effectiveness in protecting and recovering species at risk in a number of ways:

In view of the fact that your mandate is essentially to develop and protect our natural heritage, how are you able to reconcile this with the fact that the act does not include migratory birds, for example, among others, when your role is to protect the natural heritage on federal lands? Do you not see a contradiction between what you are saying and the way in which the law will be applied?

Mr. Bruce Amos: No, I don't see any contradiction between what I said and the act. I was referring to lands that come under the responsibility of the Parks Canada Agency, that is national parks, national park reserves, historic sites and canals. Those are our responsibilities. In such cases, as I mentioned, I think our responsibilities are clear and that the bill increases and completes the provisions already in existence for these lands that constitute the responsibility of Parks Canada.

Mr. Bernard Bigras: I see. But you know that some people maintain that migratory birds, for example, are not covered by the act. Since your mandate is to protect the natural heritage, what is your view of the situation, that is the mandate to protect the natural heritage and species and the fact that the act quite probably does not cover migratory birds, for example?

Mr. Bruce Amos: It is clear that migratory birds and their habitat in national parks or elsewhere in land managed by Parks Canada are protected and will remain so. I can give you a detailed answer about the remaining responsibilities of other departments with respect to migratory birds but as far as the national parks are concerned, these species, like all others, are protected, and in our view, the bill will improve their protection.

Mr. Bernard Bigras: I see. So do you think that C-5 includes this whole matter of migratory birds, for example, or all aquatic species? According to your interpretation, does Bill C-5 cover migratory birds and insure that protection?

Mr. Bruce Amos: You are asking me to what extent this bill protects migratory birds. I am sorry but this is a question you would have to put to the appropriate persons in the Department of the Environment.

[English]

The Vice-Chair (Mr. Bob Mills (Red Deer, CA)): Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): We've heard from a number of groups, both in writing and, yesterday, in person, that the strengthening of this bill with the significant amendments has widespread support in the country. We asked the groups yesterday about something we've been picking up with respect to opposition suggestions for strengthening the legislation and making it more protective of endangered species. The response we got was that a good deal of it was turf protection by other departments.

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I was left with the impression that your two departments were part of that, so I have two questions for you. One, what would your response to that be? Two, did you prepare any memos or position papers individually in your two departments? Did you prepare position papers with regard to this legislation and the prior bill, which was proposed in 1996?

Dr. John Davis: I'll comment on turf protection.

I'm not sure, sir, exactly what that means, but I can assure you that the departments have been working together effectively on the overall drafting and on the strategic approach to putting this in place. They also did so for the preceding legislation. In that process we've had a lot of back-and-forth in committee, a lot of exchange of views, and a lot of documentation prepared that we've shared and worked on together as a team. That's really been the genesis of this whole approach.

On the specifics, Howard, could you comment on that?

Mr. Howard Powles: In terms of position papers and things like that, there has been a tremendous amount of discussion on this bill for several years now. There have been many, many discussion papers.

This bill is a federal priority, and it's not our position to say no. We've been supporting the bill and looking for ways to make it work. We have developed a lot of paperwork internally on how that could happen, but it's certainly not accurate to say that there have been turf battles or resistance.

Mr. Bruce Amos: I would describe the efforts between departments as a collaborative effort.

I'm not quite sure what you might be referring to as “turf protection”, but clearly one of the things Parks Canada had in mind was to maintain and strengthen our responsibilities and our role as the stewards of the resources that are found within the national parks, including any species that might be listed. We've felt throughout this that we have a clear responsibility under the National Parks Act to collaborate with other departments on this bill, and we want to see that role recognized and strengthened. We feel that's what the bill has done.

Mr. Joe Comartin: The second part of my question is did your department prepare position papers in response to the prior bills or to this one?

Mr. Bruce Amos: I'm not certain about the prior bill. I think I would have to answer in general terms.

This bill has been the subject of such extensive consultations that clearly there have been numerous briefing notes, analyses, and records of discussion. So yes, there are many internal documents concerning the nature of this bill, and in general yes, there's quite a bit of that.

Mr. Joe Comartin: Let me just deal... I still have time.

The Vice-Chair (Mr. Bob Mills): Briefly.

Mr. Joe Comartin: I'll be brief. I have just a quick one.

Did you have, specifically on the use of the COSEWIC list... Did you take a position on that as to whether it should be scientifically based or left to the cabinet to decide? Do you have a memo or briefing note on that?

Mr. Bruce Amos: Not to my knowledge. That was more of a government position, I think, than a departmental position.

Mr. Joe Comartin: I realize that. I just asked, did your department take a position on it in writing?

Mr. Bruce Amos: No, it's not a subject that was central to discussions in my department.

The Vice-Chair (Mr. Bob Mills): Mr. Herron.

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Mr. John Herron (Fundy—Royal, PC): I don't know if you folks have had a chance prior to coming today to look at my questioning on Bill C-33. This is only because I'm going to follow a similar tack.

The Vice-Chair (Mr. Bob Mills): Good.

Mr. John Herron: The real question is... We've heard from a myriad of witnesses already that they've set a higher bar in certain aspects. When we review the work of the endangered species working group done in 1996, the SARWG position paper, and presentations from NGOs as well as from the oil and gas, pulp and paper, and mining sectors, they've set the bar higher on a couple of specific aspects mostly within the purview of the federal government.

So my first question is to Parks Canada. SARA doesn't make mandatory protection of critical habitat of species at risk... Habitat is not to be protected on a mandatory basis under this bill. So don't you find it a little absurd that we potentially have any kind of discretionary language beyond a ministerial permit within a national park?

Mr. Bruce Amos: I'm not sure, Mr. Chairman, that I've completely grasped the question.

Mr. John Herron: The short question is why would Parks Canada not want to make the protection of critical habitat within a national park part of this bill for the protection of species at risk? Is Parks Canada against that?

Mr. Bruce Amos: Parks Canada's position is that habitat in the national parks is protected by the National Parks Act and regulations. It is perhaps the strongest piece of protection legislation the Parliament of Canada has passed, and protection is in place for Canada's national parks by virtue of the act and the regulations.

Mr. John Herron: But given that this language uses discretionary terminology, where the minister “may” protect critical habitat within areas under federal jurisdiction, this law might even take you backwards when compared to the tool kit you currently have. Moreover—and I'd like to have input from individuals from fisheries as well—under section 35 and 36 of the Fisheries Act, when you look at that, there could be the argument made that you already have the tool kit to protect habitat of fish and other aquatic species. But given that this bill utilizes the word “may”, it is possible that in a very perverse sense the law we have protecting species that are not at risk gives more protection than to species that actually are at risk.

So how do you square those two terms?

Dr. John Davis: I'll respond, Mr. Herron.

From the standpoint of DFO, we take comfort in the fact that for aquatic species, as you mention, the provisions of the Fisheries Act do provide for protection of the habitat. Therefore we have a very strong and very proactive ability to intervene more or less immediately with the habitat provisions that are granted to us under the Fisheries Act. We can do that in fresh water, for we have that right across the country for the aquatic species. That's a very strong piece of legislation that's there.

We would also see under the development of the recovery strategies the potential for critical habitat to be identified from a scientific perspective, and this could be important from a fisheries perspective as well.

Mr. John Herron: Why do we have it in the bill if you say you already have it?

Dr. John Davis: This bill complements what we already have with respect to the way things work in terms of the recovery strategies. Through that process—

Mr. John Herron: So you are against it?

Dr. John Davis: No, we're not against it. We're comfortable—

The Vice-Chair (Mr. Bob Mills): Excuse me.

Dr. John Davis: —with the way it is structured as—

The Vice-Chair (Mr. Bob Mills): Mr. Herron, you can carry on in the second round.

Karen Kraft Sloan, please.

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

I'm sorry I don't have the National Parks Act in front of me, and I was a little bit late getting here, so I apologize if this question has already been answered in your deliberation. I'm wondering if you could define ecological integrity or provide a definition of ecological integrity.

Mr. Bruce Amos: If you wish, Mr. Chair, I do have the act with me, and it does provide a definition.

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Ms. Karen Kraft Sloan: Could you read it out loud for the minutes, please, of the committee?

Mr. Bruce Amos: I'm reading from the new Canada National Parks Act, the section marked Interpretations, subsection 2(1):

“ecological integrity” means, with respect to a park, a condition that is determined to be characteristic of its natural region and likely to persist, including abiotic components and the composition and abundance of native species and biological communities, rates of change and supporting processes.

Ms. Karen Kraft Sloan: Thank you. It sounds as if this is speaking more to the park itself, as opposed to a particular area within the park. Is that correct?

Mr. Bruce Amos: I'll ask Mr. Lopoukhine.

Mr. Nik Lopoukhine (Executive Director, Ecological Integrity Branch, Department of Canadian Heritage): The way the definition reads certainly defines ecological integrity. Putting it to work at the individual park entails going through a process of defining what it means exactly in the context of the national park. It means defining what species are actually there, because in some cases there are extirpated species that used to be there a number of years ago that we are not able to bring back—as in the case of Point Pelee National Park. The wolf, which used to be there, is obviously not there any more. So one has to make some adjustments in the definition for a particular park in the context of that definition.

Ms. Karen Kraft Sloan: I don't have the National Parks Act in front of me. However, it seems to me when you talk about the goals, principles, objectives of the national parks legislation—particularly with regard to ecological integrity—this is almost in contradiction to what's happening in the Species at Risk Act we're currently looking at because of the absence of mandatory habitat protection. This is the issue that has been brought up by my colleagues on the other side of the table here.

You've already been talking about the number of things you've been doing to preserve species. My colleague here, Madame Carroll, has brought up the issue that abundant species may get more protection than endangered species, whether they're in national parks or whether they're in the ocean.

The section in the Fisheries Act that Mr. Herron brought up—as far as I understand it—has to do with specific triggers, as opposed to general habitat degradation and supported biodiversity more generally.

It seems to me that we have some huge contradictions here. On the one hand, we have the two pieces of legislation. On the other hand, you talk with a great deal of pride—and so you should—about the kind of work you're already doing. So why would you be opposed... I know you said you're comfortable with the language, but why wouldn't you be supportive of mandatory habitat protection on federal lands, and particularly national parks?

Mr. Bruce Amos: I agree with the phrase “we're comfortable with this”. As I said, the reason is we believe that the protection of all habitat is in place in the National Parks Act. The act, in addition to the new and strengthened ecological integrity clause, dictates that the areas be maintained unimpaired for future generations. There are clear requirements in our act for the preparation of park management plans, which have been strengthened in the new legislation. Both the general regulations and the wildlife regulations are there.

Our sense is that it's clear that the National Parks Act is a strong piece of protection legislation and offers probably the strongest protection we have for habitat and for species.

Obviously, too, it's our intention—and our minister is a competent minister in the wording of the bill and she would have clear obligations under this act—to give priority to endangered species through preparation of recovery strategies and action plans. This act is only going to heighten the importance of species at risk.

• 1625

Mrs. Karen Kraft Sloan: The problem is a lot of the aspects of this act are discretionary.

The question has been asked. You said you feel comfortable with the wording of the act. You talk about the National Parks Act as an act that provides the extreme level of protection, etc. So would you be uncomfortable with mandatory habitat protection?

The Vice-Chair (Mr. Bob Mills): Can you give us a very brief answer, please?

Mr. Bruce Amos: I don't think it's my position to comment on proposed amendments.

As I said, we're comfortable with the way it's worded. We think this is the appropriate way to do it, to have the protections for habitat species embedded in the strength of the national parks.

Mrs. Karen Kraft Sloan: Appropriate to have mandatory habitat protection.

The Vice-Chair (Mr. Bob Mills): Mr. Reed.

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

I'm very pleased that both presenters have taken a positive approach to the content of this bill and see it as complementary to what's taking place at the present time. I'm very encouraged by that. It's certainly a refreshing change from some of the previous presenters that we've experienced.

I'm particularly interested in the fisheries area. I wonder if you have a feeling that this act will help urban Canada come to terms with its degradation of waterways, and so on. Will the act help it to climb out of this abyss?

Dr. John Davis: Mr. Reed, that's a good point.

One of the advantages of this and of the focus your committee, the government, and everyone has on this legislation is that it may be a wake-up call for a lot of people to start addressing some of these issues. We'll hear about species and habitat issues and problems as a result of the work that's being done on recovery strategies.

As part of that, the various causes of the problems will start to become clear, be it pollution, habitat loss, the change in ecosystems in places like the Great Lakes. Through this, I hope that there's more of an alert for the public and more of a buy-in in terms of people making environmental issues part of their daily consciousness and making a difference. I really think that's critical.

Mr. Julian Reed: This preamble may be a little discombobulated, but I am just referring to fish biology. In the experience I've had, many fish biologists practise an unholy mix of science, alchemy, and prejudice and tend to change their mind almost as often as I change my underwear.

Some hon. members: Oh, oh.

Mr. Julian Reed: I speak from personal experience because a mile of a river runs through my farm. I've had dealings through the years with biology.

Now we're into a new era where we're going to be looking at endangered species as well as other things. There will be proponents of projects on rivers or around rivers. The experience so far—and this may be three or four years old—is that the presumed responsibility of the biologist is to impose and control and not to help.

I'm wondering if there's been any miraculous revelation on the road to Damascus that would change the sense of duty that biologists have toward the public, considering that the interface between the public and government is increasing all the time.

Dr. John Davis: It's a good question from the standpoint of where we need to be on environmental decision-making.

I think the public is going to demand more and more that they be involved in decisions. What you want to be able to do is bring the information to the table where people can make effective decisions about zoning, use of land and water, and things like that.

• 1630

Yes, the biologists will have very strong positions relative to the need to conserve an endangered species or to protect something, but one would hope there's more of a reasoned balance in terms of public involvement in making those decisions.

I think the other thing that's important is that where they're big ones, it's very useful to have a group of people and a peer review process so you can get the best type of science put forward and so you have a number of scientific positions that can be moved through that peer review position.

The Vice-Chair (Mr. Bob Mills): Ms. Carroll, please.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

As the wife of a litigation lawyer, and now the mother of a litigation lawyer, I'm going to try to bring closure here to something we've been talking about.

In their legislation, Fisheries and Oceans provides mandatory habitat protection for species, for fish. Parks provides mandatory habitat protection in the national parks. Both of you have participated in the development of legislation, and from both perspectives, your point of departure was mandatory habitat protection. Now you come before us and tell us you are happy with the fact that SARA has no mandatory protection for habitat.

Help me out. How do you think, sir, that you have strengthened, to use your word... And if you could help me, Mr. Davis, tell me why you don't think SARA is in fact having the perverse result of offering non-endangered fish... you're offering non-endangered fish protection, but were not offering it to endangered fish that became endangered maybe because you didn't protect them well enough in the first place.

I want you both to tell me why you are happy with this legislation that doesn't do what you both do.

My Lord, the defence rests.

An hon. member: My, my. Good girl.

Dr. John Davis: Let me go at it from the fisheries perspective.

As I said before, we have very strong abilities. You understand that.

Ms. Aileen Carroll: But stay with me, Mr. Davis. Don't go over on horizontals now.

Dr. John Davis: But with respect to the fisheries side of it, madam, often the critical habitat is difficult to define from a fisheries perspective. We're often dealing with species that have long migratory pathways and the uses of many parts of a watercourse, so from a fisheries perspective, we think the critical habitat aspects will probably come out in the development of the recovery strategy. That then would be something we would add to our arsenal of how we would deal with protecting that species. It may not be immediately apparent what the critical habitat is with respect to fish species. It's not as clear-cut as a nest or a burrow or something like that for terrestrial animals.

Ms. Aileen Carroll: But it's fish, and we're talking migratory... Sorry. Let me not interrupt when I have asked a question.

Mr. Amos, let's hear why you're happy with this apparent inconsistency.

Mr. Bruce Amos: I don't see an inconsistency. The National Parks Act does protect all habitat and all species. Therefore, in a very real sense, there is that mandatory protection in place already under the National Parks Act.

This act will help us to do a better job by requiring the preparation of recovery strategies and action plans, not only working on our own within the parks, but with partners on a broader ecosystem basis and with timelines.

I mentioned the increased penalties that will affect listed species within national parks. Those penalties are stronger than the general penalties we have for wildlife in our own act. As well, there are restrictions, as I described, or a stronger framework that would affect our minister's ability to enter into permits or agreements that might affect listed species or their critical habitat.

So in those three ways, the bill strengthens what we currently have, but what we currently have under the framework of the National Parks Act is legal protection for all species of wildlife in the national parks and for their habitat.

• 1635

The way the National Parks Act is worded, no person can occupy or make use of a national park except as authorized under the act. Unless something is specifically authorized in the regulations, then it cannot happen. It's not legal and is subject to the penalties under our act.

Now, our regulations for wildlife and the general regulations are typically not permissive. On the contrary, they read “No person shall...”, and there's a list of prohibitions. That's the nature of our act, and that's the strength of our act.

The Vice-Chair (Mr. Bob Mills): Ms. Carroll, could you just hold for the second round?

Ms. Aileen Carroll: Yes, sir. Thank you. It's on the record.

The Vice-Chair (Mr. Bob Mills): Mr. Savoy, please.

Mr. Andy Savoy (Tobique—Mactaquac, Lib.): Thank you very much, Mr. Chair.

Thank you for the excellent presentations, gentlemen.

I'd like to speak to the workability of the act, and specifically freshwater species. I come from an inland riding, and we've seen our stocks dwindle—both recreational and commercial, but primarily recreational, of course. You mention that in keeping with the co-op arrangements of Bill C-5, you have to work closely with the provinces to look at cooperative mechanisms. What are some examples of those cooperative mechanisms you're looking at? That's directed to Mr. Davis.

Dr. John Davis: Thank you.

I think the cooperative mechanisms, Mr. Savoy, are several. First of all, we have the sharing of biological approaches to building recovery strategies and plans, to how we might go at different types of species, and to identifying the very important components of their life cycle or the reasons for their very low abundance or the cause for the concern. There's the sharing of information, the sharing of science, and also the communication of that—how we, together, might communicate between governments. There's involvement in consultation: what we could do in terms of working with the various stakeholders around an area, how we would work with the first nations, how we would work with the conservation authorities in fresh water, and those sorts of things.

The recovery plans that are so critical to all these species really involve engaging quite a broad constituency of people and getting them around the table. I was at the right whale recovery strategy group, and it was really encouraging to see both Canadian and U.S. people from different jurisdictions, and people from the NGOs and others, all in the same room, developing strategies as to how we might deal with the right whale. Fishermen were part of that process, and the transportation side of it was there.

So that's an example, really, of how we can do it together. But it comes back to that collectivity I talked about before.

Mr. Andy Savoy: You talk about implementing “management measures to ensure that these species do not decline further”. You also talk about penal measures, primarily, such as limiting or eliminating the specific fisheries. Has there been any thought—of course I know there has, but I guess I want to know to what extent—to the stocking of the fisheries, especially in the inland situation?

Dr. John Davis: Yes, those are all appropriate strategies: restocking; gene banking, because if we're at a very low level, we might be losing the genetic material; creating more habitat and productive habitat, while protecting certain elements of it; looking at streamside cover and things like that to provide protection for young fish; dealing with the runoff from forestry and other practices like agricultural practices. All those things could be part of a recovery strategy, and it's that kind of thinking and collaboration in which you have to engage.

Mr. Andy Savoy: Thank you.

The Vice-Chair (Mr. Bob Mills): Ms. Redman, please.

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

Mr. Amos, subclause 127(1) of the bill states:

The Minister must, at least once very two years, convene a round table of persons interested in matters respecting the protection of wildlife species at risk in Canada...

I understand that's actually lifted almost verbatim from the National Parks Act. I'm wondering what the public reaction is to that section of your act. Do you consider it worthwhile?

Mr. Bruce Amos: It is quite similar to a provision that Parliament added to the National Parks Act in the latest revisions. That provision calls our minister, in this case... I'll just cite it, if you wish:

The Minister shall, at least once every two years, convene a round table of persons interested in matters for which the Agency is responsible to advise the Minister on the performance by the Agency of its responsibilities...

I made a mistake, and I want to correct myself. This is not in the National Parks Act, this is in the Parks Canada Agency Act. I misspoke myself, because it appears in our agency act.

• 1640

We are about to hold the first ministers round table on Parks Canada. It's scheduled to be held next week from Monday to Wednesday. As to its success, we're optimistic. What I can say is that we spent a considerable number of months planning for that round table with a broad range of interested parties. The actual planning of the way the event will be held has been largely directed by input from three advisory committees, which my minister has established, of people from a range of interests outside of the program. That includes aboriginal people, tourist interests, non-government organizations, and a list of others. So the advice on planning it has come from a broad range of those who would be interested in our national parks and national historic sites.

It looks like they have planned—and we have planned with them—an exciting event. It's going to be a challenging number of days. Clearly the major issues facing Parks Canada are on the table. It's been an open and transparent planning process.

The act goes on to talk about recommendations that may come from that, and we fully expect that there will be recommendations which our minister intends, I know, to take very seriously. She'll be attending two of the three days of the round table—the opening day and the conclusion day. That's just a small window on how that event is being planned. We're certainly taking it very seriously in Parks Canada. We consider it a major accountability mechanism, which Parliament has put in the agency legislation with the intention that our progress, our accomplishments, and our lack of accomplishments in some other areas be publicly reviewed and discussed and recommendations made.

So we're looking forward to it, and in a short time from now we and the participants will be able to give you a better assessment of its success.

Mrs. Karen Redman: What's the public reaction been to this round table that you're holding? Has it been fairly positive? Has there been a great deal of interest?

Mr. Bruce Amos: There has been quite a bit of interest and quite a bit of commitment of individuals' time on the part of a broad range of stakeholders, if I may use that phrase, in preparing for the event. Many people have volunteered a lot of their own personal time to participate in these advisory committees, to plan presentations, and to make sure the event is a success.

We expect in the order of 80 people from all across the country, with a significant youth component as well, attending the event.

Mrs. Karen Redman: Thank you.

The Vice-Chair (Mr. Bob Mills): Mr. Laliberte.

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

I have maybe just a couple of items on the workability of the act. Did Parks Canada get into creating buffer zones around parks that exist in this country? Is there any move or any evolution towards that by the parks agency or officials at Parks Canada?

Mr. Bruce Amos: The expression “buffer zone” has a number of meanings. If you mean it in the sense of a formally designated area where there would be some legislated responsibility by Parks Canada under the National Parks Act, then the answer is no. Our responsibilities under our legislation extend directly only within the boundaries of the national parks.

However, the concept of a buffer zone also implies that national parks are not complete ecosystems, and if we're going to protect their ecological integrity and species at risk that reside within them, there's clearly a need to work with partners on a broader ecosystem basis. That's the policy approach that Parks Canada has been taking. That's the approach that was strongly recommended to us by the panel on ecological integrity—that we do more of that work in partnership and cooperation with others.

• 1645

Clearly our information indicates that you cannot protect the ecological integrity of national parks by just trying to manage what happens within the boundaries. That approach, I believe, is clearly embedded in this legislation as well.

We may have the lead role for the preparation of recovery strategies for a certain species that is largely located within a national park, but it would be rare. The Banff snail I think is one example I'm aware of where a species is located solely within the national park. Typically, that's not the case.

Whether we would have the lead if the species was predominantly in the park or be a partner because it was only partly in the park, this legislation would direct us to work with others and prepare those recovery strategies, and as part of that to identify critical habitat. That's an important part of those recovery strategies.

Mr. Rick Laliberte: So would it be safe to say, then, that without the ecological integrity panel identifying it to Parks Canada, there is now an awareness that outside the parks, I guess, measures should be brought in?

Now to bring a partnership of landowners and the provinces into that overwhelming chore—that's a surmountable challenge with SARA as well. Now you're going to identify habitat out there; you're going to be counting on the listing of the species at risk. In this case, the species at risk listing is not going to be embedded into SARA as the initial list. It's still going to have to be scrutinized here.

So what is your position on the COSEWIC listing, as it's not being used as an initial list? Somebody is knocking on our door, telling us, let's be aware of these species; let's make measures for habitat. Now we seem to create another hurdle before it becomes measurable or something that can be implemented first for protection.

Mr. Bruce Amos: I'm not sure exactly what the timing is of how the reassessments by COSEWIC will come together with your deliberations and Parliament's deliberations on the bill. It may be that my colleague from Fisheries and Oceans wants to speak to that, because I know that Howard Powles is closer to COSEWIC, their reassessments, and their work than I am.

Clearly all of us would want to have an effective Species at Risk Act and a list just as soon as possible.

Dr. John Davis: Well, we talked about this at the last appearance. At the risk of going over some of the same ground, we felt it was entirely appropriate to have a discretionary approach whereby the Governor in Council was able to look at the species and to consult. In fact there is a necessity to consult with various stakeholders, and particularly with aboriginal groups. That was a necessary part of the process.

You've also heard testimony from Mr. Green of COSEWIC, who felt that if there was automatic, immediate listing, a lot of the lobbying and the pressure would fall upon the scientists in the COSEWIC committee. They didn't want to be the foil for that particular process. We would agree with that decoupling. To allow the exercise of parliamentary discretion is appropriate, particularly where there are key stakeholders and impacts involved.

The other thing, sir, that's really important is making sure that the information that's used for listing is scientifically accurate. It's very important that some of the species be worked through, and that we have from COSEWIC the best possible advice that goes into the listing process. That needs to be completed.

The Vice-Chair (Mr. Bob Mills): Mr. Knutson, please.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Thank you very much, Mr. Chair.

Gentlemen and lady, I just wondered if you could explain to me, given that you had a series of consultations and intense dialogue interdepartmentally, if we protect habitat within parks, and we protect habitat for fish, why wouldn't we protect habitat for all endangered species on the verge of extinction within our jurisdictional powers? Why wouldn't that be mandatory?

• 1650

Mr. Howard Powles: I think the point that is being made is that within the federal jurisdiction we do have these powers to protect habitat, either under the National Parks Act or the Fisheries Act.

SARA is certainly not intended, speaking for our own species, to replace the Fisheries Act. It's there to complement it. It wouldn't be accurate to say that once a species becomes endangered, it doesn't fall under the Fisheries Act any more. It falls under both SARA and the Fisheries Act.

Mr. Gar Knutson: I was asking about other animals.

Mr. Howard Powles: Other animals such as...

Mr. Gar Knutson: Such as bears and migratory birds.

Mr. Howard Powles: I don't know if we can speak to bears and migratory birds.

Mr. Gar Knutson: We protect habitat for fish. It's an important part of the legislation. It's an important part of the parks legislation that we protect habitat. Why doesn't the government think it should be an important part of this legislation to protect habitat for non-fish or animals that aren't in parks but are still within federal jurisdiction?

Mr. Bruce Amos: In terms of critical habitat, subclause 58(3) says “The competent minister must make a recommendation that an order be made” about critical habitat if the minister “is of the opinion that there are no provisions in, or other measures under, this or any other Act of Parliament that protect the particular portion of the critical habitat”.

Mr. Gar Knutson: That's a subjective test. It's discretionary.

Mr. Bruce Amos: The minister must make the order if that's his or her opinion.

Mr. Gar Knutson: That's a subjective test. Am I wrong in that? That involves discretion.

Mr. Bruce Amos: I assume the discretionary element is in the words of the opinion.

Mr. Gar Knutson: It wouldn't matter if a court or a scientist thought the habitat was critical. It's the minister. Correct me if I'm wrong, because you folks understand legislation better than I do, but that's a definition of absolute discretion. If they're “of the opinion”, that's how we frame discretion in legislation.

Mr. Bruce Amos: That's what the bill says. Insofar as a national park is concerned, our assumption is that anyone's opinion would be that the protection was in place.

Mr. Gar Knutson: Let's look at subclause 59(1):

The Governor in Council may, on the recommendation of the competent minister after consultation with every other competent minister, make regulations to protect critical habitat...

That's discretionary. Is that right?

Mr. Bruce Amos: Yes. The next subclause, subclause 59(2), which is side-barred “Obligation to make recommendation”, says:

The competent minister must make the recommendation if the recovery strategy or an action plan identifies a portion of the critical habitat as being unprotected and the competent minister is of the opinion that the portion requires protection.

The Vice-Chair (Mr. Bob Mills): You have half a minute.

Mr. Gar Knutson: Thank you.

We're clear that it's discretionary for cabinet to protect critical habitat, even though we protected critical habitat for fish and for animals within parks. I'm just wondering why that makes sense.

Mr. Bruce Amos: The parks are already protected under another piece of legislation.

Mr. Gar Knutson: Right, and fish are protected under the Fisheries Act.

Mr. Bruce Amos: Yes.

Mr. Gar Knutson: Why don't we protect habitat for birds covered under the Migratory Birds Convention Act or other federal jurisdiction?

Mr. Bruce Amos: I'm not familiar with the Migratory Birds Convention Act and its provisions, so I'm not confident about saying exactly what it says. It would be better to ask Environment Canada or perhaps a lawyer for an opinion on this.

• 1655

Clearly, to the extent this clause refers to the opinion of the minister, what this bill is doing is requiring the minister to bring an opinion to bear. But to me the thrust of it seems to be in the direction of making a recommendation on conservation because he must make it if that's the minister's opinion. But, yes, there is that discretionary element.

The Vice-Chair (Mr. Bob Mills): Mr. Knutson, I might just mention to you that we do have officials from the Department of Justice coming before us next Wednesday, and I think it would be good to start off with that question and maybe get a clearer answer.

Mr. Bruce Amos: I should have prefaced my remarks by saying I'm not a lawyer.

The Vice-Chair (Mr. Bob Mills): It's tentative at this point, the clerk advises me, but when officials from the Department of Justice come before us, that would be a good question for them.

Mr. Gar Knutson: It's not an issue for the lawyers. It's not a legal issue.

The Vice-Chair (Mr. Bob Mills): Well, an interpretation.

Next is Mr. Forseth on the second round.

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

The Fisheries Act definition of “fish”, which would be incorporated into Bill C-5's definition of “aquatic species”, is a broad one, including shellfish, crustaceans, marine mammals, their eggs, and the juvenile stages of those species. But it might be argued that the species that have no commercial or sport fishing value are outside the federal authority because they do not form a fishery. So would the federal government, acting under Bill C-5 to protect a species that does not comprise an economically significant fishery, be vulnerable to a constitutional challenge on the basis its actions are outside the federal jurisdiction?

Dr. John Davis: That's a really interesting question. We would look at the species that are associated with fisheries as being predominantly federal.

But there is a line of argument that applies here. Those components of an ecosystem that are important to supporting a fishery may well be implicated with regard to being a part that would fall under that jurisdiction. Let's say a trout or a commercial species is dependent on a species that's non-commercial as part of its forage base. It's conceivable there could be an interpretation, sir, that was still part of the federal responsibility.

Mr. Paul Forseth: I have just one more question, which has already been asked. It has to do with the COSEWIC list. They have their year 2000 list. The question is, when the bill is passed, why doesn't that list become the list? Obviously, the bill doesn't do it, and I would like a more expansive answer about why that choice was made. Why are we going the way of the bill in view of the criticism from a lot of the NGOs who are raising lots of noise about the list?

Dr. John Davis: From our perspective, a number of issues are very important here. First of all, it's important we do spend some time consulting with stakeholders and receive some input on the listing, rather than do an automatic rollover of the listing where there hasn't been time to receive some input on a listing that might affect very significantly communities and people's way of life. It's felt it's important for ministers to consider that as part of their decision.

Then there's a second component of that, and that's having the right scientific information as part of the species assessment as to how something gets on the list. There are some species there for which the information is about 20 years old or so and needs to be updated. So an automatic rollover without the completion of the updating would be problematic as far as having the very best information on which to make decisions.

It really comes back to some of the earlier things we discussed. It's a matter of the principle of the exercise of discretion, as opposed to an automatic implementation.

Mr. Paul Forseth: Mr. Amos, do you have anything further to add to that?

Mr. Bruce Amos: No.

Mr. Paul Forseth: Thank you.

The Vice-Chair (Mr. Bob Mills): Mr. Herron.

Mr. John Herron: I'm going to stay with the same line of questioning we had before. Near the conclusion of my first questions, I believe, Dr. Davis, you said you were not against mandatory protection of critical habitat for species at risk. You wouldn't say you're for, but you said you were not against. Is it fair to say that?

Dr. John Davis: I said I was comfortable with that area of the bill as drafted.

Mr. John Herron: I'm not asking you to comment on the amendment, but how would your actions have to change if mandatory protection of critical habitat were implemented? Would there be any change?

• 1700

Dr. John Davis: First—and I'll just speak from a DFO perspective—it would be very hard for us to define what critical habitat was, so there would be an immediate question of interpretation.

Let me give an example. We're talking about a salmon species on the west coast. Their life starts in fresh water, they go to sea, they swim three-quarters of the way to Japan and they come back. So what is the critical habitat for that particular species? Is it the spawning area, the critical piece of habitat where they're produced? Is is the estuary, where they move from the fresh water to the sea and have to undergo fundamental physiological change? Is it the feeding regime on the high seas? For us that's a really difficult question. It might be, for a certain species of fish, that critical habitat would be defined as the key reproductive area.

Mr. John Herron: We've seen so far in this committee, especially when we reflect upon Bill C-65, the rolling over of the list, science-based listing as opposed to political listing, the mandatory protection of critical habitat within federal jurisdiction that came out of Bill C-65 as well. All these elements are now discretionary under this version of SARA in Bill C-5, when it wasn't so in Bill C-65.

This is not addressed to you. You folks are professional bureaucrats, you're doing your job in a very professional way. But I would like to send a large wake-up call. We look at the endangered species working group of 1996, we look at the very learned group of SARWG, we've seen the line of questioning there has been here at the committee level. I'm not really taking a poll, but Mr. Knutson, Mr. Laliberte, Mrs. Kraft Sloan, and Ms. Carroll seem to say, let's set the bar a little higher on scientific listing and mandatory protection of critical habitat within the federal jurisdiction. So I think that should be almost a wake-up call for us to look at that particular aspect, because that's something we're very likely going to be facing when it comes to amendment time.

Why were you in favour of the scientific listing, mandatory protection of critical habitat within a federal jurisdiction, and trans-boundary species that we had in Bill C-65 in 1996, while now you're saying, well, it's okay for that to be discretionary? What changed in those three years?

Dr. John Davis: That's a difficult question for me to answer, as I wasn't around three years ago dealing with it. Are you able to do that?

Mr. Howard Powles: Maybe I can give a very brief answer. I wasn't involved, so this is what I've heard, but the level of broad-based consultation on Bill C-65 was not as great as we've seen with Bill C-33 and Bill C-5, and there were issues in Bill C-65 that were real problems for some of the provinces, for example.

Mr. John Herron: That might be true, but the point is that while we probably have a better consultative process now than we had before, the people who we're consulting are saying keep this stuff mandatory, not discretionary.

Thank you, Mr. Chair.

The Vice-Chair (Mr. Bob Mills): Thank you.

I'm going to ask everyone if they can keep it really sharp here, because we're going to be called for a vote in about 25 minutes. So if we can keep it to one quick question and move on, that would help a lot. We still have six people left on the list.

Mr. Comartin.

Mr. Joe Comartin: I'm going to have difficulty, Mr. Chair, because this has two parts.

Mr. Amos, in regard to Banff—and I'm using it in part as an example—my understanding is that with some of the species like the Banff longnosed dace, the Banff Springs snail that's already been referred to, and the grizzly bear that's already been referred to, part of the problem in their being endangered is some of the development that's gone on in that park. Would you agree with that?

Mr. Bruce Amos: I think it's been clearly proven that some development in national parks in the past and some other park management practices have had a negative effect on species, including some that are at risk.

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Mr. Joe Comartin: Okay.

Second, SARA makes provisions really using three criteria when granting a permit for any further development. These are the three criteria I understand: that all reasonable alternatives to reduce the harm have been considered; that all feasible mitigation measures would be taken; and that the activity would not jeopardize the survival or recovery of the species. If my understanding of the bill is correct, are those criteria your department is prepared to apply at any time in the future when a permit is being applied for to undertake further development?

Mr. Bruce Amos: My understanding is that those criteria would apply to Parks Canada and to our minister in the national parks, were this bill passed in this form. So that's one of the strengthening measures in the bill with respect to listed species and their habitat.

Mr. Joe Comartin: Okay.

The Vice-Chair (Mr. Bob Mills): Mr. Reed, please.

Mr. Julian Reed: I guess this question is for anybody. Does your concept of species at risk refer to species that are put at risk through the actions of humans on earth, or does it include species that would be perceived to be in natural decline? Species, over the millennia, have come and gone, been replaced by others, and so on. I just wondered if you might have a...

Dr. John Davis: The concept includes both human impacts and changes in the ecosystem, or natural kinds of processes too. It's a combination of those things that may well put a species at risk. As we know, there've been extinctions many times in the world, and probably it's naive to think we can totally prevent them. But by looking at them one by one and looking at the causes of the problem, trying to unearth that, we could tease apart what the human interventions have done, and see whether there are ways of improving the survival and the recovery of those species, trying to give them the best leg up we can from the standpoint of recovery and maintenance of biodiversity. It's probably going to be very difficult to prevent extinction for certain species, and it's probably against the natural order of things to totally be able to do that.

Mr. Julian Reed: The supplementary to that is are humans part of nature?

Dr. John Davis: We are, and we're one of the biggest impacts there is.

Mr. Julian Reed: The reason I ask that question is a confrontation I had with a biologist regarding the impact of a water impoundment on a river that was about the size of a beaver pond. I said to her, “If you feel that this is detrimental to the water quality, you'll have to get me to blow up all the beaver dams in this county.” She replied, “Oh no, that's different, those beaver dams were made by nature. Yours will be made by humans.”

The Vice-Chair (Mr. Bob Mills): Thank you. Mr. Bigras.

[Translation]

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

I would like to discuss the matter of dredging, more particularly in the St. Lawrence River. Since 1960, the federal government has been carrying out dredging operations of the St. Lawrence River in order to facilitate commercial navigation. Such dredging operations unavoidably have an impact not only on water quality but on habitat as well, I suppose. That strikes me as quite obvious.

What will the effects of Bill C-5 be on the dredging operations carried out by the federal government? Have you analyzed the link between this dredging and its impact on habitat with reference to this bill?

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[English]

Dr. John Davis: I think what you mean is dredging to get the water deeper for the transitive vessels, which would mean that you're upsetting or removing part of the seabed or the riverbed.

The implications for Bill C-5 would be if that activity was going on in a place where there was a species at risk and that was then part of the impact on the species, one would have to look at whether or not it was appropriate to be carrying out those types of activities and what the actual impact was.

So those kinds of human activities, if they cause an impact on a species at risk, have to be taken into concern. No question.

The Vice-Chair (Mr. Bob Mills): Ms. Carroll.

Ms. Aileen Carroll: Thank you.

I have one last point on critical habitat for today and then we'll leave it.

Mr. Amos, in an earlier response I think you mentioned that you didn't feel comfortable to be recommending an amendment to this question. And certainly I, in your position, wouldn't be either.

I think the point that some of us are trying to make is that we're disappointed we had to be put in this position, because we see two departments that are empowered by legislation, and administer under that legislation, with a strong sense of critical habitat and the mandatory requirements for it. We're sorry that the input from your two departments didn't reflect that same priority for this legislation. So please don't think we're asking you to make an amendment.

And, yes, Mr. Davis, I fully appreciate, as someone who grew up by the ocean, that it's not easy for you to apply definitions, even for what consitute international waters. But certainly common sense prevails in your department. And with the use of that you are able to make those decisions as to where you can protect and where it is beyond your means, whether fiscal or territorial.

Lastly, I want to try to get this last question nailed down, because I had difficulty, Mr. Amos, with your answer on exemption permits. This was mentioned the day before yesterday in testimony and we didn't get the opportunity to get into it. Correct me if I'm wrong, but I think you answered Mr. Comartin by saying you thought that Parks Canada is okay with those three criteria. In fact, I think you indicated that it will assist you. But I don't think it will, because I think there's a real conundrum in SARA on exemption permits. I'm going to explain that.

I think it's a Catch-22, and this is why. I think the question said that clause 74 says that a competent minister may issue an exemption permit allowing someone to harm an endangered species or destroy part of its critical habitat only where three criteria are satisfied: one, all reasonable alternatives to reduce the harm have been considered; two, all feasible mitigation measures will be taken; and three, the activity will not jeopardize the survival or recovery of the species. These three criteria simply require extra care when dealing with species at risk over and above the normal requirements of the Fisheries Act or other federal acts.

I would have directed the question to both; Mr. Comartin directed it to you. My difficulty is that, as I understand it, under SARA, federal departments will not be required to apply those three criteria when issuing permits under other federal acts authorizing harm to endangered species habitat. Because the need to apply SARA's three criteria only arises when you need an exemption permit under SARA, but because SARA does not require habitat protection, there will never be a need to get an exemption permit under SARA. Therefore, there will be no need to apply the three criteria.

I know it's complicated, but we're saying if, then this will trigger, but there will be no rationale to make it trigger, so therefore it's just a Catch-22.

Mr. Powles, help me out.

Mr. Howard Powles: Can I say something on that?

Those three criteria, if you look at subclause 74(2), are only applicable for permits for three specific types of activity: scientific research relating to the conversation of the species; activities that benefit the species; or where affecting the species incidental to the carrying out of the activity. So only in those three types of activities could such a permit be given.

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Ms. Aileen Carroll: Only in those three?

Mr. Howard Powles: Yes, that's the way we've read the bill. Incidental harm would be if there's a petroleum development or something that incidentally harmed an endangered species, a permit could be given for that harm using those three criteria.

Ms. Aileen Carroll: And other federal departments would be required?

Mr. Howard Powles: We're required to live under the provisions of this clause, definitely, yes. They are very stringent sets of activities under which you could permit—

Ms. Aileen Carroll: Trigger this.

Mr. Howard Powles: —the harming of an endangered species.

Ms. Aileen Carroll: Thank you.

In Parks Canada, would you be?

Mr. Bruce Amos: Sorry, I'm not sure I completely understand the concern.

Ms. Aileen Carroll: I really wouldn't have asked you; to be honest, I would have gone into Fisheries and Oceans. It was only because someone else directed a similar concern and you responded that I got a little bit unclear. But I think I'm out of time, and it's not to hang you out.

Mr. Bruce Amos: I might just mention that clause 75 refers specifically to agreements, permits, or licences issued or made by a competent minister under another act. This is my read of it, that paragraph 75(a) quite clearly brings into effect the need to meet the requirement of subclauses 74(2) and 74(6), which include the purposes, the preconditions, and the terms and conditions.

So our impression is that this would also affect any agreement or permit my minister made under our act that affected a listed species or its critical habitat. That's my read of it, but in light of your question, I will go back and review this with our legal counsel to make sure we understand—

Ms. Aileen Carroll: I'll do the same.

Thank you, Mr. Chair.

The Vice-Chair (Mr. Bob Mills): If you could provide that to the committee, that would be great.

Mrs. Karen Kraft Sloan.

Ms. Aileen Carroll: I hate getting back to the lawyers all the time.

Mrs. Karen Kraft Sloan: Thank you very much.

I'm looking at subclause 27(1) in the legislation. This has to do with the listing of a species by the Governor in Council. If COSEWIC submits a report, is there any timeline the Governor in Council has to say they're going to listen to the advice of COSEWIC around the listing of a species? Is there a time limit by which they have to give notification?

Mr. Howard Powles: There's not a timeline for taking that recommendation and putting it into regulation, no.

Mrs. Karen Kraft Sloan: What if the Governor in Council decides not to take that recommendation and put it into regulation? There's not a timeline either that way, if their answer is no.

What we have been told consistently over and over again is that COSEWIC will do the scientific listing and then if cabinet decides not to list a species there will be a hue and cry across this land and a furor will arise and all the powers of the public will rise up and cabinet will be forced to do the right thing—and that's the accountability mechanism. I suggest that the accountability mechanism is missing if there is no time limit, if there is no reasonable time by which cabinet has to make a response to that COSEWIC listing.

The other thing is I would like to go back to what one of the witnesses had said earlier. Dr. Green, who is head of COSEWIC, had talked about the issue of political pressure on scientists in COSEWIC around listing.

Some 600 scientists from across this country have signed a letter saying that they want scientific listing. I was parliamentary secretary under the previous bill, and I know how hard the scientists from across this country said that we had to have scientific listing. In fact, I was the recipient of a letter from them, from the former head of the Royal Society, Doctor David Shindler, who is an eminent ecologist in this country and has an international reputation. They want scientific listing.

I would suggest that if, going back to the earlier premise, indeed there is this huge public outcry, then their decisions are important and they will indirectly be subject to political manoeuvring, as well. So this doesn't seem to make a lot of sense.

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I understand that Mr. Green is head of COSEWIC, but I don't think he necessarily speaks for the scientists who are out there doing this work.

Dr. John Davis: It's an interesting point, and I suppose the future will tell how this will all work out.

Given the high visibility of this legislation, I believe it would be difficult for the government to push aside an issue for a very long time. There probably will be very significant lobbying, and as you suggest, it will come from scientists, environmental groups, and others with respect to wanting to do the right thing to protect species.

Mrs. Karen Kraft Sloan: The problem is, when you're talking about a grizzly bear, then maybe people are going to get out and campaign, but when you're talking about a species that has 25 syllables and is unpronounceable and lives in the dirt under a bunch of leaves, it's not highly cuddly—not that grizzly bears are cuddly, but they're highly visible; they're big and furry. Those things are easy to mount campaigns on, but some of the other really important species out there are not accessible to people's understanding. So there is an issue here.

Where is the accountability mechanism? How do we trigger action by the GIC? How do we get the public involved in this? We have been assured over and over again by officials that there is a high level of public participation in this legislation, from the beginning right through the end of the process.

Dr. John Davis: You do flag a very key point, and that's part of education, isn't it, to educate people as to the importance of all the species and the biodiversity. As you say, there may be a different public attitude to a worm or a snail, or something like that, as opposed to a sea otter or a grizzly bear, things that are visible.

Mrs. Karen Kraft Sloan: But whose responsibility is it to do that education? If the government is not planning to do the listing, do you think cabinet is going to go out there and blow the horn about the fact that they're not doing the listing?

Government is not going to take on that responsibility, and now we're going to put more and more responsibility onto private citizens, who have extremely busy lives, to keep informed on these very difficult, complex issues, as well as NGOs, whose resources are absolutely taxed to the limit. Government is not going to educate the public on these kinds of issues when they indeed have to be held accountable to them. It doesn't make logical sense.

Do you agree or disagree?

Dr. John Davis: I think what the legislation does for us is sensitize people to these issues, and I'd like to think that over time there is a growing consciousness among the Canadian public that this is important. It's not just government's role, it's everyone's role to be involved in these sorts of issues.

Mrs. Karen Kraft Sloan: Absolutely, but stuff has to be accessible, and it's going to be a blue-box sort of syndrome in which we say we have endangered species, so Canadians will be able to sleep at night thinking that species are going to be protected.

It's like the blue box. You put your garbage in the blue box, and the problem is taken care of; we've solved the environmental crisis in this country. But we're far from doing that.

The Vice-Chair (Mr. Bob Mills): Can we move on, please, to Mr. Laliberte?

Mr. Rick Laliberte: Going back to Parks Canada, you made the statement that there is mandatory protection of all habitat and all species inside a national park. Did I hear correctly?

Mr. Bruce Amos: That's the nature of the National Parks Act.

Mr. Rick Laliberte: So as Canadians, when you give us 39 national parks and three marine conservation areas, what is the national goal for our national parks? Two percent of Canada's land mass is what we achieve now. What is the goal?

Mr. Bruce Amos: The goal for Canada's national parks system is to represent in it each of the natural regions or major ecosystems of the country. In our case, we consider that there are 39 distinct natural regions—Hudson Bay lowlands, the Rocky Mountains, and others. Our goal is to have a good representation of each of those in Canada's national parks system, not to protect all the landscape but to take a good representative sample of the regions that make Canada distinct and set them aside under the National Parks Act for the benefit of future generations.

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That's why the government's efforts in establishing new parks are focused on those natural regions of the country where there is no national park, and that's where we're working with partners, provinces, territories, and aboriginal people in particular, to establish new national parks in those regions. That's the long-term goal.

Mr. Rick Laliberte: Couldn't you also say “to ensure ecological integrity for present and future generations”, which is a major goal, but also SARA does the same thing? I think protecting our biodiversity in this country is a national concern. So, in terms of goals, is it 10% of Canada's land base you're after; is it 8%? What is the percentage of goal? That's what I'm asking—what is it?

Mr. Bruce Amos: There is no specific percentage that the Government of Canada is using as a target for completing its national parks system. The target is in fact to have a good representation of each of those regions and to protect the ecological integrity within those places.

What might that result in? It may be in the order of 3% or so by the time the system might be completed. Our view is that conserving biodiversity is not a game of what percent of the landscape do you have, but do you have the right places, and are they effectively protected?

Mr. Rick Laliberte: But as Canadians, couldn't we use the national parks as one of our tools in protecting our species of this country—

Mr. Bruce Amos: Absolutely.

Mr. Rick Laliberte: —if we do it appropriately, in timely fashion, and if we can get Heritage Canada under Parks to work with Environment and DFO to look at the national plan of allocation of national parks in this country to make sure that species at risk are a part of your goals?

Mr. Bruce Amos: You're absolutely right. When I use the broad term “representing the natural region”, one of the key factors that's studied in looking at where a potential park might go... Not only the representation and our ability to protect the ecological integrity are involved, but species at risk and their need for protection are important factors in considering where a park should go and where its boundaries should be.

Mr. Rick Laliberte: See, as opposed to just a protected area in certain parts of the country, there are economies that exist. If it's a transition from a commercial or industrial economy, it might be more possible to create and justify a tourism or park economy. But you also do biodiversity a great big favour and the species a great big favour. You may hold a major key as a part of protecting our species with a national park here.

Mr. Bruce Amos: You're quite right. I think that's why the bill lists our minister as one of the competent ministers. Clearly, we can play a major role and a more important role than we have in the past in protecting Canada's species at risk in cooperation with other departments and other governments.

Mr. Rick Laliberte: But one of the key words that exists in protection of the habitat and species in the park is “mandatory”, and we've been trying to convince you that “mandatory” is crucial. It makes species at risk powerful.

The Vice-Chair (Mr. Bob Mills): I might just ask a brief question.

Mr. Davis, I think I've met the same biologist that Mr. Reed has—

Some hon. members: Oh, oh.

The Vice-Chair (Mr. Bob Mills): —and on the same kind of river.

I guess that communication and cooperation are critical. We say it over and over in the bill. The minister said it in his speech. A number of members here have said it. I guess we come back to my river and my bridge that was way up on the banks. There's a lot of communication necessary. There's a lot of concern out there among Canadians that any kind of legislation like this is going to affect their livelihood, their way of life, so that's a big concern.

The education component, which Parks Canada have talked about, and DFO and not being too heavy-handed and involving the public more—I think we've heard that, and you've stated that.

Then we come back to this whole thing about when all of this is taken into consideration as worked out, there might still need to be compensation made if in fact someone's livelihood is really going to be affected.

I wondered if, Dr. Davis, you've had any experience with that, and how you would view legislation like this dealing with compensation.

Dr. John Davis: How this works... The compensation from a fisheries perspective is a little bit difficult for us in the sense that we've just had Mr. Pearse's report, and that's all being worked through. We were trying to imagine how, from a fisheries perspective, it might be triggered. It's conceivable that if it was something like a forest lease that might be affected by critical habitat being associated with salmon production or something like that, there could be a situation here.

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I don't think for the department it's a big issue from the standpoint of us being directly involved in a lot of compensation. We do not compensate people when we open and close fisheries. People's livelihoods are affected all the time by the management decisions we take. Nor would we see some of the things we did in marine or freshwater areas triggering this. It's really just how critical habitat applies to us and to the things we manage and in very specific instances, I would say.

The Vice-Chair (Mr. Bob Mills): And yet in my example of the bridge, that did affect livelihood. That winter, 50 people didn't have a job because that bridge couldn't be used, because fish may get shade in the winter. So that kind of unreasonable sort of thing is what I think we're fighting against and what the success of this bill... I think all of us want it to be successful, but that's what we're fighting against, and I think all departments of government need to understand that and work within that. That's why I think in the bill it needs to be stated over and over again that cooperation and consultation are the things we have to emphasize.

I don't know if anybody else has anything they would like to ask, but I would like to thank our guests for being here. Certainly keep in touch with us and any members you'd keep in touch with. Thank you.

The meeting is adjourned.