ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, September 19, 2000

• 1626

[Translation]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good morning, ladies and gentlemen. I welcome you to this meeting of the Standing Committee on Environment and Sustainable Development. We shall resume our work pursuant to Standing Order 108(2).

[English]

We welcome as a witness today the honourable Minister for the Environment, who will make, as is customary, a presentation, followed by questions, limited to five minutes each so as to permit perhaps a second round and a range of questions.

Minister, the floor is yours. Welcome to the committee.

Hon. David Anderson (Minister of the Environment): Thank you, Mr. Chairman. I thank the members of the committee for resuming the parliamentary session with the study of this extremely important piece of legislation, to protect species at risk.

I'm coming here to update you—as you know, I've been here before on this issue—and if I could, I want to simply state that you, Mr. Chairman, who said that there may be a misperception held by the media and others that no changes would be considered to this bill—

Mr. John Herron (Fundy—Royal, PC): I have a point of order, Mr. Chair. I'm not so sure we're allowed to refer to the piece of legislation or the bill, given the fact that the bill is not before this committee; it's still before the House. In fact, we're right now reviewing a motion about whether the bill will even have its vote for second reading. I'm not sure we're allowed to refer to the legislation, the bill, in remarks before this committee today.

The Chair: Mr. Herron, we are examining today the subject matter in general under Standing Order 108(2), which enables this committee to examine the content of the matter without having the bill before us. This meeting is made possible by the vote we held in June, as you may recall. Therefore, we are operating within the rules of this committee as set out under Standing Order 108(2).

Mr. John Herron: I believe if you check that article, even then it cannot refer to the bill itself. We can talk about the substance of the issue; however, we cannot refer, as you just alluded to, to any reference to any subsection or any aspect of the bill.

I would ask, through you, Mr. Chair, to check with the clerk to see if I'm correct or not.

The Chair: Yes. As I said a moment ago, we are examining the substance that is contained in that particular bill. This is how we intend to proceed. I'm sure the minister is aware of this particular limitation imposed by Standing Order 108(2). Thank you.

Minister, would you like to proceed?

Mr. David Anderson: Thank you, Mr. Chairman. Certainly I will attempt to avoid any reference to specific sections of the bill, or indeed any specific reference to it per se, other than in general terms.

Mr. Chairman and ladies and gentlemen of the committee, in my view, the committee's role in hearing from interested parties and in reviewing this legislation is of critical importance. Protecting species and their habitats is clearly important to all Canadians and an issue that affects all aspects of our society. In addition, the committee represents the House of Commons and thus the whole of Canadian society when it analyses the provisions—which of course I cannot mention—of the bill itself. We have however put forward a strategy, and I believe it is important that the range of views of Canadians must be heard.

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You may hear a large number of witnesses, including conservation groups, first nations, forestry, fisheries, mining and agricultural sectors, scientists, academics, municipalities, property owners, environmental organizations, and voices from the Canadian north. I believe you do have a very important task before you on behalf of Parliament and of all Canadians to listen to those often competing interests and to propose any changes you may wish that will make the legislation more effective.

I certainly want to assure you that I will be listening to the deliberations before you, generally by way of transcript, and will be very interested in receiving the proposals and suggestions of this committee, because the work you are doing is an important part of the democratic process. However, it is not possible in advance before witnesses have been heard and before the honourable members of this committee have expressed their opinions and listened to witnesses for me to say that this, that, or the other recommendation of one particular group is attractive to me and I'm going to move in that direction. That clearly would be improper. It clearly would be in contempt of this committee, and it clearly would be in contempt of Parliament.

I would like now to turn to the serious and complex task we face to consider a national strategy, including legislation to protect species and their habitats throughout Canada. The issue of species protection presents extraordinary challenges and requires innovation and—let me stress—cooperative solutions. Deliberations here are not academic. We're talking about preserving the biodiversity of our country's wildlife, birds, plants, and fish, as well as their critical habitats. That is not a simple task. It has proven to be elusive and extraordinarily difficult in every corner of the globe. While North America may have the best opportunities for protecting biodiversity, nevertheless, even here it is extremely difficult.

I suggest to you that the first principle to remember is the first principle of ecology, and that is that all things are interdependent. We cannot separate species out one from the other or species from their habitats, just as we cannot separate the people who live in this country and who work on the land, on the water, or in the woods from their relationship with the skies, the lands, and the waters where those species of animals and plants happen to live.

The government has proposed a national strategy to protect species from becoming extinct as a consequence of human activity. We have devised a plan that will both protect and recover species currently at risk and that will help ensure that in the future the species will in fact not become threatened. That is why we have chosen a more comprehensive approach than simple legislation, and that's why before this committee last May I indicated that we had a three-pronged strategy for protecting species at risk. The first element and the cornerstone is of course the proposed Species at Risk Act. The second is partnership with the provinces and territories, which have constitutional responsibility for land and property rights. Nothing we can do can change that. Their active and willing participation is key, and we have been building partnerships with them since the national accord for the protection of species at risk in Canada was created in 1996. No single government alone can protect all species. The accord commits all governments to establishing complementary programs and legislation to protect species at risk throughout the land.

The third part of the strategy is building partnerships with Canadians to promote stewardship programs for species and their habitats. As you may recall, Budget 2000 in February of this year took the extremely unusual step of allocating funding prior to the legislation in fact being tabled in the House. The budget provided $180 million spread over five years for the objectives of this legislation and to implement the national strategy for protecting species at risk. This is of course an arbitrary decision at this stage, but we have chosen to invest some $45 million in stewardship programs across the country.

Before getting into a more detailed discussion of the act itself, let me update you on where we are and what we have been doing over the summer to implement the comprehensive national strategy.

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First, the reassessments of species is taking place, is being completed, and is on schedule. The Committee on the Status of Endangered Wildlife in Canada, the so-called COSEWIC committee, is reassessing the current list of species against a new, more objective set of international criteria, I believe based on the International Union for the Conservation of Nature. At the August meeting of the federal, provincial, and territorial wildlife ministers in Iqaluit, the COSEWIC annual report was presented directly to the ministers for the first time.

I would congratulate COSEWIC. It was very productive, and at their May meeting they completed 123 reassessments, which is about half of the current endangered and threatened COSEWIC list requiring reassessment. The COSEWIC assessment process is on track, and once we've received the remainder of the reassessments from COSEWIC's upcoming meeting in November, we will be ready to move quickly following proclamation to establish a comprehensive legal list.

That comprehensive legal list is key because many of the species that COSEWIC has assessed are not currently well protected, and they won't be until the next legislation is enacted. We also will be able to integrate aboriginal traditional knowledge into the assessment and recovery of wildlife species, which I am very pleased about. I believe this is a key and very important element of the new legislation, and that was agreed to by the ministers at Iqaluit. The summer meeting in Iqaluit also afforded the first formal opportunity for federal, provincial, and territorial ministers to discuss wildlife issues with aboriginal leaders from across the country.

[Translation]

I firmly believe that involving Aboriginal peoples in the process for identifying species at risk and recovery plans is a strength of this legislation.

The Government of Canada also made good progress building strong and effective partnerships with Canadians.

In Canada, we have a history of very effective stewardship programs. But we have recognized that we need to do more. Habitat is a factor for 75% of species at risk. After a lifetime of working on wildlife and fisheries issues in my public and private life, I know that conservation must begin when a species is healthy, when habitat is there to be protected. That is why voluntary stewardship measures are a key element in our strategy.

The federal Habitat Stewardship Program works in support of the proposed Species at Risk Act by funding the efforts of non- government organizations, private landowners, Aboriginal peoples, conservation groups, local governments, and others who want to play a role in stewardship.

Over the summer, the Habitat Stewardship Program committed more than $2.1 million to more than 13 major partnerships with local and regional organizations and communities to protect habitat.

We provided $200,000 for the recovery of the critically endangered Eastern Loggerhead Shrike, a bird once common in Manitoba, Ontario and Quebec.

We established first-year funding of $410,000 for protection of the Coteau grassland in the southern Prairies—home to a multitude of species at risk, from the Piping Plover to the Burrowing Owl.

Just last Friday, Fisheries and Oceans announced $550,000 for stewardship and recovery of the endangered North Atlantic right whale. Our partners in this endeavour include the World Wide Wildlife Fund and local fishing, shipping and whale-watching interests.

Moreover, I had the good fortune to announce a $1 million contribution toward the conservation of habitat and species at risk in the South Okanagan-Similkameen region of British Columbia. Along with the Prairie grassland and the Carolinian forests of Ontario, this region is one of the most endangered ecosystems in Canada.

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This stewardship funding bring 17 groups together to work with the governments of Canada and of British Columbia to develop the South Okanagan-Similkameen Conservation Program. Groups like the Nature Conservancy of Canada, Ducks Unlimited, the Federation of B.C. Naturalists, the Royal B.C. Museum, the Canadian Parks and Wilderness Society, and the Osooyos Desert Society, to name just a few. Under this program, projects will explore the right balance between protecting wildlife and human needs. This is a model for how habitat and species protection can work in Canada.

[English]

Mr. Chairman, ladies and gentlemen of the committee, other projects are in the works for stewardship and recovery of Atlantic salmon, the northern spotted frog, the woodland caribou, and the beluga whale, to name just a few.

Another important part of budget 2000 was the ecological land gifts programs under the federal Income Tax Act. This program uses economic incentives to make it more attractive for Canadians to protect ecologically sensitive areas by decreasing by more than 50% the tax payable on any capital gains associated with the donation. It has dropped from 70% to 33 1/3%. I expect to have more to report to you this fall as generous Canadians take advantage of this innovative new tool that will allow permanent protection of habitats across the country.

Through partnerships and through incentives, these programs will extend habitat protection into every corner of this land and leverage the goodwill, experience, and hard work of Canadians who care passionately about protecting species. These programs work directly with local conservation groups and reach hundreds of landowners, farmers, foresters, ranchers, and fishermen and protect Canada's rich biodiversity.

As I hope you can see, the efforts we are making do not begin or end with the proposed Species at Risk Act. The act provides the framework and the—

Mr. John Herron: Mr. Chair, I have a point of order. Are we allowed to get into what is contained within the act, according to your earlier interpretation?

The Chair: Well, it seems to me that the minister has not gone into the act. He has just referred to the act at arm's length and therefore he hasn't infringed upon Standing Order 108(2) in reference to the act. It's certainly not something that should upset any member of this committee. I'm sure the minister is fully aware of the limitations under which we operate this afternoon, and I would invite the minister to resume—

Mr. John Herron: The only place where it would upset anyone is that we have rules and procedures to follow within this committee—

The Chair: Yes.

Mr. John Herron: —and the motion that was passed before and your ruling that you had before said that we could not make a specific reference to the contents of the proposed act itself.

The Chair: In the opinion of the chair, the minister has not broken the rule, and I therefore invite the minister to resume his presentation.

Mr. David Anderson: Merci.

Ms. Marlene Catterall (Ottawa West—Nepean, Lib.): It might help, Mr. Chair, if I point out to Mr. Herron that the minister has said “the proposed act”. The act has been proposed for some time. That doesn't assume that it's before the committee or that it ever will be before the committee, and therefore it doesn't break the rules.

The Chair: Mr. Herron.

Mr. John Herron: I agree with what Madam Catterall has just said, except the point is that the next reference is that the act provides the framework. At that point it would—

The Chair: The minister did not reach that point yet, Mr. Herron.

Ms. Marlene Catterall: “The act would provide”, Minister.

An hon. member: You could say “the proposed act”.

The Chair: He just finished with the word “act”.

Anyway, we take into account all interventions and we ask the minister to proceed, please.

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

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The proposed act creates a safety net to ensure that no species or its critical habitat falls through the cracks. It puts the mechanisms for assessment and recovery into law and it provides the strong prohibitions to follow through when other measures taken are not enough.

[Translation]

I now want to move to a more detailed description of how the proposed legislation will work.

The first step is to gather the right information. Under the proposed Act, the assessment of species will be the responsibility of the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). COSEWIC is given legal status under this proposed Act and continues to operate at arm's length from the federal and the provincial governments. Of course, scientists will conduct the assessment for all species.

When COSEWIC determines that a species is threatened or endangered, the COSEWIC assessment and reasons will be immediately public. These listings are available on the Internet and receive widespread media coverage every year. The enactment of this legislation will bring an even greater profile and public scrutiny to the listing process.

The Government of Canada will receive COSEWIC's scientific assessment and use it as the basis for the legal list of species at risk established under the proposed Act. We take this science advice very seriously and have taken the extraordinary step of enshrining their role in law. Decisions taken under this proposed Act can have economic, social and legal consequences for many Canadians and Canadians who will be affected have the right to be heard. In our democratic process, it is essential that there be political accountability for the final decisions. That is why this Act gives Cabinet the legal responsibility to establish and amend the legal list of Wildlife Species at Risk in Canada.

Allow me to illustrate how the proposed Act will work once a species is listed by using an example. The Loggerhead Shrike, a bird once abundant in many parts of the country, is listed as an endangered species. What happens next?

First, the proposed Species at Risk Act will prohibit the killing or harming of the Loggerhead Shrike or the destruction of its residence. Or course, those who break the law may face fines or other penalties.

Next, a comprehensive recovery process is initiated. A scientific assessment must be done by a Recovery Team to look at the reasons for the Loggerhead Shrike's decline. That Recovery Team will include a broad range of stakeholders. The relevant province or territory have an important role at this stage since they may have expertise and support to provide to the recovery effort.

The recovery planning process will then identify strategies to recover the Loggerhead Shrike including the identification of its critical habitat. The proposed Act provides the Government of Canada with the legal authority to ensure that the Shrike's critical habitat is protected on all lands in Canada, whether federal, provincial or private. As I have said, our philosophy is that we can better protect habitat with a cooperative approach that provides the flexibility for Canadians to do the most, not forces them to do the bare minimum.

Next, we will work with Aboriginal peoples, landowners, industry and local communities as we develop a recovery strategy and action plans.

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Based on experience with landowners across Canada, we believe that farmers, fishers, ranchers, trappers and people who work in the woods will respond positively to a well-considered plan of action. It might require, for example, that a landowner reduce the amount of acreage he or she sows, switch crops, or reduce cattle range. Or it can be as simple as a farmer putting his cattle in a field to graze on an encroaching plant that is destroying habitat. This is the kind of help we are getting right now in Quebec, Ontario and Manitoba to improve habitat for the Eastern Loggerhead Shrike.

I hope this illustration provides some insight on how voluntary measures—our first line of defence—will work. I also want to point out that in most cases, provincial and territorial governments are expected to do the job of protecting habitat within their jurisdiction. They do have the constitutional responsibility for land and property rights. But if voluntary measures are not successful, and a province or territory is unable or unwilling to actuate the criminal law power, the federal habitat safety net will kick in to ensure that critical habitat is protected.

[English]

Now, I've gone over this reasonably quickly, Mr. Chairman. You undoubtedly will have further questions, and I'll be happy to answer them afterwards.

But I would stress that Canadians have a real stake in how this process proceeds. What we have strived to do is achieve a balance in the proposed Species at Risk Act. We have recognized that in order to protect the biodiversity of our plants, animals, insects, and fish, legislation itself will not—cannot—do the whole job. There needs to be a broader and more sophisticated strategy, more in keeping with our Constitution, more in keeping with our attitudes.

As policy-makers, we often consider one of three basic options to achieve a goal. We try a legal approach, we try incentives or economic tools to encourage desired behaviour, or we try education to broaden public understanding. This is exactly true for the global experience with species at risk approaches. Instead of picking one, as most nations have done, we have chosen a combination of all three for the national strategy for the protection of species at risk. We've devised a modern system, emphasizing incentives and education as the best hope for protecting species and their habitats across Canada.

From other jurisdictions, we know this is the most practical approach. The United States has a largely legalistic system, and Americans have been struggling for thirty years to move away from the confrontational approach that was sparked by the war in the woods over the spotted owl in the 1980s to something that seeks solutions early and is more effective locally. I might add that also in the 1980s there was the sagebrush rebellion of the cattle states of the west as they again fought bitterly federal intrusion in the area of wildlife protection.

What we have done is devise a made-in-Canada approach to species protection, one that will maintain and strengthen support for protecting species at risk among Canadians because it includes them in the solutions. There are “sticks” in the bill, yes, and they're necessary to enforce the law and protect a public value, but success becomes much less likely if coercion is seen as the basis of the federal approach.

Before closing, if I may, I would like to call your attention to the seven years of work that it has taken to draft the Species at Risk Act. This proposed legislation has been widely consulted on. Its predecessor, Bill C-65, was before this committee, and many, many witnesses came forward to express their opinions on the bill itself and the issues involved. My department has also been involved in national consultations, dozens of regional workshops, and countless one-on-one meetings to hear the range of views, and the proposed act reflects those views.

Now, clearly, we have not been able to accommodate every suggestion, and obviously it is not possible to do so. But what we have done is balance the complexities of protecting a public good, ensuring that species do not go extinct in Canada by reason of the activities of mankind, with practical ways of getting the job done, and we're proposing legislation that is accountable, effective, fair, and, most importantly, works on the ground.

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There may be those—in fact I'm sure there are—who object to the two-step process in which COSEWIC makes a scientific assessment and the cabinet makes decisions regarding the legal listing of species at risk. But any minister who rejects the recommendations of the scientists will of course have to answer to the public, to his or her electorate, and to Parliament, not to mention all the special interest groups that follow these issues. Inflexible approaches that are unaccountable to the public have been tried in other jurisdictions and they simply do not work. Political accountability, in my view, Mr. Chairman, will give Canada stronger legislation.

Some say of course that voluntary measures haven't worked in other areas, so why should they work here? Let me be clear. If coercive measures are needed, we have the tools through the criminal law power to do the job. We prefer however to use the carrot. That is not the only approach; it includes the necessary sticks to ensure action on species and habitat protection.

This is a question of balance. The proposed Species at Risk Act moves us away from the old command-and-control style of government regulation to a more cooperative model. I would say to the committee that Bill C-65 was adamantly opposed because it took the command-and-control approach.

The new legislation is better in many ways than the previous. For example, we have a much larger role here for COSEWIC, and they have a strong hand in creating the provisions for assessing species at risk in the new act.

The new legislation provides for the inclusion of aboriginal traditional knowledge, again in my view a major improvement.

The new legislation contains measures that will lead to effective protection of critical habitat for species at risk on all lands throughout Canada. You know, Mr. Chairman and members of the committee, that Bill C-65 didn't do that, and that was in fact one of the major criticisms of it. But in the new legislation, if a province or territory fails to protect endangered or threatened species, the Government of Canada has the power to take action to protect that critical habitat.

In every instance where the recovery planning process identifies critical habitat and the minister determines that this habitat is not effectively protected, the minister must recommend prohibitions against the destruction of that habitat and report to Canadians on actions taken to protect it.

We listened to the recommendations of the species at risk working group who said that civil suit provisions should not be part of this act. The notion that individual farmers or ranchers could be targeted by citizens' groups—not for major transgressions, but for simply letting their cattle into the wrong field—struck directly at Canadians' sense of fairness. However, we did retain the elements from Bill C-65 that enabled individuals to request a formal investigation if they had reason to believe that an offence had been committed or that one was planned.

Another significant improvement is that the new legislation allows society to recognize the real sacrifices already made in the name of conservation. Compensation is an extremely complex issue. It goes well beyond the issue of endangered species. I've asked for expert advice to ensure that we have the desired effect. Dr. Peter H. Pearse, who is an expert on natural resource management and professor emeritus at the University of British Columbia, is consulting with Canadians and will offer suggestions on how the compensation element should work. As soon as I receive his report I will be reporting to you, Mr. Chairman, and to the members of this committee.

Make no mistake, the legislation covers the same territory as Bill C-65, but it goes further and relies heavily on cooperative stewardship measures. Bill C-65 did not. The proposed act provides opportunities for new funding. Bill C-65 did not. It was clear that minor changes to Bill C-65 weren't enough, and we have made major changes and major improvements. As a result, the proposed Species at Risk Act takes an approach that is fundamentally different. We have woven this strong legislation into a national strategy that will be, in the end, more effective for species and their habitats.

In closing, I hope you'll recognize that federal legislation for the protection of species at risk and their habitats is long overdue. We have already made progress on two elements of the strategy and now the new act can complete the picture. I think it looks good on paper and I think it will look even better in practice—protecting species in the field, forests, wetlands, and open waters of Canada. I'm sure members of this committee share this goal.

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Your hearings are a very important part of the parliamentary process, and certainly your recommendations will be given very careful consideration. I look forward to working with you, Mr. Chairman and members, on the proposed Species at Risk Act until it finally is proclaimed into law.

Once again, thank you for this opportunity to present my views and to update you on what has happened over the last few months. It will be my pleasure to answer questions you may have.

The Chair: Thank you, Mr. Minister.

We have a good list already. We'll start with Mr. Jaffer for five minutes, please.

Mr. Rahim Jaffer (Edmonton—Strathcona, Canadian Alliance): Thank you, Mr. Chairman, and thank you, Mr. Minister, for your comments today.

I wanted to start out with a point of clarification on some of the figures you presented today in your presentation, especially when you say you allocated within the act $180 million over five years for stewardship programs and various other things that will be allocated under that act. I saw that $45 million of this has been allocated specifically towards stewardship programs. How much of this $180 million is going to be put aside for compensation, or will there be a separate fund established for compensation in the future?

Mr. David Anderson: At the present time we will have to take compensation from the overall $180 million. As I mentioned, the $45 million was a tentative division. It is very difficult to suggest how much might be necessary for compensation until, first, I've had the report from Dr. Pearse as to what is the appropriate scope of compensation and, second, of course, until we get some experience.

I have expressed that compensation will generally be for the individual landowner. In my mind it is not for major corporations—and again I'm subject to Dr. Pearse's views—that have received massive grants over provincial crown land, for example, which was a grant that was never expected to include the destruction of endangered species. This is not simply an open cheque book of the federal government, and I know that you would not want it to be that. So all I can say to you is that with the best will in the world, we will be exploring as we go.

If I could, I'd like to make one quick final point on this. This is a very difficult issue for the provinces, because they of course are also caught in the bind of requests for compensation when they alter land use in the province to accommodate some other value they have developed in the 30 or 50 years since the original grant was given. We are working very closely with them so that we don't make life more difficult for them or impossible for them and that we maintain support.

Mr. Rahim Jaffer: I understand that.

One thing that I think is going to be very crucial for this committee, especially as we start to hear witnesses and over the course of the deliberations on this particular piece of legislation, is to see that particular report that Dr. Pearse is going to be putting together. I'm curious as to when you think that will be available to the members of this committee or to the House.

Mr. David Anderson: We're now in September. I would certainly expect it to be available within the first two weeks of next month.

Mr. Rahim Jaffer: And we'll be privy to that, obviously.

Mr. David Anderson: Absolutely. As soon as I receive it—well, let me say that within 24 hours of receiving it, I'll try to make sure you receive a copy. I'll make it a public document. It will be of great interest.

As I said, this is a very interesting principle. There are issues, for example, with regard to two companies, one of which has land necessary for an endangered species and one that does not, and the issue of comparative advantage given simply by reason of the fact that you withdraw an area considered to be useful for ranching or forestry from one corporation, and in the other you leave it alone. You may have to work out some intergroup compensation provisions as well. This is just an example of the complexity that I had not thought of when I first put my mind to the issue of compensation.

Mr. Rahim Jaffer: I have only one quick question to follow up on that, and I appreciate your honesty on that.

When it comes to compensation within this package—and I can see that you as well feel it's an important issue—I would go so far as to say that it is essential in bringing all stakeholders together in this particular legislation. And in my deliberations with environmentalists, industry leaders, and landowners that issue continuously comes up, and most people agree with fair market compensation.

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Currently in this legislation we don't see a commitment to fair market compensation for any loss of land. In the spirit of what your comments were in question period today and in front of the committee, in future—whatever report comes back from Mr. Pearse—if there are amendments made to this legislation that specify fair market compensation, would you be open to those particular amendments?

Mr. David Anderson: Oh, very definitely. Again, I'm saying this without even having in my mind.... I'm sure every one of us around this table has a slightly different interpretation of what fair market compensation might be. That is going to be very important.

You'll have the report of Dr. Pearse. You will wish to provide your own comments. Based on political ideology, there will no doubt be differing viewpoints as to the appropriate role of government and the appropriate responsibility of individuals in the system, but I will be very interested in your comments, because—let me repeat this—I don't think anyone around this table will discover this to be an easy issue once they start delving into it. Compensation is a toughie.

The Chair: Thank you.

[Translation]

Ms. Girard-Bujold, please.

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): Good day, Minister. I listened to you attentively and I also read the text you sent us carefully. There are a number of points I would like to raise, but I will never have time to discuss them all.

One can see, Minister, in light of what is said in your brief today, that you intend to gather all of the provinces under the same umbrella, even those that have already passed laws. Their laws may not go as far as they would like, but at least they have already made a gesture.

Everything you have said, Minister, indicates that you will be binding the hands of provincial governments, who will be forced to act in compliance with the new law.

I noticed that nowhere in your brief did you mention Crown lands. Nowhere do you refer to your own lands, to my knowledge. What are you doing in your own backyard? Why have environmental groups given this bill a D minus? You provide examples and you say that you will be using the stick, and not the carrot; but you are using money as bait. I feel, Minister, that your presentation reflects a somewhat out-of-date vision of the Canadian Constitution.

You say that scientists, with the help of COSEWIC, will provide a list which will ultimately be reviewed by Cabinet. What scientific competency does Cabinet have to assess the importance of the contents of that list? That is one of the questions in my mind after listening to your presentation today.

I am not talking about the bill, that has still not undergone second reading in the House, and which we don't need to discuss yet. Rather, it is the brief you presented today that has stirred up my concerns because of the Canadian government's cavalier approach to the actions already taken by the provinces, who already took steps when you had not yet done so at your level.

You also state that you are willing to accept amendments. You know, we have seen some bad examples of the way certain Liberal members behave in committees. When the last bill on the environment was being passed, the situation was ridiculous; we members of the opposition wanted to walk hand in hand with the government, but some members on the other side had been told to behave a certain way.

Minister, once bitten, twice shy. I have been bitten, and I must say that today's brief is not up to the high expectations I had of you.

Thank you, Minister.

Mr. David Anderson: Thank you. Yes, it is true that several provinces and territories have done work in this area that is to be commended.

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If the provincial system is a good tool, if it protects all endangered species, well, the federal legislation will be able to help the province by providing it with technical, scientific or financial assistance. We will leave the task of protecting endangered species to the provinces.

Madam, it is passing strange that several people have criticized this bill in my absence by saying that it is not forceful enough. Some have said that the federal government is too timid with regard to the provinces' position.

I know there are concerns. Nevertheless, we have an agreement with the provinces, an agreement that has been signed by all of the premiers, as well as the premiers of the territories. I do hope that people will be able to see this legislation to support provincial action in this area and that it will not hinder it or cause any problems.

I assure you that it is impossible to consider setting up a federal system. As I mentioned twice in my presentation, the provincial level is the essential level of jurisdiction for action here, and this bears no relation to the provinces' constitutional position. We can in some cases manage to protect the habitat of one or two protected species. However, we cannot remove those species from the provincial wildlife protection systems overall. We can't isolate them from other species.

[English]

Perhaps I could continue on this point just for a moment. It really is an important one, and I appreciate the reference.

It is impossible to conceive of a system that is strictly federal unless you've essentially said we're out to do what zoos do—just protect one or two here or there. And I mean no disrespect to zoos. We have some great zoos in Canada, and great people work there. But if you're trying to have functioning populations, you need to have adequate space. If you need to have adequate space, the very first thing I will mention is—and I'm not an expert or a scientist—that the first principle of ecology is everything is connected to everything else. You cannot avoid considering all species together, and you cannot avoid considering the entire area in terms of the biogeographic zone. So to suggest that we can somehow pluck out some federal beasts and call them the federal things and in this little area we're going to protect them but it doesn't matter what the province does is essentially ultimately to concede defeat on what we are trying to do.

We have to work with the provinces because they do control wildlife that's not endangered, they do handle hunting permits, and they do deal with land use decisions that are not federal. To suggest that we can somehow here, there, and everywhere manage to deal with every species that has approached extinction ignores the history that the only real way to prevent species going extinct is of course to deal with them when the populations are still healthy and in good numbers. You can't keep waiting. We're dealing with species at risk, which is the end of a process of which I guess we all should be embarrassed. Hopefully, we'll be working more and more at the front end preventing species from becoming at risk, and to do that you need the territories and provinces. It's impossible to suggest that it could happen otherwise.

[Translation]

The Chair: Thank you, Ms. Girard-Bujold.

[English]

Mr. Gruending, please.

Mr. Dennis Gruending (Saskatoon—Rosetown—Biggar, NDP): Thank you, Mr. Minister, for coming in today.

I'm a new member of Parliament, as you may know. I've been here for about a year. Prior to my being elected, people always told me that committees were a waste of time. I've found being on the environment committee to be anything but a waste of time. I think we've done a lot of good work here.

It was in that context that last spring there was great consternation in the committee—and not just among opposition members—when it was attributed to you that you really weren't interested in making any changes to the legislation no matter what. Now today in a very friendly question asked of you in the House by one of your members, and here, you are saying, I think, that you are prepared to take the advice of this committee seriously. I'm curious to know why you changed your mind. What led to that?

Mr. David Anderson: You have indicated that you are a new member of the House, so let me explain something known to most, but not all, and that is that when legislation is drafted, it is by cabinet instruction. The cabinet will discuss an issue in general terms. If it is considered that legislation is necessary, a committee of cabinet will be struck to look at it, or it will go to a committee of cabinet. The various interested departments will offer their opinion. Instructions are then given to the draftspersons to write a bill.

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What I said—and I stand by every bit of what I said—is that I cannot allow this bill to be destabilized by amendments that destroy the intention of the bill. The reason I can't do that is if the committee comes up with amendments that are beyond the scope of the drafting instructions, obviously the committee of cabinet, not the minister, is responsible for whatever happens thereafter.

Again, you put your question in terms of a new member of Parliament. That is the process of getting legislation forward.

I have searched and searched, sir, for this alleged claim that I somehow was totally uninterested in amendments. My staff have searched all the newspapers and the accounts from interviews I have had. All I said was I obviously cannot accept amendments that destabilize the bill. I am happy to accept amendments elsewhere.

So with due respect, I have not changed my position. But I do think it's important to understand that this bill is the one that has an enormous number of forces affecting it, just as we found with Bill C-65.

Mr. Dennis Gruending: Now I feel a little less confident than I did this afternoon in the House, than I did half an hour ago, I'm afraid. I think I hear you saying that you are going to ram it through. I think that's what I hear you saying—

Mr. David Anderson: No, you are not. I deny that. I disagree, and that's quite unfair in terms of my comment.

Mr. Dennis Gruending: I have not been a member for long, but I've been a journalist for 20 years. When people tell me they were misunderstood or misquoted, especially politicians, I'm usually a little suspicious of that.

I would like to move on—

Mr. David Anderson: Excuse me. I do feel, Mr. Chairman, that I have explained the position that I have had all along. We have searched to find whether there is any indication of stories that support the position you have put forward. If you have some, put them forward now, sir, so I can respond directly to what I was quoted as saying.

Mr. Dennis Gruending: Well, I can only respond to the feeling of almost deflation and depression that descended upon this committee last June, when people wondered what was the whole point of it if it wasn't going to make any difference in the end anyway.

I would like to move on to another question. We've heard a lot in recent days about how this proposed law would or wouldn't offer support or assistance to landowners—we've heard a bit of that today—and other people. Communities and land users and workers are also part of this equation. I would think people like this would realize economic losses, at least potentially, not just large companies or logging or oil companies.

I want to know if you are willing to support amendments that would incorporate financial support for just the transition of workers who are displaced by any efforts to save species at risk.

Mr. David Anderson: The immediate response is to refer to the compensation provisions that will be coming from Dr. Pearse. However, in terms of approach, it is extremely unlikely. The compensation provisions are limited. The amount of money, as was pointed out by Mr. Jaffer, is limited. Our belief is that we would be compensating, or would be most likely to compensate, those who are directly affected by a deliberate restriction on their property by reason of the workings of the habitat provisions.

Mr. Dennis Gruending: But surely at some place and time that would affect people who don't own...but who work and are affected by habitat plans.

Mr. David Anderson: Again, this is the fascinating area of compensation referred to by Mr. Jaffer. The fact is one could go on and on as to people who could be affected one way or another. The real question for governments is where is the appropriate limit.

I am waiting for his expert advice. I assure you that it is going to be a very, very interesting discussion. But the open-ended area that you have proposed is not one that I'm adopting at this time.

Mr. Dennis Gruending: Mr. Chairman, I'm enjoying this. I wonder if I have more time.

The Chair: For a very brief, short question, yes.

Mr. Dennis Gruending: You have referred several times to Bill C-65 and have talked about the amount of time this has taken. One of the observations I would make...when we read the two bills very closely this summer, in a lot of areas what used to be “shall” has become “may”. In other words, something you would do has become discretionary. I'm curious to know why the government made so many changes from Bill C-65 in areas that didn't seem that contentious and why you've substituted discretion in many places where Bill C-65 had requirements.

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Mr. David Anderson: The quickest answer is to say that Bill C-65's major criticism was that it applied only on federal land south of 60 degrees, which is about 5% of Canada. This act goes much further. You are sitting next to a lady who I am sure would be quick to point out that provincial responsibilities and competence must be respected. There will be many situations where were this only to deal with federal lands, you would have the word “shall”. When it comes to all lands in Canada, including private lands, and the type of people you have referred to whose living may be affected by a decision, it is important to have the discretionary element.

Mr. Dennis Gruending: Even north of 60—

The Chair: Thank you, Mr. Gruending. Mr. Herron, please.

Mr. John Herron: Before I ask my questions I want to preface my remarks by saying that I believe the government has tried to make a very sincere effort to provide a decent piece of legislation. I think the efforts are more comprehensive than what we saw in Bill C-65, maybe not the content yet, but the efforts have been all right.

I was a little bit willing to block this legislation when it came to the House earlier on, not only in terms of what we saw in Bill C-33 but also in the comments that have not only parliamentarians concerned but also many NGOs are very interested in your concern about destabilizing the bill. In your words, “amendments could potentially destabilize the bill”. We might say that they maybe would improve the bill.

What we're more concerned about is the episode that took place with regard to Bill C-32. What happened in Bill C-32 is that we sat here through committee for numerous months and time and time again made amendments, and at report stage the government chose to revert to amendments that were done here at this committee. With that in mind, in light of the comment that we don't want to destabilize the bill, you might understand why parliamentarians might be just a little bit hyperactive on the fact that our work here in this committee would be taken seriously, because the government has shown only contempt for the work of this committee as demonstrated at the report stage of Bill C-32.

You only came in in the ninth inning of Bill C-32, but before the Senate you said that if serious amendments to Bill C-32 took place, you would pull the bill. As parliamentarians, we do not want to see a repeat episode of that exercise. That is why you have a hoist motion on Bill C-33 before the House today, because of the comments on destabilization and the past practice that took place on Bill C-32.

Ms. Redman set up the puffball question that Gar set up today in order to show that you would be a little bit more cooperative. I'll take you at your word that you will let the committee do its work, but we do need to be able to see that in practice and not just in Gar's puffball, as we saw. So that is the concern we have.

Some revisionist history has taken place. You said that you've never said anything to get people irked. Your comment, which was reported on numerous occasions, was “if you destabilize this legislation, it is probably gone”.

I gave you the courtesy of seeing my position paper a few weeks before you tabled yours in Calgary. Mine, I might add, was given an A and yours a D, but we'll move on to that later on. In your comments on compensation that you made earlier on you said that responsible behaviour is something we expect, not something we should buy. I believe the government has moved on compensation. I think that's a step in the right direction, so bravo in that regard.

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That's the premise of why we have a hoist motion. That's why I haven't been my normal jovial self as of late here in committee.

I have a couple of specific questions. Why do you—

The Chair: Mr. Herron, you have time for one, at best.

Mr. John Herron: I'll try to get two in really quick.

The Chair: Go ahead.

Mr. John Herron: Do you believe that the bill would be destabilized if we had mandatory protection of habitat on federal land? Who is destabilized—the federal bureaucrats?

I have a second one to follow.

The Chair: Could we have a brief answer?

Mr. David Anderson: The first point I'd like to make is this is a committee of the House of Commons. The House of Commons voted changes to the committee report, you're right, but it was the House of Commons that did it. And it is not contempt of Parliament to accept that the House of Commons is superior to a committee of the House. That's the first point I'd put to you. That is the case.

With respect to Bill C-32, I in fact became minister—you're correct in your comment—after it had passed the House. I believe I became minister in June. With respect to the Senate, the issue there was the impossibility of having the yo-yo back and forth in the Senate and the House as amendments were made.

I had had enough time on CEPA, candidly. After all, it was a review that should take place, according to legislation, every five years, and the review had taken six. It was then eleven years after the first thing. So I indicated that because of the thorough work done by this committee and because of the fact that the House had spoken, I thought it was inappropriate that the Senate get around to making a series of amendments at will and at whim.

Mr. John Herron: They're part of Parliament under the system. Like it or not, the Senate is part of Parliament. That is a point of fact here.

Mr. David Anderson: Look, I made my views clear at that time, and I was happy to discuss that at that time. The Senate had no reason to pass it if they decided not to pass it. They chose to pass it unamended. That's the decision of the Senate, which I respect. I think you should do likewise.

With respect to whether I believe, I'm not going to answer hypothetical questions without the detailed comment there. I will say, as I said before, on the issue of lands, if you set up a hierarchy, Mr. Herron, and you say federal lands up here and special parks are a little higher than railway right-of-way lands, or reserve lands, or DND lands, and you set up a whole hierarchy of lands down to private land regulated by the province, you are tempting a judge on the first constitutional challenge to a draw line and say this legislation is for federal lands only. If you want that, put it in, but that's the risk you run. And I'm going to have to decide at the time whether that jeopardizes the protection on the 95% of Canada south of 60 that is not controlled or regulated by the federal government.

The Chair: Mr. Herron, in fairness to your colleagues, I must move on to the next. Thank you, Mr. Herron.

Madame Kraft Sloan, Mr. Lincoln, Mr. Reed.

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

Mr. Minister, I think it's important that you consider coming again to the committee after we have the legislation, because I'm sure there are a lot of technical questions about the bill that we would like to raise and ask you. It might be helpful, actually, if you came later in the process so we could have a clearer understanding of what destabilization actually means.

I want to return to some of the remarks you made in your brief you prepared for the committee. You talked about the loggerhead shrike, and this is a species at risk. You have certainly put forward all the things that can happen to protect the loggerhead shrike. I think there are issues around this that suggest that there are perhaps a lot of discretionary aspects we have to consider.

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For example, the loggerhead shrike is a species at risk, but what happens if it doesn't get listed? What happens if habitat isn't protected and if provinces are unable or unwilling to take care of and protect species on provincial land? The federal habitat safety net is discretionary. We're talking about the things that work if indeed the Governor in Council decides to make sure they work, but what happens when they don't?

Mr. David Anderson: Thank you for the comments about the loggerhead shrike. I saw my first loggerhead shrike this summer in Saskatchewan. It had placed a snake on a fork in the branch in the appropriate way. It was really quite interesting to see an animal that stored up its food for the future in that way.

What happens if it's not exercised? The obvious answer is it isn't exercised. It's not rocket science here. What I think we have to recognize, though, is that if we have a system where the governments in question and the parliamentarians who support them in Parliament or in legislatures don't want something to happen and then it happens because of the automatic working of a piece of legislation that was passed some years before, you'll get in a situation where the legislation disappears pretty fast.

In addition, you'll get into situations where the legislation is got around. For instance, we have the American ESA, which I know quite well because of the uselessness of that piece of legislation to protect endangered Atlantic salmon and Pacific salmon, migratory fish, which originate in Canadian rivers or American rivers, as the case may be. We have hopefully 100 pairs, certainly 200 adult animals, of Atlantic salmon returning to the rivers of Maine. It's unlikely to be 100 pairs if you have 200 of that fish. The governor of Maine says that if it's listed, he will use DNA testing to make sure that the act is set aside in the courts because after all the DNA is the same as the DNA of Atlantic salmon in the Bay of Fundy.

Mr. Chairman, this is just an absurdity. Here you have a magnificent animal whose DNA may be the same, but it's all in the courts. Instead of doing your best to protect the animal, it becomes a legalistic battle. The United States federal government simply hasn't been willing to get out there to protect an animal of which there are only 200 returning to American rivers.

Even where you have legislation, sometimes it isn't used. So to suggest that all you'd have to do is get an automatic system and once it's on auto pilot all will be well is wrong. You have to have a system—and I know it's tough for NGOs in particular to accept this—where you must look at every level of government and where you indeed have to work on a regional and local basis as well as just having a federal piece of legislation that is designed to do everything.

If legislation to protect endangered species is to work, it has to inculcate and support the desire to protect it on the ground everywhere in Canada. It can't be done only in this building. It has to work on the ground.

I can only say that in the future, where the word “may” occurs in the legislation and a subsequent government chooses not to do it, then that is the situation that will be the case. But you can make it mandatory at this stage. You also know that when you reach that situation in the future, the legislation will be repealed. We know that as parliamentarians. We're always repealing legislation, perhaps not enough of it, but we do repeal as well as pass legislation.

The Chair: Mr. Lincoln, please.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): Mr. Minister, of course we'll agree and disagree about various things and that's the way it is. But certainly from the letters I've read from the societies that have written to the Prime Minister and the industry and environmental groups, I think there is a consensus, which certainly many of us see anyway, that certain aspects of the law need beefing up. We may agree or disagree, but I'm just saying what I feel is a broad consensus at large backed by polls and so forth.

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I would just relate six of them quickly. There are the discretionary nature of the protection of federal habitats, the lack of inclusion of habitats and migratory species, and the advisory role of COSEWIC. I know you say that you've broadened COSEWIC, but at the same time you've lost its key asset, which is independence. The others are the non-incorporation of the list as a start-up list, the lack of an interim habitat protection clause, and the absence of any provision for citizen suits. Some alternatives have been proposed by environmental groups and industry that are not in the proposed legislation.

I don't have time here, so I'm just going to refer to one issue, which is the matter of the legal listing. What we are saying is that there are 353 species now listed by COSEWIC that were incorporated in Bill C-65 and that we don't put in because we say it's not complete, it's not good enough, so we're going to review it and include the aboriginal issues and so forth. That's fair enough. But by not listing them what happens is that we wait for the proclamation of the act, we go to the Governor in Council, there could be an election in between, so when do we list and at what point does that list become legal? Is it three months, six months? I would rather take a list that is not as good but that legally is inside the act and that I can improve.

In your speech you mentioned that 123 species have already been reviewed by COSEWIC. Why can't we include at this time the 123 that already have been reviewed so that we have a start-up list? It seems to me that all the time it's subject to cabinet approval, which may not come, and there could be a different cabinet next week or in six months time. Shouldn't we insist that there be a start-up list in this legislation and if it has to be a smaller list, a reviewed list, that it be in there now?

Mr. David Anderson: I'm somewhat hampered by the restrictions placed upon me at the beginning of the session about dealing with specific provisions of the legislation. I expect Mr. Herron to leap in and instruct me quickly, I'm sure, about how I should not be answering this question.

Let me simply say that you talk, sir, about there being general consensus that everybody now has been heard on this. No, they have not been heard. It's the job of this committee to hear these people and to come up with considered recommendations. Without the bill even getting second reading and without even having had the first witness appear before the House of Commons committee, it is not the time for a minister to say we'll make this change or that change. That would be the height, I'm quite sure, of contempt of a committee.

People have been critical of the fact that I have made the absolutely straightforward statement that a minister cannot destabilize a bill because they have to take it back to cabinet if changes get beyond the original drafting instructions. I think that's a statement of the existing constitutional position, and people have taken exception to it. But if I got into the position of saying you're right, Clifford, you and I are good friends, so I'll accept your amendments on this even though I haven't heard any possible comment from anybody else and even though I haven't had the discussion that this committee will provide, I would think I'd be in much greater trouble than I appear to be in at the present time.

Mr. Clifford Lincoln: If the hearings that are going to take place—and we're going to hear from a hundred groups—confirm the six points as being flaws that need to be addressed, are you then saying that once we have heard it here, once the committee has agreed that we have heard these things, then they will be considered?

Mr. David Anderson: Of course they'll be considered.

Mr. Clifford Lincoln: Okay.

Mr. David Anderson: The only thing I caution you on—again, even Mr. Herron in quoting me had to agree that the word used was “destabilized”—is that to destabilize a bill means knocking it off the balance of varying supporting interests that there may be. It means knocking it off the support that there may be in the House of Commons, the understanding there may have been as a result of committee discussions and decisions. You know, a minister can't be asked to destabilize legislation. I mean, that's just absurd. Forgive me, but it's not an appropriate position for a minister to be in.

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I believe that any intelligent changes you propose, Clifford—and I'm sure they will be intelligent if you propose them—will be very carefully considered. But because I suggested that this bill is not up for complete revision starting from scratch, no matter what the principles might be, so somehow or another this is the wrong position to hold.... I simply say I disagree. I want to hear what this committee has to say.

There are people around this committee table who are very knowledgeable people, with lots of expertise and knowledge. There are lots of witnesses who are going to come before you or send you briefs who will have examined the details of the legislation and they'll say that the draftsmen and draftswomen have missed this or that point. If they do, good for them. But I really feel that somehow this has been overdone, this issue of destabilizing the bill.

The Chair: With that comment, that wraps up the meeting for this afternoon. I would like to thank Mr. Lincoln.

The reason for making this intervention at this point is that we have to relinquish this room to make room for the justice committee, which has been given an order by the House to meet at 5:30 on Bill C-3, something that was unplanned or unforeseen until the vote this afternoon.

I would like to thank Mr. Lincoln, Madame Kraft Sloan, Mr. Herron, Mr. Gruending, Madame Girard-Bujold, and Mr. Jaffer for their interventions.

I have Mr. Reed on the list and myself and Mr. Benoit for a second round. We will try to arrange another meeting. We will reconvene tomorrow with other witnesses. In the meantime, on your behalf I thank the minister and the officials for their appearance this afternoon.

This meeting is adjourned.