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STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, October 17, 2000

• 0905

[English]

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

[Translation]

Good morning, ladies and gentlemen. We are resuming our work pursuant to Standing Order 108(2).

[English]

Time is valuable and we are blissfully proceeding with this bill. Also, there is a rumour of other agendas around us; nevertheless, this agenda is also important and we want to bring it forward as much as possible until perhaps other duties will prevail on us.

Today we have quite a substantive group before us, as you can see from the agenda circulated by the clerk. Without any further delay, I would like to call on our witnesses to proceed.

Let me say that for tomorrow afternoon it seemed desirable only for practical reasons to cancel the meeting because of the statement the Minister of Finance will make in the House, which would probably result in a very low attendance and in the absence of a quorum at this committee. Thursday morning, however, we will proceed with our regular work, and next week too if we are here.

The clerk has provided us with a very thorough agenda for the next six or seven weeks. There will be plenty of good work that could be done, and if it doesn't get done in the fall it will probably be very close to the top of the agenda when we come back, when Parliament comes back. Hopefully the government will decide to give this bill the highest possible priority so that it is dealt with in the first half of the life of the next Parliament so that it doesn't become the victim of other circumstances.

So with that little preliminary weather forecast, I invite you to proceed. I imagine the introduction is Elizabeth May, who will then introduce her team. Welcome to the committee.

Ms. Elizabeth May (Executive Director, Sierra Club of Canada; Species at Risk Working Group): Thank you, Mr. Chairman, and thank you, members of the committee.

It's a rare experience to be presenting in collaboration with my partners at the table today. It's fallen to me to introduce who our group is and how we came to be, and then we'll be turning things over and presenting pretty much in the order of the recommendations that you find in our written brief.

As you know, my name is Elizabeth May, and I'm executive director of the Sierra Club of Canada. Let me start by introducing the people around the table and then I'll tell you about how the Species at Risk Working Group came into being. On my far right, and there's no political content to that analysis, is Tony Rotherham, the director of forestry from the Canadian Pulp and Paper Association. Next to him is Sandy Baumgartner, who is manager of programs and communications at the Canadian Wildlife Federation. Also here is Robert Décarie, the biodiversity adviser for the Canadian Pulp and Paper Association. To my left, and definitely no political content there, is Gordon Peeling, president and chief executive officer of the Mining Association of Canada. Next to him is Pierre Gratton, who is the vice-president for the Mining Association of Canada. And also here is Marc Johnson, from the Canadian Nature Federation.

• 0910

We are also very pleased that we are joined today by some people with on-the-ground experience in these issues who are seated immediately behind us and may come to the table to make a few comments and be available for questions. Dave Lindsay is a biologist who's worked on wildlife, fisheries, and forestry issues in coastal British Columbia for over 25 years. He is currently employed by TimberWest Forest Limited and is a member of the marbled murrelet and Vancouver Island marmot recovery team. Gary Nielsen is a professional forester who lives and owns forested land in eastern Ontario. He grows Christmas trees and produces maple syrup. He is currently employed as a stewardship coordinator in Leeds County, working with private landowners in a wide variety of projects promoting stewardship and responsible land management. We have tried throughout this process to keep our feet firmly planted on the ground, and Dave and Gary are here today to help us do just that.

We are self-selected. We created ourselves without a mandate. But in the aftermath of the death on the Order Paper of the last attempt at endangered species legislation, Bill C-65, a number of us representing very different sectors who had held very different views during that debate felt that perhaps the differences between us were more perceived than real and that if we could sit down together in an atmosphere of cooperation and partnership we would perhaps come up with some solutions to defuse the polarization.

We started in April 1998 as the Species at Risk Working Group. We've put together a number of policy papers, initially with the assistance of the National Agriculture Environment Committee. We put together a brief that went to all provincial and federal wildlife ministers in November 1998. And we've continued to work to try to come up with creative solutions to the different perspectives and problems posed by creating strong endangered species protection across Canada. We have always worked towards a balanced approach. Our work has not been in the nature of negotiation. We have genuinely collaborated, working towards shared problem-solving in an atmosphere of quite strong consensus. And the consensus has been sufficiently robust that even with changes over time, different personnel for different agencies that have worked together, we've maintained a very strong commitment to the principles that we put forward initially in November 1998 and that we've tailored today to present as recommendations in relation to Bill C-33.

I also want to let you know that we consulted widely. We brought in people from all sorts of sectors who are not part of our smaller working group. We had meetings with as many as 30 and 40 people from across the country representing fisheries interests and those who aren't part of our core group.

I'd like to share with you that our philosophy throughout has been to come up with a solution that is practical, that is made in Canada, that is not modelled on any other country's legislation. At every turn we asked ourselves, will this work for species and will this work for people? We think we've done a very creative job and we hope that it's helpful.

We're mindful of the chairman's comments that a person couldn't be alive in this country and not be aware that this bill is likely to die very soon on the Order Paper. We are hopeful that by putting forward some collaborative, positive solutions and compromises at this point perhaps it will be helpful. We are very encouraged by the chairman's remarks. We certainly hope that the next government will take this bill on board soon in the next mandate, whichever party forms the next government.

With that, I'm going to turn it over to Gordon Peeling for a brief overview of our reactions to Bill C-33.

Mr. Gordon Peeling (President and Chief Executive Officer, Mining Association of Canada; Species at Risk Working Group): Thank you, Elizabeth.

After two years of efforts developing and promoting what we believe are the key ingredients for providing the most effective protection for species at risk, all of us were determined to complete the process and respond collectively to the Species at Risk Act. There is no question that developing a consensus response to legislation has been a most challenging endeavour. Our brief is the result of several months of hard work and spirited debate.

What we offer you is our best advice on how to improve the Species at Risk Act in a manner that works for species and for people. Our recommendations vary from straightforward but key improvements to legislative language to more comprehensive changes to the scope and breadth of the act. All of our recommendations are important and they all work best as a package.

Our advice is grounded in three key themes that have guided our efforts from the very beginning: first is that efforts to protect species at risk by legislation, policies, and programs be developed in a manner that works for species and for people; second, that these efforts be designed to foster trust and cooperation between governments and among stakeholders; third, that solutions be pragmatic—they must make sense to people who work on the ground.

We hope that our efforts to reduce polarization around the prospect of legislation to protect endangered species have been helpful to date and that today's appearance takes us a step further in this regard.

• 0915

For ease of presentation, my colleagues will speak to each of their recommendations in the sequence they appear in our brief. However, let me first make some general comments on SARA.

As emphasized in our brief, we are pleased to see many of the elements we have advocated in the minister's three-pronged approach to protecting species at risk. It has long been our view that real success in protecting species requires more than just legislative action. Policies and programs adequately resourced and designed to assist Canadians in achieving the goals of legislation are essential.

We therefore applaud the government and the government's recognition of the need to support voluntary stewardship by allocating resources in budget 2000 to develop a Canadian way to creatively protect and recover species at risk and to protect other species from becoming at risk in the first place. Already the minister has announced funding for several important projects across the country, making a concrete difference to the future prospects of some of Canada's most vulnerable species.

In addition, we welcome the cooperative spirit embedded in SARA. Its emphasis on stewardship and the enabling of conservation agreements is a constructive, pragmatic approach, which will deliver results. This cooperative spirit is also reflected in the act's efforts to promote the involvement of local stakeholders and recovery strategies as well as in the provision enabling the payment of compensation, although, as we will discuss later, we believe improvements can be made to both these areas.

Finally, we strongly endorse and support the absence of citizen suit provisions in SARA. While citizen suits can be an effective accountability mechanism, all of us believe that it is an inappropriate tool for dealing with the protection of species at risk and would, if included, undermine the act's efforts to promote trust and cooperation on the ground.

Despite these positive features, we still have significant concerns with key elements of SARA and we believe it can and must be improved. The most basic legal protection that one would expect from species-at-risk legislation, prohibitions against killing and destruction of residences, is not assured by SARA.

In areas of clear federal jurisdiction, the government's commitment to protecting species at risk is questionable. Processes for providing protection are complex and convoluted. The proposed safety net is not set up in a way that seems destined to discourage much-needed federal-provincial-territorial cooperation.

Good legislation is essential to the overall success of Canada's efforts to protect species at risk, and we do not believe that SARA, without amendments, will achieve the results Canadians expect. We believe that our recommendations will not destabilize SARA, but rather build upon SARA's cooperative foundation. Most important, we believe our proposed amendments will enable SARA to go further in terms of providing assurances that species will be afforded the protection they need and that those who work on the land will have their rights and interests respected.

Let us now turn to some of our specific concerns regarding SARA. I'll turn it over to Robert Décarie to talk about the amendments we'd like to see in the preamble.

The Chair: Thank you, Mr. Peeling. That was very helpful.

Please go ahead.

[Translation]

Mr. Robert Décarie (Biodiversity Advisor, Canadian Pulp and Paper Association, Species at Risk Working Group): Good morning. First of all, I will deal with our suggested amendments to the preamble, which are found in chapter 2 of our brief. I will not, however, be dealing with everything found in this chapter.

What enabled SARWG to reach a common position on an issue that used to polarize us? We spent a great deal of time listening and working together to come up with solutions. What really made developing the approach we are submitting possible was, on the one hand, the SARWG industrial members' acceptance of conservation measures and, on the other hand, the NGOs' acceptance of the need to define and to set the parameters for these conservation measures, and to supplement them with socio-economic measures.

We are very flattered by the interest shown in our work. However, we often deplore the fact that we are quoted in a willy- nilly fashion.

• 0920

Indeed, SARWG is suggesting more rigorous conservation measures than those found in Bill C-33, but it is also asking for more direct consideration of social and economic factors. This sets us apart from other organizations that quote us often and at great length. The industrial members of SARWG are often surprised and feel quite uncomfortable when they read in the newspapers that industry is seeking strong legislation, for instance. Yes, once again, we want tighter, stricter measures, but they must be part of a process that integrates economic and social aspects.

When Bill C-33 was tabled, the most common criticism made by the conservation sector pertained to what is called the government's discretionary power in enforcing conservation measures. What is this discretion concealing? In reality, there is the will of the government to consider other social values in partnership with the provinces, but also social and economic issues and costs for the State.

In order to achieve this objective, socio-economic factors must be better integrated into the process triggered by the legislation, which would reduce the need to use discretionary power. We are suggesting that the socio-economic dimensions be included first in an amendment to the preamble which would go further than the two tiny, very discreet referrals that are currently made in the legislation to socio-economic realities.

I will go back to my text. Currently, there are only two referrals made to socio-economic realties. We are suggesting that we pursue the very objective of the legislation, mainly conservation, while bearing in mind socio-economic interests. A little later, you will see how this can apply when we deal with the recovery process.

The second amendment to the preamble pertains to the acknowledgment of the principle that the costs of protecting species at risk must be shared by all Canadians, and not be borne solely by a small group of landowners, resource users, workers or communities. This is an amendment that supports the compensation principle.

I will now turn the floor over to Sandy Baumgartner.

[English]

The Chair: Mr. Décarie, I have some conceptual difficulties in following you in this elaboration at an abstract level. You see, first we have to satisfy all the social requirements, then we have to satisfy all the economic requirements, then finally we take into account the endangered species. Well, that's what we have done until now, you know. We have to make up our minds whether, in approaching this legislation, we are driven by the desire to address the situation of the endangered species or by the desire to address the condition of the human beings on this planet. We have to make up our minds, because it's a difficult choice, inevitably.

• 0925

We wouldn't be in this situation if we hadn't over the centuries given precedence to socio-economic considerations that have brought us to this point. When you talk about satisfying the socio-economic considerations, it seems to me that we are, in a slightly modified manner, still pursuing the same course that we have pursued so far.

Anyway, I'm just intervening with a comment that is totally out of order, so—

Ms. Elizabeth May: As you're the chair, I don't think it could be out of order.

The Chair: Thank you.

Ms. Elizabeth May: If I could just say so, this is one of those areas in which it might look to an outsider as though this was an industry thing that was said and that environmentalists might not agree with it. The Sierra Club supports the inclusion of these principles in the preamble just because we need to foster cooperation on the ground.

I think a lot of people across Canada need to see themselves in the bill. The reality is that the first and major effort of our SARWG group is to make sure that species are protected and that there is a substantial change, not the status quo moving forward with some tinkering around the margins. But we do think that for it to work, as we make the protection of species and the recovery of species the paramount concern of the bill, the concerns and socio-economic impacts should be considered at every aspect of that process. You'll hear more about that when we present on the recovery aspects.

But I'm sorry for interrupting, too. We'll move to Sandy.

The Chair: Please proceed.

Ms. Sandy Baumgartner (Manager of Programs and Communication, Canadian Wildlife Federation; Species at Risk Working Group): Thank you.

I'm going to just talk about the COSEWIC and the listing process, Mr. Caccia, getting back to the species side of this equation.

The first step in species-at-risk conservation is the identification of what species are at risk and what species are at greatest risk. It's not only the first step, but probably one of the most crucial steps in species-at-risk conservation. This function has been undertaken by a committee called the Committee on the Status of Endangered Wildlife in Canada, COSEWIC, which has been functioning for twenty years, identifying species and giving them rankings as endangered, threatened, vulnerable, and now as species of special concern.

Uniquely enough, and probably to the benefit of the SARWG group, the Canadian Wildlife Federation and the Canadian Nature Federation were two of the founding members of COSEWIC. So I think we brought a lot of that expertise and background information about the listing process to our efforts.

I suppose the one discouraging thing is that this is probably the least broken of any efforts currently underway to protect species at risk in Canada, yet it's probably one of the most hotly debated and discussed issues on this topic. You'll be hearing from members of COSEWIC—the chair and a few of the members—on Thursday, I believe, so you'll be able to see first-hand the level of expertise COSEWIC has and the level of scientific expertise COSEWIC has.

We as a group have a number of recommendations—which you'll find in our brief—that do address the listing and COSEWIC process. We think they're essential to strengthening SARA and ensuring the integrity of COSEWIC.

First and foremost, we agree that the listing process must be based on science, and science only. If any, this is one of the areas where there is agreement. We all agree that the socio-economic concerns should not come into play. In order to make proper decisions for species, you need to know what the conditions of those species are, and they must be based on science.

As well, we feel the process must be transparent. The public at large must know why species are listed and how those decisions came about. If there has been any criticism of COSEWIC and its operations over the last twenty years, it has probably been that COSEWIC has functioned as a group of scientists quietly going about their business while nobody knew about them and nobody understood their processes and their work. I would hope that through the discussions and the debates we have undertaken over the last two and a half years, we've been able to share with others the expertise that COSEWIC has brought to bear on this topic.

As well, we feel strongly that COSEWIC must function as an independent body. COSEWIC does have government members on it, and we concur and believe it is important that those representatives may be a part of COSEWIC. At the same time, it's important that they are able to do their job and make their decisions based on science and nothing else.

Probably one of the most controversial aspects of SARA has been the issue of what's termed the “legal list”. Who makes that final decision? Is it COSEWIC? There are those who say COSEWIC's list should be the legal list. At the same time, we're told—and the minister is quite adamant on this point—the government must be the final decision-making body because of the impact and the consequences of those listing decisions.

• 0930

The SARWG is proposing what one might say is a compromise. What we're suggesting is that COSEWIC's list should become the legal list and that the government should take species off the list if there's a reason why it feels those species shouldn't be on the list, that there shouldn't be prohibitions applied, or what have you. We call it the negative billing option. This way, we feel, species have to come off the list for valid reasons and those reasons have to be known to the public.

We also recommend that the current COSEWIC list become the legal list upon passage of this bill, basically rolling over the current list. Over the last number of years, COSEWIC has been in the process of updating the status of species, reviewing them, and making sure the science is up to date. We feel confident that the list being rolled over would be an adequate assessment of species that are endangered and threatened in Canada.

Finally, we suggest that there be some tightening up of the emergency listing process. The timeframe for a species that is listed on an emergency basis is too long for the preparation of a status report. If a species has been identified and listed on an emergency basis, we would probably see that it was in critical condition, so a status report should be prepared expediently. We therefore think those timeframes should be tightened up and that COSEWIC should do a proper review of those species in a quicker timeframe.

I'll leave it at that. Our recommendations on listing are in our brief. There aren't very many. As I say, this isn't a part of the process that's broken.

I'll pass now to Elizabeth, who will discuss prohibitions.

Ms. Elizabeth May: Thanks, Sandy.

The Chair: Thank you, Ms. Baumgartner.

Who is next?

Ms. Elizabeth May: I'm presenting the portion of our brief relating to prohibitions and constitutional issues.

One of the weaknesses of Bill C-33 that we find inexplicable—and therefore one of the strongest of our own recommendations—applies to the question of whether or not a species on a legal list is protected from killing once this bill is passed. I think most Canadians would find it astonishing that a government could bring forward legislation and pass legislation to protect species at risk, yet after the passage of legislation it would be legal across most of the landscape of Canada to deliberately shoot an endangered species. So the prohibition sections are pretty critical.

We believe the federal government needs to show leadership in the context of the national accord for the protection of species at risk in Canada. In doing this, one of the areas in which it has both the strongest constitutional foundation to act, and also in which it sets a context for much of the rest of the act, is in the prohibition of the wilful killing of species at risk and the destruction of their residences throughout Canada.

There are a couple of reasons why we feel this is critical. One bears a little bit of explanation, and I hope the committee, or any future committee review of a bill, will seek other constitutional advice on this point. The point is essentially this: The government has said it's using the criminal law powers constitutionally in order to pursue the protection of species at risk. We fully support the use of federal powers to protect species at risk, and we look for guidance to the most recent decision of the Supreme Court of Canada. The court looked at the issue of the nature and scope of federal authorities in environmental issues based on criminal law powers in the Hydro Quebec case, in which, as you know, the federal authority and jurisdiction under CEPA was upheld.

The court spoke very clearly, in the dissent as well, on the question of what is a valid use of criminal power and when criminal law power is used in a way that suggests it is not really a prohibition that is being delivered through an act of Parliament. Really, it's more in the nature of a regulatory authority. The more it slides into looking like a regulatory authority, the less constitutionally valid that exercise of federal power is. That's not doing justice to the Supreme Court of Canada, but that's basically it in a nutshell.

By establishing under this bill that clauses 32 and 33 say you will not be allowed to kill an endangered species anywhere in Canada, but then subsequently saying through clause 34 that those clauses don't apply except on federal land or for aquatic species or migratory birds unless there's a specific case-by-case decision by Parliament—in which case now and then we may be doing these things—you undermine the constitutional authority of the federal government to act, as well as creating something that we believe is politically unworkable and that creates uncertainty. Also, we believe it works against fostering federal-provincial cooperation in these matters.

• 0935

Our recommendations here are very clear. We strongly support the straightforward application of prohibitions against the killing, harming, harassing, capturing, or removing of an individual of a wildlife species listed as extirpated, endangered, or threatened, as well as prohibitions on the destruction or damage to a residence of individuals of such a species. In other words, clauses 32 and 33 as written should apply across Canada without qualification.

Now, given the importance of the words in those prohibitions, I'm going to turn to Tony Rotherham for some recommendations on how those definitions could be improved.

Mr. Tony Rotherham (Director, Wood Lands, Canadian Pulp and Paper Association; Species at Risk Working Group): Thank you.

Because criminal law powers are being used, and because offences against the prohibitions can carry some very heavy penalties—fines of $50,000 to $1 million, one to five years in jail—we feel it is absolutely essential that the language surrounding these prohibitions and the words that trigger them must be very clear. There must be certainty in the minds of all parties and there must be predictability. People must be able to tell that if they engage in this action, it will have the following result as far as offences are concerned.

People must know what constitutes an offence before it occurs or before they commit it. Wildlife officers and courts must know what constitutes an offence after it has occurred, so there will be certainty on that side as well. And quite obviously, all of the players must have the same knowledge.

Prohibitions must therefore be clearly stated and unambiguous in the act. They must be understandable by all parties. They must be easily recognized in the field, because that's where the offences will occur, not in a courtroom. And as I said before, it must be predictable. You must know that if I do this action, it will be or it will not be an offence.

Specifically, in the matter of residence, it is used in the sense of a shelter in the bill, and it must be defined in such a way that it cannot be mistaken nor construed to mean habitat. We offer a definition in our brief. Please refer to that for the details. A residence is a well-defined and limited place or site.

Because of the importance of this term, we recommend that the minister at the time of listing of a species state whether the concept of residence is applicable to the species in question, and if so, define it and describe it.

In the matter of the word “take”, which is in the bill, this is also open to considerable interpretation. Reference to the French text of the bill and discussion with CWS experts indicate that the sense of the word “take” used in the bill is to remove, as in the case of a plant being removed from a site. This is consistent with the French text, and we suggest that “take” in the English version of the bill be replaced with the word “remove”.

“Harm” is also one of the key words that can trigger an offence. It is also open to interpretation. It must be defined in clause 2 of the bill, and it also must be clear. The sense of the word should be limited to harm related to individuals of the species. It also should not be extended to habitat. Protection of habitat is dealt with under recovery plans.

An action causing physical harm is easy to understand. Actions causing disturbance to individuals, which might be construed as harm, are more difficult to classify. How serious a disturbance is required before an offence has occurred?

Parliament must provide a definition so that the intent of this bill is clear, and it must be Parliament that expresses the intent. Developing and clarifying the definition must not be left to the courts. That's a very expensive and difficult way to do it.

In the matter of species, Bill C-33 defines species in one way. COSEWIC uses a different definition. Two different definitions will lead to administrative and legal difficulties. One definition must be agreed on and used in both documents.

Finally, there is in clause 77 of the bill mention of a grace period. The one-year period of grace in the bill is applicable to federal permits and licences. We believe it should be extended to all permits and licences issued under the authority of provincial and municipal governments, because these licences and permits also enable people to do certain things, and they shouldn't be a different class, in our view, under this federal bill.

• 0940

I would like now to turn it over to my friend Marc for a discussion of critical habitat.

The Chair: Thank you, Mr. Rotherham.

Mr. Johnson.

Mr. Marc Johnson (Manager of Conservation Programs, Canadian Nature Federation; Species at Risk Working Group): I believe the committee is well aware that habitat loss and fragmentation is the single greatest cause of diversity loss in Canada and around the world.

Our working group has spent a considerable amount of time reflecting on how SARA should protect habitat. We've concluded that there are two essential elements that are needed. The first is a flexible recovery planning process that involves all stakeholders in determining appropriate habitat conservation measures. The second is the need for SARA to provide certainty.

At the end of the day, there needs to be assurance that the critical habitat of endangered species will be protected in areas of clear federal jurisdiction.

We'll speak a little later about how to improve upon the recovery planning process to ensure greater flexibility and inclusiveness, and the need to adequately address socio-economic considerations. I'll focus attention here on specific recommended improvements to SARA so that it provides an acceptable level of certainty.

We recognize that environmental protection in Canada requires the concerted, cooperative effort of governments at all levels. The federal and provincial governments both have jurisdiction over endangered species habitat; it is therefore essential that they work together cooperatively.

We believe the most important contribution the federal government can make to endangered species conservation is to have their own house in order. In other words, they must ensure habitat protection in areas of clear federal jurisdiction.

Specifically, SARA's habitat protection measures should be extended to all federal lands. Currently, Bill C-33 does not recognize lands north of the 60th parallel as being within core federal jurisdiction. These lands account for 90% of the territory owned by the federal government. By ignoring them, the federal government will be ignoring the responsibility to protect the Peary caribou, the wood bison, the harbour porpoise, and many species of whales, fish, and birds that are threatened with extinction.

The former Bill C-65 recognized federal authority for these lands. We believe SARA should do the same.

SARA's habitat protection measures should also be extended to aquatic species, which account for 25% of Canada's species at risk. It is incomprehensible to us that Bill-C33 does not do so.

The Department of Fisheries and Oceans is one of the three responsible ministries for SARA, and the Fisheries Act already provides broad habitat protection for aquatic species, yet this legislation ignores the federal government responsibility for protecting the critical habitat of aquatic species.

SARA similarly ignores the federal government responsibility for protecting the critical habitat of migratory birds. The Migratory Birds Convention Act provides clear authority for prohibitions against direct harm to migratory birds. However, we have heard the federal government suggest that this authority does not extend to their critical habitat. We've also heard opinions to the contrary, and we recognize that Bill C-65 provided for the protection of migratory bird habitat.

We therefore request that this matter be clarified, and if it is found that the federal government has clear authority over the critical habitat of migratory birds, then SARA's scope should be broadened accordingly.

I would like to now touch on the discretionary nature of habitat protection measures in the bill.

We believe that a balanced approach to habitat conservation will be achieved not through discretionary habitat protection measures, but rather by meaningfully involving stakeholders throughout the recovery planning process and providing them with a variety of tools and incentives to conserve wildlife.

The experience in Canada suggests that discretionary habitat protection measures simply do not work. Of the seven provinces that have endangered species legislation, four have opted for mandatory habitat protection provisions. In the three provinces that have discretionary habitat protection measures, not once have they ever been invoked.

If we look at an example, Quebec's endangered species legislation has discretionary habitat protection measures. Of the eight animal species that have been listed under their act, not one of them has been afforded habitat protection. The copper redhorse is a fish species that is endemic to Quebec; in other words, it's found only in Quebec. The recovery team, which includes government members, has specifically indicated that habitat protection is essential to the survival of this species. Yet its critical habitat remains unprotected under Quebec legislation.

The discretionary nature of their legislation similarly affords no habitat protection to the piping plover, the spiny soft-shelled turtle, or the loggerhead shrike.

• 0945

We therefore strongly recommend that SARA's critical habitat protections be made mandatory in all areas of clear federal jurisdiction. We do not believe that by adopting these measures we'll be adopting a U.S.-style command and control legislation. Rather, through an inclusive recovery planning process, stakeholders will be able to work constructively toward a common objective.

The last issue I'd like to touch on is the need for interim habitat protection measures between the time when a species is listed and when it's afforded protection under a recovery plan. It is expected it will take a minimum of two years before a species does receive any protection under a recovery planning process. During this time SARA affords no protection to the habitat of endangered species beyond their very limited residence.

We recommend therefore that SARA be modified to enable additional protection to the residences and areas that surround them. We refer to these measures as interim buffer zones. The purpose of these buffer zones will be to ensure that an endangered species habitat is not lost or degraded from the point of listing to when it has the opportunity to receive protection under a recovery plan.

An example of what these interim buffer zones would accomplish is to prevent a very real situation that has taken place in Canada whereby the nest of an endangered bird is left in a lone tree, whereas all the trees surrounding it are logged, so essentially it has no opportunity for recovery.

Buffer zones are well known and utilized in various resource management sectors, including such measures as two-kilometre no-disturbance zones around the nests of peregrine falcons, buffers along streams and rivers, and wetland protection programs.

We believe that the identification process for these buffer zones should be mandated in SARA. At the same time, the protection of these buffer zones should not be regulatory but instead should focus on stewardship measures such as landowner contact, the pursuit of conservation agreements, land easements, and other appropriate tools.

We discussed this matter of interim buffer zones a while ago in a meeting with Canada's wildlife directors, who have expressed a genuine interest in this approach.

In summary, by appropriately broadening the scope of habitat protection measures, making these measures mandatory, and by enabling non-regulatory interim habitat protection measures, we believe SARA can truly and effectively protect the habitat of endangered species.

The Chair: Thank you, Mr. Johnson.

Mr. Marc Johnson: I'll now turn things over to Tony to talk about due diligence.

The Chair: Please proceed.

Mr. Tony Rotherham: Due diligence is the defence proposed in SARA, but it is not a usual defence in criminal law offences. It is, however, a common defence in environmental law. Most environmental legislation, however, deals with point sources and sites that are generally under a high degree of control and knowledge by the organization working on that site, whether it be a private sector or public sector organization.

Bill C-33, on the other hand, deals with extensive areas of land. The due diligence defence will be both difficult and cumbersome to implement and to prove on these large areas of land. To give you an idea of the areas of land we are talking about, annual agricultural operations are carried out on some 50 million to 60 million hectares in Canada, mostly on family-owned farms. Management operations may be carried out on a significant proportion of the 25 million hectares of family-owned private woodlots each year. There are about 450,000 of these privately owned woodlots in Canada.

Canada has between 120 million and 150 million hectares of forest under management. Harvesting and silviculture operations cover, on average, about 2.2 million hectares per year. Mineral exploration is carried out on millions of hectares of land each year across the country. As a rough estimate, perhaps one million Canadians are involved in these operations.

Due diligence will be almost impossible for most of these individuals, due to a lack of expertise and information. Even the governments responsible for SARA do not have adequate information, so how can we expect ordinary citizens to have that information and to use it? So the opportunity for honest mistakes is immense.

We recommend the use of a mens rea defence. We also recommend that the government put in place a comprehensive public information and technical outreach program to provide Canadians with information required to identify species and their residences and habitats. This will help to avoid mistakes and it will also enable many thousands of positive actions to help all species, and particularly species at risk.

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This type of program will be essential in the event that due diligence is maintained as the defence. Otherwise, through the lack of information Canadians will be deprived of an opportunity to use the defence.

Gary Nielsen has spent many years working with private woodlot owners, and he can speak to the difficulties this defence imposes on private landowners. He'll perhaps do that now.

The Chair: Please proceed.

Mr. Gary Nielsen (Stewardship Coordinator, Leeds County, Ontario): Thank you. From a private land point of view, it's the stewardship and compensation aspects of this bill that make it new and different and interesting—and ultimately, that's what's going to make it effective.

I take your point earlier, Mr. Chair, that we are dealing with species on the brink of extinction, but the world is changing. As a citizen, I'm totally impressed with the panel you have before you here. I haven't been involved with them, but the fact that the pulp mills and the miners are sitting with the NGOs and the conservation groups and they're agreeing on how we should proceed I think is amazing.

We know that purely regulatory and punitive approaches don't work. Hanging horse thieves for a hundred years never stopped horse thievery. The problem with due diligence, from a landowner's point of view, is that nobody has the information required to make it work. If we look twenty years down the road, once we have proceeded along the road of having these recovery teams in place and they produce recovery plans, these recovery plans will have to include landowner notification, public awareness components. We will come to the point where due diligence could be reasonably expected to occur, but we're not there yet.

There are exceptions. We have a small pocket of Carolinian Canada in southwestern Ontario that has been studied to death. They know what their problems are; they know where the species are. You could perhaps reasonably expect due diligence in an area like that. In the rest of the country, we have no idea what we have on the ground. So I would certainly concur with the recommendation of the group that we're not there yet.

Thank you.

The Chair: Thank you.

Mr. Tony Rotherham: I would like now to ask Robert Décarie to talk about the recovery process.

[Translation]

Mr. Robert Décarie: This part of our presentation deals with chapter 8 of the brief. We can deal with the issue of the recovery process in terms of four main principles.

The first main principle is inclusion, namely, the need to include the various stakeholders in the recovery teams. Inclusion tells people that we are considering their requirements, that they will be acknowledged and not ignored, accepted as being legitimate members that are part of the equation. This will maximize our ability to meet the objectives.

The second important aspect of inclusion is that it will enable us to tap into the local knowledge and expertise on species and on ways to minimize the impact of recovery measures. It is certainly much easier to develop optimum scenarios and to encourage people to make the necessary changes when they are sitting around the table. This will maximize our ability to abide by the methods selected for the recovery plan.

In addition, inclusion means a better chance that the communities will adopt the recovery plans and the types of species, and will provide resources that will help lessen the costs to the State.

Clauses 39(1) and 48(1) of the Species at Risk Act state that both the recovery strategy and the action plan will be prepared in co-operation with a full range of partners, including people and organizations selected by the minister. We fully understand that there cannot be 200 people sitting around a table to develop a strategy or a plan. However, we do hope that the main stakeholders, those that manage large tracts of land, landowners or people who live in regions where there is a high concentration of threatened species, will be invited to sit at the table.

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However, the Species at Risk Act does not clearly spell out how this process will come about. Currently, there is talk about one team for developing a strategy and another for coming up with an action plan. We would advocate having one team, whose members will be involved in the process right from the beginning, to ensure that everyone participates.

According to the current wording of the Species at Risk Act, we may very well wind up with two teams: one composed of thinkers, and one composed of doers. The chances of these two teams being successful are slim.

The second main principle pertains to the scientific determination of species requirements. We would like to point out the importance of identifying the needs of the species on a scientific basis, especially critical habitat needs. This is the best way of doing a fair evaluation which will satisfy advocates for the environment, who will be assured that the needs of the species will be taken into account, and the users, who often fear improvised or knee-jerk measures, or the abuse of the precautionary principle. If there is inadequate data, which may well happen for several species, there must be a requirement to conduct a study in order to gain the knowledge required and to develop the plan.

The identification of critical habitat must be dealt with specifically in the recovery strategy. This identification process must not be contaminated by various other concerns, but it must be carried out by the recovery team, perhaps by a committee. Once this has been done, social and economic needs must be taken into consideration.

At the same time as species requirements are being determined, we must also look at the social economic issues that are at stake, namely, who will be affected and how: that is the third main principle. In preparing the recovery strategy, we must be able to envision various scenarios, compare them, choose those that will have the least impact but will be effective in terms of conservation, anticipate how to mitigate impacts and, of course, compensate for those impacts that we cannot avoid.

One of the main aspects of the action plan will include decisions on developing and protecting identified critical habitat. We must invite all of the stakeholders to participate in the process to win their co-operation and to ensure that they buy into the habitat strategy that is established. Preference should be given to measures designed to change practices, stewardship and voluntary conservation measures.

The fourth main principle is efficiency. Bill C-33 does not specify any timelines as to when the action plan has to be submitted. We are recommending a deadline of one year for developing an action plan pertaining to an endangered or threatened species. This plan may not necessarily be complete and it may be missing certain parameters, such as habitat, for instance, but it should include enough information to trigger action.

As for enforcement, Bill C-33 does not require the federal government to implement the measures under its jurisdiction, which will be spelled out in the action plan.

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We recommend that the measures indicated in clause 53(1) become mandatory 120 days after the action plan has been tabled.

Finally, to ensure effectiveness it is important to set priorities. The resources to plan the recovery of an endangered species are limited, and the number of species will certainly increase.

The process of identifying priorities must be explicit in the legislation, so that we can identify the species requiring immediate attention. You will see that we talk about various criteria in our brief. These are essentially scientific criteria as well as economic cost criteria which must be used to help establish a list of priorities.

I would like to invite my colleague, David Lindsay, to make a few comments on recovery.

The Chair: Please come to the table.

[English]

But let me tell you that I sense that members of the committee would like to start asking questions sooner rather than later, and this procedure has already taken an hour, so I would invite you to compress your remaining presentations.

Mr. Lindsay, please.

Mr. David Lindsay (Fish and Wildlife Biologist, Timberwest Forest Ltd.): I'll be brief.

I'd like to reiterate what Robert has said concerning some of his aspects of recovery planning and the recovery team process. That's essentially where the recovery of species takes place, in the recovery team meetings. I believe the composition of the recovery team should include all appropriate stakeholders right from the start of recovery planning, and the responsibility for the complete process should be with that group from the onset.

In the marbled murrelet recovery team, of which I've been a member from the beginning—seven, eight, or nine years now—we had a changeover after the original recovery plan was written, into an implementation phase. It wasn't a complete changeover; half the personnel had left. We had a disruption for probably a year trying to educate the new people, trying to establish their different personalities, and what not.

I foresee that sort of continuous application from the original team. They have a personal stake in the plan they have written, including things like the scientific designation of the critical habitat, through to the implementation. It's quite important. I think this continuous inclusion of all stakeholders will ensure that the socio-economic and the conservation issues are handled on a cooperative basis right from the beginning.

The Chair: Next.

Mr. Pierre Gratton (Vice-President, Public Affairs and Communications, Mining Association of Canada; Species at Risk Working Group): The pressure is on me now to be quick.

If species-at-risk legislation is to foster trust and cooperation on the ground, it must be applied fairly and recognize that the responsibility for protecting species at risk is shared by all Canadians. The principle that the protection of species as a shared value is one that is recognized by the Biodiversity Convention, to which Canada is a signatory. In our brief we urge the committee to betrust the government's commitment to this principle by inserting in the preamble a recognition that the protection of species is a shared good and reference article 20 of the convention.

The idea behind this principle is simple. Citizens who live and work in downtown Toronto cannot escape responsibility for Canada's species at risk simply because decades of urban growth long ago destroyed the habitat of the Massasauga rattlesnake or king rail, thus making direct action by Torontonians impossible. Similarly, ranchers living in southern Alberta, woodlot owners or mineral explorationists, should not have to bear the entire burden of protecting species at risk that happen often by chance to dwell on their property or on lands on which they work.

Compensation is one mechanism for implementing this important principle. We are therefore encouraged that clause 64 of Bill C-33 enables the payment of compensation to those who would bear an unfair burden in an effort to protect species at risk. We are concerned, however, that the bill remains vague on issues of eligibility and value, a concern heightened by statements made by the minister that compensation should not extend to corporations or to those who use but do not own the land.

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We do accept that compensation should be a last resort. We also believe it will be. What's so important in this discussion is the ability to compensate and what this ability does to engender trust and confidence in the act, even if it's only rarely going to be used. SARWG has argued since its very early days for the inclusion of a compensation system, and we certainly are pleased that the government is starting to understand its importance.

We also agree that in many instances the costs of changing practices to accommodate the needs of species at risk can and will be borne by resource companies. We disagree, however, that there will not be circumstances when compensation to land users, including resource companies, would be appropriate and justifiable.

As the committee knows, the minister has asked Dr. Peter Pearse, a respected natural resource economist, to review the issue and to make recommendations. We, as a group, have met with Dr. Pearse, and the CPPA and MAC have both held separate meetings with him. We've submitted briefs. I have a copy of MAC's brief with me, and if any of you are interested, I'd be happy to provide you with one.

In light of this separate review and the fact that our submissions go into considerable detail, let me just emphasize for you some key principles that have always guided our collective views on this issues.

First, the cost of species, as I said, should be shared by all Canadians. All who suffer loss as a result of the implementation of the act should be eligible for compensation. There should be no discrimination.

Compensation should be a last resort, and it should be provided in ways that prevent abuse. The rules governing eligibility for compensation should provide strong encouragement to those to engage in stewardship agreements and recovery planning to mitigate impacts. The availability of compensation should not create perverse incentives. Compensation can take many forms. It need not always be financial.

The government must consider Canada's international and reciprocal obligations in the matter of compensation to business for loss caused by any action of the government. Canadian companies operating in Canada should not be in a worse position than foreign companies operating in Canada or Canadian companies operating in other countries.

Lastly, there is a big difference between incentives and compensation. For SARA to be effective and fair, both tools should be designed to complement one another.

There's no question in our minds that a compensation system that did not treat stakeholders fairly would send a negative signal about Canada as a destination for natural resource development and could likely bring about, needlessly, court challenge. We do not believe the government should be permitted to leave the issue of eligibility open-ended, only to circumscribe it later in regulations.

We urge this committee to take action to protect the legitimate interests of all Canadians and ensure that the principles we have outlined are embedded in Bill C-33.

Thank you very much.

The Chair: Thank you, Mr. Gratton.

Who is next?

Ms. Elizabeth May: I'm going to be very brief.

In our brief we also address the clauses that deal with exemptions, clauses 74, 75, and 83. In brief, in contrast to what it takes to protect the species, we find it rather easier to exempt a species from protection. We are recommending with some very specific language that those clauses be tightened up to limit ministerial discretion, increase consultation, and ensure transparency.

With that, I'm going to turn to Tony for some comments on stewardship agreements.

The Chair: Mr. Tony Rotherham.

Mr. Tony Rotherham: When I picked up the bill in early April and started to read through with some trepidation, I came very early on the clauses that dealt with stewardship and conservation agreements. My first reaction was, great, here's an opportunity for cooperative action laid out clearly in the act; this is an opportunity for those companies that I represent and who manage large areas of land to get involved in this whole thing in a very proactive way, in cooperation with other players.

I have had, however, some experience with the Canadian Environmental Assessment Act, and I thought to myself, oh my god, here's a Catch-22: because there will be federal involvement and perhaps permits involved in this, perhaps those organizations that enter into these agreements will in fact be subject to an environmental assessment under CEAA. In my view, this would not be a good thing. We've discussed it at length with the SARWG group, and it's agreed that this would not be a good thing.

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These agreements will be developed by wildlife biologists and other natural resource management people, with the express objective of having a positive outcome for species and habitat. Why, then, put a duplicative process on top of it to double-check this work and to make sure it will in fact not have an adverse effect?

We would recommend that there's an explicit exemption from the CEAA in the bill that covers recovery plans, stewardship and conservation agreements, and those permits that are mentioned in clauses 74, 75, and 78. I would like the companies that are involved in natural resource management across this country, and which have a great opportunity for a positive effect on this, to be able to go into this without any concerns about the possible imposition of environmental assessments on all of the rest of their operations.

On the matter of private landowners....

Mr. Gary Nielsen: Quickly, then, it is the stewardship aspects that are going to make this work on private land, which is a lot of southern Ontario. There's no question about it. Most people want to do the right thing, but when it comes to placing restrictions on what they can do on their land, it's often the subtle things that are important. It's often how and when they receive the information that makes and affects their decision.

Landowners deserve to be notified that they have special critters on their property. When they're notified of that, they should be told they have management options. If they're also told compensation is possible when they're economically disadvantaged, so much the better. This is what's going to make it work. If the first time they hear about an endangered species on their property is when their Planning Act application is denied because it has been screened and a species is on their property, so, sorry, they can't have that zoning change, they're going to be angry and they're going to be upset, predictably. They're going to pursue an appeal, and we're going to spend money on legal proceedings.

It comes down to the fact that if we're really trying to protect species, then we should be investing that money in stewardship up front, rather than in legal wrangling afterwards. The simple fact is that if we're really interested in saving species, we need to work with the people who own the land the species live on. There's no other way around it.

Thank you.

The Chair: Thank you.

Who's next, please?

Mr. Pierre Gratton: I just wanted to make a few comments about the consequential amendments to the Canadian Environmental Assessment Act that can be found in SARA. Our recommendations here are pretty straightforward and pretty simple, but of great importance and great significance.

We all agree that SARA's purpose is obviously to protect species at risk, and we all agree that it makes sense that this purpose be embedded in future projects and that new developments take into account the objectives of SARA and the need to protect species at risk. It is important. In a post-SARA environment, I think we want Canada to require that future projects consider issues like whether or not there are listed species in this area; what their residences look like; what specific areas are designated as critical habitat; how this project might impact on the critical habitat of a listed species; and what its chances of survival and recovery are should this project go ahead. In this regard, we certainly support the intent of the government's proposed amendments to the Canadian Environmental Assessment Act. We are concerned, however, that these amendments lack clarity and are possibly unintentionally complex and onerous. Their purpose should be to enlighten, not discourage, resource development.

In our brief we recommend specific changes to subclauses 79(1) and (2), and to clause 136. For subclauses 79(1) and (2), we recommend that SARA's language be made consistent with the CEAA's emphasis on “adverse effects”, as opposed to simply “effects”. It appears to us that the word “adverse” has been left out, perhaps unwittingly. Regarding clause 136, we propose alternative language focused less on accounting for each individual residence, rather ensuring that new developments take the survival and recovery of species at risk into account more broadly. We urge the committee to seriously consider these proposed amendments, which we believe in no way detract from the bill's intent, but rather clarify it and arguably strengthen it.

This year the regulatory advisory committee to the Minister of the Environment, comprising representatives from industry and the Canadian Environmental Network, reached broad consensus—much as we have—on specific improvements to the CEAA as part of the act's five-year review.

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The minister has indicated that he accepts this consensus. We had certainly hoped—now with an election looming we may not—that we would have seen this bill tabled before the election, in that we anticipated that these changes would go a long way to alleviating longstanding concerns of all stakeholders with the federal environmental assessment process. I say this simply to make the point that it would be especially unfortunate were another piece of legislation, namely SARA, to counter this effort, which has taken many months of hard work and consensus building.

The Chair: Thank you, Mr. Gratton.

I'll go to Mr. Peeling to continue.

Mr. Gordon Peeling: I will provide a short conclusion, Mr. Chairman, so we can move directly to questions.

The Chair: Sure.

Mr. Gordon Peeling: You have heard from my colleagues on many important issues related to where we would like to see improvements in the legislation, and that is simply because the passage of species-at-risk legislation will be an important milestone for our country. Its passage will respond to much more than the noble ideals of conservationists; it will respond equally and in a direct way to the business interests of Canada's resource sectors.

Certainly Canada's mining and forestry sectors, which sell most of their products to foreign markets, must demonstrate responsible resource stewardship if we are to be able to preserve our access to these markets. Species-at-risk legislation is a key element for buttressing our claim to be responsible stewards of Canada's lands on behalf of all Canadians.

We should not underestimate the magnitude of this undertaking. Within five years of SARA's passage it is expected that the number of recovery plans in place will grow from 20 today to somewhere between 50 and 100. This is not an insignificant growth in activity. It is imperative that it be done right, that we provide the resources and the time necessary to build capacity to respond to the demands of new legislation. We must ensure that we do not create a log-jam by trying to do too much too quickly, failing in the process to act in the most effective way to protect and recover the greatest number of species at risk.

In our remarks this morning we have touched on most but not all of our recommendations. I would like to draw your attention to our annex in which all of our recommendations are cited and ask you to give them your full consideration. By adopting these recommendations the government has an opportunity to deliver effective legislation for protecting species at risk. They by no means accomplish everything. In our federal system there are limits to what can be expected of the federal government, but by adopting the measure we have proposed, the government can show true leadership and blaze a trail that will encourage all jurisdictions in Canada to do their part.

We acknowledge that taken together what we propose constitutes important revisions to SARA. We are sensitive to the fact that time is of the essence, but for a unique group that has laboured a long time to carve and identify a way for species protection that will work for all, species and people, we would not be true to ourselves if we failed to bring the advice forward that we have today.

Much has been accomplished, and for this we applaud the federal government, but much work remains. We urge this committee and the government to finish the job.

Thank you.

The Chair: Thank you, Mr. Peeling and all members of your delegation, for your insight and for your comments.

On the list we have Mr. Abbott, Mr. Herron, Mr. Reed, Madame Redman, and maybe others, including the chair. Mr. Abbott, you have five minutes to start with.

Mr. Jim Abbott (Kootenay—Columbia, Canadian Alliance): Good, thank you.

My most sincere congratulations to the Species at Risk Working Group. I think this is something rather unique. I shouldn't say rather unique; this is something totally unique. To have the interests that very frequently are seen in public as being at each other's throats working together cooperatively on this bill I think says an awful lot about the goodwill of all of the people on the committee as well as the groups they represent. I congratulate you most heartily for that.

It's terribly unfortunate—and I want desperately to stay away from partisanship, so I'm going to try to phrase this properly and in a non-partisan way—that an act like the Species at Risk Act, and particularly with the importance of it to the species at risk, to the people of Canada, is going to fall on the shoals of an election, particularly given all of the work that the Species at Risk Working Group and many others have done in preparation for this.

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I would like to go on the record as saying—and perhaps you might want to underline some of the things I am going to say here—that considering the exceptionally diverse nature of your group, particularly, and the thoughtful recommendations you have brought forward, it would be my hope that in the next Parliament a bill like the Species at Risk Act be the first priority. I am in full agreement with the chair of this committee on this. Rather than coming back with the document as presently written.... I share many of the concerns raised by this group that your recommendations be taken into account.

It strikes me that if we're looking at the environmentalists on one side and industry and the landowners on the other side, there isn't always that clear distinction. You have gotten together. If we take a look at the three elements—the industry-landowner segment, the environmental protection segment, and the bureaucratic segment—it seems to me that two of the three have gotten together.

I would like to see the environment ministry in this next Parliament take your recommendations into full account, and any future legislation that would come forward would take your recommendations into account.

I think that SARA is a distinct improvement over the previous effort. I'm suggesting that your recommendations, in turn, can probably bring the third effort a whole lot closer to what we actually require. Those are my comments, as opposed to any specific questions about your recommendations. I apologize for having missed some of your presentation, but in listening to the parts of the presentation that I did catch and in looking through your brief, it seems to me there's something really thought-provoking and valuable here that the government should be taking into account.

The Chair: Probably the question is, isn't that so? Would someone like to answer it? Any comments?

Ms. Elizabeth May: In the interest of time, perhaps we should move to other questions, but we certainly are gratified by your comments, Mr. Abbott.

The Chair: Thank you, Mr. Abbott.

Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): I probably won't have the same amount of poetry as Mr. Abbott, but I do want to mimic his particular comments and expression. This is an unprecedented coalition that has been put together. In particular, I address my comments to the industry side of this aspect of it.

The villains that pulp and paper are sometimes labelled as on the environment, or the mining individuals.... This message and what has happened here should go out to all Canadians to show that the Canadian Pulp and Paper Association and the Mining Association of Canada want to be contributing partners to maintaining our biodiversity, our environment in the country.

So hats off. Bravo. I think I speak for all parliamentarians in that regard.

Having said that, on the Progressive Conservative position paper that we put forth with respect to protecting species at risk, in university we used to call it plagiarism. In the real world it's called being resourceful. We've tried to follow to the best of our capacity the stalwart position. So we've tried to marry our proposal largely with this group by also trying to add other groups that have actually come forth and spoken to us.

I have some concerns with the testimony we had yesterday. So my first question is this. Did Bill C-65 provide for the mandatory protection of critical habitat within federal jurisdiction, yes or no?

Mr. Marc Johnson: Yes. Bill C-65, as you're aware, went through a number of iterations. So depending on different areas of federal jurisdiction at different stages of development of the bill, it changed from discretionary to mandatory. Certainly both the bill that was introduced and the amendments coming out of committee that were accepted by Parliament provided a greater level of certainty for habitat protection measures within core federal jurisdiction.

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Mr. John Herron: Our position is to have mandatory protection within federal jurisdiction lands and jurisdiction on federal lands. Is that a position that SARWG clearly supports?

Mr. Marc Johnson: Yes, but we would go further than that, to more than just federal lands, meaning the entire federal jurisdiction.

Mr. John Herron: The next comment I wanted to touch upon is the concept of listing. Would SARWG be comfortable with, as an immediate step, adopting the existing list of COSEWIC and then modifying it as we're doing the assessment process?

Ms. Sandy Baumgartner: Yes. Actually, one of our key recommendations was to roll over the existing COSEWIC list.

Mr. John Herron: Could you explain to me any reason why we wouldn't do that now?

Ms. Sandy Baumgartner: Why we wouldn't? The only argument I could possibly think of is that some of the species have not been reviewed for a number of years. There are some species currently on the list that haven't been reviewed since 1978. However, COSEWIC is in the process right now of reviewing those, and I would expect that by the time this bill is ready to be passed in Parliament, that species list will be up to date. They've done all the endangered species and are now working through the threatened ones.

Mr. John Herron: For the public record, I've had some hints directed toward me on this issue, because it's known that I've married my approach very much with the SARWG issue. SARWG is one team, so any representation that I may have heard would say you guys aren't as unanimous as one might think. Can I say categorically that you're one happy family?

Ms. Elizabeth May: Categorically, we're the most robust team I've ever worked with in a coalition, and that includes when I'm on a coalition of all environmental groups. We support equally each part of our recommendations as a group, and, whisper campaigns to the contrary, we've maintained a very robust consensus.

Mr. John Herron: So I can dismiss it out of hand any time I hear that kind of thing.

Ms. Elizabeth May: You can dismiss that out of hand.

Mr. John Herron: Am I still rolling here?

The Chair: Yes.

Mr. John Herron: On the compensatory regime, that's something we're a little bit uncomfortable with, and I would applaud the issue. We're trying to craft a position, even for our platform, that would mimic the “compensation if necessary, but not necessarily compensation” aspect of it. You were looking at other incentives rather than just financial ones. From a corporate perspective, could you illustrate some examples of where that might fall?

Mr. Pierre Gratton: It depends on the sector you're talking about. It's less obvious in our sector, mining, for example, because the ore is where you find it. The issue of the possibility of land swaps, for example, which might work for forestry or for agriculture, don't lend themselves as readily to mining. Those are a couple of examples that come quickly to mind as alternatives.

Tony, you might want to add to this.

Mr. Tony Rotherham: Land swaps are the obvious route for forestry. That too is not always easy where the allowable annual cut, as we call it, is fully committed in an area. But it is an obvious way to go. It may be easier for agriculture, because the parcels tend to be smaller and there is an open marketplace in these things.

I guess the other thing I would like to add is that we think the government should do everything it possibly can to avoid the need for compensation. We believe the various things we have suggested contribute to that. Compensation will be not just the last resort, but, if you will, the very last resort. A cooperative effort in recovery planning is one thing that we believe will greatly reduce the need for compensation.

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We believe you can't have an absolute law or rule saying that if you're not involved in some of these stewardship activities, you definitely don't get compensation. We believe some of the people who craft good language in legislation and regulations should probably say it would be a great advantage, as they say in job advertisements, if you were involved in stewardship procedures, recovery planning and so on, because this has to do with limiting the loss; and if you take every step—due diligence, if you will—to limit your losses and you fail, then you are eligible for compensation. That shouldn't be a law, but it should be a tendency.

Quite often when we get into these discussions, particularly with natural resources that are generally under provincial jurisdiction as opposed to federal, the whole business of conflict in jurisdiction creates problems, and we frequently have gone back to the accord. To all these adult males in responsible positions who signed the accord, would they please implement the spirit and intent of it? We don't want the natural resource industries to be caught in a jurisdictional conflict sandwich, with us in the middle.

Mr. John Herron: Thank you.

The Chair: Thank you, Mr. Herron.

Mr. Reed, please, followed by Madame Redman and Madame Whelan.

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

I would like to extend my congratulations to this group for what you've come up with. This is the first time since these hearings began that we've heard the phrase “urban responsibility”. It's the first time that we've really heard the phrase “costs should be shared by all”. It's something very close to my heart, because I live on the edge of a large urban area, and I realize that people who live in those urban areas have to come to understand that every time they flush their toilets, they are impacting species. It has been a common sort of notion in urban Canada, or at least to the people who live south of the 401 in Toronto, that somehow the endangered species consist of the burrowing owl and the grizzly bear, but there's somehow an ignoring of the aquatic species, for instance.

Now, mention was made about the Massasauga rattler. I live close to the Niagara Escarpment, and I remember my grandfather explaining to me why the rattlesnake disappeared from the southern end of the Niagara Escarpment. It had more to do with pigs than it did with urbanization. The farmers brought their pigs in and they ran loose in the bush. They ate acorns and whatever the forest gave to them. They didn't get much in the way of grain. The rattlesnakes provided the protein phase, as long as they lasted. I'm not sure how much truth there is in that story, but my grandfather was never one I knew to tell a lie.

The COSEWIC list is of some concern, and I don't know whether there's any way of dealing with it. It includes species that are impacted by human activity, as well as species that are not necessarily impacted by human activity, and there doesn't seem to be a way of differentiating between the two. Historically, species have come and gone before there was any significant impact by humans. Thousands of species have appeared and others have disappeared over millennia. The intent of this is to deal with the impact of human activity, essentially. Is there any way you can differentiate?

Ms. Sandy Baumgartner: Within the processes of COSEWIC—and if you get the opportunity to meet with the COSEWIC members later this week, they can explain it in greater detail—I think the idea of the COSEWIC list is just to get a snapshot of the status of those species. Certainly if a species is in decline because of natural processes, in the next level of the prioritization for recovery, no action may be necessary or required. It's after the listing process, so I don't think you need to address it. Certainly they identify in the status reports what the impacts are and why the species is in decline.

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Mr. Marc Johnson: Just to build on that, there are species, as you are alluding, that are naturally rare. They are found in isolated pockets and what have you. COSEWIC does not look to identify species that are naturally rare. What they are looking at are species that are at risk of extinction; in other words, species that are declining. The species that are on the list are all threatened with extinction in one form or another. As Sandy pointed out, through the recovery planning process COSEWIC will identify what those threats are and address them accordingly. If there are no human-caused threats that can be properly addressed, then there's nothing that can be done.

Mr. Julian Reed: I just have one other question. We had some discussion recently about this question of jurisdiction north of 60. The way I interpreted the information—and maybe it was incorrect—the territories are treated the same way as provinces. In other words, the relationship is the same. If there's jurisdiction in provinces, there would be jurisdiction north of 60. Does anybody want to comment on that?

Mr. Marc Johnson: Yes, I'd like to comment on that.

They're actually treated with more deference than the provinces are, surprisingly. First of all, as you know, lands north of 60 are federal government-owned lands. Within this legislation for habitat protection measures, they're not treated as being within core federal jurisdiction. In that respect, they're treated similarly to provinces, in that the only opportunity for protection of species found in those areas is through what's termed the “safety net measures”. We have spoken about those, and we think they are somewhat convoluted and unworkable.

North of 60 is different from the provinces in that the recovery planning process for species wherever they're found, whether it's on provincial land or federal land or what have you, is initiated for those species. It is not initiated for species found north of 60, and that is surprising to us. It's troubling, and we address that in our brief. We see no reason why recovery planning processes should not be initiated for all species across the country, wherever they're found. In that respect, the territories are treated differently than the provinces.

Mr. Julian Reed: My final comment, Mr. Chairman, is just a comment. I am delighted that there is a recognition of a necessity to protect landowners here. In my view, this is absolutely critical and essential if this legislation is to be successful.

Thank you.

The Chair: Thank you, Mr. Reed.

Madame Redman.

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

Mr. Johnson, you've obviously stated on a couple of occasions that you support mandatory critical habitat protection on federal lands. Would you support SARA having the same critical habitat protection on provincial and private lands as well?

Mr. Marc Johnson: First of all, there's the area of lands and then there's the area of jurisdiction. In my brief I indicated that for aquatic species and for migratory birds, subject to clarification, we're looking for SARA to be extended for those species as well. With respect to species that are not migratory birds and aquatic species, there are safety net provisions in SARA that deal with those. Elizabeth talked a little bit about them.

The national accord for the protection of species at risk in Canada is an historic document that was signed by all provincial, territorial, and federal governments, and we think it is the starting point for endangered species protection in Canada. All jurisdictions have the responsibility for protecting endangered species, and they all need to fulfil those responsibilities. At the same time, there needs to be certainty that, together, they will protect endangered species in this country. The intent of the safety net was to provide that certainty. But again, as we discussed, we feel that safety net is poorly constructed.

Mrs. Karen Redman: So I'm hearing a qualified no. You don't feel it should be mandatory on private and provincial lands.

Mr. Marc Johnson: I believe all jurisdictions should be given the opportunity to do their job.

Mrs. Karen Redman: To do the right thing?

Mr. Marc Johnson: Yes, but at the end of the day there needs to be certainty that endangered species will be protected.

• 1040

Mrs. Karen Redman: Okay, thank you.

I have a question for Mr. Rotherham. Your president and CEO, Lise Lachapelle, of the Canadian Pulp and Paper Association, signed off approving the Species at Risk Working Group's questions to this committee. To what extent do your member companies of CPPA, and specifically those members in B.C. and Alberta, support SARWG's recommendations regarding the automatic federal prohibitions on lands throughout Canada?

Mr. Tony Rotherham: First of all, we regard the protection of wildlife habitat and species—particularly endangered species—as a core element of sustainable forest management. Sustainable forest management is provincial, territorial, and federal. It is therefore national policy in this country, and it has been since 1992.

Provincial legislation on forestry is moving in that direction. The policies of companies working under provincial legislation and under this national policy direction are headed in that direction as well. As Gordon Peeling said, not only is this important for a well-organized country in the 21st century—or 22nd or whatever we are in right now—it is also important from the point of view of being seen to be good natural resource managers and therefore suppliers of natural resource products to meet the needs of the world. This a very important part of how Canada earns its living, and it should be important to all Canadians that it be done well and responsibly and into the future.

However, the natural resource industries find themselves generally in a position where, certainly for forestry and perhaps to a lesser degree for mining and petroleum industries, we are under provincial jurisdiction. We would therefore again go back to the accord. As I mentioned before, these largely adult males in business suits signed the accord. We would like to see the intent and the spirit of the accord implemented so that we do not get ourselves into jurisdictional problems.

As an example, the industry I work for has probably four levels of legal contracts with provincial governments. There is an overall ten-year document. There is a long-term forest management plan that is approved by the provincial governments. There is usually a ten-year development plan approved by provincial governments, and a one-year operating plan approved by provincial governments. All of these are legal contracts between two competent parties.

Where you have jurisdictional conflict, the industry may well find itself the meat in the sandwich. Not knowing which way to turn in order to be able to continue to give effect to these legal contracts, they would possibly be made impossible to perform under an act of the federal government.

We are extremely concerned about jurisdictional conflict in this whole thing, so we have the high philosophical and moral objectives of truly wanting to do the right thing, being seen to be doing the right thing, and being active players in this. Nevertheless, there is a fear that the conduct of our business can somehow be damaged by jurisdictional conflict between the two senior levels of government.

So we're fully in favour of it. That's why Robert and I have been part of this for two years and are part of this solid team that you see before you. But there are problems with these things in a confederation, so we hope and pray the governments involved will choose the right path so that we achieve the objective without causing a lot of damage on the ground.

Mrs. Karen Redman: If I could, I have one final question for Ms. Baumgartner.

I don't think I've ever heard anybody in all of these discussions say anything other than that a good scientific base for listing is where we need to go. Clearly, COSEWIC has been doing fine work for a long time.

I guess the divergence of whether we list or do delisting really has more to do with the automatic prohibitions and the obligations under SARA that go along with what is the legal list or the operational list. I guess I'm just looking for clarification. When you talk about the delisting or negative option, you can imagine that has sort of a bad connotation for a lot of parliamentarians.

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Ms. Sandy Baumgartner: Yes.

Mrs. Karen Redman: On the delisting process, do you see that as being decoupled in any way from those kinds of prohibitions, or do you see that those would automatically go on? I guess I ask that also in light of the recommendation for taking into account the socio-economic aspects of some of these decisions as well.

Ms. Sandy Baumgartner: As opposed to having a process whereby COSEWIC would develop their list and then the list would become the legal list through the GIC, we're concerned that some species will drop off that list for whatever reason. I guess what we're looking at is an option that will make it more difficult and more rigorous for a species to come off the list that is defined by COSEWIC. I think the issue is the application of the prohibition. If there is a reason, for example, that prohibition should not apply on a species—and sorry, I can't come up with an example of one that wouldn't, because I don't think people set out to deliberately want to harm a species at risk—then through a GIC order, the species would then be taken off that legal list. We think that would provide more rigour and more explanation, I suppose, for government to demonstrate why that was required.

As for the socio-economic aspect, we are solid and agreed that the socio-economic considerations should come afterward. If you truly want to have a clear picture of species at risk in this country, you have to look at the science, and the science only. By starting to incorporate the socio-economic aspects at the listing process, you're not going to get a clear picture. You're probably not going to get any species listed, because you'll spend all your time debating whether or not a species should be listed by adding on other values. It's something we're agreed on, and we're quite adamant that it should be based on science, and science alone.

Mrs. Karen Redman: Thank you.

The Chair: Thank you, Ms. Redman.

Thanks to the chair's rigorous approach, there is time for a second round of questions for members who wish to ask any. Those who are interested, please indicate if you wish to do so.

We now have Madame Whelan, Mr. Knutson, and the chair, unless someone else wants to jump in.

Ms. Susan Whelan (Essex, Lib.): My question was similar to Mrs. Redman's question with regard to the mandatory provisions. In the way I read your brief, I thought you were suggesting the provinces should emulate mandatory provisions. Now, from Mr. Johnson's comments, I'm not sure if he has stepped back from that a bit or not. I'm just trying to make sure I understand what the position is.

Ms. Elizabeth May: Just to clarify it, especially building on Ms. Redman's comments, as a group, what we see as being essential is that the prohibitions against direct killing or destruction of residence apply across the country, for all lands and waters, regardless of ownership, period. Then, the federal portion of the national accord must be implemented properly so that the federal government has its own house in order, with mandatory habitat provisions on areas of federal jurisdiction.

So in the case of prohibitions, we're saying everywhere. In the case of habitat protection, we're saying the federal government in its own areas of jurisdiction. This is largely in order to avoid this piece of legislation trying to assert new areas of federal constitutional authority in ways that are very perilous.

We've tried to put our recommendations in place. We've had very senior constitutional legal advice that has assisted us in deciding what the proper role of a federal bill can be, and we think it should move first to the areas where it has the strongest claim of proper exercise of federal jurisdiction. The federal government should do its part, to the legitimate extent of its own jurisdiction.

Ms. Susan Whelan: Just to clarify, though, Ms. May, when we talk about conservation, you're not suggesting that management programs.... For example, in the province of Ontario right now, there's a serious problem with cormorant birds and there's a whole group working toward how we're going to address that problem. You're not suggesting that they should not have the discretion to deal with that situation. They're on a list provincially, but they're not on a federal list.

Ms. Elizabeth May: We're saying the federal government, in its legislation, should exercise its authority so that there will be prohibitions. We want to foster an attitude—

Ms. Susan Whelan: So you're saying there should not be any management or conservation.

Ms. Elizabeth May: No, I didn't say that at all.

Ms. Susan Whelan: That's my question.

Ms. Elizabeth May: I don't understand how our point isn't clear. Perhaps I'm not making myself clear, so you may want to clarify this, Marc.

• 1050

We want to see federal, provincial, and territorial governments working in partnership. We'd never want to say a province couldn't act for stewardship and conservation on a species on their own list. That's not part of our brief.

Ms. Susan Whelan: I'm just concerned by the mandatory provisions.

Mr. Marc Johnson: Just to add to that, I think you were inferring or suggesting that what we're suggesting is discouraging voluntary conservation programs by different jurisdictions. I think the collective improvements that we've seen from federal and provincial governments over the last couple of years is a stated willingness to work together through the recovery planning process and to work with a number of stakeholders throughout this process.

We spent a lot of time talking about some of the negative features of SARA. One of the positive features about SARA is that it establishes a recovery planning process for all species that allows federal, provincial, and non-government organizations to come together to work collectively and to look at what threats take place. Then, responsible jurisdictions within their own areas can use their various legislative and program tools to address those threats. So it establishes measures of cooperation, but it also allows for various jurisdictions to operate within their own areas.

Ms. Susan Whelan: Finally, Mr. Chairman, this is just to get something clarified.

When you talk about mandatory prohibitions against the killing or destruction of habitat, you're not talking about cases of conservation or management of that same species. That was not—

Ms. Elizabeth May: I see what the confusion is. Our position is that there should be mandatory prohibitions, flat out, full stop, with no exemptions, for the killing of species at risk and their residences. It would not in any way step on the toes of provincial management plans relating to habitat.

Ms. Susan Whelan: I'm not sure you've clarified my question, but okay.

Thank you, Mr. Chairman.

Ms. Elizabeth May: The distinction is between residence and habitat. In our brief, I think we've gone a long way to try to express our concern that “residence” should be defined in a very specific and limiting way, with “habitat” being broader, being something to be treated differently.

Ms. Susan Whelan: Okay, thanks.

The Chair: Maybe in the second round you can give it another try.

Mr. Knutson, please.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): On that last point, Ms. May, when you say full stop, no exemptions, the government's argument against mandatory protection of critical habitat is that it may trigger some kind of attendant consequences.

My understanding is that even when we put prohibitions against killing an animal or destroying its residence, such as in the area around the Diefenbaker Dam.... The minister has stated that if there's an endangered species that nests around the Diefenbaker Dam and you could wipe out at least some of them, you'd basically have to take down the dam. Am I correct that through a permitting system, if you have an island, for example, that's overrun by a particular species of bird and it's wrecking the island, or if you have the rare example where you may want to disturb, move, or even wipe out a residence, you can still do that?

Ms. Elizabeth May: Yes, and thank you for the clarification, Mr. Knutson.

Under clauses 74, 75, and 83—and we're suggesting that those clauses should be tightened up so that the acts in which you might be seeking an exemption would be named—there would be consultations and so on. But in specific rare examples, there would be permission for permitting.

When I said “no exemptions”, I meant no blanket exemptions in the order of clause 34, which takes out whole chunks of the territory of Canada for all time by saying the prohibitions won't apply on provincial land or won't apply in the territories.

Again, to be very clear about the prohibitions we're talking about—this is picking up on Tony's presentation—what we're saying is that, just as the Criminal Code makes it illegal to torture a domestic animal, under SARA it should be illegal as a mens rea offence to intentionally kill, harm, remove, etc., a species that's listed as endangered, threatened, or extirpated, as well as to deliberately destroy its specific residence. This is hardly radical stuff. I'm appalled that it's not in the act now.

Mr. Gar Knutson: Just for clarification, that's unless you have a permit to kill it?

Ms. Elizabeth May: If the Minister of Transport finds it necessary—and they always use these hypotheticals that I think will never happen, like a rare, endangered species that has taken up residence on an airstrip at Pearson and the planes are unable to take off—yes, there will be permanent exemptions for public health, welfare, and animal health. Those specific acts we referenced in our initial draft, which was given to the clerk. Our broader set of recommendations, generically, were in our brief to the wildlife ministers back on November 3, 1998.

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In answer to your question, we want to tighten up the exemptions, but they would exist.

Did you want to jump in, Sandy?

Ms. Sandy Baumgartner: I just wanted to add to your point of the example you gave, just to underscore the importance of having the identification of critical habitat in the recovery process, so that you have all of your stakeholders at the table discussing the issues, discussing the needs of the species, and agreeing to a common course of action.

In the instance that you raised about the Diefenbaker Dam, you have the stakeholders there, and in that instance you may say that if you can identify some habitat outside that area that is critical, you may leave another area alone as long as the survival of the species isn't.... We're not going to be tearing down dams. I guess that's what my point is. You're going to be talking about those issues and finding solutions together to mitigate some of those types of issues. That's why it's important to have the identification of critical habitat at the recovery stage as well, and to have all your stakeholders throughout the process, from start to finish.

Mr. Gar Knutson: Okay.

We raised the issue of mandatory protection of critical habitat in federal jurisdiction yesterday. The government said that part of the difficulty is that we don't know what it is, that we have some difficulty defining what critical habitat is; therefore, it more properly belongs in a regulatory process, after a period of consultation. It has to be processed out through some length, and that seems to suggest why it shouldn't just be in the legislation. Could you comment on that?

Mr. Marc Johnson: The experience in Canada shows that at the provincial level, more provinces have mandatory critical habitat protection provisions in their legislation than they do discretionary ones. If they're looking for experience, Ontario has some twenty years' experience, I think, in dealing with mandatory habitat protection provisions in its legislation.

Mr. Gar Knutson: Just to interrupt, though, the government made the point yesterday that provinces with mandatory habitat protection don't list.

Mr. Marc Johnson: There is definitely a delay in a listing for all of the provinces, you're right.

Mr. Gar Knutson: Well, they say it's more specific, though. The more mandatory habitat protection is, the less likely you are to get listed.

Mr. Marc Johnson: Yes, that is true, and in certain circumstances it has to do with the mandatory nature of the legislation. In other instances, it has to do with the resources on the ground. But in most cases this legislation was constructed about ten to fifteen years ago, although some of it is more recent.

There has been a significant amount of evolution in the thinking around endangered species conservation in Canada in the last two to three years. The whole concept before that was command and control, so it was very prohibitive in nature, as opposed to being an inclusive recovery planning process. We feel this inclusive recovery planning process allows for the certainty of mandatory habitat protection provisions, because you have all players around the table finding the appropriate mechanisms to utilize to protect that habitat.

Ms. Elizabeth May: If I could jump in, I just want to re-emphasize the point around our buffer zone proposal.

As you said, quite often they don't know what critical habitat is at point of listing. We really feel that our non-regulatory mechanism of a buffer zone, which is intended to be a quick on and quick off way of figuring out what you need around that residence—something that does a quick and dirty job, if you will—around that species, puts something there once you go through the recovery process to identify critical habitat. Our recommendation seems to have been met with some degree of support from provinces. And in looking at this bill, we think something between listing and recovery needs to be done to broaden the protection of habitat.

Mr. Gar Knutson: Am I out of time?

The Chair: One more question.

Mr. Gar Knutson: Changing the subject, on this whole issue of due diligence versus a mens rea, which is an intent, what is the difference between due diligence and reasonable care?

Mr. Tony Rotherham: I'm not a lawyer, sir. I would say that probably—

Mr. Gar Knutson: Well, maybe we could defer to the lawyers.

Mr. Tony Rotherham: —outside the context of law, there might not be all that much difference. But within the context of law and as the nominated defence against criminal charges, there's a big difference between mens rea and either responsible care or due diligence.

• 1100

Mr. Gar Knutson: I understand the difference for mens rea. I'm just wondering why we shouldn't expect farmers to take reasonable care.

Mr. Tony Rotherham: I think you probably can. As Gary suggested, that probably can be done in the future, after a recovery planning process, when people have a much better understanding of what constitutes habitat or critical habitat, of what a residence looks like.

The concern we have is that there's a terrific amount of ignorance out there. Unlike stupidity, ignorance can fortunately be cured, and it is cured with the provision of information. That's why we believe a really good information program is an essential element of this whole business. We have to provide people with the information, so that the vast majority of Canadians who want to do the right thing will be enabled to do the right thing, and they will also be enabled not to do the wrong thing.

Perhaps that's not a very good, specific response to your question, but it's the best I can do.

Ms. Elizabeth May: I may be belabouring the point, because I think I'm the only lawyer in our group, but I'm going to give what is basically a non-legal answer.

From my point of view, the reason we favour the idea that the offences be intentional, that they be mens rea offences, is based on consultation with people across Canada, particularly the land use partnership that we met with in Alberta. Even if farmers can prove reasonable care or due diligence in a court of law, they feel very victimized by the prospect that they'd have to hire a lawyer and go defend themselves.

The response from people within the Canadian Wildlife Service—and actually from me, when I initially talked to them—was that there's prosecutorial discretion. You're not going to be prosecuted if you made an honest mistake. Why would anyone prosecute you? You won't get dragged into court.

In some ways I think this concern about due diligence is a very strong concern, but it may be more perceived than real. It's real on the ground, though, because people believe that if they're going to be charged because they made an honest mistake and can go to court and prove that they exercised either due diligence or reasonable care, to them it's not abstract. It's the thought of having to hire a lawyer and of having to go to court. That scares the hell out of them and pushes them away from participation and stewardship and cooperation with the bill. It pushes them into the camp that scared the dickens out of me when I first ran into it: the shoot, shovel, and shut-up approach to endangered species. That's what Bill C-65 was unfortunately encouraging, so that's why I think this is a token gesture in many ways.

For a mens rea offence, when it's intentional, prosecutions under the act apply everywhere. For those people who are landowners who say they'd never do it deliberately if they knew it was there, this is going to make them feel more relieved and more participatory as a result.

Mr. Gar Knutson: Okay.

The Chair: All right, for a second round, we have Mr. Herron, Ms. Redman, and perhaps Ms. Whelan and Mr. Knutson, but please allow the chair also to ask a couple of questions and make a comment briefly.

At least in abstract terms, there seems to be a convergence of interest, intellectually speaking, by everybody concerned. Where there is possibly a need for some summary thinking is on this business of socio-economic considerations, and to some extent, it seems to me, on the question of this divine right to compensation.

Take the case of cod, for instance. Leslie Harris, from Memorial University, gave a signal that the cod fishery should stop, yet because of socio-economic considerations, we happily went ahead and continued to fish until the moratorium had to be invoked. Of course, in the end what happened was that compensation had to be paid. It was not paid by those who overfished, it was paid by the taxpayers of Canada in the form of the LIFT program, to the tune of $2.1 billion. But we certainly gave a lot of socio-economic consideration until, politically, we had to face the fact that a moratorium had to be invoked.

• 1105

Think about the white pine in the Ottawa Valley. It is now a rarity, but certainly a hundred years ago it was harvested for socio-economic considerations, almost to the point of its disappearance. Is there any talk about compensation for that? If there were talk about compensation to the lot owners for the disappearance or the non-presence of white pine, what should be the amount?

Take, for instance, the oak in western Europe, on which Amsterdam and Venice have been built. There are no more oak stands in southern England, no oak stands in the south of Norway, and none in Holland or in northeastern Italy, of course. What is the lesson that we could draw from this fact in terms of socio-economic considerations? We harvested until the species virtually was non-existent.

Surely there is something about this pattern over the long term that should invite us to give some thought before we become too deeply entrenched on this issue of socio-economic considerations.

I'm sorry, but I'm going to talk until I'm finished, with your permission.

It's the same with compensation. How much compensation can be asked for? It takes two. It will be the urban taxpayers who will pay most of the compensation, and that's fine. You know, it's a societal responsibility, so we should all face it and discharge it. But where do you draw the line? A fair compensation for one species may not be a fair compensation for another. Let us not hang our hats too much on the issue of compensation.

The question I would like to ask against this background has to do with the performance of provincial governments in delivering on their endangered species list. Those of you who have seen them must be aware of the fact that provincial governments, except for one, have delivered on less than 25% of the lists they took into account in their own respective legislation. This is therefore a question that looms in the back of the minds of many of us, at least: How can we rely fully on this convergence of provincial and federal and territorial governments when the performance so far has been so weak? It will be helpful to have some comments on your part on this question.

Ms. Elizabeth May: I know this wasn't part of the question, but I can't resist speaking briefly about the cod collapse and saying that socio-economic concerns weren't paramount. Had they been considering the social aspects, they would have consulted the inshore fishing community that was desperately in court trying to attain an environmental assessment of the quotas and pointing out, like Leslie Harris, that the quotas were too high.

So, again, on the inclusiveness of decision-making, if the cod had been listed—which was, of course, hotly debated within COSEWIC and blocked by DFO—if the northern cod stocks had been considered a species at risk, and if the act as we now envision it had been in place—and we often used hypotheticals when we went through our exercise as a group—how would that have worked? One could desperately wish that an act like this one that we're presenting had been in place, because we believe that by having listed the species as “at risk”, we would have engaged the people who had the most at risk, meaning those in the small coastal communities, not the ones who had the minister's ear and who were largely the multinationals that in fact wiped out the cod stocks.

The Chair: Let's not blame the multinationals or anyone. The fact is that there were socio-economic considerations that translated themselves into political considerations, which in the end led to the moratorium.

Ms. Elizabeth May: All right, we won't belabour the point.

The Chair: I'm sorry, but your recollection and mine are a bit different.

Would you mind now commenting on my question, please?

Ms. Elizabeth May: Yes.

• 1110

The Chair: Would you comment on this potential threat posed by weak political implementation on the part of provincial governments on their respective endangered species legislation?

Mr. Robert Décarie: If I might comment on that, I don't think the federal government can give any lesson to the provincial governments. What we're proposing, in fact—

The Chair: It's not a question of giving lessons, it's a question of whether you would comment on how to trigger a higher political commitment and delivery on the part of the provincial governments.

Mr. Robert Décarie: What we're proposing is to ask the federal government to have its house in order, and maybe after that it can show some leadership, instead of asking others to do the things—

Ms. Elizabeth May: I would also say that by having the prohibitions apply across the country, the Species at Risk Act would at least establish a federal government interest in the survival of the species wherever they are found—it's not discretionary, but exists across the landscape—and that, we hope, will create and foster partnerships that are necessary in recovery planning to ensure those species are protected.

Mr. Pierre Gratton: SARWG, too, as a group, has not exclusively focused its efforts on the federal government. Obviously with the tabling of SARA and with all the lead-up to the tabling of SARA, much of our time has been spent on this, but throughout our past two and a half years we've met with provincial governments and provincial wildlife directors and urged that they take action as well in their respective jurisdictions.

Should the federal government do as Robert just mentioned, take concrete action in areas of its jurisdiction? I think the onus will fall quite clearly on the provinces, and maybe this will be the future work of SARWG, to go from province to province and to territory to help fulfil our mandate as we see it.

The Chair: Thank you.

Yes, Mr. Johnson.

Mr. Marc Johnson: To add to that, I do agree with you that the provinces have a long way to go to fulfil their commitments under the accord, and we have seen some significant movement from a number of provinces over the last couple of years. From many the Canadian Nature Federation has talked to, they're waiting to see what the federal government does with their legislation before they move ahead with their own or before they move ahead with implementation. I think what we've spoken to is that if the federal government can show leadership in establishing clear authority and mandatory provisions under their own clear areas of jurisdiction, it will raise the bar and allow us, as the Canadian Nature Federation, to be able to push similarly for the provinces to do the same.

The Chair: Thank you. That's very helpful.

Mr. Pierre Gratton: May I add a couple of comments on the issue of compensation, to clarify as well? This goes back to your earlier remarks in response to Robert's comments.

On the idea, for example, of including in the preamble a recognition of the socio-economic considerations, I don't think it's SARWG's intention here for that to be a trump card, that socio-economic considerations would trump. This is a bill about conserving species. What we ask is that the process for ensuring the recovery and survival of species take place in the context that takes into account socio-economic considerations. So you'd do it in the way that best mitigates the possible impacts it might have, but it is still a bill and would still be a law about conserving species.

Also, on the issue of compensation, the cod is perhaps one example. For many species, I don't think there would be much sensitivity to someone who earned a livelihood from shooting the burrowing owl and stuffing it, or something like that. What we are talking about is circumstances where someone's livelihood is affected, in that they are going about a very separate activity but happen to have species that reside on their land and they had no choice in terms of the species deciding to reside there.

Also on the issue of compensation, I want to clarify, as I noted in the principles I expressed earlier in my remarks, we do recognize that there would have to be some discretion here. We're not saying everybody who's affected in all circumstances must get full compensation and that the compensation should be financial. There are going to be circumstances where, especially if you follow the process we're talking about, compensation should in most instances be avoided, and I think there will be circumstances where resource companies are going to be fully prepared to adjust their operations in a way and not head straight to the federal government to demand their cheque.

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But we do think it is important that the principle at least exist, that in those very difficult circumstances where an individual or a company or a community is going to be, quite frankly, devastated by some pretty dramatic actions because there was no alternative to those actions, the opportunity for compensation exist. But it's not a carte blanche. We do see there being some kind of discretion built into the system.

The Chair: That's very helpful, and certainly clarifications do go a long way in understanding better what goes on in people's minds. But I will not engage in that discussion any further.

As a society, we seem to be extremely concerned about these poor darlings over there that are about to be extinct, and having then made this general commitment and expression of profound concern, we say let's do something about it, provided, however, that socio-economic considerations are to be found, compensation is taken into account, and all sorts of other qualifiers, which erode the very thrust of the original thought. So we have to make up our minds as to what extent we as a society make a commitment to a problem that we have collectively created.

Mr. Rotherham, in his presentation, made a very strong pitch for the necessity—and I agree with him—in the minds of all parties when it comes to the question of penalties and so on. That triggers, then, another question, and not necessarily of you, Mr. Rotherham, but anyone else, because the discretion contained in Bill C-33 is quite widespread. It's discretionary legislation in many clauses, and it means probably quite a degree of uncertainty, particularly for industry.

Would you representatives of industry like to comment on whether you wouldn't rather have more certainty by way of mandatory requirements in the legislation, more “shalls” rather than “mays”, less discretion to the cabinet, and more certainty in the language of the bill itself?

Mr. Tony Rotherham: Robert Décarie addressed that point in his presentation on the amount of discretion that was built into the bill, and that this could perhaps be reduced if there were more certainty that there would be an inclusionary process in developing recovery strategies and recovery plans, that if there were a guarantee that all of the stakeholders would be around the table to contribute their ideas for conservation and in many cases, through adaptive management procedures, measures that would move towards conservation but would still allow organizations and individuals to earn their living in much the same way as they had before, we would be able to reduce the need for discretion.

So again, it's a balancing. The more inclusion you have in the procedures and the processes of the act, perhaps the less discretion that's required. So you would have more certainty because of the fewer instances where the word “discretion” was used, but you would also have more certainty in that at the early stages of planning and developing recovery plans, people would be included and their opinions and their knowledge would be heard and respected.

The Chair: All right, thank you.

For the second round, Mr. Herron.

Mr. John Herron: I want to pick up on what the chair talked about, with respect to the provincial legislation that's in place versus federal legislation.

My perspective on this is that it's evident the provinces have more mandatory protection for critical habitat when it's on provincial land. Mr. Knutson flagged the very issue that there are problems maybe with respect to getting listing done. Doesn't that make it that much more important to make sure that the issue of listing is that of science, and not a political choice at that point, and that how you address that listing with regard to socio-economic issues is of importance to be the trigger of getting the ball rolling? Could you comment on that issue? I think the two have to be tied together in order to make that mandatory protection of critical habitat work.

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Ms. Sandy Baumgartner: I think you're absolutely right. I'm sort of searching for the question on that. But yes, you're absolutely right that you do have to have a scientific listing so that you can then make the political decisions after that fact.

Mr. John Herron: One issue from a federal perspective in terms of leadership is that I think it's going to be harder for the federal government to actually provide leadership if it doesn't have its own house in order. That's what Mr. Décarie flagged, and I think he's absolutely right in that regard. It sends a very negative signal to the provinces when you're saying that without mandatory protection of critical habitat in a national park, if it's on a military base, if it's in a post office.... That's what we're talking about when it comes to federal lands in that regard. From the fishery perspective, a lot of those provisions are already in place under sections 35 and 36 of the Fisheries Act.

So would this committee indicate that when we're talking about parks, post offices, and military bases...? If we had privatized the Pearson Airport, we wouldn't have the issue on the Pearson runway. Do you think that is a major chip at the federal government? You've spoken to other provincial governments on this. Do you think that if the federal government doesn't look after its own backyard, it's going to inhibit its capacity to provide leadership with the provinces on this issue?

Ms. Sandy Baumgartner: You certainly make some relevant points. I think one of the things we've learned through our process is that there's a role to be played in the conservation of the species at risk by everyone, not just the federal government and the provinces but municipal governments as well. We've learned a lot about the roles that municipal governments have to play in this process, which haven't been addressed here and which need to be addressed. So what I'm saying is that everyone has a role to play.

We had hoped for, and we are still looking for, the federal government to show some leadership. I think just the process we're going through now with a piece of legislation looming and potentially coming into provincial jurisdiction has given the impetus for provincial governments to take some action. We've seen some more resources placed with provincial governments. So I suppose in that sense it has had the desired effect.

But at the same time, you're quite right, and I think my colleagues have emphasized, that the federal government has to put its own house in order. We have to do our jobs wherever we reside. You have a responsibility whether you're an individual landowner or you live in an urban area. At the same time, the federal government does have a responsibility to ensure that species are protected in their post offices, national parks, or what have you.

Mr. John Herron: My last line of questioning is that I think that's an incredibly critical issue in terms of providing leadership with the file.

I want to compliment the private woodlot owners in terms of their participation on this as well. A lot of people who have managed private woodlots in a sustainable forestry perspective from practising silviculture have been stewards of the land before it was trendy to even talk about that here in an Ottawa context. The private woodlot owner must be doing something right. Otherwise, the species wouldn't like it there to some degree as well. There are about 400,000 private woodlot owners in the country, and I think their participation in this should be immensely applauded.

But if I'm not going to make it mandatory protection for a species at risk in a park, on a defence base, or on my post office and then I'm going to ask the private woodlot owner to engage, it doesn't build that kind of support.

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What I'd like to have maybe brought out a little bit more, and I think it's a very good point, is that the first time the federal government or any level of government says you can't do something when you made an application, that's when resistance builds. So that early notification—the courtesy of letting you know you have a species at risk on your property, and you may not have to change anything in what you're doing right now, but we're flagging it to you—can you maybe explain how that mechanism would work to actually foster that sort of goodwill so that they hear from the federal government on species at risk on occasions other than just when it's going to “cost them”?

Mr. Gary Nielsen: The way that would happen through the process that has been outlined here would be in the recovery plan process. The right people would be at the table. It would include the landowners, the professionals, and the stakeholders. Everybody would be there, and they would collectively decide here's where the species occurs on the landscape and here are the people who own that; we had better go to talk to them. So they would come up with the mechanism.

What would really kick-start the whole thing in another way the federal government could provide leadership is through enabling funding. If you want to kick-start the provinces, that's certainly a way to do it.

Give me two minutes and I'll give you an example of a local situation an hour south of here of loggerhead shrike on a piece of property, just to show you the restrictions at the provincial level right now. It's a 100-acre property. They put in the application to subdivide a little piece of property for the daughter to build a home on. It happens all across the province. We have two million acres of idle agricultural land in eastern Ontario that this happens on every day. This one happened to be screened as loggerhead shrike habitat. The answer is no; it's an endangered species, so you cannot sever the land in order for your daughter to build a house. Of course they get angry, and they go through the appeals process at the OMB, the Ontario Municipal Board. The owner takes on all the expense of hiring lawyers and going there. The answer again is clearly no, because the legislation says it's an endangered species, and you can't work with it.

Where does that take us five years down the road? There's no enabling part in Ontario to actually work with that landowner. All we can say is no. So five years down the road that landowner has twenty barn cats on half rations making sure that they're out there feeding on birds so that this doesn't happen again.

If you took SARA the way it's envisioned here, we could have offered that landowner choices. We could have come in with a little bit of enabling funding and legislation saying, “Sure, have your building lot here, but let's have a conservation easement on the rest of your property that would protect that area. Let's have a little bit of fencing. Let's do whatever it takes to keep the loggerhead shrike habitat there on your property. You get what you want. The species gets what it wants.” You need that flexibility to work with people in order to make things happen.

Mr. John Herron: And we're not writing cheques.

Mr. Gary Nielsen: I'm assuming that when you say stewardship and compensation, there is some kind of fund that is available to the recovery committees so that they can say that to recover this species we're going to need about this much money to do this with it, and that fund would somehow be available. That's a great way to provide leadership.

Ms. Elizabeth May: The kind of picture we have in mind is similar to what you've heard from the Cattlemen's Association that what would make a difference to them is that if the first time they heard about a species on their property was while having coffee at the kitchen table with someone who's knowledgeable and they were invited into a process. That's going to change the way they respond. It's going to be more positive when they're able to have people also asking them, what do you know about the species? When do you see them? What can we do that allows this cooperative nature so that the species gets what it wants and people continue to use their land as much as possible without interfering with the species?

Mr. John Herron: I just want to conclude with a six-second comment. We're probably going to have an election called within the week, and this bill will fall off the Order Paper. I know that you folks might say that all this work we've done has been lost. I know categorically that it hasn't been. Any government that is elected in the next election obviously will pick up on the recommendations from this bill and also the recommendations of what SARWG clearly has done. That is going to be an immense amount of a tool kit, whatever government, whatever political party, whatever political coalition actually forms the next government.

The Chair: Thank you for that assurance.

Some hon. members: Oh, oh.

The Chair: Madam Redman, please.

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

If we're all going to indulge in some comments here, I would have to say that with this piece of legislation, which is showing itself for the second time, and CEPA, I think this committee should be commended on the amount of work it has been able to effect over this past sitting. I guess I'd also point out that we could have all been having these discussions last spring if things had gone a little bit differently, and that probably would have been a good thing as well.

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I appreciate how hard it is to reach consensus on something. We do that on both sides of the table all the time. SARWG has worked very hard at reaching that consensus, and it's the job of this committee and of the government to take into account a whole lot of voices.

A couple of comments have been made. Mr. Peeling made the point when he was speaking, and I know it's in your brief as well, that the recommendations should be viewed as a package. While I do appreciate the fact that the spirit of all these recommendations is to forge a better piece of legislation and they're all offered in the spirit of improvements, Ms. May, you've already given the rationale around suggesting that we change the legislation from strict liability offences to mens rea offences.

We have to note that all other wildlife legislation at both the federal and provincial levels provides for a strict liability offence for an activity that would directly harm or kill individuals of any species, so it's sort of hard to justify why prosecuting an offence of harming an endangered species should be more difficult than prosecuting for harming just a common species. I point this out as just one of the aspects that needs to be considered when we're looking at this in the broader context. I wonder if you would comment in light of the belief of SARWG that these need to be taken as a package.

Ms. Elizabeth May: We made the point that it needs to be taken as a package because in the past we've put forward recommendations and we felt quite honestly that some of the things we've worked really hard to have the federal government listen to, like the need for compensation, were listened to, but the need to effectively protect species across the country wasn't. So this time we really hope our approach can be viewed as a package.

As I mentioned earlier, in response to another question, this question of mens rea versus due diligence may be an issue that's more perceived than real. It's of real concern to landowners across the country.

Our experience after Bill C-65 was that there were a lot of hot-button issues out there that provided the basis for a fount of misinformation that spread across the landscape and motivated people to oppose the legislation. This is one of those hot-button issues. This is one where, in terms of prosecutorial discretion, I think it's extremely unlikely that the RCMP are going to charge people for an incidental, accidental, honest mistake where a due diligence defence would work. They're much more likely to be choosing those instances, and also in cases of injunctive relief, where you can see that the killing of a species is contemplated by a development of some kind: the developer knows the species is there but the act doesn't apply on provincial land.

That's why we want the prohibitions to apply across the country, because we believe that prohibition and mens rea offence are adequate to improve significantly the scope of the bill and its effectiveness in protecting species, even with the mens rea defence. We think the mens rea requirement in a prosecution will make for a more effective package.

Mr. Pierre Gratton: As one small point to reinforce what Elizabeth has said, our recommendations are best taken as a package. Should this committee or the government choose to pick out once again certain elements from it, our response would be that it's unfortunate. It would be better as a whole.

Might we be able to say, well, given the ones you've picked, yes, collectively we still see it as a step in the right direction? Maybe. You'd have to come back and ask us.

I don't want to give you the impression that it's all or nothing. It's best as a package, but I think there are certainly things you could do, even picking some of the elements out of it that would strengthen the bill and meet with at least a modest nod of approval.

Mr. Gordon Peeling: Let me add, as well, that one of the reasons we have approached this as a package is because it's absolutely essential, if we're to recover species, that it's people that are going to do that. All our recommendations are designed to get buy-in, stewardship, and cooperation on the ground by all stakeholders. Consequently, that's why we'd like to see this as a package, and as a package, it does help to improve it.

Some of these are perceptional signals as much as reality signals. Yes, maybe we can argue about that legal issue, but the last time around, this was an extremely important point that prevented buy-in by people on the ground as to how to get species recovery. We see that as an important hurdle to overcome and an important signal to give.

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Mrs. Karen Redman: Thank you.

Mr. Robert Décarie: On the criminal law power over infractions, Elizabeth said it's unlikely the RCMP would eventually prosecute someone who by mistake did a wrong thing. We've just seen in New Brunswick that you can be prosecuted for playing hockey in the street, so you still have to be careful.

Mr. Gar Knutson: You knowingly play hockey.

Mr. Robert Décarie: Willfully.

I'm not a lawyer, but maybe the difference is that for other species and other acts, they're not using the criminal law power, they're using their traditional power. Using criminal law power makes it a bit tricky to move into a due diligence defence.

Ms. Sandy Baumgartner: Not on the due diligence defence but to pick up on a bit of what Gordon was saying about our package and having buy-in from people on the ground, I want to add, though, that doing so and ensuring we would have active cooperation from the forest sector or the industry sector or the agriculture sector was in no way eroding the need to protect the species. I'd like to address this from your comments, Mr. Chair.

We always looked at our recommendations in that light, and that species concerns were paramount. Maybe we're idealistic, but to have a scenario where, collectively, Canadians are working together to conserve and protect species at risk is perhaps more important than forcing people to do something without their desire to want to participate.

From the people we spoke to across the country, there is certainly a willing desire to participate, but first of all, people need to know what species are at risk and how they can help, and they want to feel a part of the process. I think our package has really embraced those types of concepts without eroding the need to protect species at risk.

The Chair: Thank you.

I have one final question. I understand you have a proposal on alternative dispute resolution in mind. Could you give us a very quick outline of that, please?

Mr. Tony Rotherham: I was part of a small committee that worked out a proposal for alternative dispute resolution. This goes back to a comment by Andrew Clark, from New Brunswick, a private woodlot owner who said “As soon as I walk into the court, I have lost.” We've talked about the costs of these things and the negative impression that people get when they may be faced with a court.

There are a variety of other ways to try to ensure that the legislation is enforced. We produced a fairly complicated, several-step process, and a report on this was sent through to the Canadian Wildlife Service, who I guess were framing the legislation under instruction from the minister's office.

We see a little bit of that in the legislation, where an individual is able to initiate an investigation by requesting it. However, we don't see the rest of it in there.

During the course of the life of this little committee, we had discussions with the machinery-of-government people in the Prime Minister's Office or in the Privy Council. We had discussions with the Prime Minister's Office. It was a very interesting, educational exercise for many of us.

It may be that what we proposed was a little bit too complex and bureaucratic, with too many steps, but at least it had the advantage of providing citizens with an opportunity to ensure that the government did enforce its own legislation, and that was the objective of the whole thing. It was also designed to replace the citizen's right-to-sue provisions, which were an unfortunate feature of Bill C-65.

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The group on this little committee—which included Gerry DeMarco from the Sierra Legal Defence Fund, Sarah Dover, who is sitting quietly in the background there, and several other people—met the requirements of the conservation side of our little table and also the private sector side of the little table. It provided an opportunity for citizens to ensure that the act was enforced, but it also kept us out of court so that Andrew Clark didn't have to lose as soon as he walked into court.

Perhaps the government should take another look at these recommendations and see if there's anything there on balance that would improve the virtue of this act and its efficiency.

I guess those who are practised in the framing of legislation are the best judges of that, sir.

The Chair: All right.

[Translation]

We have had a very good meeting today, and I would like to thank you on behalf of the committee members.

Ms. May, I believe that you would like to speak. Please be brief.

Ms. Elizabeth May: I am sorry, Mr. Chairman.

I want to thank all the members who are here today.

[English]

I know it's a very, very busy day, and I'd forgotten to ask if it would be possible that our entire brief be entered as if it were read, for Hansard purposes. I don't know if that's possible. Some committee members from different parties weren't able to make it today. In any case, I'll leave that with you if it's possible; perhaps it's not. But we do appreciate your being here on a very, very busy day, and your questions have been very thought-provoking.

[Translation]

The Chair: We will discuss it with the clerk and give you an answer later.

On behalf of committee members, I would like to thank you, Ms. May, Mr. Décarie, Ms. Baumgartner, Mr. Rotherham, Mr. Peeling, Mr. Gratton, Mr. Johnson and also...

[English]

I left out two people: Mr. Lindsay and Mr. Nielsen.

Thank you very much. We certainly learned a lot this morning. We will make the best possible use of your suggestions in the time ahead, and we will see each other again, I hope—if we get re-elected.

This meeting is adjourned.

CONSERVING SPECIES AT RISK COOPERATIVELY:

A RESPONSE TO THE SPECIES AT RISK ACT

BRIEF PRESENTED TO THE STANDING COMMITTEE ON SUSTAINABLE DEVELOPMENT AND THE ENVIRONMENT

by the SPECIES AT RISK WORKING GROUP

September 2000

Sandy Baumgartner, Manager of Programs and Communication. Canadian Wildlife Federation, 350 Michael Cowpland Drive, Kanata, Ontario K2M 2W1 Tel: 613-599-9594 Fax: 613-599-4428 sandyb@cwf-fcf.org

Robert Décarie, Biodiversity Advisor. Canadian Pulp and Paper Association, 1155 Metcalfe Street, Montréal, Québec H3B 4T6 Tel: 514-683-9996 Fax: 514-683-7362 rdecarie@dsuper.net

Pierre Gratton, Vice-President Public Affairs and Communication. The Mining Association of Canada, 350 Sparks Street, Suite 1105, Ottawa, Ontario K1R 7S8 Tel: 613-233-9391 Fax: 613-233-8897 pgratton@mining.ca

Marc Johnson, Conservation Campaign Manager. Canadian Nature Federation, 1 Nicholas Street, Suite 606, Ottawa, Ontario K1N 7B7 Tel: 613-562-3447 Fax: 613-562-3371 mjohnson@cnf.ca

Elizabeth May, Executive Director. Sierra Club of Canada, 1 Nicholas Street, Suite 412, Ottawa, Ontario K1N 7B7 Tel: 613-241-4611 Fax: 613-241-2292 sierra@web.net

Rita Morbia, Endangered Species Coordinator. Sierra Club of Canada, 1 Nicholas Street, Suite 412, Ottawa, Ontario K1N 7B7 Tel: 613-241-4611 Fax: 613-241-2292 sierra@web.net

Tony Rotherham, Director Forestry. Canadian Pulp and Paper Association, 1155 Metcalfe Street, Montréal, Québec H3B 4T6 Tel: 514-866-6621 Fax: 514-866-3035 trotherham@cppa.ca

Laura Telford, Conservation Campaign Coordinator. Canadian Nature Federation, 1 Nicholas Street, Suite 606, Ottawa, Ontario K1N 7B7 Tel: 613-562-3447 Fax: 613-562-3371 ltelford@cnf.ca

EXECUTIVE SUMMARY

Since April 1998, the Species at Risk Working Group (SARWG) has been working to develop creative solutions for the protection and recovery of species at risk that would reconcile the need for wildlife conservation and the needs of those whose livelihoods are dependent on natural resources.

SARWG is pleased with the federal government's inclusion of provisions for stewardship opportunities and compensation for affected landowners and users as part of its strategy. We similarly applaud them for omitting the controversial “citizen suit” provision. The investment in species at risk, announced in the March 2000 budget, is also a welcome first step. These measures will stimulate the active participation of Canadians in species at risk conservation.

SARWG members, however, still have significant concerns with some key elements of SARA. In this brief, we offer some practical solutions aimed at strengthening SARA's effectiveness in protecting species at risk while respecting the needs of landowners and users. Our core recommendations are founded on the federal government demonstrating strong leadership by taking responsibility for species at risk in areas where it has clear jurisdiction and by playing an active coordination role. We also propose that the taking into account of socio-economic aspects be an integral part of the legislation, which would allow for more mandatory conservation action after reaching balanced solutions.

As a signatory to the National Accord for the Protection of Species at Risk (Accord) the federal government must do its part to ensure the Accord's objectives are achieved. Prohibiting the willful killing of all species at risk and the destruction of their residences throughout Canada is the first contribution that the federal government can make to build a genuine national safety net.

The federal government should also do more to ensure that the critical habitat of species at risk on all federal land and in all areas of clear federal jurisdiction is protected. Since the areas of critical habitat that will be legally protected would be identified during an inclusive recovery process involving all levels of government and stakeholders, the need for discretion is unwarranted.

In addition, the SARWG recommendations address a number of other areas of concern including COSEWIC, listing, due diligence defense, meaningful stakeholder involvement in the recovery process, interim protection through buffer zones, compensation, environmental assessments and exemptions. All of these recommendations are designed to provide the balance needed to enable better species protection in a manner that is respectful of the rights and interests of land owners and land users and fosters their support.

We believe that the federal government has the opportunity to demonstrate clear leadership in environmental protection by delivering effective legislation for protecting species at risk. By adopting the measures we've proposed, this government can significantly fulfill its Accord contribution, blaze a trail that will encourage all jurisdictions in Canada to do their part and engage the cooperation of landowners and resource users.

This brief has the support of the member organizations of SARWG and the SARWG position has been approved by the following senior executives:

Canadian Nature Federation: Mrs. Julie Gelfand, Executive director

Canadian Pulp and Paper Association: Mrs. Lise Lachapelle, President and Chief Executive Officer

Canadian Wildlife Federation: Mr. Colin Maxwell, Vice-President Executive

Sierra Club of Canada: Mrs. Elizabeth May, Executive Director

The Mining Association of Canada: Mr. Gordon Peeling, President and Chief Executive Officer

TABLE OF CONTENTS

EXECUTIVE SUMMARY

TABLE OF CONTENTS

1.0 INTRODUCTION

2.0 PREAMBLE OF THE ACT

3.0 SOME DEFINITIONS

3.1 RESIDENCE

3.2 TAKE

3.3 HARM

3.4 SPECIES

4.0 COSEWIC AND THE LISTING PROCESS

4.1 COSEWIC

4.2 THE LISTING PROCESS

4.3 EMERGENCY LISTING

5.0 THE FEDERAL CONTRIBUTION TO THE NATIONAL ACCORD FOR THE PROTECTION OF SPECIES AT RISK

5.1 PROHIBITIONS AGAINST KILLING OF INDIVIDUALSOF LISTED SPECIES AND DESTRUCTION OFTHEIR RESIDENCES ON ALL CANADIAN LANDS AND WATERS

5.2 CRITICAL HABITAT PROTECTION IN AREAS OF CLEAR FEDERAL JURISDICTION

5.3THE FEDERAL SAFETY NET

5.4 GRACE PERIOD FOR PROHIBITIONS

6.0 INTERIM BUFFER ZONES

7.0 DUE DILIGENCE DEFENSE UNDER SARA

8.0 RECOVERY PLANNING AND CRITICAL HABITAT IDENTIFICATION

8.1 RECOVERY STRATEGIES

8.2 RECOVERY ACTION PLANS

8.3 CONSULTATION

9.0 COMPENSATION

10.0 TIGHTEN EXEMPTION PROVISIONS (s.74,75,& 83)

11.0 STEWARDSHIP AGREEMENTS, PERMITTING AND ENVIRONMENTAL ASSESSMENT

12.0 AMENDMENTS TO CEAA

13.0 THE TRANSITION PERIOD

14.0 OUTREACH INITIATIVES CRITICAL TO IMPLEMENTATION OF SARA IN ORDER TO ENSURE VOLUNTARY STEWARDSHIP

15.0 COMPETENT MINISTER

16.0 FEDERAL EXPERTISE FOR THE IMPLEMENTATION OF SARA

17.0 CONCLUSION

LIST OF RECOMMENDATIONS

APPENDIX 1

1.0 INTRODUCTION

The Species at Risk Working Group was formed in April 1998 to develop and promote a collaborative approach to species at risk conservation. It was primarily due to our dissatisfaction with the previous Bill C-65 that we came together to attempt a different approach. Our approach aims at legislative and complementary enabling measures that ensure protection of species at risk while respecting the rights and activities of landowners, resource-users, workers, and communities and engaging their cooperation. In September 1998 we presented our draft consensus package to the Canadian Council of Wildlife Ministers, whose advice was incorporated into the final paper released on November 3 (attached to this brief). We hope that our efforts to reduce polarization around the prospect of legislation to protect endangered species have been helpful.

We are pleased to see many elements of what we proposed included in the “three-pronged approach” announced December 17, 1999 by the Honourable David Anderson. We applaud the recognition of the need to support Canadians in their stewardship measures to conserve endangered species; a significant contribution by the federal government to develop a “Canadian way” to creatively protect and recover species at risk. We similarly applaud the Minister for omitting the controversial “citizen suit” provisions found in the former Bill C-65.

We strongly support the inclusion of the enabling section of Bill C-33 to allow compensation to be paid within the scheme of this Act, although, as we will discuss in more detail, the current provision does not entirely meet our goals. We believe the recovery process proposed in SARA endeavours to be inclusive. We are also pleased with the funding announced in the Finance Minister's March 2000 budget to support important research, listing, recovery, and stewardship activities. Careful planning and forethought will be necessary to ensure wise spending. We believe that considerably more resources will be needed.

With so much accomplished between C-65 and C-33, one might expect us to support the proposed legislation unchanged. Unfortunately, SARWG members still have significant concerns with some key elements of SARA.

While some progress has been made in meeting landowner and resource-user concerns, efforts to recover species at risk will not be successful unless every effort is made to ensure that the process is inclusive and that all stakeholders participate fully. SARWG believes that the approach taken in Bill C-33 provides fewer legal assurances than the former Bill C-65 that species at risk and their habitat will be protected. Like Bill C-65, the current effort would stand out internationally as a federal law that fails to prohibit the direct killing of species at risk. Unless the species at risk is found on federal land, is a Fisheries Act aquatic species or a migratory bird within the meaning of the Migratory Birds Convention Act, the proposed SARA does not apply. It provides no assurance of critical habitat protection even on federal lands. The government claims that the Act will work to protect species at risk on other lands through the so-called “safety net” provision, but we have grave concerns about this approach.

We present the following recommendations in the hope that they might be accepted by both the Committee and the Government as useful improvements to the draft bill.

2.0 PREAMBLE OF THE ACT

SARWG has always promoted an approach that “works both for species and for people”. This fundamental premise must be an integral part of the preamble of the Act. This will ensure that it informs the interpretation given to the text of the Act.

Therefore we propose the following additions to the preamble:

Equitable sharing of benefits and of costs is one principle of the Convention on the Conservation of Biological Diversity. It should be at the foundation of efforts to conserve species at risk. The cost of species conservation should be shared by all Canadians and not borne only by a small group of landowners, resource users, workers and communities;

The purposes of this Act shall be pursued to the extent possible while taking into account social and economic interests of Canadians.

3.0 SOME DEFINITIONS

In SARA, the federal government relies heavily on criminal prohibitions to protect species at risk. To ensure the validity of these criminal prohibitions, they must be clear, understandable, and easily recognized. They cannot be subject to a variety of interpretations that can mislead both people and the courts.

We want the government to take a close look at three key words related to prohibitions in SARA: “residence”, “take” and “harm”, as well as to the definition of “species”.

3.1 RESIDENCE

“Residence” is a non-biological term but in the Act it has significant legal consequences. It is important that “residence” be defined in such a way that it cannot be mistaken for habitat nor construed to mean habitat. We offer a slight modification to the definition in section 2 of Bill C-33.

“residence” means a specific dwelling-place, such as a den, nest or other similar site, place or structure, that is occupied or habitually occupied by one or more individuals during all or part of their life cycles, including breeding, rearing or hibernating.

Equally important will be the definition/description of the residence for the purposes of creating the prohibition. The present draft of Bill C-33 is silent on this matter. We recommend that the Minister, at time of listing, indicate whether the concept of residence is applicable to the species in question and, if so, provide a clear definition and description of the residence.

3.2 TAKE

The word “take” used in s. 32(1) could be open to interpretation. It should be replaced by “remove” or some other word that is more consistent with the French word “prendre”.

3.3 HARM

The word “harm” used in s. 32(1) is similarly open to interpretation. It should be specifically and clearly defined in section 2 of SARA, especially if it is meant to be applied to actions which disturb individuals. An understanding of the term that suggests the causing of direct physical injuries does not create difficulties. Care should also be taken to ensure that “harm” does not stray into habitat issues, which are more appropriately dealt with through a recovery planning process involving affected stakeholders. One should not be able to plead that a disturbance to habitat is “harming” an individual and conclude that habitat disturbance should, therefore, be automatically prohibited. An ill-defined prohibition in the case of “harm” could lead to abuse and court action.

3.4 SPECIES

Bill C-33 defines species differently than COSEWIC which defines it (from the Organization and Procedures Manual for COSEWIC, July 1999) as “An indigenous species, subspecies, variety or geographically defined population of wild flora and fauna.” In Bill C-33, species is defined as “a species, subspecies or biologically distinct population of animal, plant or other organism, other than a bacteria or virus.” To avoid future court challenges, the two definitions must be consistent.

4.0 COSEWIC AND THE LISTING PROCESS

4.1 COSEWIC

COSEWIC has been established to provide an arms-length scientific process to assess the status of species at risk and to list them. It is important that COSEWIC be able to function as a scientific body at arms length from the government (namely CWS). The regulations established by the Minister to guide the carrying out of COSEWIC's functions should be designed to support its arms length role and scientific integrity. The secretariat of COSEWIC should support, coordinate and record the work of COSEWIC. However, the Secretariat should not be in a position to guide, direct, or manage COSEWIC's work.

COSEWIC's assessment of the status of wildlife species should be based purely on scientific considerations. Section 15(3) requires that COSEWIC take into account applicable treaty and land claims agreements during its functions. While we support the consideration of traditional aboriginal knowledge in the assessment process, Section 15(3) refers to political considerations rather than knowledge-based information. We believe that these political considerations should be dealt with by government rather than by COSEWIC, as has been done in Section 27 (1)(c). We therefore recommend that Section 15(3) be omitted.

The role of COSEWIC is not to assess threats, but rather to assess the status of species under imminent threat. Section 28(1) should be modified as follows:

Any person who considers that there is an imminent threat to the survival of a wildlife species may ask COSEWIC for an assessment of the status of a species subject to an imminent threat for the purpose of having the species listed on an emergency basis under subsection 29(1) as an endangered species.

4.2 THE LISTING PROCESS

SARWG maintains that the listing process should be fully transparent and scientific. Listing is the necessary first step for the survival and long-term recovery of wildlife at risk. If a species is not legally listed, it will receive no regulatory protection for the species or its habitat, no recovery planning, no opportunity for stewardship conservation agreements, and no associated funding.

While we continue to advocate legislation that gives COSEWIC's list full force and effect, recognizing the government's reluctance to revisit this option, we offer the following constructive means of minimizing the discretion within the listing process and increasing transparency: Bill C-33 should provide for species listed by COSEWIC (including those on the current list) to automatically receive legal recognition unless Cabinet (or the Minister) deems otherwise within a brief period of time (i.e. 30 days) after COSEWIC's list is published.

4.3 EMERGENCY LISTING

In s. 29 (1) there is no limit stating how long emergency listings may remain in force. Further, in s. 30, status reports for species listed on an emergency basis are not required until two years after listing. This time period is too long. If a species is going to have a chance of recovering, action must be taken quickly. On the other hand, if a species is determined not to be at risk, prohibitions and limitations to operations should be removed quickly. COSEWIC should have 1 year to produce a status report in the case of an emergency listing..

Section 29(2) should be amended so that COSEWIC be consulted in all cases prior to any ministerial action pursuant to s. 29(1), as such decisions should be based on the best scientific advice.

5.0 THE FEDERAL CONTRIBUTION TO THE NATIONAL ACCORD FOR THE PROTECTION OF SPECIES AT RISK

The federal government is a signatory to the National Accord for the protection of species at Risk (the “Accord”) and needs to play a leadership role to ensure the Accord's objectives are achieved. This section outlines some key improvements to SARA where the federal government can make a significant contribution to the protection and recovery of species at risk.

5.1 PROHIBITIONS AGAINST KILLING OF INDIVIDUALS OF LISTED SPECIES AND DESTRUCTION OF THEIR RESIDENCES ON ALL CANADIAN LANDS AND WATERS

Prohibiting the willful killing of species at risk and the destruction of their residences throughout Canada is the first contribution that the federal government can make to build a genuine national safety net.

As the federal government has acknowledged, and as was confirmed by the Supreme Court of Canada in the Hydro-Quebec case, the federal government can use its constitutional power over Criminal law to prohibit environmental harm. The Criminal Law power is specifically referenced as a source of federal authority in public relations materials on SARA. Yet, the current draft fails to implement the most effective application of the Criminal Law powers in relation to species at risk. By failing, pursuant to section 34, to allow sections 32 and 33 to apply as written, across the whole country, the legislation suggests a regulatory approach rather than one properly based on prohibitions, thus “contaminating” its criminal law power. In other words, it suggests the jurisdiction is provincial where not on federal lands or as applied to aquatic species and migratory birds. Having undermined its authority, it then proposes a discretionary regulatory power to exert federal jurisdiction from time to time.

We strongly support the straightforward application of prohibitions against the killing, harming, harassing, capturing or taking of an individual of a wildlife species listed as extirpated, endangered or threatened, as well as prohibitions on the destruction or damage to a residence of individuals of such a species. In other words, sections 32 and 33 should apply across Canada, without qualification.

The universal application of such prohibitions is consistent with the application of criminal law and less like discretionary federal regulation being applied within provincial jurisdiction. Such powers already prohibit cruelty to individuals of any animal species, regardless of where the animal is found. In a bill that presumes to be founded on the federal government's constitutionally enshrined powers over criminal law, the failure to prohibit the direct, intentional killing of the most imperiled of Canadian species is inexplicable.

The implementation of these mandatory prohibitions would strengthen SARA. Moreover, such prohibitions carry few of the more sensitive issues involved in critical habitat protection on provincial land and would send an important signal internationally of Canada's commitment to protect species at risk. Even in the context of current federal-provincial tensions, implementation of such modest prohibitions should not prove politically difficult.

5.2 CRITICAL HABITAT PROTECTION IN AREAS OF CLEAR FEDERAL JURISDICTION

Habitat conservation is essential to the long-term survival of the majority of Canada's species at risk. Wildlife conservation is a shared responsibility between the federal and provincial governments. However, we look to the federal government to show leadership on the issue of critical habitat protection by acting on federal land and in areas of clear federal jurisdiction. We thus have three fundamental concerns with Bill C-33 regarding habitat protection: its narrow application, its discretionary nature and its vague and uncertain definition.

Critical habitat protection measures in Bill C-33 are only mandated on some federal lands. However, the federal government has clear jurisdictional responsibility for the conservation of species on all federal lands, as well as for aquatic species covered under the Fisheries Act and for migratory birds covered under the Migratory Birds Convention Act. We therefore recommend that the scope of critical habitat protection measures be broadened to include extirpated, endangered or threatened:

., birds protected by the Migratory Birds Convention Act1; ., aquatic species; and ., species found on all federal lands, including the territories.

It should be noted that Bill C-33 recognizes federal authority over aquatic species and migratory birds in the section of Bill C-33 regarding the implementation of recovery plans (Section 53), but does not do so in the sections pertaining to critical habitat protection.

We further recommend that critical habitat protection measures identified in the recovery process within these three areas of federal jurisdiction be made mandatory, rather than discretionary. In the territories, we recognize that appropriate measures are needed to ensure the effective involvement of territorial authorities, affected Aboriginal communities and wildlife management boards. This is already reflected in sections 58 (4)(5)(6) and 59(4)(5)(6).

Given that we are dealing with wildlife species that are on the brink of extinction, the issue should be how to protect them, not whether to protect them. There must be certainty that the critical habitat of threatened and endangered species will be protected. Discretionary measures do not provide this certainty. As we also propose that the areas of critical habitat to be legally protected will be identified during the recovery process, the effective participation of all levels of governments and stakeholders should remove the need for discretion.

SARA provides for administrative agreements to delegate responsibility for provisions of the Act (Section 10). These federal-provincial agreements should be used where they promote efficiency in critical habitat management.

By taking the steps we have thus far recommended, namely:

., Implementing mandatory prohibitions against the intentional killing of extirpated, endangered, and threatened species and the destruction of their residence; and,

., By demonstrating true federal leadership by employing the federal government's authority and jurisdiction on its lands and with respect to aquatic species and migratory birds, we believe the government would build a solid foundation for species protection, worthy of provincial emulation. This action on the part of the federal government would foster complementary conservation measures on the part of the provinces.

Unfortunately, these elements are not currently found in SARA. We strongly urge the federal government to reconsider its proposed approach and adopt the measures we believe will provide a more reasonable and successful starting point.

5.3 THE FEDERAL SAFETY NET

It should not be surprising that SARWG members have distinct views regarding the limits or extent of federal jurisdiction in the area of environmental protection; views that are substantiated by a diversity of legal opinion on the same subject. However, all of us agree that for species at risk legislation to work effectively, federal-provincial cooperation is essential. We believe that legislation to protect species at risk must foster cooperation on the ground.

Perhaps the most controversial feature of C-33 involves the proposed federal “safety net”. The proposed use of criminal law power to enable the federal government to step into another jurisdiction is a delicate issue, since the desired safety net, to be effective, must be balanced with the need to ensure provincial government cooperation. Bill C-33 attempts to achieve this fine balance, but unfortunately we believe the approach is flawed. We recognize that Bill C-33 might have the effect of pressuring some provinces to assume their responsibilities, specifically acknowledged in the National Accord by federal/provincial/territorial governments across Canada, to protect species at risk and their critical habitat. We also acknowledge that the Bill should encourage industry to take the concerns of species at risk into account, if they are not already doing so.

The safety net provisions, however, are far too convoluted and uncertain to leave any of us with the expectation that they will be effectively implemented. No action to protect critical habitat, or to even implement prohibitions, can take place without exhaustive and exhausting consultations with provincial ministers and wildlife boards and then approval by the federal Cabinet as a whole. It is a process that assumes a remarkable and unrealistic degree of government efficiency, common purpose and federal- provincial cooperation. Taking on and embarrassing a provincial government is unlikely to foster the atmosphere of cooperation and harmony sought by the federal government through Bill C-33.

Moreover, we are persuaded that the “safety net” as designed rests on shaky constitutional grounds. None of us wants a bill at risk of being struck down in a few years time. None of us, certainly, is interested in a bill that will be used to test the boundaries of constitutional jurisdiction. We all agree that the federal government should, in the first instance, employ its clear jurisdictional authority to protect species and many of the recommendations in this paper are directed to ensuring that it do so more convincingly.

5.4 GRACE PERIOD FOR PROHIBITIONS

The Act provides for a one-year period of grace before any prohibitions come into force. The period of grace applies to licences and permits issued under federal authority. This period of grace should be extended to licences and permits issued under provincial and municipal authority.

6.0 INTERIM BUFFER ZONES

As previously discussed, we believe it is important that the critical habitat of extirpated, endangered, and threatened species be identified and protected through the recovery planning process rather than at the time of listing. However, recognizing the amount of time required to undertake and implement the recovery plans, we believe it is also essential that a measure of interim protection of the key elements for the survival of individuals of these species be provided. Specifically we believe that non-regulatory buffer zones should be used to provide an element of further protection to the individuals of extirpated, endangered and threatened species.

The nature of buffer zones would be proposed at the time of listing, when appropriate and/or needed. These buffers would enhance the protection of residences as well as of other known key elements for the survival of individuals. They would be temporary unless recovery teams recommend their extension.

The SARWG buffer concept should be used in conjunction with and as a complement to stewardship and recovery actions for species at risk. To be effective the buffer zones must conform to the principle of “quick on, quick off.” Non regulatory measures, such as landowner contact, the pursuit of conservation agreements, land easements, specific arrangements with landowners and resource managers and other appropriate stewardship measures are examples of the kinds of tools that could be employed for implementing buffer zones. These measures would be distinct from the emergency order measures prescribed in Section 80 of SARA. The responsible jurisdictions should make arrangements with landowners and resource managers to apply these buffer zones as effectively as possible.

We note that Canada's Wildlife Directors expressed interest in our proposed buffer zone measures in discussions that we have had with them over the last two years. Similarly, industry has employed this concept in many of their operations throughout Canada.

7.0 DUE DILIGENCE DEFENSE UNDER SARA

SARWG is concerned with the use of due diligence (Section 100) as a defense under the Act for a number of reasons. Although due diligence is a common measure of defense in environmental law, it is not typical in criminal law. The defense of “due diligence” is characteristically associated with “strict liability” offences i.e. where negligence is the intentional element required for the accused to have committed the offence. Section 100 requires that a person charged with an offence pursuant to Bill C-33 must prove, on the balance of probabilities that all reasonable precautions have been taken to prevent the commission of the offence.

We believe that proving due diligence is potentially very cumbersome and difficult for many resource users and landowners. Although due diligence can be demonstrated in the operation of a plant on a fixed site, for operations covering hundreds of thousands or millions of hectares and over which control of external factors is limited or impossible, due diligence is highly problematic. We do not believe that requiring hundreds of thousands of private property owners actively farming or conducting woodlot management operations on the 70 million ha of agricultural lands and the 25 million ha of privately owned forest lands across Canada to prove due diligence is reasonable. For the mineral exploration industry, which operates over huge land areas covering a wide range of habitat types, such an obligation will be a substantial deterrent to many companies considering investments in field programs.

We, therefore, recommend that the prohibitions, particularly with respect to their application on critical habitat, be made Mens Rea offences, shifting the onus to the Crown to demonstrate that violations were clearly intentional. At a minimum, the federal government must work with the provinces to provide training for natural resource managers and private landowners who will be required to exercise due diligence in the planning and implementation of all resource management and agricultural activities. The government will also have to provide and make readily available information to enable natural resource managers and private landowners to identify individuals of listed species, their residences and critical habitat that have been identified by recovery strategies.

Failure to make such programs readily available will deprive Canadians of the means to defend themselves against criminal charges.

8.0 RECOVERY PLANNING AND CRITICAL HABITAT IDENTIFICATION

For recovery planning to be successful, it must be an inclusive process that involves local stakeholders in the design and timely implementation of solutions to the challenges facing species at risk. We are encouraged by some of the efforts made in this respect.

Sections 39(1) and 48(1) state that the recovery strategy and the action plan must be prepared in cooperation with an array of partners including persons and organizations that the competent minister considers appropriate. We understand and agree that there cannot be 200 persons preparing a recovery strategy. We are also confident that key stakeholders, those that manage large areas or that are located in areas of high importance for a species at risk, will be invited to the table. Scientific, local and traditional knowledge will contribute to the development of well-founded, practical and cost-effective recovery programs.

Local stakeholders will be much more likely to support action plan measures if they feel, from the very beginning, that they have a role to play and that their concerns are taken into account. The inclusion of local stakeholders in action plan teams will help access local knowledge, support community buy-in, allow for adaptation of operating systems, and reduce socio-economic disruptions and the need for compensation. The recovery planning process outlined in SARA, for the most part, goes a long way toward achieving these outcomes.

We offer the following key recommendations that will complete what is already proposed in SARA.

8.1 RECOVERY STRATEGIES

Section 41 already provides a list of information that will be included in the recovery strategy. We would like to underline the importance of the identification of critical habitat based on scientific considerations. Identification of critical habitat should constitute a specific section of the recovery strategy.

A new subsection between 41-c and 41-d would read as follows :

in the case where scientific information is inadequate to identify critical habitat, a schedule of studies to fill the gaps ;

We also recommend the inclusion of a new subsection 41-h. This section would require the preparation of information on socio-economic issues that may be useful in the implementation of the strategy. This will help to identify other stakeholders who should be involved in the recovery action planning stage early on to improve efficiency and buy-in.

8.2 RECOVERY ACTION PLANS

The recovery action plan will cover all actions involved in the recovery of the species. A significant component will include decisions regarding the management and protection of critical habitat, as identified in the recovery strategy. These decisions will encompass a number of possible approaches, including:

., stewardship initiatives; ., actions by provincial governments; and ., legal protection measures.

These action plans will be based on the combined input of governments, scientists and stakeholders. Socio-economic factors should be considered during the planning process and negative impacts should be mitigated and compensated if necessary.

Bill C-33 includes no specific timelines for the completion of Action Plans. Rather, Section 41 (g) stipulates that timelines for completion of the Action Plans must be identified in the Recovery Strategy. We recommend that a time limit of one year be established for the development of Action Plans for threatened and endangered species.

Further, Bill C-33 does not require the federal government to implement the measures under its authority that are outlined in the Action Plan. Rather, discretionary measures are included that allow but do not require the government to develop applicable regulations. We recommend that measures in Section 53(1) be made mandatory (subject to the prioritization process outlined below) subject to a 120 day time limit from when the Action Plan is completed.

Very limited resources are available for species at risk recovery planning, underscoring the need to establish priorities. The priority setting process should be clearly established in legislation to determine which species require the most immediate action. Implementation of recovery actions for high priority species would be subject to the 120 day time limit recommended above. Within the same time period, the Minister would indicate which, if any, of a low priority plan's recommendations would be promptly implemented and which would be delayed. Factors to be considered when setting priorities include:

., Immediacy of threat ., Importance of the species to the ecosystem ., Rate of population decline ., Genetic and taxonomic uniqueness ., Continental status of the species and importance of a Canadian effort for its survival ., Reasons for population decline ., Degree of knowledge and control of key factors affecting the species

Once these factors have been assessed, consideration should be given to the direct and indirect program costs of each recovery plan in order to optimize the use of public funds in achieving a prompt recovery of the highest possible number of species at risk.

We also recommend that section 84 be removed. It makes little sense to list species without taking the necessary steps to recover them. Section 39 already states that recovery strategies must be prepared in cooperation with the appropriate provincial, territorial ministers, wildlife management boards, every Aboriginal organization affected by the recovery strategy, or any other person or organization that the competent minister considers appropriate. It also states that recovery strategies must be done in accordance with provisions of land claims agreements. Given that all stakeholders and land claims agreements are taken into account, an additional hurdle to recovering species on federal lands cannot be justified. Further, the provinces must develop recovery strategies, action plans and management plans (after due consultation with the minister) without a special order from the Governor in Council. It is inconsistent that recovering species in the territories should require such an order.

8.3 CONSULTATION

With respect to the consultation processes in sections 39(3) and 48(3), SARWG recommends that the legislation be amended to provide a clear definition of consultation, so that local stakeholders can know what can be expected from the recovery planning process. In this regard, SARWG recommends that Bill C-33 be amended to include the definition of consultation found in the Mackenzie Valley Resource Management Act (Section 3), which reads as follows:

Wherever in this Act reference is made, in relation to any matter, to a power or duty to consult, that power or duty shall be exercised a) by providing, to the party to be consulted, i) notice of the matter in sufficient form and detail to allow the party to prepare its views on the matter. ii) a reasonable period for the party to prepare those views, and iii) an opportunity to present those views to the party having the power or duty to consult; and b) by considering fully and impartially, any views so presented.

9.0 COMPENSATION

The federal government has signed and ratified the UN Convention on Biological Diversity and the provinces and territories are supportive of the objectives of this Convention. It is therefore expected that any legislation whose purpose is to conserve species and their ecosystems embody the principles of the Convention. Key principles include an equitable sharing of benefits (Article 1) and of implementation costs (Article 20). While SARA encourages stewardship and a cooperative approach to species' protection, it falls short of fully endorsing these principles and their implementation. SARWG strongly urges Parliament to implement key amendments that firmly recognize that the protection of species at risk is a public value and that measures to protect species at risk should be equitably shared and not unfairly borne by any individual, group of landowners, workers, communities or organizations.

A key ingredient for ensuring that the costs of implementation are equitably shared is the ability to compensate landowners and land users. Provision for compensation helps to balance the effect of efforts to protect species at risk and instills necessary trust among all stakeholders. However, S. 64 in SARA is vague and uncertain in terms of its application. We recognize that the Minister has commissioned Dr. Peter Pearse, a noted natural resource economist, to review this issue, but we regret that clarification on compensation has not been settled prior to the tabling of SARA.

Parliament must provide a section in the Act that clearly states its intent with respect to compensation. This section will provide explicit guidance to the officials who will write regulations governing eligibility for and the amounts and kinds of compensation available to Canadians.

Compensation need not only be financial. It can be provided in the form of training, economic development programs to provide other job opportunities, land or wood to replace losses caused by habitat conservation measures, etc..

SARWG has always maintained that efforts to protect species at risk should work for species and for people. Improvements to SARA are needed on both counts. Insofar as people are concerned, SARWG proposes the following amendments:

1. Inserting in the Preamble recognition that the protection of species at risk is a shared public good, referencing Article 20 of the Convention (see previous recommendation for suggested wording).

2. S. 64 should also be amended to clarify the understanding of “losses suffered as a result of any extraordinary impact” of measures employed to protect species at risk. Furthermore, the government should state explicitly in the legislation that all those whose livelihood is dependent upon management of the land and its resources, including corporations, are eligible, in principle, for compensation. The Act should specifically allow for compensation for unavoidable losses caused by the inability to carry on an activity that is authorized by a legal contract or licence. The government should not be permitted to leave the issue of eligibility open-ended in the legislation in order to circumscribe it later in regulations. SARWG fully supports the development of regulations governing compensation when their intent is to prevent abuse and the creation of perverse incentives. However, regulations should not be permitted when their sole purpose is to restrict the eligibility of corporations or to limit the government's potential for liability.

The need for compensation will be significantly reduced by:

., Using stewardship agreements to reverse population declines of species at risk wherever possible; ., Ensuring that recovery strategies and action plans are developed with early and full involvement of informed and affected stakeholders. The early incorporation of local knowledge, socio-economic concerns and ability to adapt operations, will go a long way to reduce the need for compensation.

10.0 TIGHTEN EXEMPTION PROVISIONS (s.74,75,& 83)

These sections of the Act provide ministers of the federal government the latitude to exempt a wide range of activities from the provisions of the Act. This degree of latitude is in sharp contrast to requirements for multiple consultations prior to protecting a species or of the criminal penalties provided in the Act for citizens and organizations. The Government should be more closely bound by its own legislation.

Sections 74 and 75 deal with exemptions to the Act permitted by a “competent Minister” (i.e., the Minister of Environment, Heritage or Fisheries). Section 83 allows an exemption in certain circumstances by any federal Minister. In contrast to all the provisions that relate to protecting a species, these sections contemplate exemptions with zero consultation with other levels of government, the Council of Wildlife Ministers, or between and among the competent Ministers themselves. In other words, if the Minister of Fisheries wants to exempt fishery activity from the Act, he or she can do so with no consultation.

The criteria to be met under sections 74 and 75, are not cumulative, but in the alternative. Thus, once the Minister is persuaded an impact is “incidental to carrying out the activity” and that all the provisions within s.74(3) have been met (that all reasonable alternatives have been considered, all feasible measures taken, and that the activity will not jeopardize the survival of the species), the activity can be permitted. The Minister of Fisheries or Heritage can enter into such an agreement without seeking the advice of the environment minister.

Section 83 is more troubling. Exemptions under this section do not have to pass the hurdles of s.74. Any federal minister responsible for legislation governing activities related to public safety, health or national security does not have to meet any test, other than “respect(ing) the purposes of this Act to the greatest extent possible.” The types of activities that might trump the protection of species at risk could potentially include decisions relating to highway, air or rail use made by the Minister of Transportation, decisions related to pesticides by the Minister of Health, any decisions by the Minister of National Defence, etc. While the SARWG consensus has always allowed for exemptions, we set out the specific Acts under which such exemptions were contemplated and avoid blanket exemptions. Sections 74, 75 and 83 must be tightened up to, at a minimum, set out the named Acts under which exemptions can be contemplated, insist on consultation with the Council and all other competent Ministers before the exemption is granted, and require that the exemption and the justification for an exemption be placed in the public registry.

11.0 STEWARDSHIP AGREEMENTS, PERMITTING AND ENVIRONMENTAL ASSESSMENT

SARWG is pleased that SARA recognizes the importance of stewardship agreements as an effective tool aimed at ensuring the survival and recovery of species at risk.

It is unlikely that the intent of the government is to have an environmental assessment triggered by the signing by a landowner or a resource user of a stewardship agreement involving federal funding. Nevertheless, we recommend that stewardship agreements signed with the federal government for conservation objectives be specifically exempted from an environmental assessment under CEAA. Uncertainty in this matter would constitute a major obstacle to the use of such positive and useful tools as stewardship and conservation agreements.

We also recommend that these exemptions apply if a landowner or resource user is asking for a permit under sections 74, 75 and 78. The application for such a permit will already require a demonstration that the activity for which a permit is asked benefits the species or has only an incidental impact on the species. If an environmental assessment is required, it should be restricted to the scope of activity and to the area for which the permit is issued.

12.0 AMENDMENTS TO CEAA

The purpose of SARA is the protection of species at risk. Achieving this objective requires the cooperation of those already using the land, such as farmers, loggers, miners, etc.. It also makes sense that SARA's purpose be embedded in future projects; that new developments take into account the objectives of SARA and the needs of species at risk. As a result, SARWG supports the intent of the government's proposed amendments to the Canadian Environmental Assessment Act (CEAA).

SARWG is concerned, however, that SARA's consequential amendments to CEAA lack clarity and are unduly and, possibly, unintentionally complex and onerous. The purpose of amendments to CEAA should be to enlighten, not discourage future economic development.

SARWG proposes the following amendments with respect to CEAA:

Section 79 (1) creates a duty to notify when a project is “likely to affect a listed wildlife species.” This differs from the CEAA attention to “adverse” effects, not just effects. Presently, the SARA language suggests that projects causing positive effects may be prohibited by SARA. SARWG recommends that SARA be amended to be consistent with CEAA's emphasis on adverse effects and that the word “adversely” be added before “affect” in section 79(1), and the word “adverse” be added before “effects” in section 79(2):

79. (1) Every person who is required by or under an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted must, without delay, notify the competent minister or ministers in writing of the project if it is likely to adversely affect a listed wildlife species or its critical habitat.

(2) The person must identify the adverse effects of the project on the listed wildlife species and its critical habitat and, if the project is carried out, must ensure that measures are taken to avoid or lessen those effects and to monitor them. The measures must be taken in a way that is consistent with any applicable recovery strategy and actions plans.”

The proposed amendment to CEAA to add reference to the “residence of any individual of that species” is also problematic. It suggests that there will be a positive obligation on all assessors to consider every individual of an endangered or threatened species affected by a project. An assessment would be deficient where it missed an individual of a listed species, even if it considered other individuals of that species. This would be especially problematic when one is dealing with species that are hard to find or identify, e.g. lichen.

While SARWG fully supports the intention of requiring project proponents to take into account species at risk located in a project's vicinity, SARA's proposed amendments to CEAA appear unworkable and liable to invite litigation. This should be avoided.

SARA Section 136 could be made to work better by replacing (v) in the section as follows: (a) any change that the project may cause in the environment, including any effect of any such change on (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current uses of lands and resources for traditional purposes by aboriginal peoples, (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance, or (v) the survival and recovery of an extirpated, endangered or threatened species as defined in subsection 2(1) of the Species at Risk Act.”

This change would ensure that appropriate steps were taken during the environmental assessment process to consider the survival and recovery needs of species at risk, which is the clear intent of the proposed amendment, without imposing undue and potentially unworkable or impossible obligations on the project proponent.

13.0 THE TRANSITION PERIOD

The introduction of SARA will create a new context for species at risk management in Canada. It will require necessary adjustments to procedures, regulations, federal-provincial cooperation, existing leases, contracts and ongoing operations. In parallel, knowledge of species at risk will have to be shared and augmented in order that it be integrated into resource planning and practices. Once SARA is adopted, recovery and management plans could be required for more than 340 species at risk within a three year period. There is a risk of jamming the system and of creating serious management issues for land users and landowners in some areas of the country where species at risk are highly concentrated. The government should phase-in the implementation of SARA, giving a higher priority to endangered and threatened species.

14.0 OUTREACH INITIATIVES CRITICAL TO IMPLEMENTATION OF SARA IN ORDER TO ENSURE VOLUNTARY STEWARDSHIP

The implementation of the SARA will require the dissemination of a significant amount of information to landowners, resource-users, industry, etc. in order to facilitate their decision making process. The first line of defense that a species at risk will have is knowledge by humans of the species' existence and habitat requirements in order that they can avoid harming or killing individuals of that species inadvertently. This will be of prime importance especially if SARA, upon proclamation, still provides for the use of due diligence as a defense against charges under the Act. In order for individuals and corporations to effectively use this defense, it will be critical for them to have access to information about the species.

More importantly, the availability of information, combined with training and resources (human and financial) will be critical to the success of voluntary stewardship programs. Resource sectors, conservation and environment groups, industry associations, governments and communities should work cooperatively in developing and implementing the necessary awareness and information programs that will be required as a result of the SARA.

The type of information required should cover the description of the species, its life cycle requirement, its residence, habitat, behavioral patterns and any other significant information that can contribute to the conservation of the species.

15.0 COMPETENT MINISTER

Although SARA identifies the Minister of Environment as the Minister responsible for administration of the Act, it limits that authority in areas that fall within the responsibility of the Ministers of Fisheries and Oceans, and Canadian Heritage, providing for what is defined as a “competent minister.” Obviously this sharing of responsibility will lead to increased bureaucracy, lack of cohesion, and inconsistent application of the Act. SARWG recommends that there be one responsible Minister.

16.0 FEDERAL EXPERTISE FOR THE IMPLEMENTATION OF SARA

The implementation of SARA will require considerable expertise and resources. There are a significant number of species for which recovery planning will need to be initiated, research undertaken, and conservation measures implemented. The three main federal ministries involved will need to work closely with other federal government departments, provincial agencies, scientists, landowners and users, conservation organizations, and many other interests. Difficult and competing recovery decisions will need to be made with limited funding and capacity.

It is therefore essential that these three ministries include the necessary conservation expertise to inform effective species recovery decisions. All three ministries are currently significantly understaffed and underfunded. Appropriate staff should be employed and resources allocated without delay.

17.0 CONCLUSION

By adopting these recommendations, we believe the government has the opportunity to deliver effective legislation for protecting species at risk. They by no means accomplish everything; in our federal system, there are limits to what can be expected of the federal government. But by adopting the measures we've proposed, this government can show true leadership and blaze a trail that will encourage all jurisdictions in Canada to do their part.

We acknowledge that, taken together, what we propose constitutes important revisions to SARA. We are sensitive to the fact that time is of the essence. But for a unique group that has laboured a long time to carve a way for species protection that will work for all, species and people, we would not be true to ourselves if we failed to bring forward the advice we have.

Much has been accomplished and, for this, we applaud the federal government. But much work remains. We urge this committee and the government to help finish the job.

Thank you.

LIST OF RECOMMENDATIONS

Preamble

SARWG strongly urges Parliament to implement key amendments that firmly recognize that the protection of species at risk is a public value and that measures to protect endangered species should be equitably shared and not unfairly borne by any individual, group of landowners, workers, communities or organizations.

We propose the following additions to the preamble:

Equitable sharing of benefits and of costs is one principle of the Convention on the Conservation of Biological Diversity. It should be at the foundation of efforts to conserve species at risk. The cost of species conservation should be shared by all Canadians and not borne only by a small group of landowners, resource users, workers and communities;

The purposes of this Act shall be pursued to the extent possible while taking into account social and economic interests of Canadians.

Section 2

The word “harm” used in s. 32(1) should be specifically and clearly defined in section 2, especially if it is meant to be applied to actions which disturb individuals. An understanding of the term that suggests the causing of direct physical injuries does not create difficulties. Care should also be taken to ensure that “harm” does not stray into habitat issues, which are more appropriately dealt with through a recovery planning process involving affected stakeholders. One should not be able to plead that a disturbance to habitat is “harming” an individual and conclude that habitat disturbance should, therefore, be automatically prohibited.

We propose the following amendment to the definition of residence

“residence” means a specific dwelling-place, such as a den, nest or other similar site, place or structure, that is occupied or habitually occupied by one or more individuals during all or part of their life cycles, including breeding, rearing or hibernating.

The Bill C-33 and the COSEWIC definitions of “species” differ. They should be consistent.

Section 8

SARWG recommends that the Minister of Environment be the only responsible Minister.

New section after 13

We recommend that stewardship agreements signed with the federal government for conservation objectives be specifically exempted from an environmental assessment under CEAA.

Section 15

Section 15(3) requires that COSEWIC take into account applicable treaty and land claims agreements during its functions. These political considerations should be dealt with by government rather than by COSEWIC, as has been done in Section 27 (1)(c). We therefore recommend that Section 15(3) be omitted.

Section 17 and 20

It is important that COSEWIC be able to function as a scientific body at arms length from the government (e.g. CWS). The regulations established by the Minister to guide the carrying out of COSEWIC's functions should be designed to support its arms length role and scientific integrity. The secretariat of COSEWIC should support, coordinate and record the work of COSEWIC. However, the Secretariat should not be in a position to guide, direct, or manage COSEWIC's work.

Section 27 and 130

Bill C-33 should provide for species listed by COSEWIC (including those on the current list) to automatically receive legal recognition unless Cabinet (or the Minister) deems otherwise within a brief period of time (i.e. 30 days) after COSEWIC's list is published.

New section after 27

We recommend that the Minister, at time of listing, indicate whether the concept of residence is applicable to the species in question and, if so, provide a clear definition and description of the residence.

Section 28

Section 28(1) should be modified as follows:

Any person who considers that there is an imminent threat to the survival of a wildlife species may ask COSEWIC for an assessment of the status of a species subject to an imminent threat for the purpose of having the species listed on an emergency basis under subsection 29(1) as an endangered species.

Section 29

In s. 29 (1) there is no limit stating how long emergency listings may remain in force. Recommendations from COSEWIC (section 30) should be followed by immediate action. If a species is going to have a chance of recovering, action must be taken quickly. On the other hand, if a species is determined not to be at risk, prohibitions and limitations to operations should be removed quickly.

Section 29(2) should be amended so that COSEWIC be consulted in all cases prior to any ministerial action pursuant to s. 29(1), as such decisions should be based on the best scientific advice.

Section 30

COSEWIC should have 1 year to produce a status report in the case of an emergency listing.

Section 32 (1)

The word “take” could be open to interpretation and should be replaced by “remove” or some other word that is more consistent with the French word “prendre”.

Section 32, 33 and 34

Sections 32 and 33 should apply for all threatened and endangered species across Canada without qualification. Subsequently section 34 should be removed.

Section 35

Section 35 should be removed.

Sections 39(3) and 48(3)

With respect to the consultation processes in sections 39(3) and 48(3), SARWG recommends that the legislation be amended to provide a clear definition of consultation. In this regard, SARWG recommends that Bill C-33 be amended to include the definition of consultation found in the Mackenzie Valley Resource Management Act (Section 3)

Section 41

Identification of critical habitat should be done on a scientific basis and constitute a specific section of the recovery strategy.

A new subsection between 41-c and 41-d should be added:

in the case where scientific information is inadequate to identify critical habitat, a schedule of studies to fill the gaps ;

We also recommend the inclusion of a new subsection 41-h. This section would require the preparation of information on socio-economic issues that may be useful in the implementation of the strategy.

Section 49

Socio-economic factors should be considered during the planning process and negative impacts should be mitigated and compensated if necessary.

New section after 49

We recommend that a time limit of one year be established for the development of Action Plans for threatened and endangered species.

New section after 52

Scarce resources underscore the need to establish priorities. Such priorities should be clearly established in legislation to determine which species require the most immediate action. Implementation of recovery actions for high priority species would be subject to the 120 day time limit recommended below. Within the same time period, the Minister would indicate which, if any, of a low priority plan's recommendations would be promptly implemented and which would be delayed.

Section 53

Subject to the clarification to which we refer later (sections 57 to 59), we recommend that measures in Section 53(1) be made mandatory (subject to the prioritization process outlined above) subject to a 120 day time limit from when the Action Plan is completed.

Section 57 to 59

We recommend that the scope of critical habitat protection measures be broadened to include extirpated, endangered or threatened:

., birds protected by the Migratory Birds Convention Act; ., aquatic species; and ., species found on all federal lands, including the territories.

The government maintains that the Migratory Birds Convention Act does not give the federal government authority to protect the critical habitat of these migratory birds. There are opinions to the contrary. This is clearly an issue that warrants clarification and we urge the government to take action in this regard.

The habitat protection measures for species and land under federal responsibility should be mandatory rather than discretionary.

Federal-provincial agreements (section 10) should be used where they promote efficiency in critical habitat management.

Section 64

Parliament must provide a section in the Act that clearly states its intent with respect to compensation. This section will provide explicit guidance to the officials who will write regulations governing eligibility for and the amounts and kinds of compensation available to Canadians.

S. 64 should also be amended to clarify the understanding of “losses suffered as a result of any extraordinary impact” of measures employed to protect species at risk.

The government should state explicitly in the legislation that all those whose livelihood is dependent upon management of the land and its resources, including corporations, are eligible, in principle, for compensation.

The Act should specifically allow for compensation for unavoidable losses caused by the inability to carry on an activity that is authorized by a legal contract or licence.

SARWG fully supports the development of regulations governing compensation when their intent is to prevent abuse and the creation of perverse incentives.

Sections 74, 75, 83

Sections 74, 75 and 83 must be tightened up to, at a minimum, set out the named Acts under which exemptions can be contemplated, insist on consultation with the Council and all other competent Ministers before the exemption is granted, and require that the exemption and the justification for an exemption be placed in the public registry.

Sections 74,75, 78

We recommend that a landowner or resource user asking for a permit under sections 74, 75 and 78 be exempted from an environmental assessment under CEAA.

Section 77

The Act provides for a one-year period of grace to licences and permits issued under federal authority before any prohibitions come into force. This period of grace should be extended to licences and permits issued under provincial and municipal authority.

Section 79

SARWG recommends that SARA be amended to be consistent with CEAA's emphasis on adverse effects and that the word “adversely” be added before “affect” in section 79(1), and the word “adverse” be added before “effects” in section 79(2):

79. (1) Every person who is required by or under an Act of Parliament to ensure that an assessment of the environmental effects of a project is conducted must, without delay, notify the competent minister or ministers in writing of the project if it is likely to adversely affect a listed wildlife species or its critical habitat.

(2) The person must identify the adverse effects of the project on the listed wildlife species and its critical habitat and, if the project is carried out, must ensure that measures are taken to avoid or lessen those effects and to monitor them. The measures must be taken in a way that is consistent with any applicable recovery strategy and actions plans.”

Section 84

Section 84 should be removed.

Section 100

We recommend that the prohibitions, particularly with respect to their application on critical habitat, be made Mens Rea offenses.

If the federal government maintains the Due Diligence defense, it must work with the provinces to provide training for natural resource managers and private landowners who will be required to exercise due diligence in the planning and implementation of all resource management and agricultural activities. The government will also have to provide and make readily available information to enable natural resource managers and private landowners to identify individuals of listed species, their residences and critical habitat that have been identified by recovery strategies.

New section after 131

The government should phase-in the implementation of SARA, giving a higher priority to endangered and threatened species.

Section 136

SARA Section 136 could be made to work better by replacing (v) in the section as follows: (a) any change that the project may cause in the environment, including any effect of any such change on (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current uses of lands and resources for traditional purposes by aboriginal peoples, (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance, or (v) the survival and recovery of an extirpated, endangered or threatened species as defined in subsection 2(1) of the Species at Risk Act.”

Non regulatory elements

Recognizing the amount of time required to undertake and implement the recovery plans, we believe it is essential that key elements for the survival of individuals of these species be provided through non-regulatory buffer zones. The nature of buffer zones would be proposed at the time of listing, when appropriate and/or needed. They would be temporary unless recovery teams recommend their extension. The responsible jurisdictions should make arrangements with landowners and resource managers to apply these buffer zones as effectively as possible.

Most important, the availability of information, combined with training and resources (human and financial) will be critical to the success of voluntary stewardship programs. Resource sectors, conservation and environment groups, industry associations, governments and communities should work cooperatively in developing and implementing the necessary awareness and information programs that will be required as a result of the SARA.

The type of information required should cover the description of the species, its life cycle requirement, its residence, habitat, behavioral patterns and any other significant information that can contribute to the conservation of the species.

It is essential that the three ministries that will be most involved with species at risk (Environment, Fisheries and Ocean, Heritage) include the necessary conservation expertise to inform effective species recovery decisions. All three ministries are currently significantly understaffed and underfunded. Appropriate staff and resources should be employed without delay.

APPENDIX 1 MEMBERS OF SARWG

The Canadian Nature Federation

The Canadian Nature Federation (CNF) (formerly the Canadian Audubon Society) is a national non-profit organization that represents over 40,000 individuals and over 100 local naturalist clubs in Canada. The CNF has four major program areas (Wildlands and Seas, Important Bird Areas, Education, and Endangered Species) that promote the conservation of wildlife for its own inherent value, as well as for its benefits to humans. The CNF has been working to conserve endangered species throughout its 53 year history of wildlife protection. The CNF is a founding member of the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) and of the Recovery of Nationally Endangered Wildlife in Canada Committee (RENEW), which prepare the official list of Canada's species at risk and develop recovery plans for some of these species. The CNF's Endangered Species Program has for many years promoted effective federal and provincial endangered species legislation and programs. We work closely with our affiliated provincial naturalist organizations and other national interests towards this objective. In all of these of efforts, we endeavour to be tenacious, constructive, cooperative, and true to our conservation principles.

The Canadian Pulp and Paper Association

The Canadian Pulp and Paper Association represents 38 companies in Canada which produce most of the pulp, paper, and paperboard in Canada as well as about half the production of wood products. The forest industry generates annual sales in excess of $50 billion and it sustains over 1 million direct and indirect jobs. More than 300 rural communities are highly dependent on the forest industry to maintain their social structure and integrity. 20 of the 38 CPPA member companies have forest operations and are responsible for forest management on 85 Million hectares representing 65% of the forest land under active management in Canada. The forest industry sells the majority of its products to foreign markets that are increasingly concerned about environmental performance. Taking care of species at risk is an integral part of Sustainable Forest Management and many forest companies are already actively involved in recovery plans (Vancouver Island Marmot, Marbled Murrelet, Nfld Marten). Species at risk legislation is both an essential tool for modern states to manage for SAR and a clear signal to other countries that Canada intends to ensure sustainability.

The Canadian Wildlife Federation

The Canadian Wildlife Federation (CWF) is a national non-profit conservation organization with 300,000 members and supporters across Canada. The Federation is dedicated to fostering awareness and appreciation of our natural world. By spreading knowledge of human impacts on the environment, sponsoring research, promoting sustainable use of natural resources, recommending legislative changes, and cooperating with like-minded partners, CWF encourages a future in which Canadians may live in harmony with nature. As a leader in conservation education and awareness, CWF has many accomplishments of which we are extremely proud. For example, our efforts to protect species at risk in Canada led to the creation of the Committee on the Status of Endangered Wildlife in Canada (COSEWIC) in 1977; we provided funding for the development of species at risk status reports as part of our ongoing commitment to COSEWIC; in cooperation with the Canadian Wildlife Service, the Canadian Museum of Nature, and Natural Resources Canada we participated in the development of the Species at Risk web site (www.speciesatrisk,ec.gc.ca) and we continue to fund research projects and recovery efforts for species at risk, including the whooping crane, swift fox, and leatherback turtle. The CWF supports and encourages the introduction and implementation of species at risk legislation by federal, provincial, and territorial governments as outlined in the National Accord for the Protection of Species at Risk. The Federation is committed to ensuring that such efforts include habitat protection initiatives when habitat loss is the contributing factor to a species decline and include active participation by landowners and users. Public education and awareness programs will also be essential to the success of this legislation

The Mining Association of Canada

The Mining Association of Canada (MAC) is the national organization of the Canadian mining industry. It comprises companies engaged in mineral exploration, mining, smelting, refining and semifabrication. Member companies account for the majority of Canada's output of metals and major industrial materials. MAC's mission is to promote, through the collective action of members, the growth and development of Canada's mining and mineral-processing industry, for the benefit of all Canadians. The Association's broad functions are to promote the interests of the industry nationally and internationally, to work with governments on policies affecting minerals, to inform the public and to promote cooperation between member firms to solve common problems. The MAC works closely with provincial and other industry groups across Canada and in other countries.

The Sierra Club of Canada

Sierra Club of Canada (SCC) is a national, non-profit, membership-based environmental organization. Related to the Sierra Club founded in the U.S. in 1892, SCC began with a British Columbia Chapter in 1969. SCC has members and chapters across Canada, as well as a youth arm, the Sierra Youth Coalition. SCC has long played a prominent role in the effort to ensure adequate legal tools to protect species at risk. SCC initially pressed for such legislation in the process of developing the Biodiversity Convention through its role on various delegations prior to UNCED. SCC appeared before the House of Commons Standing Committee on Environment and Development in support of endangered species legislation as a necessary precondition to ratifying the Biodiversity Convention in the fall of 1992. Since that time, passage of effective legislation to protect species at risk has remained an organizational priority.

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1The government maintains that the Migratory Birds Convention Act does not give the federal government authority to protect the critical habitat of these migratory birds. There are opinions to the contrary. This is clearly an issue that warrants clarification and we urge the government to take action in this regard.