ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, April 5, 2001

• 0914

[English]

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

[Translation]

We shall now resume consideration of bill C-5.

[English]

We have a substantial agenda, and we are very glad to welcome our guests and friends and witnesses. We appreciate the fact that you covered such a large distance and you dare to come into igloo country and share a few hours with us.

The agenda today starts with an item that has to do with a motion. Before doing that, I would like to briefly make two announcements and then a clarification.

There is excellent news from the west coast, where the Ballard Power Systems is now providing a number of their fuel cells to buses that will be delivered to ten European cities for use in transit service beginning next year. This is in addition to the three fuel cells provided for a test some months ago to a bus public transportation company in Los Angeles and in Vancouver. For those who want to obtain further excitement from reading this piece of news, here is the clipping.

• 0915

Secondly, this morning at 8 a.m., right below us, there was a conference on the genome. It is a subject that requires the attention, to say the least, of politicians.

Those of you who are interested and could not attend, and even those who did attend, can have access to a paper prepared by the parliamentary library of Canada. The paper provides at least a greater background on this very complex topic that has a scientific, and in terms of human health, almost a revolutionary significance.

Some of you have asked me this morning about the motion before us, which I would ask the mover to introduce. I will then open the floor for discussion. I hope it will be brief due to the fact that we have witnesses here.

Without any further delay, Madame Redman, would you like to move the motion and make a statement?

Mrs. Karen Redman (Kitchener Centre, Lib.): Mr. Chair, what I would like to do is speak to the motion and hold the moving of it in abeyance. The whole reason for putting this motion forward was to ask this committee to consider the timeframe we are working under.

I made some of these comments yesterday so that they could go into the record, with the knowledge that many committee members who weren't able to be in attendance often look at the written transcripts and so could be brought up to speed.

This committee has already demonstrated a willingness to take on extra meetings. I submitted last Tuesday—and I had given notice of this the previous week—a workplan that basically did nothing more than demonstrate that the number of witnesses this committee had agreed they needed to hear could fit in with three extra meetings. Certainly I was not married to the schedule; it was merely to be a jumping-off point for the discussion.

We've had several productive meetings in recent weeks. We've all agreed on the necessity and the value of protecting Canadian species at risk. So I put forward this suggestion in the spirit of productive use of our time and with a view to having the minister invited during the end of the witness panel so that we could have a productive discussion. I know that clearly you can tell from some of the questions of the committee members that they're focusing on areas of the bill.

Many of the submissions we're getting are submissions that have previously been submitted to a predecessor committee of the current one. They still say Bill C-33, some of them, and not Bill C-5. I think quite clearly there are seven years' of history and productive thought and opinion going into this bill. Because we're building on that to begin with, it was my suggestion. I would be very interested to hear what this committee feels.

The Chair: Thank you, Madame Redman.

There is only a brief clarification I would like to make on your statement, namely that the witnesses who were heard by the previous committee on Bill C-33 were only those representing governments and only two NGOs. In other words, the vast majority of the witnesses who are to be heard here would be new, even for those members who were on the committee before the dissolution of the last Parliament.

I have Mr. Mills, Mr. Herron, Madam Kraft Sloan, Madame Scherrer, Mr. Bigras, and Mr. Comartin.

Mr. Bob Mills (Red Deer, CA): Just very briefly, my concerns—and again I wasn't on the committee before so all this is new to me in terms of the witnesses—are that I feel we need the time to digest what we're hearing and to go through our questions to analyse what is there. Certainly for us, with eight hours to get home on a weekend, Fridays aren't very appealing.

• 0920

I guess the biggest concern I have though is the communication aspect of it. If it is perceived to be rushed through, I am quite concerned about how opposition may polarize around that. So I'd like to see us take the time and make sure we do a good job of it, because the aim of all of us is to get legislation that is going to work. I have a major concern that if we're working four days a week hearing witnesses and then appear to be rushing it through, we could have a problem.

The Chair: Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): Mr. Chair, I think, in the spirit of what Madam Redman's trying to put forth, the committee would like to deal with this bill as expeditiously as possible. But Mr. Mills' comments are completely accurate as well. If there's any perception that we chose to rush through this bill, then any kind of goodwill we're trying to build within the Canadian populace could be mitigated to a large degree. So I think Mr. Mills' comments are fair ball.

I would propose—this is only a suggestion, Mr. Chair—that Ms. Redman rescind her motion. Among the group of us, as a team—we've had a fair amount of good spirit so far here on the committee—we might be more amenable to do one super Monday where we all book it in advance, where we line up a lot of witnesses from 8 a.m. or 9 a.m. to perhaps 7 p.m.—on a Monday that we all agree on. The problem I think members have with Ms. Redman's proposal is that it was perhaps too specific—in terms of setting up Mondays and Fridays, when we would... by a final deadline... It was prejudging it too much.

What I would suggest to her, in good spirit, is that she rescind her motion for a time so we maybe step up to the plate and do perhaps a special day. This would be so that we can try to get this bill dealt with as expeditiously as possible, but not to the extent that people think we're trying to circumvent the proper process.

Those are my comments, Mr. Chair.

The Chair: All right, thank you.

Next would be Madam Kraft Sloan.

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

First, before the election when we were looking at Bill C-33, the bill was not before a committee, so any witnesses who came to committee could not discuss the bill. They could only discuss endangered species issues in general. So, number one, we haven't had witnesses coming before the committee with regard to this particular bill.

Second, Mr. Chair, what does this do to our work schedule? I'm hearing people talk about condensing the schedule. Is there a schedule that has been prepared? As you know, Mr. Chair, you and I have been absent for the last two days since this motion came before committee on Tuesday. So it would be helpful if I could actually—I'm assuming other members may have a copy of a schedule—see that schedule. I arrived in Ottawa late last night. I'm rather concerned about prior commitments that I have made to constituents, etc.

Thank you.

Mr. John Herron: Can I please make a brief point of order, with all due respect to Ms. Kraft Sloan, Mr. Chair?

In defence of Ms. Redman on this, although I'm asking her to rescind her motion today, she chose not to discuss this yesterday because the chair and some other members of the committee who traditionally have been devout members weren't here. That is why she waited a day. I'm still asking her to rescind it, but she was trying to exhibit an element of good faith.

The Chair: Thank you.

Mrs. Karen Kraft Sloan: Mr. Herron is reading something into what I am saying that I had not said. I'm merely saying that I was not here on Tuesday and Wednesday. The motion was introduced on Tuesday. The chair and I were absent on Tuesday. I am now looking at the work schedule—

[Editor's Note: Inaudible)

Mr. John Herron: —

Mrs. Karen Kraft Sloan: Thank you, Mr. Herron, I appreciate the fact that the Tories bow to the superiority of the Liberal Party of Canada.

I see from this that we would be meeting on Fridays. I've been subjected to many onerous work schedules on this committee, but this is highly unusual.

The Chair: All right, we'll continue with the discussion.

Mr. Bigras.

[Translation]

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

I would like to repeat what was said earlier on. I, too, am a newcomer to this committee. I have not yet had the opportunity to study this bill and the more we progress, the more I realize what a technical bill it is. We shall have to introduce a number of amendments, but in order to do that, we must first get the chance to digest and assimilate the bill so that we are in a position to introduce constructive amendments. That is my first point.

• 0925

Secondly, we are suddenly presented with a motion such as this... We plan out our meetings, not only in relation to our committee work and our parliamentary tasks, but also with respect to what we have to do in our own ridings. I agreed to meet with my constituents and fellow citizens at my constituency office on Friday. That is one thing that is not negotiable. There is no question of my taking part in meetings scheduled on a Friday since I have planned out my whole parliamentary session on the basis of meetings taking place from Monday to Thursday. This was agreed to with the whips.

Thirdly, I fully understand the concept of government majority. How many times has this bill died on the Order Paper? If this had been a priority bill, it would have passed months ago and we would not be where we are today.

The Chair: Thank you, Mr. Bigras.

Mr. Comartin.

[English]

Mr. Joe Comartin (Windsor—St. Clair, NDP): Thank you, Mr. Chair.

I suppose it's one of the problems of coming fairly late—I won't repeat what other people have said, other than just briefly. I'm also a new member. It's a tremendous amount of new information that's coming.

I wanted to go back to the point Mr. Bigras just made with regard to the amendments. Like him, I feel this bill requires a great number of them, some that are fairly minor and technical, others that are quite fundamental to the legislation. I can't imagine that we're going to have a full view of that until we hear the witnesses, and we need to hear them in a reasonable fashion. That's why I'm having some difficulty with Mr. Herron's suggestion of our spending that kind of time. I know from doing trial work that you just can't do that; you cannot assimilate that information. Any reasonably experienced judge will tell us that, and I think, Mr. Chair, you've echoed the sentiment in the past. There's only so much information we can take in at one sitting or in one day.

I want to raise, because no one else has—this is my assessment of the situation at this point—the fact that we're not going to get through the witnesses and clause-by-clause before the fall. I just can't imagine how we're going to be able to do it. I think if we accept that as a reality—and I'm suggesting we do—we should have the meeting Mr. Herron has suggested and try to work out a more reasonable schedule.

Thank you, Mr. Chair.

The Chair: Thank you, and the chair agrees.

Mr. Reed.

Mr. Julian Reed (Halton, Lib.): Mr. Chairman, this subject has knocked around this place for seven years. It seems to me there are always new members coming on committees. The press is beginning to wonder if we're not just assembling in order to talk a good line while not accomplishing anything. This motion is obviously an attempt to streamline our work, because the issues are emerging quite clearly and there's not a lot of divergence among witnesses. A group of witnesses will have one particular line of concern, another group of witnesses will have another particular line of concern, but as the witnesses appear, the issues are being simplified. Quite frankly, I don't want to be sitting here seven years from now saying we can't devote any more time to our work on this committee because we've got other things to do, etc. We've all got other things to do. I am prepared to give priority to this.

Perhaps the schedule that is presented in the motion is not the exact schedule we should be following—that should be subject to amendment, perhaps, as Mr. Herron has pointed out. But for heaven's sake, not much is going to be accomplished if we... We can go into the fall and we can then say we're going to break for Christmas, and then we can go into next spring, and pretty soon it won't happen. There are going to be a lot of cynical people, Canadians, who will say, well, you really didn't want that in the first place.

• 0930

The Chair: Madame Scherrer.

[Translation]

Ms. Hélène Scherrer (Louis-Hébert, Lib.): I too am new to this committee but it seems to me, though perhaps I am mistaken, that the aim of all the members of the committee, and of the witnesses, was to ensure that this bill would be enacted as quickly as possible, considering how long it has been expected. If we let things go another four, five, six or seven years, we might very well lose some of the presently endangered species. I thought that was the whole idea.

I also recognize Ms. Redman's efforts to ensure that most of the witnesses would be heard at this meeting. As a newly elected member, I would very much appreciate being able to hear everyone a second time, so as to fully understand the bill. I realize, however, that we must finally manage to have this bill passed. I believe that the members of this committee as well as the witnesses who have appeared had the same aim, that is to enact a law to protect endangered species before some of these species fall by the wayside.

I do not know what that particular motion was about. I had no objection to Mr. Herron's motion to have us focus on that topic for a while. I do not know whether we should in fact be screening people. Twice I heard someone say that this was the fifth time he was reading his brief. Another person mentioned it was their third time. Well, I appreciate hearing it since it is only the first time for me, but I wonder whether we should be starting over like this every time someone new comes in.

I am ready to make a concession on this point, to read the papers that should be read and ask the necessary questions if people are indeed hearing this for the fifth time, and also to take into account the documents sent over by the Library and setting out the various amendments that have already been put forward.

I do not know how exactly we should be going about this, but we must not lose track of our main objective which is to make sure that the bill is as good as it possibly can be, while taking into account the fact that it will in any case probably end up with a number of imperfections. I am ready to focus on this. Five days is quite a long time but if we could manage to stay on topic and finish what we have to do, I would be in favor of making it our goal to have this bill passed before the end of the current session.

[English]

The Chair: The assumption is being made that the session ends in June. The session does not end in June; it could go on for several years. The session is unfinished until the government decides to call it a session.

We have had a good discussion. I don't see any further speakers.

Madam Redman, do you wish to move your motion, or is discussion sufficient for your purposes?

Mrs. Karen Redman: What I would like to reiterate is the collective willingness of this committee to deal with the substantive issues of this bill and the fact that we've already demonstrated that we're willing to work extra time.

It was my intent to focus this discussion. I am perfectly willing not to move this motion at this time and to continue discussions with the rest of the committee to consider perhaps—and I know we're coming up to a two-week break—the areas of the bill that they find substantive, as well as any modifications they may be willing to make to the work schedule.

It was my intent to bring forward a platform for discussion. I do appreciate my colleagues pointing out that this was in no way intended to be counterproductive to the committee's work, which is why I gave notice of it last Thursday. We've actually talked about it at two meetings this week and put it off until the committee could have a full discussion.

The Chair: Thank you.

With that comment, then, we can consider the item as having been thoroughly discussed. We will look at the suggestion made by Mr. Herron to see if there are members who are willing to put in a Monday for a marathon—taking into account, however, the fact that, as Mr. Bigras has reminded us, and I fully agree with him, when you have more than three sessions a week, you have a lot of material to digest.

• 0935

I believe he used the term digestif, invented by the French culture long before others. Therefore, a session of that nature on a Monday then poses problems in subsequent meetings to make good use of the material that has been heard on that day.

That concludes our discussion—thank you very much. We'll now proceed with our witnesses.

It is a great pleasure to welcome Brock Evans, executive director, and William Snape III, legal counsel, of the U.S. Endangered Species Coalition; R.J. Smith, senior environmental scholar, Competitive Enterprise Institute; and from the Center for Environmental Law and Economic Integration of the South in Mexico, Señor Claudio Torres Nachón—Bienvenido, mucho gusto.

And finally, we have from the International Wildlife Management Consortium, somewhere in the globe—we don't know exactly where he is located—Monsieur Eugene Lapointe, president. You will bring us up to date in your presentation as to whether you are on this planet or elsewhere.

Who would like to be the first speaker? Please start, for ten minutes, possibly.

Mr. Brock Evans (Executive Director, U.S. Endangered Species Coalition): Thank you very much, Mr. Chairman.

You may or may not have my written statement in front of you, but it explains a little bit about us. We are an organization of organizations. We represent about 430 American religious organizations, scientific societies, environmental organizations, sportsmen's organizations, and others. We were founded in 1982, and our mission is to defend biodiversity protections in the United States.

I want to thank you, Mr. Chairman, and all the ladies and gentlemen of the committee, for the honour you do us in inviting us up here to share our experiences in America and congratulate you for taking up this important subject of passing on your own rich biological heritage into your children's future.

We want to be here to share our experiences in the United States with species protection and legislation, particularly our own Endangered Species Act of 1973.

We couldn't and wouldn't presume to tell Canadians what to do with their own biological heritage. We have different cultures, histories, and traditions in our countries. But as you seek to craft legislation suitable to Canadians' unique needs and special political system, we think we may have some experiences to share from which you might learn. We would offer some lessons that we have learned in our 28 years.

It has been 28 years since our own Endangered Species Act was passed. We think it has been a great success, and I'll explain why a little bit later in our statement.

But first, as you no doubt know, Americans feel that we have a very large stake in the enactment of a comprehensive and truly Canadian species protection law because of the many species our countries share as they migrate or range across our long, unfenced border. We commend you for considering this matter, and we wish you every success in enacting a bill that truly gives protection to Canada's world-famous endowment of wild plants and animals.

To elaborate on the American stake, according to our information, over 300 species of birds, fish, and mammals migrate or otherwise range between our two countries across our shared borders. Some of these species are quite common and seem to be in no apparent danger of extinction or even loss of biological health. Others are considered quite vulnerable, imperilled, or endangered. Based on data supplied by the U.S. Fish and Wildlife Service, 44 of these shared transboundary species are presently listed as either endangered or threatened under our law, our Endangered Species Act. I brought with me a list of those, which I will submit as exhibit A in my statement, which I hope you have in front of you.

As you know, such a listing as threatened or endangered under U.S. law means that those named species and their critical habitats receive a very high degree of protection. In the technical language of the Endangered Species Act, they cannot be taken, which means that not only can they not be killed outright, but also the habitat they require to at least survive, if not recover, cannot be destroyed either. This prohibition in our law is absolute insofar as the actions and activities of our federal agencies are concerned. A similar prohibition applies to private agencies, including corporations, and can be modified only by what is called a take permit, which is issued by negotiation with the government.

• 0940

Our national interest in what you are able to accomplish is very simple. If species that are given protection under our law and managed toward full recovery, so that they can be eventually taken off that list, are killed or otherwise find damaged habitats when they range across the border into Canada, our own biological investment in these species is adversely affected, maybe irreparably. That's why we're here, and that's why we're cheering you on and wish you every success.

American taxpayers have a very large stake in what you're now doing. Millions of American tax dollars have already been invested over three decades to protect and recover many of these species that our nations share. Again, we cannot and would not presume to tell Canadians what to do, but we would certainly most strongly plead with you to do all you can to enact a law that protects those transboundary species.

I want to make a few observations next, ladies and gentlemen, about the positive effects of the U.S. Endangered Species Act. Under the biodiversity protection regime mandated by our Endangered Species Act, two significant things have happened across the U.S. in the 27 or 28 years since it was enacted: first, a rapid decline of numerous imperilled species has been slowed and in some cases completely arrested; second, some are now on their way to recovery, and their important survival habitats are protected. Further destructive activities have been lessened or halted altogether.

As part of my testimony, I've attached two exhibits. I have brought extra copies with me if people would like to have one.

Exhibit A is a document we published called On the Road to Recovery, which lists 13 species, such as Kirtland's warbler, that are now well advanced toward recovery. The California condor is another one.

There's another document, which didn't copy so well. It's called America Leads the World in Preventing the Extinction of Species. It gives examples, along with photographs, of the species that are doing well only because we passed an endangered species law 28 years ago.

In sum, our Endangered Species Act, while certainly not perfect, has worked the way our Congress has intended it to do. Species in danger of extinction are being identified through the best scientific information we have. When in the judgment of scientists, not politicians, they appear to be near extinction, they are put on the list. Once they are put on that list, our law is very clear. Critical habitat must be designated and, as we explained, all persons must conduct their activities so as not to further jeopardize the chances for survival of that species.

The successful results of this long effort are now on the ground for all to see, and not only in terms of the specific plants and animals rescued from certain extinction, but also in the millions of acres of their most important habitats: coastal dunes; ancient forests; swamps; desert landscapes; and precious patches of open space surrounded by urban sprawl, which is a huge problem in our country, as you know. All of these vital habitats and the priceless cultural heritage they represent still exist only because our law is so clear.

Americans, through our Endangered Species Act, have definitively declared that they will not permit other species that share our national territory to become extinct if they can prevent it. That's the power of our law.

The next section, which I'll skip over in the interest of time, Mr. Chair, talks about the evolution of the U.S. Endangered Species Act. We wanted to share with the committee the fact that the act of 1973, under which we're now working, did not spring full blown in 1973.

The law we now have is the product of two previous attempts, neither successful, to protect domestic endangered species. The major one was the 1966 law, which I talk about on page 3 of our statement. Essentially, it was a discretionary statute. It said it's a nice thing to save endangered species; please do it. It asked the state to please do it and the federal agency to please do it, but it was only, please do it if you can, and so on. I won't elaborate. It's elaborated on more in my testimony. It just did not work. Nor did some amendments attempted in 1969 work, which is the second attempt.

By 1973 it became apparent that the task of conserving endangered wildlife in the United States would require a much more comprehensive effort. The lesson was that extinction is forever. Therefore, its prevention cannot depend on begging or cajoling the states or the federal agencies to act, and it could not depend solely on anyone's goodwill or good intentions.

The only way to truly achieve the goal of actually saving a species was to vest the ultimate authority for its protection in one single entity that had the capacity for leadership and the will and the resources—that was our federal government—and to back it up with a mandate to act. That's the lesson of our law. Most states, especially those with the most threatened species, just did not have the political will to act on their own. We can elaborate on that later.

• 0945

Just to summarize the act, it said that henceforth, ultimate authority and responsibility for the protection of endangered species would lie with the federal government and no longer with the states. It said that all federal agencies must conserve endangered species. It set forth a clear process for conserving the habitat that is based on scientific criteria, not political pressure. It allowed ordinary citizens to enforce its mandate.

We learned from the flawed 1966 and 1969 laws that a voluntary approach, while certainly a place to start, doesn't necessarily work. You must have the guarantee that the act will be enforced and can be enforced if nothing else works, and that's what our act has done.

We found out that few listings will ever occur if they are left up to politicians and not scientists to make them because powerful economic interests will always intervene to prevent them. We made some amendments to our law that have made it quite easy and possible to accommodate the economic interests, and I cite some of those on page 6 of my testimony.

We learned that the amount of habitat needed to survive must be protected in some way on all lands. Merely protecting a species from a direct kill won't save it from extinction.

Next, the law must be enforceable but not only by the federal government itself. Political pressure will too often intervene, and the government may also refuse to act.

As we've demonstrated, the U.S. Endangered Species Act has had a very positive and dramatic ecological effect. It has arrested the slide into extinction of many species both on and off the list. It has been the sole reason some of those have begun to recover back to health. Millions of acres of vital and species-rich habitats, which otherwise would have been mined, logged, or under pavement, are now protected across our land. It hasn't been an easy or non-controversial process, but it has definitely worked.

If people complain or say it doesn't work in some ways, I ask people, what would our country look like now without an Endangered Species Act? What species would still exist? What habitat would still be there? I can guarantee you that especially in the fast-growing, exploding sprawl areas of our southwest, there would be very few habitats or species left.

In conclusion, I would not want to say that it hasn't been a controversial law. The legislators of our nation made a conscious decision that all the biodiversity in our country was precious and that all of it would be protected if it was within our power to do so and in the public interest to do so. That statement was made close to 28 years ago.

There have been repeated efforts in our Congress, especially in the past six years, to repeal or to weaken the law. None of them has succeeded. I think the political result speaks for itself. This act is enormously popular with the American people themselves. I'm fond of saying that a lot of people don't like the act but the American people themselves love it. That's how they've responded over and over in public opinion polls. Every time there has been a legislative effort to repeal it or weaken it, it has almost always failed. The act still stands.

My final observation, Mr. Chairman, is that the most profound effect of the U.S. Endangered Species Act has been not just on our land and our precious biological heritage, which now has a chance of being passed on to our future generations, but also on the American public itself. Even the lawsuits that seem controversial, the listings, the headlines, and all the rest of it make more and more people understand that something is at stake here, and more and more people flock to its support. We're certainly having no trouble getting a lot of support to defend the act right now under the current political circumstances.

Exhibit D, which you may not have in front of you, consists of several editorials from various national newspapers, including the Chicago Tribune, which is a very conservative paper, The Baltimore Sun, and The New York Times, which illustrate the strong traditional public and media support we get for the act.

This concludes our testimony. There's lots left unsaid. I look forward to your questions. Thank you very much, Mr. Chairman.

The Chair: Thank you, Mr. Evans, for your concise and incisive presentation. That was very helpful.

Who is the next speaker? Mr. Smith, welcome.

Mr. R.J. Smith (Senior Environmental Scholar, Competitive Enterprise Institute): Mr. Chairman, I would like to thank you and the members of the committee for inviting me up here to testify on this piece of legislation.

• 0950

I think it's uniquely important for you to hear some of the varying opinions from the United States as to whether our act has been a success or a failure, and I hope that can help you in your judgment as you move to find ways to protect your species in Canada.

The noted ecologist, René Dubos, once wrote:

Since there are countless ways to go wrong, but only a very few ways to do right, our best chance to deal with our contemporary problems and those of the future is to learn from the success stories of our times.

The corollary of that also is to learn from the failures of our times.

Brock Evans and I have known each other for a long time, and I think I can safely say that we're friends, but we have quite different views on how this act is working and on ways to improve it.

I would argue that 28 years after the passage of the U.S. Endangered Species Act, it is mired in controversy, eight years overdue for reauthorization, and Congress can find no way to fix this tragically flawed and broken law. More importantly, from a public policy perspective, the U.S. Endangered Species Act has been a failure—a complete and unmitigated disaster.

If one had deliberately set out to create a law that would have harmed wildlife, destroyed habitat, and discouraged private landowners from protecting wildlife on their own lands, it would have been difficult to surpass the U.S. Endangered Species Act. The ESA is causing tremendous harm to many of the very species it was designed to protect.

Indeed, in a quarter of a century, to my understanding and analysis of the endangered species list, not one single species has completely recovered and been delisted solely because of the Endangered Species Act itself. The goal of the act, of course, is to list imperilled species, assist them in recovering, and then delist them. Of some 1,400 species in the act, a few more than 27 have been delisted. Recently there have been a few more, but the same analysis holds.

According to the U.S. Fish and Wildlife Service, which administers and enforces the act, seven of those 27 were delisted because they became extinct while on the list. Certainly that's not much of an achievement. The service then reports that nine species were delisted because of data errors, which means they never should have been on the list to begin with. Later on, when surveys were done, it was found out that they did not qualify to be on the list.

Increasingly, this category of data errors is spotlighting the tragic flaw in the act. Because of the overriding power of the act to halt all growth, development, or projects on public or private land when they might represent a harm to a species, the environmental community has largely used the act as a means of achieving cost-free national land-use control in federal zoning.

Whenever environmentalists are anxious to stop a government dam, a highway, an airport, or a hospital from being constructed or expanded, or to stop a private landowner from harvesting trees on his or her own farm, or building a home, or plowing a field, they simply find some obscure, little-known plant or animal and propose it for listing as an endangered species. Once the species is listed and the project is halted, subsequent systematic and detailed surveys by professional biologists often turn up large numbers of the species in areas where no one had bothered to look in the original, urgent press of halting the project. The biologists in the Fish and Wildlife Service then say, “Whoops!”, and usually proceed to delist the species because of data error. This, of course, can be very expensive and embarrassing.

Finally, of the original 27 species that came off the list, the service claimed that the other 11 species were recoveries. However, upon close analysis and interviews with scores of biologists and government officials in the U.S. and in foreign countries, it is clear that none of the U.S. Fish and Wildlife Service's claimed recoveries actually qualify as true recoveries. Eight of them were little more than original data errors that the service does not want to admit, and the other species, whose populations have actually recovered, recover for reasons other than the Endangered Species Act. Thus it's illegitimate for the service to claim credit for their recovery.

For instance, the gray whale recovered because the U.S. stopped whaling decades before the passage of the Endangered Species Act. The peregrine falcon, the brown pelican, and the bald eagle recovered because the U.S. Environmental Protection Agency had banned the use of DDT, which had caused massive reproductive failure in those species, before the passage of the Endangered Species Act.

Thus, not a single species has recovered because of the Endangered Species Act alone. Of the 27 species that have been listed, 7 went extinct, 17 were data errors, and the others were for reasons other than the Endangered Species Act.

• 0955

The reason for this—the fatal flaw in the U.S. Endangered Species Act—is that it's been used primarily as a means of cost-free national land-use control rather than as a means of protecting rare species.

In nearly every corner of the nation, landowners who happen to have threatened or endangered species on their lands—or simply have habitat on their lands that might be used by endangered species if the endangered species were there—are routinely prevented from using their lands or property, including such activities as harvesting their own trees, planting their crops, grazing their cattle, withdrawing water for which they have water rights to irrigate their fields, clearing brush along fence lines, clearing brush around their homes in fire-prone areas, disking fire breaks around their homes and barns, or even building a home.

Thus the lesson for private landowners in America is the better a steward a landowner is, the more wildlife habitat he or she leaves on their lands, the more likely it is that he or she will be punished by losing the use of their private lands.

One of the first lessons in economics 101 is that if you want less of something, you penalize it or tax it. If you want more of something, you subsidize it or reward it. Because the Endangered Species Act makes private conservation and stewardship a liability, landowners stop undertaking such private conservation activities. This has been especially true in those regions of the country where endangered species have been most widespread and the problems with them most vexing.

This includes the pine forests of the southeastern United States, the brush-covered Texas hill country, the coastal hills and valleys of southern California, areas in the coastal forest of the Pacific northwest, and more recently riparian and wetland areas in the U.S. southwest.

Landowners cannot afford to risk leaving much of their land in wildlife habitat. To do so is to risk losing all economic use and value of one's land, and irrespective of the U.S. Constitution's fifth amendment, receiving no compensation for the loss of one's land, let alone the just compensation mandated by the Constitution.

In fact, the fear of the act drives many landowners to actively remove habitat from their land, sterilizing their land, especially habitat that could be used by endangered species. That is not a very helpful way or a fruitful way of helping endangered species recover. This is widely known, although very little publicized. It's not just the lore of the nation's farmers, ranchers, foresters, and homeowners. It is well known by even the most prominent influential federal wildlife officials, state fish and game officials, and senior members of the nation's leading national environmental organizations.

Mr. Sam Hamilton, with the U.S. Fish and Wildlife Service, who was in charge of recovery of a rare endangered warbler, the black-capped Vireo in Texas, said, when the controversy started over the listing of those species:

The incentives are wrong here. If I have a rare metal on my property, its value goes up, but if a rare bird occupies the land, its value disappears. We've got to turn it around to make the landowner want to have the bird on his property.

The result of the Endangered Species Act's perverse incentives were also observed by Larry McKinny, who is director of resource protection for the Texas Parks and Wildlife department. He said:

While I have no hard evidence to prove it, I am convinced that more habitat for the Black-capped Vireo, and especially the Golden-cheeked Warbler, has been lost in those areas of Texas since the listing of these birds than would have been lost without the [Endangered Species Act] at all.

Again, that is from the director of wildlife programs for the Texas Parks and Wildlife department, not from a rancher or a landowner. He had seen himself what this act was doing to landowners.

Mr. Michael Bean, who is chairman of the Environmental Defense Fund's wildlife program, and is widely considered in the environmental community in the nation as perhaps Mr. Endangered Species, said:

There is... increasing evidence that... private landowners are actively managing their land so as to avoid potential endangered species problems. The problems they are trying to avoid are the problems stemming from the Act's prohibition against people taking endangered species by adverse modification of habitat. And they're trying to avoid those problems by... avoid[ing] having endangered species on their property. They do that by eliminating the habitat that those species would use. This is the inevitable result of the Endangered Species Act's punitive nature.

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By threatening landowners who make room for nature with the uncompensated loss of their land or their crops, it encourages landowners to get rid of wildlife habitat and sterilize their lands. It creates the shoot, shovel, and shut up syndrome whereby wildlife is viewed as a liability by landowners, as a threat to landowners. That's the last attitude you want landowners to have if you want to work with a nation's private landowners in order to protect the wildlife heritage we have.

The result is that the Endangered Species Act has become a disaster. It harms people and their property and it harms species and their habitat. It is bad for species and it is bad for people.

But the important thing to remember here is that private landowners are not afraid of wildlife on their lands. They are afraid of federal regulations and federal agents coming onto their land. Eliminate that fear and they will once again be willing to help protect wildlife and habitat.

The most important step, I believe, that we could do with our Endangered Species Act—and I hope you will consider in enacting your Species at Risk Act—is to remove the perverse incentives in the act and stop making stewardship and private conservation a liability. This means no longer penalizing owners of habitat by preventing them from using their land.

The key is to work with the nation's private landowners instead of against them. The only way to make the Endangered Species Act work for both people and species is to replace the existing compulsory regulatory act with essentially a voluntary, non-regulatory, incentive-based act.

Under such a law, the government would have no power to take or regulate private property in order to protect endangered species or their habitat. If the government wanted to protect habitat on private lands, it would have to work out a mutually compatible, voluntary, contractual relationship with the landowner.

This would be very similar to what our Department of Agriculture does on a regular basis. It protects highly erodible lands on our nation's farms by offering to pay farmers to place some on their land in the Conservation Reserve Program for a set term of years and then paying the landowners for their cooperation.

The agriculture department's Conservation Reserve Program, and their similar Wetlands Reserve Program, has landowners all across the United States clamouring to join those programs. Landowners are queuing up to join those programs. The program is a success because when the Department of Agriculture agent shows up at a landowner's door, he shows up with a cheque in his hand. You have a habit to open the door when somebody appears that way.

But unfortunately, when the U.S. Fish and Wildlife Service agent shows up, he's either got a gun in his hand or a subpoena in his hand. Landowners react differently to that than they do with the person with the cheque in his hand.

If the government and the environmentalists in America can work with landowners to plant and protect grassland habitat for common species such as meadowlarks and field sparrows and game birds and even non-native species such as ringneck pheasants, we certainly should be able and willing to do a little more to protect habitat for the far more important endangered species.

Furthermore, eliminating the power to take private lands would not render wildlife defenceless. It's important to realize that there are a number of existing federal laws and state laws prohibiting the killing or capture of most species of wildlife in America, including the Migratory Bird Treaty Act that gives full protection to almost every single species of bird in North America, from the most common to the rarest.

Under such a voluntary cooperative program, the government would have the option of negotiating a full range of possible protective measures. It could rent land from landowners. It could lease it. It could purchase conservation easements or development rights or even purchase the land in fee simple.

For instance, you could pay tree farmers or foresters to delay harvest of their trees for a certain number of years in order to allow the species utilizing those trees to produce more young and help the population for 10 or 15 years. Then at the end of that time, when the landowner again was out of the lease, when he harvested his trees or sold his trees to a sawmill, they would have been 15 years older and bigger, and he would get more money. He would have created a true win-win situation.

You could also pay landowners to produce wildlife by erecting nest boxes or platforms, or for creating specific types of habitat for wildlife reproduction. However, the truly significant aspect of a voluntary non-regulatory law would be the elimination of the current perverse incentives in the current act.

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Landowners would no longer be afraid of doing good, of helping wildlife, of sharing their lands with wildlife. Thus, a great many landowners would be willing to voluntarily maintain wildlife habitat and to take steps to create more wildlife habitat to help endangered species. Therefore, the cost associated with a non-regulatory law would be far less than maintaining a draconian regulatory law and then requiring compensation for takings or loss of the economic user value of private lands.

Landowners would once again be willing to be partners in helping wildlife, as they have been for most of this century in the U.S., and indeed in Canada, until the heavy hand of the U.S. ESA began to turn them against wildlife and make them fear doing good things to help wildlife.

Landowners would stop sterilizing their land and would again leave marginal land for wildlife, such as riparian habitat, hedgerows, windbreaks, borders along fence lines, tops of hills, and outcrops, etc. Many landowners would be willing to allow the friends of the red-cockaded woodpecker or the northern spotted owl to come on their land and erect nesting boxes to help those species recover and increase their populations, because they would no longer have their land shut down if those endangered birds began to utilize the nest boxes.

One great example in the U.S. is we have a program at the Competitive Enterprise Institute called the Center for Private Conservation in which we document the good examples of private stewardship. The species we have selected is the wood duck. Many of you know this beautiful little duck. It's the most colourful duck in North America. It is a cavity nester, nesting in holes in trees. In 1920 it was near extinction because we had felled our bottom land forest. Fortunately for this duck, there was no endangered species at that time and the Friends of the Wood Duck went around to landowners all across America and asked if they could hammer up artificial nest boxes for this species to live in, and landowners said, yes, because they would not be penalized if the duck came on their lands.

It's such a success that this duck is now the second most populous duck in the eastern United States, and in duck hunting season the Department of the Interior urges people to shoot more of them to take the pressure off other ducks that are in trouble because of drought.

We could do the same thing for the endangered spotted owl if we didn't penalize landowners for having it show up on their land. No one will put up a nest box for a spotted owl, because as soon as the spotted owl comes in the nest box, your land is shut down. If we move to incentives instead of disincentives, I think we can all share the bounty of wildlife and also have the benefits of a free society.

Thank you.

The Chair: Thank you, Mr. Smith, for your eloquent presentation.

Just to understand the ideological orientation of your institute, is it correct to say that your institute applauds the end of the U.S. support for the Kyoto Protocol?

Mr. R.J. Smith: I think we believe there is natural global warming going on. The planet has huge cycles. That's why there are no longer two miles of ice sitting on top of this very spot. The Pleistocene ice sheets disappeared without any power plants or SUVs driving around the roads. We don't think the amount of anthropogenic carbon dioxide that's being added into the atmosphere, compared to natural background variations, suggests that we should have draconian reductions in the standard of living of the people of the world, if that answers your question.

The Chair: Yes, I based it on an item out of Washington dated March 27, 2001, which carries the title “CEI Applauds End of US Support for Kyoto Protocol”. So you confirm that.

Mr. R.J. Smith: Yes. I don't happen to work on that issue, but I would certainly agree with that—

The Chair: Thank you, Mr. Smith.

Mr. R.J. Smith: —and I hope other institutes would applaud the end of Kyoto, too.

The Chair: Thank you.

Señor Nachón, quiere prende la palabra?

Mr. Claudio Torres Nachón (Director, Center for Environmental Law and Economic Integration of the South (Mexico)): Si, gracias, por favor. Señor presidente, muchas gracias.

I would like to ask if I can speak in Spanish, or do you have translation? No? Then I will do it in English.

I don't speak French. Sorry. I would love to; I tried, but it's really bad.

I want to thank you for the opportunity to be here. I come from Mexico, from the southeastern state of Veracruz in the Gulf of Mexico. I am particularly pleased to be here because Canada and Mexico are the neighbour's neighbour and we share a common problem in many ways.

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I would like to comment on the efforts that Mexican civil society and the Mexican government as well have gone through in the last couple of years to come up with the very first federal wildlife law in Mexico. In this process, we have learned a lot of lessons. Many challenges and many opportunities have been produced. We understand the discussion taking place, and it's an ongoing de facto discussion that is taking place almost everywhere in the world, on how you protect and use the environment. How do you protect without affecting private citizens' rights in a broader manner?

The lesson we have learned is that you really have to think globally and at least originally, and that's why I want to express that Mexican NGOs and the Mexican government itself are paying attention to this process, because, as you know, we have well over 40 species that migrate between Mexico and Canada, about which there is interaction between Mexico and Canada. Some of them are very well known, such as the monarch butterfly, and some of them are not that well known. In any case, I think you as Canadians have a real and global responsibility.

As well, as a reflection, I would like to remind you that Canada is known as a very progressive and democratic country. People are looking up to you, and whatever you do is going to impact on what everybody else is doing. Mexico is a mega-biodiversity country and we expect you to help us protect the number of species that flow over the borders of our countries.

We are concerned about some basic flaws that we see in the proposed species at risk bill. Basically, the first one is habitat protection. We believe the Canadian federal government should extend their facilities for the protection of habitat well beyond only federal land, and they should do it in a mandatory way for the whole array of facilities and jurisdictions they already have, such as with migratory species habitat and all this. That is our special concern.

As well, we are somewhat worried about the listing of species. We know there is a committee known as COSEWIC. We wonder what is going to be the status of that committee. We think it should be independent and we think the committee should have a stronger, almost final, word on deciding what species should be listed to avoid making the decision-making on what species are going to be listed a political issue.

As well, we worried about effective enforcement. I'm really surprised to see it because even in Mexico we have a system in which any citizen can go to an administrative court and say, I believe the government is not doing their job in the right fashion and they should start a procedure to fix this up.

Then again I would like to recognize, of course—and I'm sure you're well aware of it—that law enforcement in Mexico is not that satisfactory on many occasions. At the same time, I would like to remind you that we have a very different mixture of population. Here in Canada, I can see you are a rich nation with not only the economic means but the intellectual means to actually come up with effective reflections on these very delicate issues. In Mexico we have millions and millions, over half of the population, who live in very sad poverty and who live in the highlands. Basically, they don't have access to justice, and then it's a different situation that I would like to point out.

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That will be it for the moment, and I thank you again.

The Chair: All right. Muchas gracias.

Mr. Lapointe, would you like to have an intervention? The floor is yours.

Mr. Eugene Lapointe (President, International Wildlife Management Consortium): Thank you, Mr. Chairman.

First of all, I would like to comment on your question as to where I come from. I think it is quite appropriate.

I'm a Canadian who left Canada 19 years ago and, since that time, has been probably spending 14 to 15 of those years travelling around the planet. And while I'm still very proud of carrying a Canadian passport, I don't think there's a place in the world that I can identify as home. So your comment that I'm somewhere on the planet is quite accurate.

During the travelling, I normally spend as much time as possible resting and sleeping, but my last long flight was disturbed. Last Sunday I was taking an overnight, nine-hour flight from Argentina to Florida, and, unfortunately for me, I had received prior to my departure from Argentina a copy of Bill C-5. So I couldn't sleep because I spent the whole night trying to understand the principles involved in the bill.

In 1974, as head of the legislation unit within the international trade programs of Industry, Trade, and Commerce, in a building not too far away from here, I was involved in the preparation of the Orders in Council and ministerial orders designed to implement the newly created Convention on International Trade in Endangered Species of Wild Fauna and Flora, known as CITES. If I'm not mistaken, that was the very first comprehensive list of so-called endangered species created in Canada, which included, of course, not only the Canadian species but all of the species considered endangered at the international level as well. I never thought that, 27 years later, I would be back in Canada to talk again about the very same subject.

During those 27 years, I have been associated with the CITES convention, first of all as a Canadian official, as part of the Canadian delegations and as the chair of international committees, one of them in 1976 for the concordance and coordination of national legislation aiming to develop proper conservation for wildlife species.

Thereafter, for pretty well all of the 1980s, I was the secretary general of that convention and very much involved in the legislative process and regulatory process at both the international and national levels. More recently, I have been founder and chairman of the IWMC World Conservation Trust, one of the main purposes of which is to advise and provide guidance to the government as to how best to deal with this issue of endangered species.

It can be said without any doubt that while CITES is mainly directed towards international trade, it is certainly known and accepted as being the major endangered species convention in the world. While international trade is a rather limited part of it, it does have a lot of incidence on issues such as protection of the habitat.

I have been trying to look at Bill C-5 in line with what I call the “roller-coaster” evolution of CITES. In all of the activities dealing with wildlife issues, there's always now this rather new notion of precautionary principle. I like to take a precautionary principle and apply it to my remarks by saying, please, do not get me wrong; I am one who has been fighting all his life for the protection of endangered species, but through the experience I have acquired, I think I've been able to develop a certain knowledge of the appropriate approach for such protection of wild species.

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In my view, there are a lot of problems associated with Bill C-5, recognizing that tremendous efforts must have been made by the drafters to arrive at something that will achieve protection and conservation of wild species. I think I've been able to identify some general areas of concern, again in light of the experience we've had with CITES at the international level and with associated national efforts in the same direction.

The first major problem that I see in the act is the use of certain vague terminology and the lack of definition of the same terminology. In either official text of the bill, the word “conservation” is used 47 times. This is probably the most abused term that exists worldwide at the moment. All extremists qualify themselves as being conservationists. I don't think we'll ever be able to agree on a proper definition of the term “conservation”.

Organizations such as Paul Watson's Sea Shepherd, whose main activity, as an example, is to sink whaling boats in the North Sea or to ram fishing boats in the open sea. They call themselves the Sea Shepherd Conservation Society.

Well-known organizations here, like IFAW and the Humane Society of the United States, which have developed a contraceptive mechanism for the highly endangered elephant in South Africa, have indicated that it was the greatest project of conservation of the African elephant ever developed. All over the world you have people grabbing this term “conservation”, but always with a different context, a different meaning.

I think any legislation dealing with conservation must at least establish basic parameters that do not exclude all of the options open in the term “conservation”.

Other terminology that has created a great deal of trouble at the international level, in CITES and in the text of the convention you have, is that before listing a particular species, it shall be done “in consultation with the range states”. You have the same wording. The consultation process is a necessary one. All stakeholders will have their say. However, unless this consultation process is properly defined, and unless the weight the consultation process will have in the final decision is as well defined, it becomes an area where loopholes are created and where you can have the interference of inappropriate forces in the listing process.

A lack of full scientific information on “imminent threat” is something that really scares me and something that is used quite often, to throw a species on the list without any due consideration of the consequences of such a listing.

Another expression is “multi-species and ecosystem approach”, which has totally different meanings in different parts of the world, depending on what you're interested in. Mainly with respect to the fishery sectors, this needs to be defined and refined if you want it to be a useful tool.

If I analyse “recovery” in the text of Bill C-5 in line with, for example, the prohibition, it means to me that a lot of effective tools for recovery are excluded as a possibility under the act.

So a lot can be said about the problems associated with the vague and general terminology, and to me, this is something that could hamper the objectives of the bill.

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The second problem I have is the extent given to the notion of prohibition. An American journalist one day said the following about the problem of drugs: “Prohibition is not the solution; prohibition is the problem.” I find no other way in human activity of applying this principle.

The field of wildlife conservation is totally different from any other field of human activity. It's a field that people are part of. We cannot just dissociate people from their responsibility as guardians of nature and its elements through prohibition. Nothing can be achieved by criminalizing people, by making them feel guilty. On the other hand, a lot can be achieved by making people feel responsible for the species, for nature.

I think the Norway model is quite an interesting one in terms of the involvement of the fisheries sector, the whaling sector, the hunting people, sports fishermen, and all who are really involved in conservation, which led to the presentation of a report at the recent economic forum in Davos, Switzerland, to classify Norway as the most environmentalist country in the world.

The final problem that I've associated with this issue of general difficulties is the delisting. For too many components of the world of environment, the phenomenon of listing of species is a big victory. It's a big day: “We've done it. That species is now on the list.”

For me, whether the process of listing is a valid one or not, it's a very sad day, because it means that something has gone wrong, either in the process, or as a result of natural forces or human involvement. But it's a sad day. The day of victory should be the day on which we manage to delist a species, the day on which we can manage to say that we have done something, that we can achieve the objective.

This has been a major problem with CITES over the years. The first criteria for listing and delisting, in Berne in 1976, proved to be very effective in listing a species but totally inappropriate in delisting a species. It was impossible to take species off the list.

The new criteria were created in 1994. Now there's a re-evaluation of these criteria with other international organizations, such as the fisheries committee of the FAO and other international institutions, in order to find a way to be able to take species off the list and to change this mentality that it's a great day when species are put on the list.

If I summarize my perception of the bill at this time, the industrialized world is leaving a very sad crisis. Because of pressure, sometimes coming from a misinformed public, the industrialized countries have this tendency to switch political correctness from people to wild plants and animals, which leads to a serious negative consequential transfer, the transfer of human rights to animal rights and the transfer of emotion from people to animals.

In its present form, I'm afraid the bill might lead in that direction. The pressure is great for government to take action to save the species, because if it does not, it will be accused by all quarters as being some type of Stone Age administration with no concern for the species.

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On the other hand, the pressure should be loosened a bit by the governments through the means of education. To have some legal mechanism to correct the situation of wild endangered species is imperative. But it must be done with the right approach. To try to correct it, as was suggested, after it has been passed—it's already difficult to have proper legislation to protect species and at the same time to care for people—is almost an impossible task.

Thank you, Mr. Chairman.

The Chair: Merci, monsieur Lapointe.

I understand Mr. Snape would like to make a brief intervention. Please go ahead.

Mr. William Snape III (Legal Counsel, U.S. Endangered Species Coalition): Thank you very much, and good morning, Mr. Chairman, members of the committee.

It is a great honour to be here today before this committee of the Canadian Parliament.

While I'm admittedly 100% American—a Yank—I am quite enamoured with your country, your people, and your striking and majestic natural beauty.

My bias is clear: healthy viable populations of all your wildlife species, of all of North American wildlife species, for generations to come is something I desire.

Before I start, a quick word about myself and two publications I brought. I jammed as many into my briefcase as I could. I apologize for not having one for everybody. This is a book that I published and wrote portions of called Biodiversity and the Law. It has a section on the U.S. Endangered Species Act and several chapters on the Endangered Species Act. I have three copies of that book, including one hard cover, for whoever asks me the nicest question.

I also have a book called State Endangered Species Acts, which is a publication we put out related to our states, like your provinces. It's interesting because it talks about the federal relationship in the United States, which I know is an issue in Canada and before this committee. It also has model legislation that is not completely appropriate to what you're attempting to do, but I think that could be useful as a model in certain circumstances. I have five copies of those and I'll pass them around at the end.

I'll say a quick word on the U.S. Endangered Species Act before I talk about my perceptions of Bill C-5. The fact that in 1973, and particularly thereafter, the Endangered Species Act dared regulate private property was something that infuriated a small but very vocal minority in the United States. We have a constitutional amendment called the fifth amendment in the U.S. Constitution that says you cannot take private property. So any attempts by the federal government to say that anything should be done on private property immediately evokes outrage by a very small, but very vocal, contingent of the U.S. population.

They did not like the law in 1973. They did not like it in 1983. They did not like it in 1993. They do not like it today.

Most of America, however, including some of the industry and corporate interests who aren't totally enamoured with the act, have come to live with the act. One of the themes I wish to leave you with this morning is that the basic parameters of the U.S. Endangered Species Act are really no longer at issue in our country. What is at issue are some very important tinkerings that need to be done, tinkerings that we can discuss, tinkerings that actually, when we talk about the substance, I agree with R.J. on—I totally disagree with his generalizations. I can perhaps end with a discussion of American tinkerings to make our act work better.

But first let me briefly talk about two themes in Bill C-5 that I believe I can provide some perspective upon as it relates to what we have tried in the United States.

The first is the concept of a science-based listing and delisting process. Claudio Torres Nachón talked about COSEWIC. We have a saying in the United States: “Don't fix what ain't broken”. In my opinion, COSEWIC is something that Canadians should be proud of. It is an entity that has international prestige. It is an entity that, I believe, from my analysis, has performed sound science. I think you are asking for trouble—my humble opinion—to attempt to politicize the listing process. I think you will get squeezed from all sides. I think if indeed you want to have an accurate accounting of Canada's natural heritage, have the scientific experts create the list.

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For all other decisions under the act, I think we acknowledge that socio-economic impacts must be taken into account. And we're going to be talking about what those socio-economic impacts might be, but for the list itself, for the integrity of the list, it should and must be based on sound science.

That leads me to the part of Bill C-5 that I think you ought to congratulate yourself on—it is something that I wish we had in the United States. That is the section on species of special concern, the idea of preventing species from becoming endangered or threatened in the first place in a way that I believe even R.J. Smith would like—in a voluntary fashion, to look for those win-win opportunities before there is a crisis.

I think that is obviously the way to go when you can do it because, as Mr. Lapointe says, when a species is listed, it is a sad day. That is not the point of the Endangered Species Act. The point of the Endangered Species Act is to prevent the need for using that very act. I agree with that.

I think if you compare the Canadian and American biological situation, the fortunate good news is that you don't have as many crises as the United States. We have a population that is burgeoning, a population in many areas throughout the country—there's no area now untouched—where human growth and human economic development are butting heads with really our last bastions of wild nature and wild America.

In Canada—and I'm jealous, you are not at that point. I think your provision on species of special concern can hopefully prevent you from ever being at those types of crisis points. That is a point I cannot emphasize enough. That is the good news of my remarks this morning.

I guess the less good news or the less optimistic news from my behalf is that I believe you must have standards to protect habitat in this bill. Obviously I will have no say at all as to whether you do or not—this is just my opinion and my advice to you—but the scientific reality is that upwards of 90% of all endangered species have habitat as the leading reason for their decline. Many studies in the United States and globally have pointed this out.

Just as a quick point to something R.J. said about the wood duck, I don't think anyone claimed the wood duck was declining because of habitat loss. I think it was being overharvested and overshot, but we can return to some of those themes later on.

In the United States, there are actually two different standards for dealing with habitat loss and habitat protection. There is a standard that relates to private parties—actually non-federal parties so that would be both private parties and state entities—that is handled under one type of rubric. Then there's another rubric where there is a federal nexus, a federal agency involvement. That is handled under a related but still separate rubric.

The private party rubric I will talk about for a second because the U.S. Supreme Court has actually issued decisions on the regulation of habitat on private property, the most recent and most famous of which is the Sweet Home decision. I wish I had a site for you. I do not. I could get anyone on this committee copies, if you wished to see it. It was written by the Rehnquist-Scalia majority, the Conservative wing of... Actually, I take that back; he dissented from that particular decision. But the decision is very clear in that there must be causation; there must be a clear link between the habitat destruction and the proof that you're taking and harming wildlife. The point is that the Supreme Court in the United States erected a very high standard by which private landowners and state actions would be found liable under the Endangered Species Act.

It has been a very important decision, a decision frankly that I do not like, that I do not fully agree with. But I think in terms of the fears that somehow a Canadian endangered species act would run roughshod over economic development and people's lives, if you look at the American model, that's clearly not the case.

In fact, when you heard Mr. Smith talk, you would think somehow that America is economically destitute and that we are somehow in the woes of a fantastic depression. Well, some in Silicon Valley may think that this morning. The reality is that, of course, America economically is doing quite well.

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I'll give you this particular fact. In Oregon, the heart of spotted owl country, they have the best economic situation they have experienced in 40 years. All of the predictions that the spotted owl crisis would send Oregon's economy tanking have been proven utterly false. In fact, it has been attributed that the reason why people move to Oregon, the reason why the high-tech section is in Oregon, why service industries are moving to Oregon, are for the very natural amenities that the Endangered Species Act seeks to protect.

I'll say a word on incentives and the related issue of compensation. I have read the compensation provision in Bill C-5. Again, with all due deference and humility, it is a provision I believe is ill advised. I believe you do not want to create an entitlement for paying anybody to obey the law.

But I think the compensation issue begs a much larger question. This is where I think the tinkering of the U.S. Endangered Species Act... And this is, dare I say, the area where perhaps Mr. Smith and I sometimes agree, which is that you do need both at the parliamentary and legislative level, and I think at the regulatory level as well—the Minister of the Environment—to create a number of tools to create incentive for landowners to do the right thing.

I'm not as familiar with all the Canadian administrative programs, obviously, as I am with the United States, but let me give you several examples in the United States and perhaps it will ring a bell to you in terms of programs you are aware of in this country. R.J. mentioned one. We have a large farm bill program that has conservation funding that goes to farmers who are protecting wildlife, including endangered species. I think that is a very good program.

We have regulatory provisions whereby landowners are given basically a regulatory free ride for performing certain positive conservation actions. We call those safe harbours. The red-cockaded woodpecker of the southeast forests of the United States is well on its way to recovery as a result of safe harbours.

We have been pushing President Bush to include in his massive $2 trillion tax cut some tax relief for positive conservation measures to, for instance, relieve estate tax payments in perpetuity for farmers and rural landowners who manage their property in a way that is sustainable to get actual tax credits, or tax payments, for proactively benefiting endangered species' habitat. I am sorry to say that heretofore the $2 trillion tax cut does not include those types of tax provisions, which I think is a shame, but we are working hard to do that.

I have heard through the rumour mill that this body has at least discussed, or at least some members have discussed, the idea of an endangered species trust fund to deal with these types of incentive issues. I think, again, you need to be careful not to create an entitlement. Don't allow landowners to demand that they receive money to obey the law, but I do think a program could be set up so that those who are actively contributing to the law could receive payments, and should receive payments.

Lastly, my last problem with compensation is the issue of causation. It is extremely difficult to actually attribute one particular regulation for diminution of land value. Take a look at the volatility of the stock markets. Take a look at the volatility of land prices in some areas. Look at the way markets can open and close. Look at weather patterns. Look at other regulations. I think you are on a slippery slope if you begin to pay people to obey the law.

The reality in the United States is that despite blustering and movements, again, from a small but vocal minority to have compensation, those efforts have failed precisely for the reasons I am enunciating.

Lastly, before I conclude, I'll say a word on enforcement, because enforcement really is nine-tenths of environmental law. You can have a great law on paper, but have it do nothing on the ground if the provisions are not actually followed.

Here I think one can only revert back to one's own notion of common sense, which, of course, is a highly subjective term. We all would have different definitions of it. But I would argue as strenuously as I could that when you're looking at a regulatory program such as this the reality is that you must have both carrots and sticks. You must have clear regulatory standards and then you must have incentives to make it worthwhile for those to advance those standards.

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But if you indeed have a voluntary, standardless program, I think not only will people not be interested in the incentive programs, but I think we are being naive to think... It certainly did not work in the United States. Perhaps it would work in Canada. When we had a voluntary approach, the law simply was not followed. I know America is considered a litigious sort and I know that I am an American lawyer, and you're allowed to tease me over that. Again, I think, going back to human nature, humans need to have standards and they also need incentives. I think they each go hand in hand.

The idea of citizen enforcement, which I know has been talked a little bit about, I will not get into in the interest of time. I will only point out that these types of citizen enforcement measures have been around since at least 1388. King Richard II in England had a law to remove the dung and filth from rivers. I know that the qui tam principle has roots in the civil legal system of France as well. So the idea of citizens helping the government enforce and have an open and accountable program, I think, is one well rooted in history and one that I think you would do well to consider.

Then lastly I will end with a very positive note, which is that even when we have had tough Endangered Species Act battles in the United States... And one I have been recently involved in is in Tucson, Arizona, southern Arizona, which is growing very rapidly, as is of course Phoenix. There they had an endangered species conflict regarding a small owl called the cactus ferruginous pygmy owl. Indeed, it still has the homebuilder association a little upset because they can't make quite as many millions of dollars this quarter as they would have otherwise. But the reality is that the local community has embraced the situation. They have embraced it not because they are “no growth”, not because they don't want to continue to economically develop, but because they have been struggling with growth management in that fast-growing area for years without any chance of success until they had some handles with the Endangered Species Act.

That has been what I call constructive conflict. There are all sorts of incentives being created right now for private landowners to do the right thing. I think you would find, in fact there have been polls, that upwards of 80% of Tucsonians are very happy with the growth control measures that the Endangered Species Act has not caused but certainly has catalysed.

Keep in mind, too, when you have this type of public enforcement that it can be enforced by all sides, not just environmentalists, but industry, corporations, all members of the public. I think the bottom line is that you want to have the ability to stop a project before irreversible damage occurs, because once that damage occurs, you cannot go back. If it turns out that this damage isn't quite as bad as the environmentalists say or some citizen says, then the project can move forward. But you need to have in this act an opportunity to stop and take a time out.

The very last thing I will say before I conclude is that unlike Mr. Smith's implications, the Endangered Species Act in the United States has been a success. Some 60% of all the species listed in the act, including those just listed, which obviously are not recovering right away, are either recovering or have stabilized as a result of the act. That is from our own government accounting system. We have a recovery report by the Fish and Wildlife Service every two years and that is from the most current report.

Thank you very much for your time.

The Chair: Thank you, Mr. Snape.

All right, we have now a good, long list. Mr. Mills, Mr. Bigras, Mr. Comartin, and then Madam Carroll, Madam Kraft Sloan, Mr. Savoy, Madam Redman, and Mr. Reed. Five minutes each possibly.

Mr. Mills.

Mr. Bob Mills: Thank you, Mr. Chairman. Thank you, gentlemen, for appearing before us.

I have a lot of questions and a number of comments. Obviously I can't do them all in five minutes, but let me take a hit at it and see what we can get.

First of all, I think Bill C-5, as all of us have agreed, is based on goodwill and cooperation. My concern has been communicating that to people. I see in reading your brief, Mr. Evans, which is the only one we had ahead of time, a lot of sticks and not a lot of carrots. What I hear from the people who are writing me and calling me, and who I'm going to be meeting with, is that they are saying the battle cry would not be the U.S. system, which in fact does have a lot of sticks, a lot of enforcement, no compensation, and is very heavy-handed when it comes to landowners and industry. Most would say shoot, shovel, and shut up would be the end result of that sort of a program.

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I also would tell the gentlemen here that when I took cheques out as part of the Canadian Wildlife Service Program and showed up with a cheque, the difference that made as part of a program to save habitat was quite amazing. Some have heard me talk about that before.

I think, as Mr. Lapointe says, the significant part will be how you communicate this to the citizens of Canada. I think, with reference to Mr. Snape's comments, he must live in the city, given his total reference to the urban environment and the lack of concern for the rancher, farmer, or guy on the land who might be economically impacted by this decision, who might in fact lose his very livelihood because of a decision made by government. When you say that compensation shouldn't be part of it, I don't think you're concerned about that person. Certainly that's what we hear from many American landowners, as well as companies.

So I guess we've got a mixed message here, and one that certainly doesn't help me to make my decision about what's needed. I think Canadians are very different from Americans. I'm proud of that, I'm happy about that, though I'm certainly not anti-American. I think if we were to implement your Endangered Species Act, that would be the end of a lot of endangered species, and we would have 1,200 on our list instead of 300 and some.

So that's throwing something at you and letting you now come back at me.

The Chair: I suppose, Mr. Mills, the question is, where do you live, Mr. Snape?

Mr. William Snape: I do now live in Washington, D.C.—as you all are forced to live in Ottawa for certain periods of the year. I have spent time in New Jersey, California, and indeed Montana. I consider myself a New Jersey boy, however, when all is said and done, and that is called the Garden State.

Mr. Bob Mills: Are you a rural landowner?

Mr. William Snape: It was rural 20 years ago when I was growing up, the southern part of New Jersey, which is not near New York.

As to compensation, perhaps this is a semantic thing. No doubt we would agree to disagree along the margins. I don't wish to pretend to weigh our differences. But I'm not against compensation. I'm not against payments to landowners. What I am against is an entitlement program, as opposed to an incentive project-based program. I do believe there is a difference. You may disagree on that difference, but I think that at least intellectually we need to make that distinction.

Mr. Bob Mills: We see that as an end. I don't think there will be a lot of compensation if you build the cooperation first with the landowner, you work with the landowner and make him part—I think Mr. Smith and several others of you stated this—of the process, as opposed to saying, we're going to buy your land, take your land. That's not what they want. They want to work with us—they are conservationists and environmentalists, and they do care about that species and about that land. So to simply write off compensation and say that's just paying them off not to break the law, that's a pretty harsh statement. That's not what they're talking about. Mr. Smith, could you comment on that?

Mr. R.J. Smith: I agree very much with you that you should set up a situation in which the government is working with landowners, so that there is true cooperation with the landowners, the landowners know exactly what the government would like to achieve and where they would like to achieve it. You should have true voluntary partnerships, in which the landowner has the freedom to voluntarily enter that partnership, he is not greenmailed into entering that partnership, as happens with most of the programs we have in the United States, such as safe harbours. You're told you can join the safe harbour, but if you don't, you can be shut down tomorrow. If you do join the safe harbour, then chances are you won't be shut down for that species. Essentially they give you a choice you cannot afford to turn down.

So people are not really entering that voluntarily. Also on that, about 40% of the people who have entered safe harbours for the red-cockaded woodpecker have been people who have already developed their land and then have joined it later, such as golf courses—40% of the programs in North Carolina are golf clubs. So I don't think that is a sign that landowners who actively need to use their land are happily joining this.

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Third, I think you need a situation in which you have full fair market value compensation for any regulatory takings of private lands or resources or loss of their use. You have that situation, and landowners, as I said, are not afraid of wildlife on their land. They're afraid of having federal agents come on their land and tell them what they can do and what they can't do. It's not difficult to avoid that problem and make them willingly help the nation recover and protect species. I hope that would be your goal. I wish it were our goal.

Mr. Bob Mills: And that's the exact message I will hear a hundred times over in the next two weeks at public meetings from landowners, ranchers, and so on: “Include that and you don't have a problem, we'll work to preserve the species. Don't include that and you have the U.S. system.”

The Chair: Thank you, Mr. Mills.

[Translation]

Mr. Bigras.

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

With such a distinguished panel of witnesses, we should be able to address an issue that we have yet to consider. I mean by that the need to protect the environment in the context of a global economy.

As you know, trade will soon be wide-open among the Americas. Since the signing of the North American Free Trade Agreement, certain companies have gone so far as to invoke chapter 11, governing relations between businesses and governments, to challenge in the courts Canadian laws and regulations, and you are no doubt aware of some of the results that this type of legal action has already brought about.

I would like to know whether, in your consideration of this bill, you have noticed any provisions which might enable a company to legally challenge the bill in its present form, with all the consequences that that might entail. I would like your comments regarding this.

Mr. Eugene Lapointe: Thank you.

You are broaching a very large and far-reaching problem if you consider, for instance, the World Trade Organization. How do you reconcile, for example, the protection of wildlife and the environment with trade relations between various countries and various industries?

One thing is certain and that is that the World Trade Organization, the FAO, and the Fisheries Committee of the FAO in particular, as far as international trade in seafood is concerned, are presently trying to introduce all manner of ways and means to ensure the comprehensive safeguard of international trade and of international relations.

On the other hand, certain situations have been corrected through the appeal procedures of the World Trade Organization. If you take the case of tuna, of shrimp fishing, of sea turtles, you will see how environmental acts, more particularly in the United States, have been used to oppose certain customary economic activities, but even more to impede management programs such as a perfectly legitimate aquaculture program as well as more traditional fishing activities.

This opposition between free trade and environmental protection sometimes works against our stated goals, both with regards to the environment and to international relations.

Mr. Bernard Bigras: I was referring to the bill under consideration. Have you noticed any provisions which might enable a non-Canadian company to challenge any section of the bill as it now stands? We've seen this sort of thing happen with the Ethyl Corp. and Sun Belt. These are facts. Can you tell us, on the basis of this bill, whether there are any potential risks of a court challenge?

Perhaps Mr. Snape could answer the question.

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[English]

Mr. William Snape: As to the compensation provision, the best example I can give you is Weyerhaeuser buying out MacMillan Bloedel. If you get a large American landowner that doesn't get compensated to the degree it thinks it's entitled to under Canadian law, I'm telling you, it would take the government to NAFTA. I think that is clear.

The more indirect point—and this goes to Mr. Mills—is that I believe the World Trade Organization rules have accelerated concentration in rural Canada and rural North America. I believe the demise of the small farmer and the small rancher is related to the fact that they can no longer compete with the economies of scale because of the whole way in which the WTO looks at both agricultural subsidy and agricultural export support.

So when you talk about small or medium-sized farmers in rural America—and this may not be true in Canada—they're being hurt far more by corporate farming than they are by the Endangered Species Act, in orders of magnitude that you can't even calculate.

The last point I'll make—I'm still trying to gain the favour of Mr. Mills on the issue of compensation—is that defenders of wildlife, including my group, compensate ranchers and farmers whose livestock has been depredated by wolves. We have expanded that program for grizzly bears. It is an example, I think, of where we have put our organization's money, not federal government money, where its mouth is.

That may not appease all of your concerns, but it goes to show that we do believe that on a certain level those things should be compensated for, but not as a government entitlement.

Thank you.

[Translation]

The Chair: Have you any further questions?

Mr. Bernard Bigras: Yes. That more or less answers my question. You gave an example with regards to compensation. On the other hand, certain agreements—in particular the MERCOSUR and the Group of Three—as well as bilateral agreements signed by certain countries, contain no provisions regarding environmental protection. I am concerned by some of what we see coming out of the Free Trade Area of the Americas .

Is there any way of protecting ourselves against potential court challenges? Should we not make sure we include language providing that foreign states must abide by national regulations, and to allow countries to embrace standards higher than those agreed to internationally, so as to preclude investors coming into a country and causing a drop in environmental standards?

Mr. Evans, would you comment on this? Even if the North American Free Trade Agreement is not a good example in that regard, should we not be including provisions and establishing an international commission to enhance cooperation in order to avoid court challenges such as those that we see being launched under the North American Free Trade Agreement?

[English]

Mr. Eugene Lapointe: I don't know if I can really address that, but again, this is something that is constant. All of the existing international agreements in terms of wildlife protection, whether it be CITES or the FAO, etc., have provisions that you can have, at the national level, stricter domestic measures.

To go back to your original question, I did not see from a quick first reading any particular provisions in there that might create some difficulties from a Canadian perspective. However, you have to look at the other side of the fence, at your trading partners and so on. This is where you have this notion of stricter domestic measures.

We've seen very valuable management programs killed in different parts of the world because there was a stricter domestic legislation dealing with wildlife species. That's the case in the United States, where a very valuable program for the caiman yacare in Brazil was destroyed because they didn't want to accept that this was on the endangered species list.

So the danger does not necessarily come from what you have in there. It comes from the other countries. The European Union is also pretty good at having stricter domestic measures that go against normal trade relationships.

I think your final question was on whether it would be possible to have an international body. I think what you're suggesting might go against the sovereign rights of independent nations. The idea is to try to work through such organizations as WTO, the CITES convention, the FAO, and the United Nations, who have some common agreements that stricter domestic measures shall not fall into conflict with environmental laws or with normal trade and international relations patterns.

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The Chair: Mr. Evans, very briefly, please.

Mr. Brock Evans: Gentlemen, I think this is a serious problem as well. If the citizens of one country decide they want to have a high standard to protect their environment and their heritage, I think it's wrong that this should be somehow trumped by an alleged free trade standard of some kind with another country that gives a competitive advantage to the industries in one country at the expense of the other's. It's a serious problem in our country as well.

We're trying to deal with it by standing and fighting, fighting back in the courts and in the international institutions, in any way we possibly can. I would certainly encourage you too to do that. If we have a united front in North America, for example, with a strong Canadian species law, which is a heritage protection law, and an American law and a Mexican law, then we have the forces all together to stand up to the rest of the world to get the right standards and encourage the others too. I think it's wrong the way it is right now, and we're fighting it too.

The Chair: Mr. Nachón, adelante, por favor.

Mr. Claudio Torres Nachón: I would like to make a couple of comments.

First, I do believe the development of NAFTA was not done very democratically. It wasn't even discussed publicly in Mexico. Chapter 11 allows the term “expropriation” to cover even environmental regulations, which is clearly very bad.

If there is a lesson that can be learned for the FTAA, it is that environmental provisions should not be in a parallel treaty, as in NAFTA. They should be in the treaty itself so there cannot be loopholes.

The Chair: Monsieur Bigras, thank you.

Mr. Comartin, please.

Mr. Joe Comartin: Mr. Nachón, monarch butterflies come through my area of the world, and I haven't been able to get any additional information on their destruction in Mexico about a month or so ago, when about 10% of the population was lost. We've been hearing stories that, one, it is the illegal use of pesticides, or two, it was just extremely bad weather. Do you have any more information on that?

Mr. Claudio Torres Nachón: Yes. The monarch butterfly lives in a habitat in the middle of Michoacan, a very impoverished state on the west coast of Mexico. I was there quite recently, about a couple of weeks before this incident. The weather was quite cold, but it also seems that illegal loggers, people chopping up the forest in that region, sprayed some pesticide inside one of the sanctuary parks. The authorities initially confirmed it, and then after analysis said there was no pesticide residue on the flowers. So it is a question left open.

I can offer to update you on the issue when I go back to Mexico. I can ask the authorities and surely they can help.

Mr. Joe Comartin: Mr. Smith, we don't have anything on your organization's background other than the comments we got from the chair in terms of your position on Kyoto. Can you tell us a little about your organization? Who funds it? Who comprises it?

Mr. R.J. Smith: We are a non-profit, non-partisan public policy think-tank in Washington, D.C., that believes in the principles of free markets, private property, and limited government. We examine a whole range of government regulations and try to come forward with alternatives to regulations. In the environmental area we look at how one would use markets, market mechanisms, the price system, and the incentives that come from ownership of property rights to achieve environmental goals without having to turn constantly to massive government regulations and government land acquisition.

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Anybody is free to contribute to us. We have a staff of about 40. We have a budget of about $3 million a year. We're a very small think-tank, infinitely smaller than, for instance, the National Audubon Society, one of the groups Mr. Evans has worked for. We get about one-third of our money from individuals, one-third from grant-giving foundations, and one-third from corporations. People always point out that conservative think-tanks and groups get funded by industry, but I would also point out that environmental groups get funded by industry too. And I'm willing to bet that for every penny we get from an industry group, the National Audubon Society gets a dollar or ten dollars from the same organizations.

On your question about the monarch butterflies, I've been down in that area before, and I think one of the issues there revolves around the whole question, again, of property rights and incentives. One of the things we often hear an awful lot about is ecotourism and the role it can play, but if ecotourism is going to be successful, there has to be some sort of return to the people who live on the land. Ecotourism for too long has meant a bunch of wealthy Europeans or Americans who fly into a country on American or European planes, stay at a hotel owned by Americans or Europeans, and then go out with American and European guides. There's no money left behind for local people, and they have no incentives to protect the habitat or the species people are coming to see.

I know there's been a question of ownership of the forests down there, the firs and pines, where the monarchs live in the winter time. There could be a system that would not be difficult to start up at all. When the tourist buses come into those towns, rattling through those towns at 60 miles an hour, a big Mercedes bus with a cloud of dust and pebbles behind it going through the village, if they would stop in those villages and spend some money at local stores, shops, build up trades in pottery or weaving with monarch butterfly motifs on, and so on, if people in those communities could derive some sort of ecotourism money from the presence of the resources they have, I think it would be a great step, as opposed to people sitting there and saying, “Well, gee, starving people are chopping down trees”. What do you expect starving people to do?

Mr. Joe Comartin: Mr. Snape or Mr. Evans, our charter framework is such that we have not guaranteed property rights here, as you have in the U.S. So I'm a bit intrigued about your position on lack of compensation. I think, generally, from all political stripes, there's an inclination here to look at a compensation scheme. And we've already heard of some from other representatives, Canadian representatives from the provinces, who have instituted some minor compensation schemes in this area. I'm not sure how you get away, in the United States, with not having a compensation scheme, because of your constitutional framework.

Mr. William Snape: I'll let Brock bat clean-up. Let me answer that very quickly, and then he can go on. The reason is that there just aren't that many irreconcilable conflicts. The few irreconcilable conflicts that do reach a head usually are able to find funding, find regulatory creativity, find a way out of the impasse.

I understand that about 10% of the Canadian land mass and maybe about 25% of the Canadian population—pardon me if those numbers are not correct—represent private land ownership in Canada. If those figures are roughly correct, and I hope they are, then what you're really talking about here is how the federal government and the provincial governments are going to deal with protecting endangered species. On that front, I have overwhelmingly good news from the United States, which is that 99.9% have gone on with projects—only a handful out of tens of thousands of agency-to-agency consultations have ever stopped a project. And in fact, a handful of those projects that didn't go on Congress ended up not funding, because they realized they were pretty crummy projects in the first place.

Mr. Joe Comartin: What do you mean by projects?

Mr. William Snape: Building a dam, building a forest road.

Mr. Joe Comartin: This is development.

Mr. William Snape: These are federal agency actions authorizing or directly participating in an action.

Mr. Brock Evans: Can I just add to that? As Bill said, we do have a different private property ownership situation in our country compared with yours, from what I understand of the figures. If you are a private developer and want to build a building, your chances of having it damaged by an airplane flying into it are far greater than having it stopped by the Endangered Species Act itself. That just illustrates the infrequent occasions the Endangered Species Act by itself will halt a project. I'm aware of very few examples of that. What it does do is ask the developer, the private landowner, the rancher, the farmer, to modify their products. They do this through the system of take permits and developing habitat conservation plans.

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The situations Mr. Smith describes were a lot truer 10 or 15 years ago than they are now, because our government, in response to some of these concerns, has developed a series of flexible programs—safe harbours, no surprises, habitat conservation plans, and the like. These things make a big difference.

In southern California and Tucson, Arizona, which Bill Snape mentioned, and other places where the development pressures are enormous and the development money and political pressures are great too, the fact that the Endangered Species Act has come along has not stopped housing from being built, has not stopped highways and other things from being built at all. So in the United States we're going in the right direction.

Mr. Joe Comartin: My time is just about up, Mr. Evans. Let's deal with the spotted owl, because that's what Mr. Mills is concerned about. Here's what we hear in Canada: 100,000 forestry jobs are gone because of the protections that were built in for the spotted owl, whole communities wiped out. Those are the fears he's talking about. Can you comment on that?

Mr. Brock Evans: I sure can, because I'm from Seattle, Washington, myself—that's my territory. I'm a veteran of what we call the ancient forest. I'll try to be brief here. All I can say is that every time we won a legal victory, the number of jobs that were going to be affected went up—the other side said 10,000, then 20,000, then 30,000, and they finally got to 100,000, which you probably hear right now. The actual number of jobs affected was maybe several hundred, maybe a thousand at the very most. We had government training programs for that.

But the fact is that the timber economy in the Pacific northwest, in my home, is thriving right now. It's doing very well. What it did was stop the liquidation of our remaining ancient forest, protect the habitat that was irreplaceable, and cause the shift, about five or six years earlier, to a second growth timber economy, which they're having right now. The economies are booming out there. It's the poster child used by the other side in a very wrong way, because it's just not so.

The Chair: Thank you, Mr. Comartin.

We now have Madame Carroll, Madam Kraft Sloan, Mr. Savoy, Madam Redman, Mr. Reed, Mr. Laliberte, and the chair.

Madam Carroll.

[Translation]

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Mr. Smith, you may rest easy.

[English]

Although the chair asked you your views on Kyoto, I'm going to refrain from asking your views on our gun legislation.

We have had a survey in Canada done by KPMG between 1994 and 1999. These were questions put to Canadian CEOs. KPMG asked them what was the important factor, what motivated them to improve their environmental performances. Of all those surveyed, 92% answered that it was compliance with regulation, whereas 16% said it was voluntary government programs. I guess it shows that we need both, but because in Canada about 70% of our species at risk live on public lands and waters, and not private, the threat here does come from the corporate sector. So I would ask you to comment, given your views expressed so far.

Then when you have comments, Mr. Evans, I would appreciate your giving them. Because my time will run out when they all begin to talk, I want to ask Mr. Evans in addition, in case I don't get back to the mike, what you would say are the two best aspects of the American legislation that we should learn from? Then I would ask you to give us what you think are the two weakest or worst aspects that we should also learn from.

Thank you, Mr. Chair.

Mr. R.J. Smith: As you said, so much of your land in Canada is publicly owned. That obviously does not raise the same sorts of questions as does the impact of an Endangered Species Act or a Species at Risk Act on private lands.

One thing that's clear is that with some of the so-called “innovative approaches” that the Clinton administration and Secretary Babbitt claim they have found in the act, some of those kinds of approaches can work much better for very large corporate landowners than for small landowners.

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For instance, if you enter into a large, multi-year, multi-species, large region, habitat conservation plan, it might take a company two years and a couple of million dollars to do all the biological surveys, legal work, and so on. Then if they're a large timber company and own five, six, or seven million acres, the government requires that they set aside half a million acres as a preserve. They're allowed to use the rest of their land and it's not a bad deal for them.

They can then paint themselves in the public as being a green corporation who cares about the environment. In the process, they know their small competitors, smaller timber companies, private woodlot owners, and so on, cannot do the same sort of thing and are put out of business. They gain a competitive edge doing this.

When they're allowed to cut huge areas on their land because they've entered this program, then the owls displaced on their land often fly onto their neighbour's land—a small woodlot owner or a small farmer nearby with a woodlot. Then he has this burden where he cannot cut his own trees. That is one reason you often find large corporations claim they really love these kinds of programs. They're willing to enter into them because they own enough land and have enough money. They just want to be certain and know the rules.

Ms. Aileen Carroll: The survey says they acted in a certain way when motivated by regulation and not by volunteering.

Mr. R.J. Smith: Of course, people always say things in polls when you ask them. We've taken many polls in the United States of unemployed steel workers, who were asked if they would rather watch a television show with lovely, scantily clad women in it or pay higher taxes so they could watch Shakespeare on public television. They picked Shakespeare.

Ms. Aileen Carroll: I don't think it was a trick survey.

Mr. R.J. Smith: You take some of those polls with a grain of salt.

Ms. Aileen Carroll: Thank you, Mr. Smith.

Mr. Evans, would you like to respond?

Mr. Brock Evans: The corporations would never have done these things if there had not been a strong act in existence that was there if they did not do it. We're delighted they're doing it; we want to encourage them to do it. We have our arguments on whether they do it well enough or not.

The fact that so much of our remaining natural habitats, forests, deserts, and open spaces are still safe is because they were stepped up to the plate where they knew they had to do it. The act made them do it and that's really good. I don't want to belabour it too much. Millions of acres of ancient forest that I love are safe because of all that right now; it could be better.

I want to return to your question about the three best and the three worst parts. Not in any order, but I would say the three best parts are science-based listings, science rules, and science in terms of no politics. That makes all the difference in the world.

I echo what Bill said about COSEWIC. You should all be proud of such a respected institution.

Second is the agency consultation process whereby no federal agency can build a dam, a logging route, or, going down the line, spray pesticides unless they consult with a biologist first. This was a revolution for planning and cooperation among our agency. For the very first time, an agency whose mission was to build dams now has to factor in the environment at all levels. It has transformed the internal politics of the industry and their internal thought process. It has been a wonderful thing and totally changed for the better.

Finally is the flexibility for solutions. It's R.J.'s privilege to derive these solutions, like safe harbours and no surprises, habitat and conservation life. I urge you to look at them and look to their examples. Corporations are lining up and millions of acres are covered by these things. Species and places are being protected that never would have been protected before.

They can always be made better. For example, 200,000 acres in the Carolinas are now enrolled in the safe harbours program, producing more endangered wood property to woodpeckers than ever produced before. It's working, and landowners are cooperating too.

I'll just finish with the weaknesses. There are weaknesses, and this is where I do agree with R.J. There need to be better landowner incentives. It was a flaw in the act that we tried to amend in 1982. It was amended to a degree, but there could be more. I think it is a very dangerous idea; the idea of compensating people just for obeying the law. There might be some way to deal with genuine hardship cases, if such exist.

As Bill pointed out, 99.9% of these cases don't exist in our country. It hasn't really happened in the way we've been hearing today. The biggest weakness of all is lack of funding. You're doing much better than we are. I understand you've already appropriated some money or had some money given for these things. Our agencies are starved to do the listing, and the habitat designation job they do is a political football. We're trying to deal with all that. That has been a problem in our country too.

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The Chair: Thank you.

Madame Kraft Sloan, please.

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

To reiterate, Mr. Evans, you or Mr. Snape had stated that there are not many or very few irreconcilable conflicts with the ESA. I've also noted—and as someone flying to the United States, I'm a little concerned about this—that a project has a greater chance of being stopped by an airplane falling from the sky than by finding an endangered species on the property. So it seems to me, with some of the comments I hear, there may be hundreds of airplanes falling from the sky every day in the U.S. I certainly hope that's not the case next week.

Anyway, Mr. Smith, in your website materials you had a couple of statements: first, and you sort of reiterated this before the committee as well, that the ESA has failed to recover a single species from the brink of extinction; in fact, it has pushed countless landowners to the point of financial ruin. Also, in a press release in response to Secretary of the Interior Bruce Babbitt's announcement of the delisting of the peregrine falcon, you said this was a truly outrageous and indeed offensive statement. I wonder what reports you have to back up these claims, seeing as how we're getting claims on the other side about this particular act.

Mr. R.J. Smith: The U.S. Fish and Wildlife Service had nothing to do with the recovery of the peregrine falcon. In fact, the Endangered Species Act was not used to recover the peregrine falcons.

Mrs. Karen Kraft Sloan: I'm sorry, Mr. Smith, actually my question was do you have any reports that support your claim?

Mr. R.J. Smith: I could send you as many reports as you want. I would suggest that you contact the Peregrine Fund, the private organization that bred peregrine falcons in captivity privately for the last 30 years and released them into the wild, and kept doing this year after year until there were so many back in the wild that it was restored to its pre-DDT days, so that it was fully recovered. They did this despite the objections and obstacles that were thrown in their path, many times by the U.S. Fish and Wildlife Service and by many of the conservation and environmental organizations.

Mrs. Karen Kraft Sloan: Mr. Smith, are these peer-reviewed reports?

Mr. R.J. Smith: Yes.

Mrs. Karen Kraft Sloan: Who has reviewed them?

Mr. R.J. Smith: They've been reviewed by scientists all over the country. Almost every single major raptor biologist in the world has been involved with the Peregrine Fund in Boise, Idaho, in breeding rare birds of prey and releasing them back into the wild.

Mrs. Karen Kraft Sloan: So you're suggesting that these scientists support your claim that the endangered species legislation has brought private landowners to the brink of financial ruin.

Mr. R.J. Smith: No, you're mixing two things. You're mixing the peregrine falcon with other issues.

They would all agree that the peregrine falcon recovery took place without it being because of the Endangered Species Act. It would have been successful regardless of whether there had been an Endangered Species Act.

Mrs. Karen Kraft Sloan: And you have peer-reviewed reports—

Mr. R.J. Smith: Yes, Ma'am—

Mrs. Karen Kraft Sloan: —talking about the issue with regard to bringing countless landowners to the point of financial ruin in the United States?

Mr. R.J. Smith: I have all kinds of studies that I can show you on that.

Mrs. Karen Kraft Sloan: Are they peer-reviewed?

Mr. R.J. Smith: Some have been peer-reviewed, and some haven't. It depends on what you call peers.

Mrs. Karen Kraft Sloan: In Canada, members of the Royal Society of Canada, who peer-review other scientific studies, would be the kinds of peers I'm speaking about. Are these reports peer-reviewed by a similar organization in the United States? I'm not familiar with your system.

Mr. R.J. Smith: They may not have been, because most of these stories arise when a small landowner cannot go out and use his land.

For instance, how would you peer-review an example that I think Mr. Mills knows of very well, of Mr. Shuler, a sheep rancher in Dupuyer, Montana, who lives in an area in which the grizzly bear was under protection?

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He was constantly having problems with grizzlies coming in and killing his sheep. One night he looked out his window and saw three grizzlies running by under lights he has all around his house to protect him, three grizzlies running into the pen where his sheep were. He grabbed his rifle and ran out there to defend his sheep, his property. He fired a shot, and two of the grizzlies disappeared. One attacked him, and he shot that grizzly bear. It got up and charged at him again. He shot it again, and then it vanished.

The next morning he went out to find the grizzly bear to make sure it was dead; it was not. It charged him again, and he finally killed it. He was then fined $7,000 by the U.S. Fish and Wildlife Service for killing this endangered species.

The law says that defence of life is a justification in taking an endangered species. However, the U.S. Fish and Wildlife Service said this did not apply to him because he had placed himself in harm's way by attempting to defend his property, and he should have stayed in the house and let the grizzly bear kill all of his sheep.

Mrs. Karen Kraft Sloan: Mr. Smith, this is anecdotal.

Mr. R.J. Smith: How do you peer-review that? That is a simple fact. Everybody knows it; it has been on television and in the newspapers, and so on. It has been reported everywhere. There are stories like this all over the United States.

Mrs. Karen Kraft Sloan: Mr. Smith, unfortunately this is anecdotal.

Your website also states that your research is based on sound science, so I would hope that when you make statements like this, when you come before a parliamentary committee, you are able to verify your anecdotal stories, as you call them, with peer-reviewed reports.

In Canada, when I look at a report, whether it's from a Canadian, American, European, or Mexican source, if I'm going to look at how credible it is, I want to know that it has been peer-reviewed in a proper manner.

Anecdotal stories are very useful in helping us understand a point of view, but if we're going to make good public policy decisions, we want to work on the basis of sound science as well.

The Chair: Your time is up.

Mr. Smith, would you like to reply briefly?

Mr. R.J. Smith: Yes.

I will be happy to submit to the committee the data and charts that we have prepared with the various people who have been interviewed, both in the federal fish and wildlife service and state fish and game agencies, on these various species.

The Chair: Thank you, Mr. Smith.

Mr. Savoy, Madam Redman, Mr. Reed, Mr. Laliberte, and then the chair.

Mr. Andy Savoy (Tobique—Mactaquac, Lib.): Thank you, Mr. Chair, and thank you all for coming today.

I think what you've shown me today, as Mr. Mills has mentioned, is that when you look at the stick-and-the-carrot syndrome, if you're all stick or all carrot, neither one is actually very appropriate. But when the stick outweighs the carrot substantially, we see ads like we've seen in cattlemen's magazines in the south, which guarantee “no species at risk on this land” in for-sale ads.

When I see something like that, I immediately come to the assumption that they have rid the land of species at risk. I think that's a severe disincentive to people looking at conservation, and we have to look at that with SARA here in Canada.

Can you come up with some positive incentives—I know you've mentioned some, Mr. Snape—for both? I think you have to differentiate here between small landowners and large landowners.

I think small landowners are driven by economics much more than large landowners. You can cooperate with them a little more, communicate a little more—not to mention that I think they have a corporate responsibility towards conservation.

Can you comment on some of the positive incentives that we should be considering for both small and large landowners—that is, the carrots as opposed to the sticks?

Mr. William Snape: I'd be happy to start, if I could.

Mr. Andy Savoy: Yes. I'd like to hear from Mr. Snape, Mr. Evans, and Mr. Smith, please.

Mr. William Snape: I'll do a quick laundry list, and then if you have questions on any of them...

I've talked about the Farm Bill already; I won't repeat that. The U.S. Fish and Wildlife Service has a program in the United States called the Partners for Wildlife project, where they actually jointly fund projects that help all wildlife, including threatened and endangered species.

I've mentioned the tax code. I'm sorry to say that I'm not at all familiar with the Canadian tax code. Senator Max Baucus, from Montana, and now Governor Dirk Kempthorne, from Idaho, Republican and Democrat, both sides of the aisle, both senators, introduced a bill several years ago on three or four different tax mechanisms: an estate tax mechanism, which is what our present president calls the death tax; a credit for positive actions; an easement tax provision; and one other that is eluding me right now. The tax code can help with that.

As to regulatory incentives, some are already covered by Bill C-5, where you allow a permit to be given, you allow exceptions to be carved out under certain circumstances. If the overall species is doing well you can have certain habitat destroyed if the overall recovery plan says this is enough habitat or this is enough management to have that species go forward. I think the best example is the safe harbours example, where they've done that.

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So that would be my somewhat medium litany of incentives, all of which work but not for everybody. I think you need to have all of them. I think your tool kit needs to be quite full with various options and I hope you would arm the Minister of the Environment with those types of tools and with appropriate funding to do those very things.

Lastly—and I'm speaking as quickly as I can, Mr. Chairman—on the shoot, shovel, and shut up mentality, while it is a quality that's real, and I'm not dismissing it, it is a mentality you can't actually quantify. It's a feeling, a disincentive, if you will, that cannot be quantified.

I won't respond to any of Mr. Smith's other anecdotes, I'll just give you my own anecdote. When wolves were reintroduced into central Idaho and Yellowstone National Park—thank you very much, Canada, for those wolves, incidentally, it could not have occurred without the help of Canada—there was tremendous anxiety, resistance, and anger on the part of many local ranchers and farmers. They did not want wolves back. In fact, they had spent the better part of the 20th century getting rid of the wolves. They certainly did not want them coming back vis-à-vis the federal government.

On offenders, as I've mentioned, we have a private compensation fund. We're going to continue that compensation fund. But what we have discovered in the five years since this occurred is that there certainly are still some people who are angry and upset, and in fact one or two people have been prosecuted for shooting wolves, unfortunately, but overall the acceptance level has risen. They know they will be compensated if they have livestock that is preyed upon; that wolves are not quite as evil and bad as Little Red Riding Hood would have us imagine. And perhaps most importantly, these ranchers realize that it's not an either/or and it's been a success.

Mr. Andy Savoy: Can I ask the next two to comment?

The Chair: We have a complete round.

Mr. Brock Evans: Sorry. I'll try to talk fast too.

The Chair: Fine.

Mr. Andy Savoy: Would you comment on the possible difference between an approach gearing towards private landowners versus corporate? Or has anybody thought of—

Mr. Brock Evans: They may be different according to the economic status of the company, and the corporation and the individual. That's quite possible.

What I wanted to say, though, in response to Mr. Mills—I didn't get a chance earlier—is I'm fortunate to live in Washington, D.C., but I'm part owner of a 640-acre tree farm in the mountains of northern New Jersey. We harvest those trees for economic purposes. But my colleagues, the fellow landowners, feel like I do: they want to protect the species. We have consulting foresters in.

Most landowners in my country, that I know of, aren't the shoot and shovel type. They don't want to exterminate the species on their land. They are proud to have them. They like to know they have them. They just want to be able to do some activities too. That's why our government has evolved these flexible institutions. I think the habitat conservation plan, which has so far been used—and I think R.J. Smith is correct—mostly by larger entities, can be modified and helped out and there can be technical assistance to make it work for smaller entities too.

That would be some of the tinkering we would like to see in our own act. You may not be aware, but we have legislation introduced in Congress, the Endangered Species Recovery Act, which adds some of these fiscal incentives as tax incentives. It adds in technical assistance and things like that. These are other things we could do to help small landowners. If you make a public decision that's in the public interest to not destroy your biological heritage, then these are some of the flexible things we can do without giving away the law itself. That's what we come down to: we're paying people to obey it and that's a problem.

The Chair: Thank you, Mr. Evans.

Mr. Smith.

Mr. R.J. Smith: I think your point is very well taken and I think that's been the major concern of my remarks: the fear particularly that small landowners have and the reasons why they are saying or letting it be known that they have rid their land of species at risk. We have created an act that creates incentives for people to do this, and it is the last thing you want to do if you truly care about wildlife and habitat. That happens with small landowners all over the place, and it's still going on today.

One of the things that first brought this to national attention was back in 1994 when there was for the first time on national television... ABC television had gone out and covered the kangaroo rat fires in southern California of 1993. Landowners all through an area had been told by the federal government that if they followed California's rules... The California Department of Forestry and Fire Protection told them the fire season was coming, and they were required by California law to disk, to clear down to bare soil fire breaks around all of their homes and all of their barns. If they didn't do this the state would do it and they would be fined and they would be billed for the cost by the state.

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Then the federal government, the U.S. Fish and Wildlife Service, sent letters to those landowners and to the county fire departments saying that if in clearing any of those firebreaks they did anything that bothered, harassed, or disturbed endangered Stephen's kangaroo rats, they'd be facing a $100,000 fine and/or a year in jail.

Most people sat there in a panic not knowing what to do. The fires came and burned 19 houses down to the ground. This was all on television. People saw for the first time what this act actually could do and would do to certain people in certain places. And you can still go into those valleys out there and a lot of people continue to disk to this day what was habitat but then burned up, and keep plowed up habitat that would be there for the Stephen's kangaroo rat and other species because they don't want this to come back onto their land again.

The Chair: Mr. Snape.

Mr. William Snape: This is patently incorrect. It's patently incorrect. It is correct that 19 homes burned down. That is correct. The General Accounting Office, the independent arm of Congress, studied the incident and found that the Endangered Species Act did not have a link at all with the houses burning down. This was a hot brush fire that was crossing several-lane highways, was travelling extraordinarily fast. It is not true that no disking was allowed. Disking, because of the rapidity of the fire, probably would not have worked anyway. But again, the independent arm of Congress found that precisely the linkage Mr. Smith is trying to make did not happen. That is the danger with anecdotes.

Mr. R.J. Smith: I would tell you—

Mr. William Snape: Do you want to submit the GAO study, Mr. Smith? We'll submit the GAO testimony.

Mr. R.J. Smith: I would tell you to look at the testimony before the United States Congress in the hearings that took place, at what the fire chief said, what the congressmen for those areas said, and what the—

Mr. William Snape: But this is the danger of anecdotes.

Mr. Andy Savoy: Do you any suggestions as to how we could provide incentives and move ahead?

The Chair: Mr. Savoy, we'll put you on a second round.

Madam Redman, please.

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

I want to direct my question to Mr. Evans. You stated that you want Canada to guarantee protection for species listed as threatened or endangered in the U.S. Currently, does the U.S. Endangered Species Act do this for species that COSEWIC lists for Canada?

Mr. Brock Evans: I don't know if we do it specifically for species listed by COSEWIC, but we have a process in our law whereby species listed under CITES are added to the law. Our law certainly permits these to be done. If it doesn't exist now, we'd be delighted to work with our government to make sure that does happen, vice versa.

By the way, I have here and I brought up with me—I don't know if it's been translated, Mr. Chair—a document called exhibit B, “On the Road to Recovery”, examples of species recovering. There's not a single reference to the peregrine falcon in here or DDT. It's about 13 other species that are recovering only because of our act. I'd be glad to leave it here later on.

Mrs. Karen Redman: Speaking of peregrine falcons, I would use that as an example that the U.S. Fish and Wildlife Service is considering allowing the capture of peregrine falcons for falconry when all of the Canadian provinces have specifically asked that they not do so because it impacts on the Canadian peregrine population, which is still listed as threatened in Canada.

I would also note with interest, Mr. Snape, that as recently as March 29 you criticized Canada for not having a species at risk legislation in place, so you must have found the first part of this meeting quite interesting.

Mr. William Snape: I did indeed. There's no doubt that what you are contemplating is historic, and I'm proud to be here to participate in a small way.

Mrs. Karen Redman: Thank you.

The Chair: Is that all? Thank you, Madam Redman. It was the shortest of the whole series.

The next one is Mr. Reed.

Mr. Julian Reed: Thank you very much, Mr. Chairman.

Mr. Evans, I'm delighted to hear that the timber industry is booming in the Pacific Northwest. I will pass that information on to my Minister of International Trade so that he can discuss the subject when the softwood lumber issue arises in the next hour.

We've heard a real diversity of opinions and approaches here and I'm personally very pleased to be able to hear that. I think you've given us some comfort that at least some of the things we're attempting to accomplish in this bill are generally on the right track, if you like. Certainly there probably could be adaptations and changes, and improvements and so on, and of course that's why we're here.

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There are differences between Canadian law and American law. For instance, we're used to property devaluation without compensation here—it's called zoning. Or provinces might delineate various areas of scientific and natural interest, and things like that. We haven't had the benefit of compensation for those things. On the other hand, we don't have any death duties. So when mention was made of forgiving estate taxes as an incentive, we can't use that. But we do have capital gains tax, which has been reduced recently. So maybe when capital gains taxes apply to an estate, it might be something worth considering.

But I want to ask whether scientists are truly independent. One of the things I've picked up over the years, sitting on many committees, is the expression “follow the money”. I don't know a lot of scientists who are truly without some of form of monetary reward for using their expertise. So the question is, how do we assure that a scientific pronouncement about species at risk, for instance, is based solely on science?

Mr. Eugene Lapointe: With your permission, I'd like to answer that one.

Mr. Evans, amongst others, was saying we need to clear the endangered species process of any political interference. In my view, both are necessary, science and the political, starting from the fact that the politicians must adopt laws, regulations, and so on. And with nominations, there is a consultation process. Everything is political. I have no problem with that. Both are necessary in achieving the protection of endangered species. But both are suffering, quite often, from what I call contamination. As a result you have two types of science. The first is bogus science, the one coming from instant-made scientists, who all of a sudden discover that they know everything about a particular species, without of course any peer review whatsoever. And this is, most of the time, what is distributed to the public. The second type of science is the good one. But sometimes the real one, the one that is not contaminated, not polluted, is subject to distortion, to manipulation.

And you have the same problem and difficulties with the political process. As an example, right here in Canada that happened very recently with this issue of the grizzly bear—good science was totally denied. An organization in London called the Environmental Investigation Agency, an extremist organization, started putting billboards all over London telling the British tourists, “Don't go to British Columbia—they are wiping out the population of grizzly bears.” That's nothing to do with science. It was a political decision, which I think was wrong: just give in to this kind of threat and say, “Well, let's stop the hunt of grizzly bears.” It would appear contrary to the scientific advice of the government official.

That's one of the dangers I see in this type of legislation. There are too many areas in which there could be the possibility of influencing, wrongly, either the scientific process or even the political one. And let's be honest and clear. These groups for which listing is a priority are the same ones you find in the international fora, such as the International Whaling Commission and CITES, trying to push for total protection, for the same thing being enacted in Canada and the United States, and so on—trying to contaminate that process.

So you're absolutely right, sir. There are two types of science, and in most cases even the credible science is being distorted in such a way as not to serve the purpose. In Bill C-5 I see a lot of opportunity for bogus science or manipulation of credible science, and as well as manipulation of the political process.

Mr. Julian Reed: Thank you.

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Mr. William Snape: I don't disagree with that necessarily, but I think there is a shade of grey here that deserves a bit more elaboration. If I can just poke humour at all of us, politicians and scientists are influenced, people are influenced, by their own values. I think that is obvious. To speak specifically of COSEWIC, it is not difficult to identify scientists who are distinguished in their fields, who have written extensively, who are respected by people throughout civil society, and place them in a position in limited ways. I think the whole program—I want to reiterate—has to consider socio-economic impacts, but on the issue of what is an endangered species, I think you're asking for trouble if you have politicians make that decision.

I think, with the types of sideboards Mr. Lapointe is talking about, though he may disagree with my conclusion, you could come up with a relatively independent objective means—as independent and objective as anybody would be—to make a determination as to the biological status of a species. That's something you ought to think about.

Mr. Julian Reed: I'm glad you mentioned the grizzly bear, because my son would have some comment to make about the so-called disappearing grizzly bear.

Mr. Eugene Lapointe: Again, we have to take into account that the main ones concerned with conservation of wild species are the people sharing the land, the oceans, or the sea with the species, people cohabiting with wild species. They are the primary guardians, the first ones who will be involved in positive conservation efforts.

But the problem is that in this whole consultation process, and again whatever country you're in—the only country I know that's resisted that is Norway—those people, the first ones concerned, sometimes have a very low voice, compared to IFAW or Greenpeace, and so on, and that's where you have, quite often, condemnation of the process. If we could find a mechanism by which the voice of the native people, the voice of the landowners or the farmer would be heard and would be given the same weight as Greenpeace, as IFAW, as the extremist organizations with a totally different agenda from the one that is supposed to be sought by the bill, then we'll be able to achieve something.

The Chair: Thank you, Mr. Reed.

Mr. Laliberte, please.

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

I'd like to thank all the participants today, the witnesses. I think you've stirred up a lot of enlightenment, in me anyway. This is my first attempt at working on this bill.

To start off where you ended, yesterday we heard an aboriginal fisherman say the history of his survival, and that of the people in the region he came from, shows that the moose was a major source of their food. But their grandfathers taught them that you have to take care of the mouse as well and be responsible for that mouse in order for your moose to provide life for you. It's an interconnectedness you're talking about, so that is the number one point when you raise the alarm bell of conservation. Conservation is the key word in this bill.

Is development void of conservation, or is conservation void of development, or are they integrated as well, as much as the mouse and the moose are? Sustainable development is a coined term in international documents. We have precautionary principle, being aware, as human beings being conscious of all this—we're the ones who are able to finish this cycle. Let's start off with that.

Mr. Eugene Lapointe: Thank you very much.

First, I really liked your example of the mouse and the moose. In this whole issue of incentive to conserve, it's rather easy to bring people to conserve those species that have a value for them, like the moose in that particular case. You can tell people it's important that you have the conservation. People will understand that, because that particular species has a value. But what about the butterfly, and what about the mouse? The major part of the incentive is what I call the natural one, not necessarily the monetary one, the value of that species for you as a human being.

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You can go from the one that really has an economic value, in the large sense of the term, to those species sharing the habitat with that particular one, because that small species of mice is very important to the moose. For me, what you described there is the very first step of the incentive, telling the people why it is important to conserve species.

With regard to the second part of your question, I don't see any problem with development and conservation. I see this as being a triangle. You have development in one corner of the triangle—not necessarily in this order—environmental concern, and the other one is respect for culture and tradition. If you try to have full-scale development, you go against the other two corners of the triangle. If you try to have total protection of the environment, you go against development and culture and tradition. The viable society is the one that will have a situation in which each corner will pay a price to the other two. That's the only way we can have it. In other words, whether we like it or not, environment must be priced to development, development must be priced to the respect of culture and tradition and the other way around.

So while sometimes there might appear to be a conflict, the conflict will come out only when we have extreme positions with regard to full-scale development, total protection of the environment, or total respect of culture and tradition. But if each corner of the triangle gives something to the others, then you have a viable society.

Mr. Brock Evans: If I may, Mr. Chair, of course we need always to work for that balance. We've tried to explain that our Endangered Species Act does that. It has actually protected species that would not have been protected otherwise.

Unfortunately, we live in an age when there's no such thing as total protection of nature any more. It's all the other way around. It's very scary. I feel we're losing things when we don't even know the answers they may have for us in terms of foods and medicines. A good example is in the Pacific Northwest forest, where the Pacific yew tree was considered a weed tree, and everybody knew that the great big Douglas fir was a valuable tree. So our foresters and our scientists in their wisdom had them all cut down, and the yew trees were just burned. As you know, their bark produces a substance called taxol, which literally melts ovarian tumours. It's the best cure we know for ovarian and breast tumours and other things like that.

A famous scientist, E.O. Wilson, once said that the way we're treating our species—even the small ones, such as mice, but not the big ones, such as the peregrine falcon—is such that it's like a great library with all this information for human use, and we're burning it down after having read only 5% of the books. That's the argument, and that's where the balance has to be struck so that we don't let the species become extinct at all. This is where we are right now. Yes, we have to do whatever it takes—incentives, consultations, and all the rest—but they must be protected or we're going to lose them.

The Chair: This will be your last question.

Mr. Rick Laliberte: I have a question for R.J. Smith on the issue that we need tools, money, and a fund. Taxes come to mind, but I know you're against taxes. But there is duty. Maybe it's the state's duty to provide the resources to its citizens so that they can afford the protection or the conservation cycle. I tried to find the crux of your concern that handing out a cheque, as Mr. Mills mentioned, was more than bringing in the hammer or the subpoena, but there has to be a fund. How do you see this fund being created? Are you an advocate of more taxes?

Mr. R.J. Smith: We have recently created a major fund in the U.S. that will bring in billions of dollars from the royalties on offshore oil development through a bill called CARA. There's going to be billions of dollars in there that can be used for things, and I hope some of that money will be used to help landowners who have problems with endangered species on their land, rather than just used to acquire more land for the government per se. There are great possibilities there.

Before that, when they had the sale of one of the naval petroleum reserves in California, the Elk Hills Naval Reserve, we had talked about the possibility of using money from that to pay for protecting endangered species and to help landowners.

As I said, I don't think you necessarily have to have a lot of money for landowners. Landowners are not deliberately sterilizing their land just for the hell of it. If you remove their fear of the act, I think most landowners would be willing to do an awful lot voluntarily, and we should be tapping that and exploring that first and foremost before we create perverse incentives.

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One thing I'd like to conclude with is I disagree with Mr. Snape. I do not think that the basic God-given rights to life, liberty, and property are an entitlement. I think the rights in the Bill of Rights of our country were put in there to protect free men and women from government. I don't think it's proper to say that if the government abridges or threatens those rights, people should be compensated as our Constitution or Bill of Rights says.

The Chair: Thank you.

We have several people wanting to ask questions on a second round. They are Mr. Forseth, Madam Kraft Sloan, Mr. Savoy, and Madam Redman. But allow the chair just one question at this point, if I may. It has to do with the importance of mandatory habitat protection.

We would like to know how in the U.S. you implement the critical habitat protection, which is required, in a sense, before you can go ahead with the mandatory one. It takes a long time, and it is the object of criticism by those who feel that mandatory habitat protection is not the answer. Could you give us an insight into that?

Mr. William Snape: Why don't I start with what I hope to be an objective recitation of the U.S. law that even R.J. would agree with, and then I'll give my actual opinion on things.

We protect habitats under the U.S. Endangered Species Act through essentially two mechanisms. I'm simplifying a little bit. The first mechanism is called critical habitat. At the time a species is listed, critical habitat is also supposed to be listed for that species. Critical habitat can include both occupied habitat at the time it was listed or unoccupied habitat, habitat that was within its range. I'll get back to critical habitat in a second. So there's a whole critical habitat process presumptively for all species, although less than 15%—in fact maybe even less than 10%—a fraction of our listed species, now have critical habitat. There have been problems with funding and its implementation.

The second way to protect habitat is through the actual prohibition against taking an endangered species. You'll recall that “take” means to kill, harm, harass, wound, or to attempt to engage in all of those behaviours. The word “harm” has been defined by regulation and in the legislative history itself to explicitly include habitat harm. So you can protect habitat by proving that someone clear-cutting, building a strip mall, or doing whatever has actually killed that species.

The second habitat provision can be broken down into two parts, and I've already mentioned this. There's a private land component and then a federal agency component. On the private and state land component of the take definition on habitat harm, it is extremely difficult to prove a take because of habitat harm, and that's what the Sweet Home case from 1995 essentially said. On the federal agency side, it's a little easier because of the agency-to-agency consultation process.

I gave you two mechanisms, and that second mechanism has two mechanisms under it. That is how we protect habitat in the United States.

I will not get into the U.S. policy. I'm not sure that's relevant. I'll let others talk about that. But I'll make one constructive suggestion, I hope, about how to deal with the concept of critical habitat that is in Bill C-5.

It depends on how the rest of the bill ends up being dealt with by this body, but I think it is rational to want to link the critical habitat provision with the recovery planning process. I think there is a legitimate argument to say that having the critical habitat at the time of listing be the final say for critical habitat is probably a little too early, because we're still learning about that species. Obviously, when the species is first listed there have to be some meaningful interim habitat protections. The species is listed as endangered. It's obviously having problems. You can't just say we'll worry about habitat in two or three years, because that may be what drives it toward extinction. So there need to be interim habitat measures.

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I think with the final regulatory or protective scheme, it probably makes sense to look at it in the recovery process.

With that, I will stop for now.

The Chair: There's no controversy here. Thank you very much.

If one looks at the shrinking forest and land surfaces over the last few thousand years and the pressure from population, one cannot be very optimistic about any legislation. I think Mr. Evans made a reference to it. It seems almost an action in extremism, the last minute on its deathbed, for humanity to attempt to rehabilitate what it has destroyed over such a long period of time. The pressure is continuing with the reduction in acreage of both forest and land and the population increasing by some 92 million people a year, according to UN statistics.

Therefore, I get a little uneasy when I hear people talking about striking a balance within wildlife, on the one hand, and social economic considerations, on the other hand.

In Canada, we had a dramatic experience with the cod. We postponed and postponed the moratorium on cod until we had to invoke it, despite the fact the scientific community was asking the government to call the moratorium for an extended period of time. Today the species has not recovered. We cannot fish at the average level we used to—only in very minute quantities.

It is the evaluation of these pressures that troubles me. If you have any comments, I would like to hear them now.

Mr. Brock Evans: Let me see if I understand your concerns, Mr. Caccia.

These are scary and brutal times to be alive. In our time now, if you love the natural world, think it has a value and this myriad of living species in the web of life is representative, it's hard. For us, at least, that's a reason to have hope and to try to do the very best we can. That's why we keep on trying.

In fact, we do have a record. I left the exhibits with you of species brought back when thought to have been extinct, having nothing to do with DDT or any of those things, because we had a law and did something. Who knows of what value that will be in the future? Who knows of what value the landscapes needed for their habitat will be?

In my view, we're keepers of the door right now, the door between the present and the future. I don't know what the future is going to be like, Mr. Chairman. I just know I'm alive right now. As I see it, our job is to push every species and every acre possible through that door so it has a chance of surviving what may be a more benign future. If we don't succeed in doing that, they won't even be there to talk about.

I agree, these are scary times. This, again, is why I believe, as Bill does, what you're doing is very historic. I wanted to be a part of this in a very small way too. It's so important for the rest of us and we wish you well.

The Chair: Thank you.

Mr. R.J. Smith: Mr. Chairman, I agree with your concerns too. I also agree with most of Brock Evans' concerns about the ever-growing loss of wildlife and habitat. We know if we end up with a world that has nothing but a few protected national parks, and is surrounded only by paved parking lots and housing developments, we have all lost something. I tried to express my concerns, and I hope they have come across.

In our efforts to try to find ways to save what is left of our wildlife heritage, we must come up with positive incentives so the people who own the private lands will do the positive things that are necessary, and stop creating perverse incentives that drive them to harm or sterilize their land, or put an ad in the paper saying their land is rid of species at risk. I don't think we can afford to do it any longer. I think we have the wealth in our societies to do positive things to accomplish these goals so we have both a free society and a sound environment. I hope that is what you will attempt to do in your legislation.

The Chair: Thank you, Mr. Smith.

Yes, Mr. Lapointe.

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Mr. Eugene Lapointe: In support of what R.J. said, nothing can be achieved in the field of environment without involving people, in the sense that we cannot save the wild species against people. It has to be for the people, so they're very well aware of it, and by the people.

Thank you.

The Chair: Thank you.

Now, one brief question each, Mr. Forseth, Madam Kraft Sloan, Mr. Savoy, Madam Redman, and maybe Mr. Laliberte. I don't know yet.

Mr. Forseth.

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

Today we've heard about adding economic value or proper incentive to species to help them recover. I'd like some technical comments about your experiences for species that are perhaps not as attractive economically as a bear, or whatever, such as toads, ferns, moss, lichen, insects, and so on. I wonder what your experience is in actually saving those species—not anecdotal stories, but what law or what mechanisms make that kind of protection actually happen?

Maybe you can describe some of the principles that may be helpful when we look at our legislation. When we get into cooperative plans, it may be very difficult to get into a cooperative arrangement with a local landowner. What an agent wants to try to protect, the local person is seeing as a pest.

Mr. Eugene Lapointe: Perhaps I may reply on that one.

On this notion of value for people, we human beings are the same all over. We'll try to protect what has a value for us. We will either destroy or, at best, ignore what does not. With respect to wildlife, the problem is you have those species with a value for human beings that can be used. Then you have those species, toads, mice, or small butterflies, where people don't really see the real value.

It is interesting to note you apply the same principle when the time comes for NGOs to raise funds. You never see an NGO fund-raising for an obscure or small butterfly, highly endangered and somewhere in Indonesia, because it's not attractive. Fund-raising will be for important charismatic species and so on.

When it comes to finding ways to get people to pay attention and be concerned about these little species, I think the only mechanism is to find within the ecosystem where this unknown or unloved species is one of the species of concern and value to human beings. Again linking the moose with the mice, it's one way of doing it. Otherwise it really becomes a pure matter of communication and education for the government to develop mechanisms on why it is important to care for the mice. The mice have a value for the moose and that has a value for you.

We had a case in Bolivia. Through the protection of the caiman, which was of very important economic value for the small communities, we have been able to bring them to protect the habitat and consequently other species of which they were not even aware. By telling them it was important the caiman had a habitat where it could live in such a way as to become a source of income at some point, then invariably they were interested in protecting the habitat.

That's pretty much the only solution I can offer.

Mr. William Snape: I would call that a much bigger picture with philosophic points that I think are well taken. I have a couple of more technical points.

For the most part, the types of species you listed are fairly endemic. They don't have very wide ranges. Actually in the United States, while I think as a system we have dealt poorly with some of those species, frequently with the species it's not as difficult to reach cooperative agreements, because you're just dealing with less land mass. That's a general rule. There are probably exceptions to it.

Plants are treated differently from animals under the Endangered Species Act on a couple of levels, the most notable of which is that plants on private property are not regulated by the Endangered Species Act. It is a vestige of our property law and one I don't see changing anytime in the near future. Plants on private property are dealt with much differently from animals.

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As for the problem with amphibians, toads, and frogs, boy, I wish we all knew. I'm not sure that Endangered Species Act and the ozone layer and these deformities occurring with frogs... Who knows why some of these frogs and toads are going down? I think some of it is habitat loss, but there are some reasons for it that we don't know, and it's a real challenge. I don't have an answer.

Finally, I saw there was revision on Bill C-5 dealing with pests. I don't remember precisely whether I thought its language was perfect or not, but certainly the United States Endangered Species Act has a provision, and I think you ought to have a provision, that allows you not to treat pests as an endangered species. There ought to be a very clear standard by which your agriculture department, or whatever is the correct department, can identify a pest as a pest and not have to be protecting something that is devastating both other wildlife and human beings.

Mr. R.J. Smith: We also have seen in many cases around the world some examples of where one valuable species can very often serve as an umbrella species to protect habitat for a whole range of species that have no value, or might be viewed as pests by other people. A positive example of that was simply the role of Ducks Unlimited, starting in 1937. They wanted to save wetlands for one reason, to kill ducks. But by their going out and using their money to lease lands, lease wetlands, and lease prairie potholes from farmers and ranchers, they saved those wetlands. They had more ducks and everybody else benefited because those wetlands were saved for the myriad other species that were in there.

The same sort of thing has happened, as Mr. Lapointe has mentioned, in Papua, New Guinea. Many of the western conservation groups went to PNG and asked them to ban the trade in saltwater crocodile skins. The government said no. The only way they were going to maintain their wetlands, and all the local village people and so on, was to have a trade in the crocodiles that then imputed value back to those wetlands. People in the nation who wouldn't care in the world about saving the species in those wetlands might want to hold off converting those wetlands to rice paddies, if Japanese developers came in, if there was sufficient economic return from the sale of saltwater crocodile skins.

So sometimes it can be just the opposite of how people think. One valuable species can provide an umbrella over a whole range of species with no value whatsoever.

The Chair: Thank you, Mr. Forseth.

Madam Kraft-Sloan, one question.

Mrs. Karen Kraft Sloan: Mr. Torres, I want to reiterate the point that you had made earlier, that Canada has more access to financial resources than has Mexico. Because of the distance they would have to travel and this type of thing, it is difficult for a large number of your people to have the same access. There may also be differences in educational background and that type of thing.

You had talked about the importance of citizens' suits and their engagement in endangered species legislation. I think it's important that our committee understand this point, particularly in light of the differences between our two countries.

You had also talked about the importance of legal or final listing being done by scientists, and also that the scientists be independent. I believe there are issues around the membership of COSEWIC, which will be changed through this particular legislation.

I'm wondering if you would care to comment on those two things, citizen engagement and the legal listing process and membership. Anyone else on the panel may also want to comment.

Mr. Claudio Torres Nachón: In a country like Mexico, where we have an emerging democracy, as you know, the democracy is not just electoral. It is composed of access to justice, access to health, and the respect of basic human rights. The task to protect the environment becomes much harder. In this sense, I think the states have recognized that they don't have the ability or the funds to provide all the necessary infrastructure to actually go ahead and enforce the law throughout the country.

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We have couple of citizen enforcement mechanisms called popular denunciations, and under this scheme any person who knows of damage to wildlife or any other environmental element may go to any office or any municipality and present a claim, and even if the people receiving the complaint have no jurisdiction, they have an obligation to turn it in to the competent federal agency. It has proven to be quite useful in Mexico. Many of the cases that have arisen under this system have created a tremendous current of opinion, which has resulted in better laws. We have an environmental law system that is constantly evolving, and I think it's getting better and better.

Mr. Eugene Lapointe: I think, Mrs. Kraft Sloan, you were asking all the other members to comment on that as well.

Mrs. Karen Kraft Sloan: Yes.

Mr. Eugene Lapointe: To be honest, with respect to the developing world, I'm not too fond of this kind of policy. I go back to one of the questions of the honourable member about the conflict between the environment and development. We all know that in many parts of the world the worst enemy of the environment is poverty. Many attempts have been made to have international regulations or national legislation, with stiff enforcement measures, prohibitions, and so on—they just did not work, despite also scientific studies of species and so on. We're touching an area where poaching or destroying nature is a matter of survival. We're talking about two-thirds of the world's population asking the same question: how am I going to survive tomorrow? And this is an area where I think the industrial countries should develop the possibility through their own concern about the protection of endangered species, but develop as well some mechanism by which assistance can be provided to developing countries.

And in that sense, I know one of the best countries—and it's not because I'm here—to provide assistance in eliminating some of the dangerous elements for wildlife, i.e. poverty, in the developing world is Canada, through CIDA. This is something that needs to be addressed. I don't think, with the regulatory process, with the legislative process in a great number of the developing countries, you can achieve anything to conserve wild species.

The Chair: Briefly, please.

Mr. Claudio Terres Nachón: I wanted to comment that in Mexico the new wildlife law is based around a very specific figure, which is called a UMA, a unit for management of wildlife. It revolves around the concept that any landowner has rights to sustainable use of the wildlife elements within that piece of land. Of course, it is based on the transparency mechanism, which, in the case of Mexico, is not working that well. We have a new law, but there are plenty of organizations working to make it a better system. In Mexico, for example, the government doesn't have enough money to provide it with the funds. We have been discussing the funds, and I haven't heard anything along the lines of whether you can have this kind of protection without a fund. How can you generate compensation from the community itself, from the landowners themselves? And the answer is, you have to give them a permit to actually make extractive or non-extractive use of the wildlife in their land.

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This will create a series of benefits. It's a series of very specific carrots. Again, this will not work without a very big stick in the other hand, because, as you know, there are all kinds of disruptions in animal and wildlife traits taking place as we speak.

That would be my comment. Thank you.

Mr. Brock Evans: In the U.S. we do have a process. With every species proposed for listing or for delisting, the conservation rules are all published in the federal register. If people have comments, hearings can be held. There's a public, open process all the way through right now.

The Chair: All right, thank you.

Mr. Claudio Torres Nachón: I have one quick last remark. Another mechanism for active public participation in Mexico is that apart from the Mexican COSEWIC, if you want to call it that, any person can come up and propose a species to be listed as endangered, provided there is a scientific foundation to it.

The Chair: Thank you.

Madam Redman, please.

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

I too wanted to pose a question to Señor Torres Nachón. In Mexico the minister, with the assistance of an advisory body, has the authority to declare the existence of critical habitat for a species, or at least that's my understanding. Is the protection of critical habitat mandatory?

Mr. Claudio Torres Nachón: Yes, it is, under article 83 of the general law of ecology. It says that the general conditions for the survival of the habitat of an endangered species must be protected. Again, I want to clarify that on many occasions it doesn't happen when it requires tremendous lawsuits and the like, but it is there and it is mandatory.

Mrs. Karen Redman: Thank you.

The Chair: Thank you.

Mr. Laliberté.

Mr. Rick Laliberte: The issue I'd like to talk about is that there has to be an entity responsible. Looking at the preamble of our act, which is commendable—it's an incredible preamble—one thing that pops into my mind is the Canadian Endangered Species Conservation Council. So you look at the conservation council role, and then—I don't know what knowledge you have of our Canadian structure—we also have the role of the competent ministers in the act, and then the Governor in Council having the ultimate decision-making authority. There's this role of coordination, preparation, implementation, and planning, which seems to be a major role here. It's identified in subclause 7(1) for the conservation council. What is your view on this? Does this exist in other acts, international acts or your acts? Are we heading in the right direction on this terminology?

Mr. William Snape: I will not presume to analyse Bill C-5. It appears there are a number of entities and perhaps a little too much process on some of these decisions. It wasn't clear when I read it through, as an American reading a Canadian bill, in all instances who was accountable for certain decisions. You all, as members of the House of Commons, will sort that out.

On the listing process itself, as long as you have the public participating, every member participating and getting their information in, I don't think you want to have all those government agencies making the decision to list. I think you want to have one body, whatever body that is. You've heard our opinion, but you'll decide eventually who makes the decision to list, who makes the decision to issue the permit, who's responsible for the recovery plan, who has to sign off on the management plan. Someone, some agency, some entity, some minister, has to be ultimately responsible.

Very quickly too, I would make one other point on Mexico. What's going on in Mexico right now is revolutionary, because access to information, for the first time in 70 years, is now attainable. When you talk about environmental protection, we all agree—R.J. and I couldn't agree more—that we want as much information on every conflict or every issue there is, because then we can have a good-natured debate or discussion about it.

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I would make two points that flow from that. The first is that it appears as though the documents to be included in the public registry—and I don't have the section numbers, as I printed this bill off the web—do not include things like permits, certain consultations, and maybe not all agreements. I would humbly suggest that in all aspects of the endangered species program, whatever program this body passes, unless it has actual proprietary information that would harm an individual, that this be released to the public, because people become suspicious about what you withhold.

My last point on information—and it's funny that this will probably be my last point of the morning and is perhaps my most poignant—is that when you talk about concerns of the Endangered Species Act or any wildlife bill, frequently what landowners don't have is that information. One thing we've talked about in the United States, and in fact both parties have embraced on a certain level, is the idea of wildlife or endangered species ombudsmen, people who can be one-stop-shopping for information. Frequently, these conflicts can be reconciled just by understanding all the options available or understanding the process. So I would argue that an ombudsman or a place where landowners and individuals can go and get information is ironically a very important thing to consider.

Mr. Eugene Lapointe: One of the points I intended to make in my initial remarks, which I cut short because of the time restriction, was precisely the complexity of the mechanism. While the intent is certainly valid, with the procedure for listing—periodical evaluation, devolution of prohibitions, the habitats, the recovery, the plan of action for the recovery, the consultation process throughout, the regulation required for both implementation and enforcement through Order in Council—you stand a pretty good chance at some point of clogging up the system.

I go back to the question that I believe was asked by Mr. Bigras, about the danger of litigation. According to an article in the Washington Post on March 12 of this year, entitled “Endangered List Faces New Perils”, you have that situation now: this impasse is created. There is so much litigation against the Endangered Species Act at this point that it's almost stopped in terms of being able to produce what it was intended to do: protection of endangered species.

The complaint is that the act leaves some species at risk because of this legal process, and I'm afraid that within the kind of operational framework being designed in the bill at this time, you might end up not only with the first danger that I noticed, pollution or contamination of both the scientific and political process, but as well, you create situations where litigation will start developing and a situation where you will have an inoperative piece of legislation.

The Chair: Mr. Snape, briefly, going back to the exchange we had earlier, could you elaborate as to whether in arriving at the critical habitat, which is a complex and slow process, you would recommend including an intermediate step, an interim habitat type of protection definition while the major analysis takes place?

Mr. William Snape: I'd be happy to.

About two years ago a Republican senator from Rhode Island, John Chafee, who unfortunately died unexpectedly, realized that the United States act was suffering from not being able to get its arms around the critical habitat process. He filed a bill that actually had support by both industry and the environmental groups. It died when he died, because he was the one who was pushing it, and bills are very easy to stop in Congress sometimes.

Essentially, it created a two-step habitat process. The first step, at the listing stage, was to designate what we term “essential habitat”. That at least secured a core amount of habitat for the species to stop its decline, which of course, again, to repeat the obvious, is why it's being listed. Then, during the recovery planning process, “critical habitat”, the sort of final designation, if you will, was put together.

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The rationale was that when you list a species, obviously you know something about it—you know it's declining, you know there are certain problems with it—but it is in the recovery planning process that you have a fuller examination of the problems, the solutions, the strategies, and so on. It is there, in the context of that analysis, that critical habitat is probably more appropriate.

Again, that bill did not pass. The Clinton administration attempted to implement portions of it administratively, with some success and some failure.

That is the best advice I could give you on how to move forward.

The Chair: Thank you.

Madam Kraft Sloan has the last question.

Mrs. Karen Kraft Sloan: Thank you very much.

You've had your legislation for 28 years, and you have a scientific final listing process. What is the membership of your group that does the listing?

Mr. William Snape: This is where I think you can improve upon what we have come up with.

It is done by the U.S. Fish and Wildlife Service for most terrestrial species, and by the National Marine Fisheries Service for most marine species. They share jurisdiction on some species, like salmon, under the two services. I'll just call it “service” as the entity.

The service has staff biologists who begin the process either because an outside individual has petitioned the service, or because the service's own biologists have information to indicate there is a problem and they are going to propose it for a listing. This is after there's an initial status review.

But at that point, once the biologist or biologists sign off on a listing package, it needs to then go up through the Fish and Wildlife Service political ranks. It's the same agency, but different people. It's people who are appointed by the President and obviously have other agendas, beyond—however subjective biology is—biology.

So when there is litigation in the United States over the listing process, it is frequently over what that service biologist said or did not say, and whether that politician did or did not bastardize that science. Those suits are brought not only by environmentalists, but by industry as well.

So that's how the process works. It's within the same agency, and it looks like it's streamlined, but in my opinion, the number of people who need to actually see the package is probably too many.

Mrs. Karen Kraft Sloan: Are you suggesting that litigation arises from too much political interference?

Mr. William Snape: That's on the listing process alone.

On all decisions made after a species is listed, how do you deal with that species imperilment? There I think you do need to have politics; you do need to have economics; you do have to have social discussions of values, essentially.

Mrs. Karen Kraft Sloan: But there are two separate processes.

Mr. William Snape: Yes.

Mrs. Karen Kraft Sloan: Either a species is biologically threatened or it's not, and then the decision on what to do about it is certainly one that brings all different factors into consideration.

Thank you very much, Mr. Chair.

The Chair: Thank you.

When you have social discussions, inevitably it raises the question of introducing socio-economic programs to bridge over those who are affected by that measure so that they are not economically damaged. Then the socio-economic discussion has meaning. But if it becomes a reason for not protecting, then it is counterproductive. We need socio-economic shock absorbers.

We are immensely indebted to you for coming to Ottawa, for bringing us your insights and comments and your philosophical observations, your very practical ones and all the others in between. We will certainly make good use of your evidence, and we will perhaps keep in touch.

On behalf of the members, I thank you very much for your time and effort and the dedication that you are applying to your work, to a cause that we obviously share despite the distances. We hope to see you again.

Mucho gusto. Hasta la vista.

This meeting is adjourned.