ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, June 5, 2001

• 0914

[English]

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

I have a few business items before we start our round-table discussion, to which I welcome everybody in this room.

First I'll give you the good news. Yesterday, as you know, there was a presentation on behalf of the Prime Minister to the major participants in the Stockholm agreement on POPs, the organic pollutants, which Canada signed and ratified. And in the speech given by Sheila Watt-Cloutier, the president of the Inuit Circumpolar Conference, this committee was mentioned when she said,

We have benefited greatly from the interest, commitment, and political oversight of individual MPs such as Karen Kraft Sloan and Clifford Lincoln and the House of Commons Standing Committee on Environment and Sustainable Development.

• 0915

As you know, we held a meeting on POPs in June of last year, if I remember correctly—it was not an easy meeting—with officials from the Department of Foreign Affairs. We certainly registered a very strong view in favour of this particular international agreement for the protection of health, and particularly for the people north of sixty. This agreement, as you know, has been signed and ratified. It will need 50 nations before it is triggered into action. The first step was taken on May 23 in Stockholm, and it is now rolling, it is moving. It was a good day for Canada and I'm sure also from the perspective of the people living in the Arctic.

Second, you have, circulated by the clerk in both official languages, what I consider to be an excellent paper prepared in 1994. It deals with federal-provincial relations and the powers of the federal government, as seen by an esteemed political scientist. I would recommend that you read it, because it will be quite helpful to each one of us when we enter the phase of clause-by-clause consideration of the bill.

Third, we have this meeting proposed by the parliamentary secretary with the Department of Justice tomorrow. She has dutifully consulted every member of the committee. It would appear that there is a large disposition, except for two or three members of this committee, to hold this meeting. I can fully understand those members of the committee who cannot muster great enthusiasm for this meeting with the Department of Justice, because we don't know what new material it could produce. But the agreement was—and it should stand—that if the parliamentary secretary could gather sufficient consensus, this meeting should go ahead, in the hope that it will produce some new light, and not just heat. A notice has gone out to the Department of Justice officials to be ready, and if this committee does not strenuously object, as I hope it won't—also because we don't want to keep our guests waiting—the clerk will call the meeting as it is prescribed. But if we want to have a very brief discussion among members of the committee only, by all means let's have it.

Mr. Comartin, please.

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

Mr. Herron and, I believe, Mr. Knutson are not in favour of meeting with the justice department at this point, because just last week we asked them for the opinion, and we'd asked them for their legal opinion back when the deputy minister was here in February or March, and we still don't have it. We had to pass a motion last week to specifically request it from them. I assume it hasn't come yet, seeing that the clerk has not received it. It's like going into a discussion without having any of the background information. They know a lot about the opinions this committee has received. If I can wear my lawyer's hat for a minute, it's like going into court without the other side telling you what their argument is, and we don't do that in our system. I can't imagine what we're going to get from them tomorrow, other than a rehash of what we got the last time.

The Chair: Thank you, Mr. Comartin.

Mr. Herron has this transcendent capacity for arriving in the right place at the right time, by virtue of an omnipresence that very few parliamentarians can master.

Would you like to make a brief intervention?

• 0920

Mr. John Herron (Fundy—Royal, PC): My short comment is—and I appreciate the tenor of the conversation I had with Ms. Redman yesterday—that she's trying to be very constructive. My difference of opinion would be that it is quite a complex question what we can include in the bill and what we can't include in the bill. I think we can ask far more educated questions, questions we can ask for legal opinion on, if we wait for the written response from the Justice officials before they come to committee. The types of questions, the depths of the questions, the divergence of constitutional opinions are things we'd be able to flush out in that type of committee.

So I'd rather wait until we get the written response the justice department officials have said they would give us before actually questioning those officials. There's a divergence on issues with respect to migratory birds. Chief Justice La Forest said that migratory birds are within the federal jurisdiction, and the case law is in that direction as well, that migratory birds would apply. Yet the justice department officials, when they were here briefly before, said they have a difference of opinion. We've asked them for that opinion, and we'd like to be able to get the appropriate legal opinions on that. So migratory birds would be probably the best example as to why we should wait to the appropriate time.

Thank you, sir.

The Chair: Thank you.

Now, perhaps the last intervention, Madam Redman.

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

I did survey the entire committee, and I got two nos. I did not hear back from Mr. Comartin, but I would like to point out that neither of the nos came from Mr. Knutson, so he was amenable to having justice department appear. I won't take up the time of the committee, but I would refer any member to look back at the March 20 blues, which show that this committee enthusiastically not only wanted the Department of Justice to come, but actually wanted them to come sooner rather than later.

I'd also just point out to the committee that this is somewhat precedent setting, and I would really encourage the committee to take advantage of having justice department officials before us. I tried to make it quite clear that the motion this committee has tabled will be dealt with separately, and it shouldn't be seen that these two issues are linked, so that if we have real live breathing people here, it may in some way colour the result of the motion, which will be dealt with in due course.

I guess the reason for timing would be greater clarity, and I know this has been an issue for Mr. Mills for a long time. Rather than have misperception and miscommunication, at this point in the process of this piece of legislation, if we could go through the summer either with more food for thought or greater clarity, it perhaps is the best time, notwithstanding some of Mr. Herron's comments, to actually have Justice here. That's the spirit in which I have put this forward.

Thank you.

The Chair: Thank you. Then, with the indulgence of the committee, I would suggest that we conclude this discussion now. Let's make the best of the meeting tomorrow, and we'll move on from there. I thank the members for their interventions.

The timing couldn't have been better. We've been joined by Dr. Pearse, who looks like someone who has travelled all night. So the discussion panel is as complete as it can be, and we could launch our round table by saying that we have four questions that have been prepared for discussion today. We will try to devote half an hour to each question, unless the discussion dies before that. The substance of each question is drawn from the submissions and the points raised with this committee by witnesses in the last three months. They pointed to compensation and to the questions or doubts they might have with regard to the initiative on compensation.

• 0925

The first matter that was raised by some was that Bill C-5 could create a legal precedent in favour of compensating land owners for loss of value caused by regulatory restrictions.

The second question that emerged has to do with the one that even Dr. Pearse himself raised when he appeared before this committee, whether the compensatory regime could blunt the incentives for landowners to cooperate voluntarily in the efforts for conserving a species. He asked, I remember, where the line ought to be drawn or could be drawn in this respect.

The third question has to do with whether compensation would interfere with the funding for other measures contemplated in the bill and whether it would interfere by way of individuals bypassing or not wishing to participate in stewardship efforts, in order to wait for compensation.

The fourth question has to do with flexibility and certainty, what balance should be struck between these two concerns, whether the eligibility criteria and the compensation formula proposed by Professor Pearse do achieve the required balance or an alternative arrangement would be more appropriate.

If it is possible to cover these four points, which are major, according to the comments made by witnesses, that will be very valuable guidance that the participating round table members could give to us members of the committee.

I understand also that Mr. Rounthwaite has prepared a paper for this particular meeting. You will recall also Mr. O'Ferrall's interventions last week, born from practical experience, which all of us thought were extremely helpful.

Rather than going around in a rigid formal meeting, I would propose that we proceed by simply having people raise their hands when they want to be recognized to speak. It will be helpful if the speeches are short, of course, and we could start any time a participant wishes to raise their hand. Already one has done so. So we can without delay launch our round table discussion. Again let me thank you for having made the effort to come to Ottawa at such short notice.

Mr. d'Eça, you're first.

Mr. Michael d'Eça (Legal Adviser, Makivik Corporation): Thank you, Mr. Chairman.

I have a preliminary point. It's important, I think, for this round table to hear aboriginal voices with respect to the issue of compensation and stewardship. I think there's an important aboriginal voice that's missing, but is present in the audience, and that's the Assembly of First Nations.

I would recommend and suggest—and there's a nice spot right here—that the Assembly of First Nations be permitted to participate in this round table and to give its voice. ITC, Inuit Tapirisat of Canada, speaks for Inuit, Makivik is here as well, one of the regional organizations of Inuit.

• 0930

The Chair: At the table to your left?

Mr. Michael d'Eça: Yes, that's right. The Inuit and the Métis National Council are here, but the Assembly of First Nations is not. It seems to me that we can easily rectify that by having the AFN representative come to the table.

The Chair: If there is anybody in the audience who feels like coming to the table and taking a chair, by all means come forward and introduce yourself. Let's not waste time in a long discussion. Please come forward and let us have your name and the name of your organization.

Ms. Peggy Wilson (Assembly of First Nations): Thank you, Mr. Chair. I appreciate your generosity in recognizing the Assembly of First Nations. My name is Peggy Wilson.

The Chair: Thank you.

Mr. Rounthwaite.

Professor H. Ian Rounthwaite (Individual Presentation): Mr. Chair, I think we certainly need the Assembly of First Nations here. I do have concerns, though, that there are such significant differences between the obligations to compensate first nations peoples and the provisions of the bill with respect to compensation for non-native peoples that—in my view anyway—the rights of native people are on a much higher plane than everyone else's.

The Chair: This will emerge during the discussion, Mr. Rounthwaite. We will see that as the discussion evolves. Thank you.

We have from Environment Canada—and I apologize for not having recognized him—Robert McLean. I understand he is equipped to put forward some thoughts for discussion. Perhaps we should give Mr. McLean a chance to go first, so as to set some parameters or some kind of discussion theme. I don't know what he will be saying.

Mr. Robert McLean (Director, Wildlife Conservation, Environment Canada): That's the first I've heard about my being equipped to provide some sort of overview or introduction with this particular issue.

As my starting point, stewardship and compensation, for me, are quite inseparable. I think first about the notion Dr. Pearse alluded to in his report related to cooperation. The report deals an awful lot with the technicalities of compensation, but I tend to think more about the approach we need to take—by “we” I mean the federal government, the provincial governments, aboriginal people, resource sectors, and conservation organizations—to protect habitat for species at risk, and in fact, for all biodiversity. My thinking doesn't stop at species at risk.

The key question for me, then, is what the most effective approach is. If we think about the process we should be following for habitat conservation, we can more effectively answer some of the tough questions that we're going to have to address today.

Most important for me is what I would characterize—and we hear the expression constantly across Canada these days—as a landscape approach to conservation. When we think about compensation, we're dealing with a very specific piece of turf. I think we need to understand the importance of that habitat in a broader landscape context. We know we're going to have recovery plans, rather than implement recovery plans on a plan-by-plan basis. I'll choose an example. If we were in prairie Canada, we would need to understand what all of the recovery plans say about the habitat needs for species in that particular eco-region, then try to develop a more coordinated approach to implementing the total of those habitat conservation requirements.

I think what we would see through that process is the importance of, for example, federal lands. Maybe it's the National Defence base at Suffield, which we know is extremely important for species at risk. We're going to understand the importance of aboriginal lands within that particular landscape, and therefore have a better understanding of how to direct our stewardship program, so we can begin to put in place a process that defines the partnership that Dr. Pearse alluded to. It's a process that allows us to agree upon what the habitat conservation priorities are in a particular area and, finally, who is going to do it. Is it the federal government, the provincial governments? The resource sectors certainly can achieve those conservation objectives.

• 0935

That's the process contemplated in Bill C-5. At the end of the recovery planning process, if we find we don't have enough habitat conserve, and the federal government has opted to implement a regulatory restriction, then we have the partnership of agencies that can actually deal most effectively with what Dr. Pearse referred to as the other forms of compensation and related matters.

Let's not move too quickly to the issues of whether 10% of the losses is the minimum, or 50% of the property value or net returns are lost and should be compensated. That should be at the very last point of the exercise. More important would be the process we need to follow.

I would emphasize the need to think about how we cooperate on the appropriate geographic scales, and pulling the partnerships together on that basis.

The Chair: So Mr. McLean is firm in declaring that stewardship and compensation are inseparable. Right?

Would anyone like to take it from there? Yes, Mr. O'Ferrall.

Mr. Brian K. O'Ferrall (Individual Presentation): All I can do is read the bill. In the end, Dr. Pearse's report and what's said in the House of Commons will not govern; it will be what's in the bill.

Compensation under the bill is for the impact of a statutory prohibition. The only prohibition of significance to the landowner is the prohibition against the destruction of critical habitat on private lands. Compensation is for the impact of that prohibition. Stewardship and funding, under clauses 11 to 13 of the bill, are for programs and measures for conserving wildlife species.

Reading the bill, those are two entirely separate matters. The compensation will only kick in under a limited set of circumstances, where the prohibition against the destruction of critical habitat on private land causes some extraordinary impact, as the legislation now reads.

Thank you.

The Chair: Mr. McLean, you got an interesting reply.

Mr. Rounthwaite.

Prof. Ian Rounthwaite: I just want to address the first question of whether or not clause 64 will set a legal precedent. In my view, there's no question it will set a legal precedent. Right now, regulatory restrictions on the use of land would be classified generally as injurious affection. In the absence of a statute expressly providing for compensation for injurious affection, no compensation is payable.

I can well see a situation where someone applying for a federal permit under the Navigable Waters Protection Act, for example, who is denied that permit for environmental reasons, will welcome an endangered species into that particular river, so when the permit is denied under SARA, a claim for compensation will be possible.

There's no question this will set a legal precedent.

The Chair: Thank you.

Mr. d'Eça.

Mr. Michael d'Eça: With respect to that initial question, I think it's too narrowly stated when it talks about compensating landowners. From an Inuit perspective, for example, restrictions on the Inuit use of crown lands would surely be compensated.

With respect to Mr. O'Ferrall's comments, if you look at it from the perspective of the resource user, the two concepts of compensation and stewardship very much come together.

I would like Johnny Peters, from Makivik, to talk a little bit, from the user's perspective, on how they see this legislation impacting them, and possibly their traditional practices. He'll be speaking in Inuktitut and it will be translated.

Johnny.

• 0940

Mr. Johnny Peters (Vice-President, Makivik Corporation) (Interpretation): First of all, I would like to thank you very much for being in this round-table discussion. My name is Johnny Peters, and I am the vice-president of Makivik Corporation, representing the Inuit of Nunavik in northern Quebec.

I'm here because I'm a hunter. I'm dependent upon the wildlife resources in northern Quebec. If certain species of animals are legitimately endangered species, I want to talk about the option of compensation, if we can no longer use the resource for our livelihood.

As I mentioned before, we don't have farms like they do down here. We are dependent on the wildlife resources in the north for hunting. Hunting and farming are two completely different types of stories, as you may recall. In the north there is no farming, and we are dependent on hunting for our livelihood.

As Canadian Inuit living in northern Quebec, in the circumpolar world, we are very heavily taxed. We pay taxes to both provincial and federal governments. Therefore, it's a very difficult situation to have to depend upon the wildlife resources of the land.

We have no roads in the north. The only supplies we receive are by air, and once a year by sea lift. That's very different from down here.

The Chair: We appreciate that, Mr. Peters. This is an explanation you kindly give us when you appeared before this committee. I wonder whether you could address the question of legal precedent that is now before us for discussion.

Mr. Johnny Peters (Interpretation): My comments are finished for now. I may have a little more explanation later on.

The Chair: Fine. Thank you, Mr. Peters.

Mr. Roth.

Mr. Dwayne Roth (Lawyer, Métis National Council): Thank you very much, Mr. Chair.

I agree with Mr. Rounthwaite that the possibility of a legal precedent-setting situation exists with this particular bill. We're going into territory where we haven't gone before, as was pointed out in Dr. Pearse's report. However, I think that's more of a political type of question. I guess it will be up to politicians to decide whether or not they're going to succumb to public pressure and include these types of provisions in other pieces of legislation.

• 0945

I think the second part of that question is the more important thing that we should address. Even if there is a precedent, will it undermine the effectiveness of the species at risk legislation? From our perspective, I don't think it will. Clearly, it's a fair division of the burden to protect species at risk. We're all in agreement that it's an important principle in our society we have to strive to achieve.

I think it's unfair for landowners, if a particular species is on their land, to bear the full burden of protecting that species. The species is important to everybody, and I think the public purse should share in the cost of protecting that species.

I think it's a precedent well worth taking and it's a fair division. Of course we have to balance it out with the need to try to do the stewardship initiatives first and use compensation as a last resort. The compensation can't be too lucrative for landowners. We try to work out the stewardship initiatives first, and if that fails, then of course we go into the compensation regime. But I think it's a fair division. It's a precedent worth taking.

The Chair: Thank you, Mr. Roth.

While you were talking, the question crossed my mind as to why we should worry about setting a precedent.

Mr. O'Ferrall and Mr. Menzies.

Mr. Brian O'Ferrall: I'm not going to disagree with Professor Rounthwaite that it wouldn't represent a little bit of a departure, but I would at least advise this committee that it isn't precedent-setting. Indeed, it was the one issue I did take with Professor Rounthwaite's paper, where he says:

The Species at Risk Act represents one of only two statutes in Canada which expressly provides for the payment of compensation for what amounts to injurious affection.

As I pointed out to the committee last time, we have the federal Aeronautics Act, which allows for compensation for those who are impacted by a nearby airport. In Alberta we have a municipal government act that provides for compensation for lands affected by public works, as well as our Public Highways Development Act.

It's not totally without precedent, although I have to admit there are not many precedents.

The Chair: Thank you.

Mr. Menzies.

Mr. Ted Menzies (President, Western Canadian Wheat Growers Association): Thank you, Mr. Chairman.

I guess I would have to ask this question. Why should compensation for direct loss of income to a landowner or for confiscation of that property in order to protect a species or its habitat be any different from a stewardship program that the government has agreed will be part of this? A stewardship and incentives program is going to be a cost to someone, whether it's a tax credit, or whatever form it comes in. Why should those two be any different?

The Chair: Perhaps that is a question Mr. Pearse should tackle.

Dr. Peter H. Pearse (University of British Columbia): Mr. Chairman, part of the answer is just the way this legislation has evolved and the way people have come to conceive it. The incentive programs recall that the main emphasis of the whole bill is on voluntary measures. Part of those voluntary measures will—or could—involve the government providing funding or other assistance to a property owner. That kind of support is done with the full agreement of both parties. There's no compulsion here.

There's a distinction being drawn between that and this discussion and compensation. Compensation is not a voluntary agreement, but in fact payment for the loss of a landowner when the government takes unilateral actions to constrict the use of the land.

So it's the context. I don't think there's any formal distinction here in the use of those terms, but there's just a basic difference. And they are really significantly different. One is a cooperative arrangement and one is an involuntary one where the government is taking a big stick.

I do think this question about precedent, though, is extremely important, for reasons that go beyond what has been mentioned here. In the course of my inquiry, it became very clear to me that there is an enormous amount at stake in a precedent of this kind. There is virtually no precedent in Canada for compensation for a regulatory intrusion on someone's private land.

• 0950

Now, there are some closely related, as some people have mentioned, and there is one that is quite close—in fact it's very close—and that's legislation in Nova Scotia. But it's very recent; it hasn't been tested. We don't know very much about that one. It's tentative.

In the context of this thing, governments in Canada—federal and provincial—have a tidal wave of regulation on people's use of their land. This is not just a federal thing. This has implications for both provincial and municipal governments as well as the federal government that go well beyond Environment Canada.

All I'm saying is I'm not sure that the federal government really wants to take such a fundamental principle and turn it on its head in a piece of legislation such as the Species at Risk Act. I have to tell you I'm in favour of it. I think it's a great innovation. But it is a precedent, and its implications are enormous. That's why my report keeps going on ad nauseam about the need for caution on this. The provinces and the territories are very worried about it, I can tell you that. It has implications for them as well as for the federal government. I'm not saying you shouldn't do it, but you should set it up in a very cautious fashion.

The Chair: Thank you.

Would you like to conclude your comments, Mr. Menzies, briefly?

Mr. Ted Menzies: I would have to agree that we are going in the right direction, but maybe it's time that a precedent is set. I take great offence at anyone suggesting that I, as a landowner, carry the cost of the public good. And we can call this nothing more than the public good. I'm totally in favour of protecting species. I told you when I met with you before that we do take great efforts to protect these species. But we're in a difficult industry, and don't leave us hanging out there all alone.

We, as producers, find it offensive that people would assume—guilty before proven innocent—we would rather destroy than maintain habitat. That is absolutely wrong. We, as landowners, are good stewards, want to protect species, want to protect habitat, but we need some definition. We'd like stewardship to be the flagship of this legislation, rather than compensation. But we need to know that compensation is available, if we get to that point.

The Chair: Thank you, Mr. Menzies.

Mr. Friesen, followed by Mr. Rounthwaite.

Mr. Bob Friesen (President, Canadian Federation of Agriculture): Thank you very much, Chairman Caccia. And thank you for your gracious invitation for us to sit around this table.

I think the fundamental question we need to ask ourselves is whether we want this legislation to work. I believe that the credibility and integrity of this bill is contingent on cooperation, on partnerships, on incentives, and on compensation. Let's be clear about one thing: cooperation does not preclude compensation. I believe we have precedents that have been set for us as far as what happens when we have perverse legislation with perverse incentives.

We need only to go to a critique of the U.S. bill that talked about what happened after they legislated endangered species. Landowners were seen to be either developing their property in such a way as to be unwelcome to endangered species, or to be sterilizing the land they owned because they were not to be compensated for opportunity costs.

I think the most important thing in Canada is to develop an endangered species policy that avoids adopting these perverse incentives and ensures that private stewardship does not become a liability. In the U.S., we have an example of where it becomes a liability.

I think we also have precedent-setting in Nova Scotia, as was already mentioned. We have a precedent in the U.K. where their legislation works very well and where it is done with incentives and with compensation.

• 0955

We also have another regulatory issue in Canada with the CFIA where livestock owners have to report reportable diseases. That is done for public health. That is done for public food safety. That is done for international confidence in our food system. Livestock owners are required to report reportable diseases, and then of course the livestock is destroyed and they are compensated up to the full commercial value of that livestock. And it works. We have found in that area that if livestock owners are not compensated they don't report. I think the same thing will happen in this legislation if there isn't adequate compensation. Again, incentives and voluntary actions are important.

The Chair: Thank you, Mr. Friesen.

Mr. Rounthwaite, Madam Wilson, and then to elaborate a bit on some of the emerging questions, particularly the last one implied in Mr. Friesen's intervention, perhaps Mr. McLean could elaborate on clauses 11 and 13 of the bill.

Mr. Rounthwaite, please.

Prof. Ian Rounthwaite: Mr. Chairman, I was hoping to sit on the fence on this one, but as I'm listening to more and more people around the table, I guess I'm going to have to come out and say I don't support setting a precedent to pay compensation.

That being said, I think the word “compensation” is being thrown around here with many different meanings. When I talk about compensation, I'm talking about where the taxpayer pays compensation as a result of an expropriation or a de facto expropriation, as a matter of law.

You asked earlier, Mr. Chair, what's wrong with setting a precedent? If you read the jurisprudence as to why injurious affection is not compensable in this country, it clearly says that there is a very real danger of a floodgate of litigation where claims will be coming left and right, which will seriously impair the government's responsibility and the government's duty to legislate in the public interest. I think that's a very dangerous precedent to set.

I also think that a number of people here are talking about property rights as though property rights are some kind of sanctified, frozen right. They talk about property rights not in terms of social property, but in terms of maximizing the economic wealth of property. And property is no longer simply about the maximization of economic wealth.

When I hear people talking about compensation in the sense that I'm hearing this morning, I'm thinking that they want to freeze our understanding of property rights as property rights were in the eighteenth and nineteenth century, where one could go out and, in maximizing their economic gain, absolutely spoil and destroy their land. I think that's a very dangerous precedent or a very dangerous message to send out—that if, in protecting species at risk, you suffer losses, you are entitled to compensation, whether you voluntarily cooperate with stewardship or not. I think if a landowner says he's a good steward, then he is going to cooperate in stewardship programs. I too would agree with Mr. Menzies that the people who live on the land are our best stewards. Those are the people we need to rely on.

Where you have someone living on the land who will not voluntarily enter into stewardship efforts, then my notion of fairness says don't look to me as a taxpayer to be compensated for not voluntarily trying to do your bit to save a species at risk.

I was hoping I didn't have to oppose compensation today, but I don't think anyone else is, so I'll throw it on the table.

The Chair: Well, I don't know if you're opposing compensation, but you're broadening the horizon.

Ms. Wilson, please.

Ms. Peggy Wilson: Thank you, Mr. Chair.

I want to pick up on what Mr. Rounthwaite is saying with respect to compensation issues, because I think there's a valuable point in that—certainly more than one.

There's an issue here of coming to a compensation claim with clean hands. It's an issue in virtually any other field of law that someone who is seeking the recognition of the court for damage has to demonstrate that they've come with clean hands—that is, that they haven't created the problem somehow to begin with. This is somewhat of a concern to first nations as we look around the country and we see the damage that has been created. It's obvious that there's damage, or we wouldn't be discussing this sort of legislation.

• 1000

So I think there needs to be a recognition that only those who have made an effort to do their part to protect species should be in any way compensated. There are certain industries or professions that may be very challenged in trying to demonstrate this, and I think that's worth considering.

As to the issue of economic value of property, I agree; I think, in large part, that is what is being discussed. But I also recognize that, in the case of first nations, very little property has been allocated to us. We're obviously in discussions about this currently.

In the little that does exist for first nations, I think many first nations have individually demonstrated their interest and respect for the land and have made efforts to ensure that species on those lands are not endangered. Nevertheless, we find ourselves in a situation where we're unable to pursue any sort of opportunity further, not just economic opportunities, but even opportunities for housing, because of the restricted area that is available to first nations.

I don't want to get into issue of land claims and the past, where lands have been seized from first nations without recognition, without sufficient compensation, but certainly where there is the potential that legislation may impact and further restrict first nations' abilities to pursue even a decent livelihood on those lands, it needs careful consideration. I would recommend that there be recognition of aboriginal title, aboriginal and treaty rights that have been recognized in the Constitution of this country, and that there be recognition for first nations and their very seriously restricted circumstances, and that compensation be recognized, at least for first nations and other aboriginal peoples who may be in similar circumstances.

Thank you.

The Chair: Thank you, Ms. Wilson.

We have certainly moved into greater depths on the compensation, not just whether it sets a precedent, but also what kind of compensation and who should qualify. This is also very helpful.

Are there any further interventions on this first theme? We still have another five minutes, but then we would want to conclude.

Mr. Dobson and Mr. d'Eça.

Mr. Bob Dobson (Co-Chair, Environment and Animal Care Committee, Canadian Cattlemen's Association): I'd like to thank the committee for having us here. I represent the Canadian Cattlemen's Association. On short notice, we did make it.

I just drove in from my farm this morning; it's about one hour from here. My great-grandfather started farming there in the early 1850s. Over the 150 years that my family has farmed that piece of land in Renfrew County, I suppose it has been a bit of a roller coaster.

We almost lost it in the 1930s, in the Depression years. But as equipment was getting larger in the 1950s and 1960s, my father was clearing fence lines. I took over the farm operation in 1970 and started enhancing some of the shelter belts, fence lines, and buffer zones, riparian strips, and I have continued that over the last 30 years. For example, this year when I went to the tree nursery, I picked up trees and wildlife shrubs for a number of neighbouring farmers.

I think over the years farmers in general, cattle farmers and other farmers, have done quite a good job, without any compensation, in enhancing habitat for wildlife in general. They've done this while at the same time suffering many dollars of losses.

In 1998, just a couple of years ago, there was a study conducted in this province, Ontario. It indicates that wildlife losses to Ontario farms—that's just this province—were around $41 million a year. We're not asking for any compensation for that. I guess that's just our contribution to society.

• 1005

I speak to a lot of people out there on the land, on the farms, and people are very concerned about this compensation issue. They don't feel it will target a lot of people each year. They actually don't feel it will cost very much. I don't know; I'd like to know what the estimated cost of compensation would be. But if farmers, ranchers, landholders, are targeted with an unfair cost, or a cost that they feel they cannot cover, it's going to do a whole lot more damage to the goodwill. The goodwill that will be lost if there is no compensation, or compensation at only 50% or 25%, something less than 100%, will cost a whole lot more than the dollars it will take to do the compensation.

At the end of the day, we're all here to create an atmosphere or an environment where species can be recovered. The position of the Canadian Cattlemen's Association is that there has to be compensation.

There are times when the two are separate. Certainly the stewardship activities will happen first, but there are times when part of the farm operation will have to be left idle for a year, two years, or longer. No stewardship funds could cover that. I don't think the mandate of stewardship funds would be there to cover leaving 10% or 25%, or whatever, of my farm vacant for a year because there are species residing there that need some protection.

So that's where compensation would come in, and I'd like to ask the committee what the cost of compensation is estimated to be. What are we talking about? How many dollars? I haven't heard that.

The Chair: No, and there have been no discussion about that, except the fact that witnesses have raised that question with us. Since it is an item that will be the object of regulation, it is not specified in the legislation. It may well be that Mr. McLean can elaborate on the thinking within the department on that or whether discussions have taken place as to the level.

Mr. Robert McLean: No, there really haven't been any discussions in terms of what the actual cost for compensation would be. I think the question we're really asking is, what's the actual cost of providing habitat for all the species at risk? Composition is the endpoint of a rather long path, and we know stewardship is going to be the first and primary focus of the efforts of Environment Canada to contribute to conserving species at risk. But we really don't have an answer to the question.

The first piece that needs to be put in place, of course, is recovery plans. We won't know the amount of habitat that's required, especially critical habitat, until recovery plans are in place for the species that have been designated. Even then, it's hard to know the cost, because I think it's important to integrate the effort and then figure out the tools. Maybe it's not funds but other tools that we have, land swaps or some of the alternative measures that Dr. Pearse put in his report. All that to say I think it's a bit of a mug's game to think we could ever come up with an estimated cost for compensation.

The Chair: The question brings to mind the intervention made by Jack Horner a month or so ago when he gave us an example he had been part of, or whatever, namely, a farmer who was asked to forgo the cutting of grass for hay purposes for two weeks, or for a season, or something to that effect. The farmer readily agreed, and if I remember correctly, he was compensated 100% for that particular loss. That's the only example I can recall that was raised and put forward during our hearings.

We'll move on with Mr. d'Eça, and then Mr. McLean.

Mr. Michael d'Eça: Mr. Chairman, briefly, in part response to Professor Rounthwaite's opposition to setting this precedent for compensation, I think I'm somewhat repeating what others have said, but in the context of endangered species, this is a practical step. It's going to help prevent the practice Dr. Pearse refers to in his report—shoot, shovel, and shut up. It's an important element of the overall package.

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Secondly, it supports the principle of fairness of equity. Fairness requires sharing the cost of protecting endangered species. That benefit flows to society as a whole. We have to share the cost.

Finally, compensation, in particular, provides a safety net for those who are trying to enter into voluntary agreements with government. Without it, certainly aboriginal people entering into a dialogue with government are in a tougher position than usual, because, as he explains it, if you don't enter into a voluntary agreement, then you don't get anything. How voluntary is that?

So it's best to have that kind of safety net available to you.

The Chair: Thank you.

We'll go to Mr. McLean, and then to Mr. O'Ferrall. Then perhaps I will ask Mr. Pearse if he wants to conclude the discussion on this item with his observations before we move to the next.

Mr. McLean.

Mr. Robert McLean: I was going to come back to a reference Mr. Rounthwaite made to maximizing the economic wealth of property. That's exactly where we are as a Canadian society, because that's the only return the private landowner has for his property. We have a market-based system. Therefore, it's economic forces that have the most influence on land use decision making, not the entire influence, but the primary influence.

We're now realizing the importance of understanding that land provides services beyond simply economic services...environmental and ecological services that speak to providing public goods. If we expect private interest to provide those public goods, then we need to think through how we broaden beyond the current market-based approach.

That's why we're talking about stewardship and compensation, because those are a couple of the key tools we're going to need to change the way landowners make decisions.

So yes, it's a precedent, but it's one that Canada needs to take in recognition of the fact that we're asking private individuals to support a public good.

The Chair: Would you please elaborate on clause 11 and clause 13?

Mr. Robert McLean: I'm going to speak about the particular program we put in place.

Minister Anderson has already asked us, in Environment Canada, to establish the habitat stewardship program. Last year we had $5 million available to direct toward the stewardship side of the equation and the incentives.

I didn't come today prepared to run through the long list of projects. I don't think you would want me to do that anyway. We're actively planning for the second year of the habitat stewardship program. There are $10 million available to the program this year.

What I would emphasize to the group is the planning process. Less important for me are the particular projects. More important is the process we're using to implement the program. It's a cooperative partnership-based process, working with the three federal lead departments for species at risk. That's what we accomplished the first year.

Now we're trying to broaden the partnership to include provinces and territories, to include those conservation organizations. In fact, our regional implementation board in Quebec includes an aboriginal representative. So we are trying to reach out and implement the program in a partnership way.

The Chair: Madam Carroll would like to make an intervention.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Mr. McLean, I'd like to hear Dr. Rounthwaite respond to your concept and his of the history of jurisprudence with regard to private property. Either we have always viewed private property in the way you describe it, as market-driven, or we have had some concept of the need to reconcile the public good and the social implications of private property with rights to the crown.

I get the sense you're speaking almost from an American jurisprudential base, which may be my particular filter. I find my job here hugely challenged by just this discussion. Whether we're talking about chapter 11 in NAFTA and the repercussions of that slip, using Dr. Rounthwaite's words, as if we look at a floodgate of litigation that impairs government's ability to legislate for the common good.... I could be sitting in on that discussion. Instead I'm talking about a huge precedent. Whether Dr. Pearse agrees with it and whether Dr. Rounthwaite doesn't, both of them agree it's huge. It's a change. It's not just an historical flow of where we had been in our jurisprudence.

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Could I hear from Dr. Rounthwaite? Sorry, I went flying on that.

Prof. Ian Rounthwaite: I should start by saying you said that very eloquently, and I'm not sure I can do any better.

The point I am trying to make is that our understanding of property rights has traditionally been an understanding based upon maximizing the economic value of those rights and whatever that bundle of rights may be in an open market.

Over the last century, as we gain more knowledge of our impacts on our environment, as science tells us we are having unforeseen and unsuspected impacts on wildlife species at risk, it seems to me that at that point there is a duty and an obligation on our elected representatives to legislate in the public interest.

That's precisely what—and I hate to say this, because it will disturb people—one of the fundamental purposes of the Criminal Code has been. When we learn about socially unacceptable behaviour we expect our legislatures to prohibit that behaviour in the public interest.

As we learn more and more about our impacts on critical habitat and habitat of species at risk, we have a moral or ethical obligation to take steps to legislate to say that those kinds of impacts represent unacceptable behaviour.

That's a separate question from whether or not we then take the next step and say we should compensate people for unacceptable behaviour. What may have been acceptable 20 or 30 years ago may no longer be acceptable, as we learn more from science, as we learn more from ecology, as we learn more about how ecosystems fit with eco-regions and how eco-regions interact with the global ecosystems or biosphere.

The Chair: Mr. Reed.

Mr. Julian Reed (Halton, Lib.): Professor Rounthwaite, you've given me an argument for compensation.

I own a farm too. It's true that over the years there's a little thing called zoning that has affected the economic future of my farm very greatly, without compensation, I agree.

When we're dealing with habitat, habitat is not confined to a surveyed property boundary. Habitat's not confined to a political boundary. So the difficulty of not compensating means you would apply that non-compensatory principle to a very large area.

We've all talked about land here, and I haven't heard a word about aquatic species and water. What happens in that case? The responsibility of urban Canada particularly, who see the protection of species as something out there that ain't theirs, it's somebody else's responsibility...they may be the greatest offenders in terms of the degradation of water and so on.

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My opinion is that we have to try to arrive at some method to provide that compensation at the end of the line. As a steward, I take some pride in my own personal stewardship of my land, and I'm sure everyone who owns land here does the same. And to turn around and make an imposition and a discovery that doesn't seem to fit with what we have understood up to this point—without compensation of some sort and without the opportunity for compensation—would totally upset our concept of our stewardship or our property ownership at this present time.

This would be so in spite of the fact that we don't have property rights written into our Constitution, in spite of the fact that we hold our properties by leave of her majesty. It still seems to me that if we're going down this unprecedented track, there has to be that opportunity.

The Chair: Thank you, Mr. Reed.

We have an intervention by Mr. deMarsh, then Dr. Pearse, and then we move on to the next item.

Mr. Peter deMarsh (President, Canadian Federation of Wood Lot Owners): I had intended to save my comments to question number two, which is where I felt we could most contribute, but it's a similar point.

We're dealing with a false dichotomy here when we try to set property rights and the public interest in opposition to each other, in the particular context of this piece of legislation. I've been trying to go through a sort of mental exercise of imagining that we weren't talking about private property at all. I'm not sure if this will work with the farming community and the ranching community, but certainly it works for woodlot owners.

Suppose our land was leased from the crown on long-term leases. There are examples of this in some parts of the country. None of the arguments put forward by the land-owning community would differ in the least, because it's fundamentally not about some abstract notion of our rights and being financially compensated when those are somehow reduced. It's about the survival of our land-based family businesses, period—and our ability to interact with government on the partnership basis Mr. McLean referred to.

I'd like to repeat a the statement made by the minister back in Guelph a year ago at the stewardship concert: “This legislation will not succeed unless it is based on a partnership between the people who work on the land and the government”.

The goal here is to make this legislation work, and neither property rights nor the practical implications for long-term leases matter in the least in terms of how we react to this argument about compensation.

The Chair: Thank you.

We want to conclude now, so we will make these interventions brief.

Mr. O'Ferrall.

Mr. Brian O'Ferrall: I'm glad Dr. Pearse is following me here, because I want to speak to the precedent issue, the implications he talks about for federal, municipal, and provincial governments.

I may be wrong, but I disagree with him. I think it would have profound implications if the bill contemplated compensation for a whole raft of regulatory restrictions, such as the regulatory restrictions that a municipality and others can impose. But the compensation is only for the impact of a very specific prohibition on the use of land. There's not even compensation in the bill for all of the prohibitions contained in the bill; it's only for a very specific one.

So I just don't buy it. Maybe I'm wrong. I think we're speculating about the future, but I don't buy the parading of the horrors about the implications for limitations on government's ability to restrict the use of land.

The Chair: Dr. Pearse, would you like to...?

Dr. Peter Pearse: Mr. Chairman, this has been a very useful discussion, and I must say we've heard some very articulate and thoughtful comments on this issue of precedents. It's an issue that concerned me a great deal when I was doing this investigation. Partly I have to say that the degree to which it is a precedent is confused, and it's hard to explain.

For example, there's confusion over what's compensation and what's an incentive payment. We had a bit of a discussion about that a few minutes ago. It's not obvious to everyone what that distinction is.

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There's a similar confusion over a regulatory intrusion on someone's use of their land—which is normally not compensated in Canada by any governments—and a taking in which a government actually takes some property from someone and puts a right of way through the person's land, or takes something specifically from that specific parcel of land typically registered as against the title. It's an encroachment on that property right.

Historically, the courts have treated those two things very differently in Canada. What we're talking about here is the former, a regulatory restriction. So for a hundred years we've had a fisheries act in this country, and it is a broad regulation that prohibits anyone from disturbing fish habitat—no thought of compensation.

I happen to have a little woodlot with a midden on it. In my province, as in some others, I'm prohibited by law from disturbing any land on which there is a midden—no thought of compensation. These are general restrictive regulations that have enormous consequences in many cases, but they traditionally have never been compensated in Canada. That's very important.

On the other hand, the taking of a property is usually compensated, and I must say, it's usually compensated generously. In fact over the last couple of decades compensation legislation everywhere in Canada, almost, provincial and federal compensation acts, has become more generous, more respectful of property rights, and more fair in the proceedings. People normally are paid and have a right to be compensated for the full fair market value of the damage to or intrusion on their property.

These traditions are fairly deeply entrenched in Canadian law and policy. Although this bill doesn't go very far in terms of changing the way we run the country, governments in Canada are intruding on people's property all over the place. That's why I say this is a precedent of enormous consequences; we have to recognize the enormity of the implications here.

Once you've shifted 180 degrees on whether to compensate people for regulatory intrusion, all governments are going to be vulnerable to pressure for like treatment. Major changes will have to be made if governments are to carry this burden to that extent. Again, I'm not saying we shouldn't do it, but we should do it knowing what we're getting into. That's the important point.

There are other reasons for being cautious, of course. Someone else had mentioned earlier the absence of information on the cost of all of this. I can tell you that there are some experts in this field who think the cost would be enormous if we're going to do what we're setting out to do. But this cost is not known. It has not been calculated. We have very little information on that.

Maybe it's because I'm from the west, but I can tell you that this is an issue of very sensitive federal-provincial jurisdiction. That's my final reason for urging caution. Most wildlife in Canada is under the direct authority of provincial and territorial governments. We are getting into an area in which provincial governments, particularly, all have established programs and bureaucracies, and they're frequently sensitive to federal intrusions that might have the effect of disrupting these established programs in their own provinces.

I deal with that in another way in the report, so I won't get into it now. But the fact that the federal government is encroaching here on an area substantially of provincial jurisdiction—not entirely, not fish and migratory birds, but for most of the other wildlife—is an issue for caution.

Thank you, Mr. Chairman.

The Chair: Thank you.

A brief comment by Madam Carroll and then we move on to the finish.

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

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I may be wrong here, Dr. Pearse and Dr. Rounthwaite, but it seems to me we bastardize Shakespeare when we make it an issue of “to enforce or not to enforce; that is the question”.

If we've had this power in regulation, but not in the body of acts, if we have not enforced it, we have not created any precedents. It has sat there. You refer to the Fisheries Act and the violation of fisheries habitat, but I can think of all sorts of instances in the lack of management in fisheries on the east coast, where I come from, where it's never been enforced.

Therefore we really haven't established the precedent. It sits there as de jure instead of de facto. It's sitting there as a potential. A precedent isn't created unless government uses it. Because it's never challenged, it never triggers the civil litigation process or whatever I'm trying to articulate here.

You're saying we've had it in regulation. The big precedent here is that we're moving it out of the regulations and into the body of an act, right? But if we don't use it....

Dr. Peter Pearse: Well, no, I must say I don't think I can quite agree with you on that.

Ms. Aileen Carroll: No, I'm asking you point-blank—

Dr. Peter Pearse: The Fisheries Act is a very blunt instrument. It says no one may disrupt fish habitat. That act has had enormous impact on mining companies, logging companies, farmers, and everyone in this country, people who build highways, other governments. It applies to all land in Canada that has an effect on aquatic habitat.

It would be wrong to say that this has never been enforced and hence has no consequence. The Fisheries Act has certainly been enforced substantially across Canada. Mind you, it's been sloppy in some areas, and I'd be the first to admit that. But that does not diminish the fact that this is a very powerful, broadly applied act—and it's typical of uncompensated federal government regulatory intrusions on private land and other land. It's a very good example of the kind of thing I'm talking about.

Here it says wildlife habitat must not be disturbed. It's very similar, but in this case we're talking compensation. If we took compensation for infringements of the fisheries habitat protection provisions, the cost would be enormous.

The Chair: Thank you.

It is quite clear that we are at least moving towards a consensus as a result of a one-hour discussion, namely that it would set a legal precedent. I'm grateful to Dr. Pearse for having drawn a distinction and having brought out this question of compensation for regulatory intrusion, which had not been at all in my awareness. It is a helpful distinction.

We will certainly make very good use of your interventions at the right movement.

We now move on to—and hopefully will sail through swiftly—the second question, the one relating to whether the compensation arrangement would blunt incentives for landowners to cooperate.

Can we have some thoughts and some comments on this as well from you? Mr. deMarsh moved into this issue a moment ago. We don't want to discuss it to the extent of a theological dispute as to how many angels can sit on the tip of a pin, because it will be difficult to draw the line. But it might be helpful for the committee if you have some personal experiences to bring to our attention on whether this kind of approach would blunt voluntary participation.

Mr. Menzies.

Mr. Ted Menzies: Thank you, Mr. Chairman.

I would suggest that the opposite is true. I don't believe there would be any compensation that would be made available—and I'm speaking from the perspective of a grain producer here—that would ever be equal to the potential of a great crop, when you have the combination of high yield and high price. So why would any farmer settle for less than what he strives for every year—an ideal crop? The farmer would know that no compensation would every meet that, so why would any farmer ever settle for that? Farmers aren't inclined to be that way. They would far sooner gain their money from what they do best, and that's growing a crop.

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We are willing to work with government on potential plans, both for species and habitat, but we need to be included in both the identification process and the recovery process. And once again, I would suggest that cooperative solutions are always better than regulatory solutions.

The Chair: Thank you, Mr. Menzies.

Other comments? Mr. Dobson.

Mr. Bob Dobson: The group I represent believes that the effort to protect and recover species is a continuous process, beginning with voluntary and cooperative actions. I spoke about that before. And those are the kinds of things we've been encouraging our producers to do over quite a period of time. Financial support for farm management practices should be available with the recovery plans, and compensation when other measures are not possible.

You used the example that Jack Horner used. When you have to set a field of hay aside and not cut it, that's not compensation for bad behaviour. Cutting a field of hay at the right time is good behaviour. If you have to leave it for an extra month and you lose half the value of the crop, that's not compensation for bad behaviour; it's bad behaviour to leave the hay. But someone has to make up the difference. It's the whole issue of fairness and equity. A lot of people have gotten bogged down in this for so long, but the polls are all showing that 97% or 98% of Canadians are supporting a good program for endangered species.

We have voluntarily, as I said, tried to help when we can in the past, but we're running businesses and supporting families and paying bills, and we make our livelihood from the marketplace. At any given time certain sectors of the Canadian agriculture economic system are hard-pressed and it's very difficult to absorb any more costs of running our business.

Thanks.

The Chair: Thank you, Mr. Dobson.

Other comments? Mr. d'Eça? Madam Wilson? Mr. Friesen?

Mr. Michael d'Eça: Mr. Chairman, once again this question is framed a little narrowly, in terms of just talking about landowners. For aboriginal peoples it should be framed more generally than that.

I want to point out that many of the comments are with respect to traditional concepts of Anglo-European property rights. Aboriginal rights are often collective rights protected by the Constitution and so on. It's a unique situation that I think the committee has to take into account in any consideration of compensation and stewardship. And it's not necessarily coming out so strongly in this round table.

For instance, the matter of unacceptable behaviour was just mentioned. I don't think aboriginal harvesting practices could be characterized as somehow unacceptable behaviour. Certainly conservation is important and it forms part of the philosophy behind those practices, but that's an inappropriate way to view those kinds of rights and those kinds of practices.

With respect specifically to the question of would it blunt the incentives for landowners to cooperate voluntarily, I think over-generosity on the part of government under the compensation regime, where it would push aside the incentive to go for voluntary arrangements, might be a concern. But that's not very likely. I'd say it's extremely unlikely to happen, so I think these should be looked at more as complementary parts of an overall incentive to protect endangered species.

The Chair: Thank you.

Madam Wilson?

Ms. Peggy Wilson: I want to agree with my colleague from ITC that you have to recognize that first nations people come to this issue from a very different perspective, a very different philosophy. Traditionally, the first nations perspective of the land was that they are part of it, and anything they do impacts on the land. There is such a close connection that they believe it is foolhardy to engage in an activity that could potentially detrimentally impact one's ability to survive. This is a fundamental principle of first nations philosophy.

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It becomes very difficult to regard a question like this and engage in this conversation where we're talking about something very different from, as my colleague described it, the Anglo-European perspective of property rights. The land is not traditionally ours in the sense of personal property; we are part of the land. So in terms of engaging in these sorts of activities, it only makes sense that one would make every effort to protect that land.

First nations have, in many cases, been forced or coerced into a circumstance where they have had to buy into a foreign concept of property rights, so to some degree we end up talking at two different levels. We can engage in the conversation about individual property rights and compensation, but I would suspect if my elders were here they would rather talk about educating the population about how to recognize everybody's best interests, or about voluntarily refraining from engaging in activities where there is going to be a detrimental impact to everybody's best interests. It becomes very complicated when we're talking about instances when someone determines their well-being based on a piece of property, because then the conversation just becomes automatically skewed. It's very difficult to avoid getting into discussions of economic interest and such.

I would agree also with what Mr. d'Eça said, that it's perhaps best to look at these as complementary activities. There are voluntary activities, and I think there are going to be intrinsic rewards from engaging in them. I think certainly that where the individuals who own property have made efforts to engage and protect species on their property, they generally feel a good sense of doing something that's right, and that's laudable. But I think there are also opportunities to use sticks and carrots, and I think this is to some degree what we're talking about.

I would also encourage—and I think Environment Canada has this very much in mind—that education go on here. There has to be involvement of the population to recognize where their best interests lie. I would certainly encourage people to recognize that their best interests lie in trying to get along with the rest of the earth, so that we don't ultimately destroy everything and ourselves along with it.

Thank you.

The Chair: Thank you, Ms. Wilson.

Mr. Friesen, followed by Mr. Peters.

Mr. Bob Friesen: Thank you, Mr. Chair.

I believe it would work much more effectively.... Again I refer to the examples I used earlier: in the U.K., where they do provide compensation, and they've had much better luck with their legislation than in the U.S., where the opposite is true, where they have not provided compensation.

Again I refer you to the example in agriculture and the Canadian Food Inspection Agency's regulation for reportable diseases, where we have seen it work much better.

I believe that society's moral imperative cannot be borne strictly on the backs of a few very specific demographic sectors. We have to realize that farmers, whether they do it voluntarily or whether regulation is imposed on them, must be compensated for affecting biodiversity, maintaining environment and species at risk for the public good. Agriculture is between 2% and 2.5% of the population. If we expect farmers to be part of this legislation—and they will be part of it, as they support this legislation—we must ensure that there is incentive for them to do something that is seen as being done for the public good.

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I believe it would be much more effective if adequate incentives were being paid, as well as compensation, at the end of the day, if there are no other options as regards having to acquire property, swapping land, etc. I think they're both very important parts of the equation. For any efforts made on the part of farmers for the public good they have to be adequately reimbursed. In agriculture, again, 2.5% of the population cannot bear on their backs the full cost of the public good.

The Chair: Thank you, Mr. Friesen.

Mr. Peters.

Mr. Johnny Peters (Interpretation): Thank you for the opportunity.

I would like to point out that regarding the beluga whales we depended upon in northern Quebec, we have had a working relationship with the Department of Fisheries and Oceans. We're trying to put something together as a management tool, because in our region not many animals are left, due to previous overexploitation. With these resources, beluga whales especially, from the early years, the 1800s and early 1900s, there was overexploitation by commercial activity. Therefore, when we're talking about possible compensation, that is really the problem we face right now.

When it comes to the benefit of compensation, in early years, some of you may know, the RCMP killed all the dogs that were used for transportation or hunting in our territory. We have no more dogs. We replaced them with motorized outboards to hunt beluga whales. Those are really noisy machines, so they tend to drive the animals away. We have no alternatives any more. In the matter of compensation, this is a very legitimate reason that we are here.

Don't forget that I, while Inuk, am Canadian.

The Chair: Thank you.

Let's try now to wind it up. Mr. deMarsh, Mr. Rounthwaite, Mr. Affleck, and Mr. McLean—briefly please.

Mr. Peter deMarsh: I've been impressed by the references to the need to view voluntary action and compensation as complementary. There has been a tendency, and it's reflected in the questions we've been asked to address, to view them as an either...or proposition. One of them is good, and it's to be encouraged, the other is bad, consider it a last resort, pay the absolute minimum we can get away with. In particular, the two are viewed as a zero sum proposition: the more you have of compensation, the less you're going to have of voluntary action. I agree with the view that it's exactly the opposite in this particular context. Compensation policy that is perceived as fair by woodlot owners will encourage more, not less, voluntary stewardship. This, as I've previously told the committee, may be counterintuitive. If we were here listening to another interest group argue for compensation, we'd probably be pounding the table and saying to the government, do not pay those folks one cent more than you can get away with.

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What we have to do to unravel this issue and for us to make our case is look at the assumptions that apply in the situation of woodlot owners, and perhaps the farming and ranching community as well. What assumption is the notion that these are opposites based on, that too generous compensation will lead to less voluntary action? I would say it's based on a picture of the land-based business person as somebody who primarily views a situation like this, as an entrepreneur, as an opportunity to profit—if we see an opportunity to make money off this legislation, that will be our primary motive.

The other assumption I think it's based on is that we are absolutely indifferent to the goals of the legislation itself. We can all find cases where that profile would apply. There's no doubt that there are individuals out there who will act exactly as that model predicts. The argument here is that it is not the dominant reality and that the government will be making a tragic mistake if it bases the legislation and its policy on compensation and how compensation relates to incentives for voluntary action on that model.

The correct model, we would argue, is as follows. The majority of landowners want to cooperate, they want to be in Mr. Anderson's partnership. We also want our contribution to be respected by the public. In that sense, compensation is, in fact, as much a symbolic issue as a financial one. When I say symbolic, there's a risk that it may have the effect of trivializing the point. We want to know our contribution is not being taken for granted. Finally, we have to be careful to avoid financial losses that will threaten the survival of our family businesses.

Your judgment has got to be which of these two pictures best captures the dominant reality out in the Canadian countryside. I think it's a crucial decision. As I said, if you base your advice to the government on the first model, the entrepreneurial model, it will be a tragic mistake. How do you decide which is the more correct model? Interest groups are here before you. We are arguing what is in our best interests. Perhaps you can't take it at face value. I previously suggested that you attempt to establish some method of testing through pilot projects, perhaps some opinion surveying. But we really want to stress that you've got a very crucial judgment to make in this regard.

The Chair: Thank you, Mr. deMarsh.

The bell is ringing, which means the vote is called. We'll have to interrupt this meeting in about ten minutes so as to permit members to walk over for the vote and come back. So I hope to wind up this item within the next ten minutes—I invite short comments—so that we can then resume at probably around 11:30. There's only one vote, I understand. Then we can complete our discussion by 12:30 or one o'clock.

Mr. Affleck, a brief intervention.

Mr. Peter Affleck (Manager, Forestry, Interior Lumber Manufacturers' Association): Thank you, Mr. Chairman, and thank you very much for the opportunity to join the discussion.

I represent the forest industry in the province of British Columbia, and as has been said, we are mostly resource tenure holders, not landowners, under authority from the provincial government. Dr. Pearse has recommended in his report to the minister that compensation should extend to resource tenure holders, not just landowners, as is expressed in questions one and two.

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We expressed our support for the intent of cooperation in the bill when we submitted to the committee, and to make my comments brief, our interest is remaining in business. We need timber at an affordable cost in order to do so. Cash or some other form of compensation is not likely to achieve those goals for us. We are much more interested in finding a way to protect species at risk while being able to carry on business. Thus we have a built-in incentive to avoid circumstances that would in fact lead to compensation and to work toward cooperative and voluntary, hopefully, stewardship-type arrangements.

Thank you.

The Chair: Thank you, Mr. Affleck.

The next one up is Mr. Rounthwaite.

Prof. Ian Rounthwaite: This is a very minor point, but in clauses 11 and 12 the authorization for the minister to enter into agreements seems to be limited by its language to entering an agreement to deal with a single species, not a multiple of species. The committee might want to consider that.

The final point is it would seem to me that whether compensation will blunt voluntary measures depends in large part on how inviting and accommodating those voluntary measures are for people to participate. The essence of voluntary measures under the bill, to my mind, is recovery and action planning processes, both of which impose a statutory obligation on the minister to consult. Yet the bill is absolutely silent with regard to any kind of process or procedure for consultation with first nations, individual landowners, territorial governments, and others. The committee might want to think about whether there should be some process in place to make recovery and action planning consultation as accommodating as possible.

The Chair: Thank you.

Madam Carroll.

Ms. Aileen Carroll: Mr. Menzies, I wonder if you would like to comment, because you spoke so clearly and so well at the outset about how stewardship was the flagship and compensation was sort of the residual. Do you have any comments on this? I don't mean to put you on the spot.

Mr. Ted Menzies: No, that's fine. I work well under pressure. I'm a farmer, and, believe me, farmers have been under pressure with the weather lately, drastic one way or drastic the other way.

Anyway, further to Mr. Rounthwaite's comments, we agree wholeheartedly with that. If we're going to be part of this process, and by default we are, we need to be included in the whole process. We will be part of it. We'd love to be part of it. We have done this for years. Our grandfathers and fathers did this. That's why some of those species are still here. And we are talking about fish, birds, plants, and the whole thing. I agree wholeheartedly that we need to be part of the process, and we are very willing to be that.

The Chair: Thank you.

We'll now go to Mr. McLean.

Mr. Robert McLean: I'd like to very quickly reply to the questions posed in the document.

I don't think the compensation arrangements under the bill would in fact compromise stewardship and incentive programming. I think, though, that the matter has to be carefully managed. It's important to avoid the notion of entitlement around compensation. It's equally important to avoid compensation programs that provide more funding than might be available through the incentive programs, as Michael alluded to earlier. I think those two sorts of situations could compromise stewardship efforts. I'm a huge advocate of stewardship, and I think we spend too much time talking about compensation.

I think it's really important to remember that the frequency of using this regulatory restriction is going to be very low. The reason it should be low is because the instrument is very blunt. It doesn't allow us to actually manage habitat. So it's not going to be very effective for conserving the species we're interested in. Even when we might use the regulatory restriction, by definition nothing changes in terms of the way the land was managed. If it's a farmer with ten acres of woodlot in the back that has an endangered species and the rest of the farm is being used for annual crop production or forage production of some sort, by definition the endangered species was already there, so there's no reason the farmer couldn't continue to farm the rest of the land in the very way that had been ongoing at the time. So I think the regulatory restriction may not in fact result in a loss either in the value of the land or in the net income of the farmer.

There will be situations where there is a loss. I'm not suggesting for a moment that won't happen. But the frequency with which this issue might arise does not warrant the attention that's being given to the issue of compensation. I think compensation is in the bill in the symbolic way that Peter alluded to earlier. It's very important to send a signal to people who might be affected by a regulatory restriction that their needs won't be forgotten.

The Chair: I hear emerging out of this discussion the word “complementarity”.

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Dr. Pearse, would you like to wrap it up with your observations? Then we will suspend the meeting.

Dr. Peter Pearse: I think this has been a very good discussion. I don't have a great deal to add, Mr. Chairman, except for one thing on the incentive effect of compensation. I agree with everything that has been said about the fact that most of our farmers, woodlot owners, timber companies, and so on want this thing to work. At least that's what they've told me across the country. They're quite willing to cooperate. Indeed, virtually all of them favour the cooperative stewardship system as opposed to compulsion and compensation.

Having said that, there will always be difficulties. All of these groups are human beings, and there will always be at least a small number who will not cooperate and a small number who will pursue the money. So to the extent that you do offer compensation, there's no question that you lower to that extent the cost of not cooperating.

All I'm saying is that it's a matter of degree. If you offer generous enough compensation, you will get people who will shoot for the compensation and not the cooperation. I'm saying don't carry the argument too far that all people are of goodwill and will do the right thing regardless. Incentives do work. All I'm suggesting is that in the design of this thing there has to be at least a subtle recognition that people are human.

Thank you.

The Chair: Thank you very much.

We have to go for a vote now. When we come back, we'll reverse the order. We'll deal first with question number four, and then in whatever time is left we'll deal with question number three. It seems to me that question number four is the more complex of the two, and I wouldn't want it to be left to the end when people have to leave to go to meetings or for other reasons. So when we come back, I will reverse the order and invite interventions.

Mr. Mills wants to make a brief point.

Mr. Bob Mills (Red Deer, Canadian Alliance): After listening to this, I'd just like to say that not having compensation spelled out in the bill—in other words, having it just in the regulations—seems to me to be too much a matter of “trust us”. Certainly for the farmers and ranchers I've been talking to, the trust level isn't all that high. Why shouldn't it be right in the bill, as opposed to just in the regulations?

Dr. Peter Pearse: I don't think I have very much useful to say on that question, other than that it gives the government an opportunity to be more flexible in the face of launching a rather new program. But beyond that I don't have anything to add, Mr. Mills.

Mr. Robert McLean: Could I ask a question for clarification purposes? Do you mean the bill should be silent on compensation or that there should be more detail in the bill?

Mr. Bob Mills: I'm asking whether there should be a bit more meat and it should say “will”, not “may”; that is, there will be compensation if all of the other things fail. I think it's a bit too fuzzy for most people.

Mr. Robert McLean: I appreciate the fuzziness. As somebody who has been involved with habitat conservation across this incredibly large country we have, I think it's very difficult to begin to put detail into the bill. The risk then becomes that we develop a program that's not responsive to the regional differences across the country. I think this program is going to look a little different in prairie Canada from Carolinian Canada, B.C., the Atlantic coast, or the north. It's going to look different everywhere.

My one cautionary note is that we would have to figure out the actual details to be added to the bill. In terms of “may” or “will”—

The Chair: Maybe, Mr. McLean, that would be a good question for the question period this afternoon.

This meeting is suspended until we come back.

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• 1150

The Chair: All right, ladies and gentlemen, thank you for your patience, indulgence, understanding, comprehension, and other nouns.

We are resuming now, and as suggested, perhaps we should tackle question number four, because it seems to me it is more loaded than question number three. I hope you agree. It's a question of the balance between flexibility and certainty—whether the eligibility criteria and the compensation formula proposed in the paper by Dr. Pearse achieve a desirable balance. It may be that we are pursuing here something extremely difficult and elusive, but nevertheless let's give it a try.

I welcome Nicole Howe, if I can read correctly. She is replacing Mr. Friesen.

Dr. Pearse, would you like to perhaps launch this discussion?

Dr. Peter Pearse: You're speaking about the balance between inadequate and over-generous compensations.

The Chair: Yes. About flexibility and certainty; about how to go about devising the compensation formula.

Dr. Peter Pearse: I could make a brief opening comment, if you'd like, Mr. Chairman.

My task in making these recommendations, first of all, was to make recommendations that would be most complementary to the general intent of the legislation as it's written. My task was not to recommend any changes in the legislation.

The way the legislation is written speaks of the discretion to the minister to make compensation in cases of extraordinary impact, resulting from the application of these restrictive measures on people's land.

I was pressed heavily to define what “extraordinary” is. To make a long story short, I ended up suggesting that extraordinary could be interpreted by an impact that would remove in excess of 10% of the value of someone's property.

Without going into that any further, the next question was, having met that threshold then, how much of the damage should the minister compensate? For the purposes of determining that, I investigated the experience in terms of precedents to move along on. As I've already said earlier this morning, this was very limited, but there were some in the United States and elsewhere.

I came to the conclusion that, in starting off on this venture, a good starting point would be a 50-50 break. In other words, the crown would contribute 50% of the loss exceeding 10% of damage resulting from the application of this legislation.

So that's the formula. It's clearly one that has an element of arbitrariness in it, but it does move in a substantial way toward sharing the cost with the crown, with the public, with the taxpayer, of the damage that private property owners incur as a result of this legislation.

I also bore in mind that this legislation has in it a provision for review after five years. Again getting back onto our earlier discussion about pinning things down in the legislation in details—that was one of the last questions before the break—I should have said that an argument in branching out on something as new as this is that a five-year review provides a good opportunity to fine-tune all of the decisions that are made and put in the legislation at this stage. I would recommend again a cautious but nevertheless substantive move toward sharing the burden with the taxpayer. And so we end up with this formula.

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Thank you, Mr. Chairman.

The Chair: Thank you very much.

Look, let's jump right into the heart of the issue and give the word to Mr. O'Ferrall, who, from his facial expression, I gather has some thoughts in mind that could add an interesting fire to the discussion.

Mr. Brian O'Ferrall: Thank you, Mr. Chairman. I have provided—unfortunately I didn't get it translated—some suggestions for the regulations that might follow and indeed for the legislation.

I didn't feel limited by the present wording of clause 64. But I have a couple of things. My suggestion would be that clause 64 does require amendment, as has been suggested. There shall be fair and reasonable compensation to a landowner or a resource owner who suffers real losses—we're talking real losses here—and incurs real cost as a result of the impact of a prohibition of the Species at Risk Act.

When I say fair and reasonable, I'm talking fair to the landowner and reasonable to the taxpayer, and this compensation should be determined by an independent and impartial tribunal. If it's to be extraordinary compensation, fair enough, but let's not try to talk about 10% or 50% or anything like that. Let's let this independent and impartial tribunal determine what constitutes an extraordinary impact, if that's the way you want to go.

I've set out in my paper the eligibility for the compensation where the claimant would be required to establish that he had an otherwise—and I take this from Mrs. Carroll—“lawful and permitted” use of his land; not just lawful, but permitted. In other words, he's now sitting there with whatever permits he needs from either a regulatory board or a municipality to do what he wants to do, and he is now stopped by virtue of the Species at Risk Act.

I have also set out the principles of compensation, and they're not unlike the kinds we see: reduction in market value of the land—this is likely to be an outcome; less likely of course is where the prohibition amounts to an expropriation, namely, the entire market value of the land—loss of use, loss of income as a result of the impact of the prohibition, disturbance, damages, adverse effect on the remaining lands, etc. These are all well-known in law.

These principles of compensation have been around for, give or take, at least a century in this country, and I think they're the way to go rather than....

If I could talk about the 10%, as I indicated to the committee the last time I was here, I've probably done hundreds of expropriation compensation hearings. As a result of a set of circumstances, we in Alberta do lots of them, probably more than anywhere else in the country. If I get two appraisers coming in with appraisal reports on appraising compensation or appraising the value of the land and they're within 20% of each other, they're essentially equal appraisal reports. Now, I appreciate it's more than 10%. But you're never going to be able to isolate a 10% reduction in market value. It just isn't going to happen.

There are some practical problems associated with the 50%, the 10% rule. It's clearly unprecedented, if we're talking about unprecedented. It has no basis in law. If you decide that it's going to be extraordinary impacts—I don't think it should be—why wouldn't you simply say to an independent impartial tribunal that is going to determine that—and you'd say it in the legislation—that they're to award compensation when they consider that the prohibition is an extraordinary impact. The beauty of that is it will allow for a bit of flexibility over time, for some changes in changes of circumstance, and for these very real situations.

We talk about stewardship. We talk about conservancies and such. I have big clients—big landowner ranching clients—who have given away their land essentially to conservancies. Now, they can afford that. That's fine, if they want to do that. That's philanthropy, etc. But I also have some clients who...if you take 10 acres, which was mentioned this morning, out of a quarter section, that 10 acres, after his costs and everything like that, is what's paying for the education of that farmer's kids. You don't realize—and we're not talking tremendous compensation here—the potential for this kind of prohibition to affect a landowner or a resource owner or for that matter a woodlot owner. Thanks.

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The Chair: Thank you, and also for the paper that is now being circulated, which you so kindly prepared. Your theme is very seductive.

Dr. Pearse, would you like to comment on the proposed alternative?

Dr. Peter Pearse: Well, I don't want to dispute with an expert, but I have, and indeed this committee has, heard from the ecological gift program people, have you not? They gave you the results of a review of an expert panel, with recommendations about how to do this for a program that's very similar to this one.

My recommendation was to adopt that system—their system—to avoid creating something new. I was satisfied that the procedures the Canadian ecological gift program used were fair and reasonable and did what we wanted them to do for the purposes of this too. So I recommended we use that system. They seem to be quite, if you recall, sanguine that their system could handle not only the Species at Risk Act compensation provisions, but also with the formula I had recommended.

I don't mean to dispute my colleague, but I must say that I'm of the impression that the compensation formula is practical and implementable and could be done under the framework of that set-up for the ecological gift program.

The Chair: Now we have a foundation for a good discussion.

Mr. O'Ferrall, Mr. Rounthwaite, Mr. Mills, and then Mr. d'Eça and Madam Wilson.

Mr. O'Ferrall.

Mr. Brian O'Ferrall: I read Dr. Pearse's paper with interest with respect to the ecological gift program. I retrieved the document that he referred to in his report. The ecological gift program is a 75% exemption from the capital gains tax when you give land away to the government for an ecological preserve. That's not what we're talking about here. What we're talking about is the impact of a prohibition on Mr. deMarsh's woodlot—the cost and the losses he's going to incur. And assuming they're “extraordinary”, he needs a scheme of compensation. He doesn't need an ecological.... He's not giving his woodlot away to the government and asking for a 75% capital gains reduction. He's saying “I need to be compensated for some real live costs and losses.”

The Chair: Mr. Rounthwaite.

Prof. Ian Rounthwaite: Well, I'm not as deferential to my colleague as Dr. Pearse was. Where does Mr. O'Ferrall get his model from? He gets his model from the Surface Rights Act of Alberta, which has been in effect for decades now. Who does the Surface Rights Act apply to? It applies to largely the resource sector. So who is paying compensation for impacts in Alberta under the Surface Rights Act? Not the taxpayer. It's the resource industries that are paying compensation, and they can pass those costs of compensation on to the consumers who buy their products as a cost of doing business. For species at risk the government can't pass on those costs to consumers—the taxpayers—as the resource companies would do.

I do agree with him though that the 10%, the 50% rule, seems rather arbitrary, as Dr. Pearse concedes. It seems to me, if we are going to set a new precedent, then we should set a precedent that is a principled precedent and not one that is subject to being arbitrary.

I would recommend that we look to the jurisprudence in Canada with respect to de facto expropriation.

• 1205

We look to the jurisprudence in the U.S. with respect to the economic beneficial use tests, and we can get principled criteria from those sources. We can put together a series of factors that the minister should weigh in determining whether or not an impact should be classified as an extraordinary impact. I don't think we should ignore the wording of clause 64 as it now stands. It requires an extraordinary impact, and I think it should stay extraordinary. We are setting a precedent.

How should the minister determine that? He should weight things like the degree of harm to the critical habitat of a species at risk that will occur if it is not prohibited by critical habitat regulation; the socio-utility of the applicant's use of the land; the historical use of the land; proposed future uses; and general principles of equity—to what extent has the person claiming compensation willingly and voluntarily participated? When you weigh those factors, the minister makes a judgment. Was this extraordinary? If so, I would say, having found these losses are extraordinary, there should be 100% recovery of all extraordinary losses.

The Chair: Mr. Mills has a question, followed then by Mr. d'Eça, Madam Wilson, and Mr. Affleck.

Mr. Bob Mills: Dr. Pearse, I think you and I have talked about this at length before. Your recommendations have become somewhat of a negative battle cry against Bill C-5. Largely, a lot of people—smaller people, the farmer out there trying to feed his family—are saying they can't afford to lose 9% of their land for productivity. The 50% are asking why they should absorb 50% while the rest of Canada benefits and only pays 50%. I just think you can't justify those two numbers. I think people can agree with most of your report, but those two numbers have focused people in a negative way on this whole issue.

Also, I don't hear any of you mentioning the socio-economic aspects of what's going to happen here. We can go so far as to say there may even be a species you can't save, because the socio-economic impacts would be so great. After all, those are trade-offs you just might have to make at some point.

I don't know how we can change that, except, as Mr. O'Ferrall says, we must have in there that it's not a matter of the will of the government—maybe they will do it and maybe they won't. It's got to be in there. The actual details can be in the regulations, that's not a problem, but somewhere you have to deal with the fair market value of whatever you're taking away from that guy on the ground, who's trying to feed his family. That's kind of the bottom line.

I see this being as big as the gun control legislation for many farmers, and so on. It's that big an issue, and can flare up to become that big an issue if we don't handle it right.

The Chair: Thank you, Mr. Mills.

Dr. Pearse.

Dr. Peter Pearse: Thank you, Mr. Chairman.

I would like to respond to Mr. Mills' points in particular. When I did my investigation and talked to provincial governments, farmers, timber companies, and others all across the country, one of the most consistent pressures that was put on me was to remove ambiguity from this act. To the extent that we could clarify what extraordinary means, I should do it. Everybody asked me to do that. They even talked about what percentage was an extraordinary percentage of the value of the land that would be justifiable as extraordinary in this sense.

So I think the world out there wants a percentage number they can count on that is consistently applied everywhere. Farmers and others have repeatedly said, “We want to make sure this is going to be applied consistently, so please help us clarify what extraordinary means”. I would be very worried about tinkering with it. Tinker with the percentage, if you want, but make it clear what extraordinary means in terms of a percentage.

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Incidentally, if you look at the precedents of this case, which are mostly in the United States, five U.S. states have experience with this, and they all have a percentage.

The second point I want to make is that to many people, 50% is meagre. I admit it's 50% short of 100%, but the point is, it's generous compared to all of the other regulatory interventions governments make on private property. It is a substantial change in government policy, to start compensating people for these kinds of regulatory interventions. We have to remember that. Also remember to be cautious. We don't know how much all this is going to cost.

Finally, the most important thing I want to emphasize about the niggardliness of this allowance is that everything in this legislation, if it's going to work the way everybody wants it to work—and everybody wants the voluntary aspect of it to work; the cooperative stewardship system—and you want to keep that system intact and make the alternative of mandatory regulation rare, don't offer too generous compensation, in case you have to resort to that.

Let me leave it at that.

The Chair: Thank you.

Mr. Mills, it's for you to decide whether you come down on the side of the taxpayer or the landowner, in a way.

Next is Mr. d'Eça.

Mr. Michael d'Eça: Thank you, Mr. Chairman.

On my preliminary response to Mr. O'Ferrall's idea of the independent and impartial tribunal, whoever ends up determining compensation for aboriginal peoples has to be familiar with aboriginal culture and circumstances. Once again, as an example of the unique situation of aboriginal peoples, what does it mean to Johnny Peters here to be restricted in his ancestral beluga hunt? That's the sort of information the tribunal should be aware of.

At the beginning, when Dr. Pearse laid out his eligibility criteria and compensation formula, he didn't mention that a significant portion of his report looked at the situation of aboriginal interests and recognized the unique character of aboriginal interests in lands and resources. That very much impacts on how you would apply the eligibility criteria and compensation formula. I would argue it would change it for aboriginal peoples.

I would like to take just a couple of minutes to run through a few of his observations or recommendations. He said aboriginal groups were justified in their fear that without a special effort to make their access to compensation funds simple, non-technical, and transparent, they would be at a disadvantage relative to other claimants.

He said the federal government needs to negotiate a clear understanding with aboriginal people about how their cooperative relationship would be organized and how it would operate. This accord should be given high priority, and every effort should be made to have it in place by the time SARA is enacted.

He said, to respond to the special circumstances of aboriginal peoples, the compensation provisions should put greater emphasis on the following—in other words, this formula he has laid out should take into account that aboriginal and treaty rights have a higher value than other forms of rights; and careful account should be taken of cultural and sustenance values aboriginal people derive from their land and resources, as I was just talking about.

He said special effort should be made to identify opportunities for compensating losses of benefits, in forms other than money. The procedures for applying, negotiating, and so on, should be as simple and straightforward as government due diligence permits. Finally, every effort should be made to maximize aboriginal participation in any resulting projects, so they're not only compensated for their losses, but can also benefit incidentally from the process of compensation.

I'll finish by saying that in my view, Dr. Pearse's eligibility criteria and compensation formula need to be modified, as they apply to aboriginal people. He talks about considerable uncertainty over the legal character of certain aboriginal interests. Therefore, it's unfair to set the initial threshold for access as a recognized legal interest. Government has to sit down with aboriginal peoples and work out the threshold for entry into the compensation regime.

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The level of compensation—and we were talking about this 10% and 50%—should be higher for individuals who are less able to absorb a particular loss. A poor trapper or a beluga whale hunter, whose financial situation, under optimum conditions, may already be fragile, should be subject to a different threshold.

Certainly, as I mentioned, the independent experts in property evaluation, which Mr. Pearse talks about, would determine the value of a loss. For an aboriginal person, you're going to run into problems. It has to be carried out by someone, or in concert with someone, intimately familiar with the cultural and social context of that loss. I'll leave it at that. Thank you.

The Chair: Madam Wilson.

Ms. Peggy Wilson: Without going back over the ground my colleague Michael d'Eça has just covered, recognizing the strengths of Dr. Pearse's report with respect to aboriginal issues, there are elements of that report that we do agree with. Michael has gone through a list of them, and we certainly appreciate the effort by Dr. Pearse to at least gather some input from aboriginal people on that issue. We would encourage the committee to consider those elements that apply specifically to aboriginal people quite favourably.

There's also a couple of issues we're not entirely comfortable with. Without having an opportunity, first of all, to examine the issues a little more carefully from the aboriginal perspective, and to engage the federal government in some further discussion with that, it's going to be difficult for us to specifically comment on them.

It's always the wise man who recognizes places where he's not so wise, and I appreciate that from Dr. Pearse. He did recognize that there are aboriginal concerns here that he didn't feel comfortable engaging in, and he wasn't able to give a fulsome answer with respect to those issues.

The Chair: What would be the conclusion of the wise woman?

Ms. Peggy Wilson: Are you requesting that I stop?

The Chair: No, but what would be the conclusion of the wise woman?

Ms. Peggy Wilson: Let me offer a couple of them. In this circumstance, where there is a recognition that the value lost would be the 10%, our question is whether or not that is purely an economic loss. In the case of aboriginal peoples we would encourage the committee to consider that it also include cultural, religious, spiritual, and sustained values, and those are going to be very difficult to quantify.

Again, we're talking apples and oranges between a property concept that is not generally shared traditionally by aboriginal people, by first nations people. We don't look at the land as how much profit one makes from it, but from the totality of its qualitative value. So it's going to be very difficult if we just engage in a monetary exchange for the property. We would certainly encourage consideration of land swaps or an opportunity to look at other avenues, and I don't know what those might be.

I'm also concerned about the numbers being considered here, the 50%. There is a decision of the Supreme Court of Canada you may be familiar with, the Glass and Musqueam case.

Aboriginal reserve lands were quantified as being worth half the value of other lands in this country. If the 50% was applied to aboriginal lands, does that mean aboriginal people, first nations people, would receive a quarter of the value of a reserve land, compared to their neighbour next door? I know there's legal disagreement about the interpretation of that case, but I just flag that as a concern.

So being the wise woman I am, I'm going to leave it there, but I may engage further. Thank you.

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The Chair: Mr. Affleck, followed by Madam Redman and Mr. Roth.

Mr. Peter Affleck: In my reading of Dr. Pearse's report, he came up with three very basic principles that we believe need to be clearly and precisely enabled in the bill.

Those three principles are: that the compensation procedural rights belong not just to landowners but to resource tenure holders as well; that compensation be based on fair market value; and, as Dr. Pearse has just said, there needs to be clear procedural protection for those whose rights have been impaired by some enactment of SARA.

Having discretion in the legislation will not accomplish that. The word “may” is of great concern. I'm not a lawyer—

Ms. Aileen Carroll: You don't need to be.

Mr. Peter Affleck: Good. There may be lawyers in the room who can answer this question, but I'd like to put out a question to the round table. If there is discretion in the legislation, does that preclude or make difficult an obligation in the regulation?

I have talked to some counsel about this, Mr. Chairman. If in fact there is that discretion in the legislation, it does make obligations in regulation very difficult. My sense is that if you can enshrine clearly, enable those three principles in the legislation, it would be preferable to leave a lot of the...how the compensation package works and how do thresholds get established, what is the balance.

Everybody recognizes the need to have structure there so you don't create perverse incentives to jump into compensation, but leave that in regulation, which then can be much more adaptive than the legislation piece itself might be.

I wouldn't mind if there is somebody who can answer the question about the relationship between legislation and regulation.

The Chair: You've already attempted to answer it, and I would agree with your conclusion. I don't think we want to open up a discussion on that topic because I don't think we would arrive at a very clear answer to your question, which is very relevant and extremely difficult to answer. I think your instinct is fairly sound, and the answer you gave earlier is one I would concur with.

Madam Redman.

Mrs. Karen Redman: My comments are very much along the line of what Mr. Affleck just touched upon. Compensation for restrictions of land use is clearly very complex. Environment Canada has actually engaged further analysis, as it works out the policy options for regulations. There are three experts in land assessment and evaluation who have been engaged to provide advice on it.

Certainly, Dr. Pearse, you talked about a desire to remove ambiguity as you did your consultation for work on the species at risk legislation. It seems to me quite clearly that we could have the situation where we're dealing with things on a case-by-case basis, which is exactly the point Mr. Affleck is making, which is why it needs to stay in regulations. You may have to deal with each species, each recovery program, as unique. To me it is a great point for saying that it needs to be in the regulations, despite the fact that may make it less clear to some people than they would desire.

Mr. Peter Affleck: As long as there's procedural fairness that enables it in the legislation, yes....

The Chair: There are advantages to the kind of regulatory process Mr. Affleck referred to. The disadvantage is that they are conducted in a room and the writers of the regulatory rules, so to say, are not accountable to Parliament or to the public until a special committee or a specific standing committee of the House catches up with those regulations and decides whether they are really implementing the intent and the spirit of the legislation. There is a big gap, a big span of time between the writing of the regulations and then a review by Parliament, which may take place several years after.

You have advantages and disadvantages in leaving the exercise to the group in a room, consisting of well-intended people who are not directly accountable.

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Mr. Roth.

Oh, sorry, you haven't completed.

Mrs. Karen Redman: I actually was wondering if Dr. Pearse envisioned a case-by-case kind of scenario when he did his piece, and I'd also ask everybody here if there's some comfort in the fact that there is a convening of a round table 18 months after the legislation is proclaimed, and then a five-year review, to speak to some of the concerns the chair has just raised.

Dr. Peter Pearse: Every instance we're concerned with here, kind of a last-resort invocation of restrictive regulations and then the whole business about the possibility of compensation, would of course have to be done on a case-by-case basis.

I think what we're talking about here, though, is the rules that would be followed in pursuing those cases. I think Mr. Affleck's thoughtful suggestion was aimed at making sure every case that was brought to bear here would be treated according to some procedures that would ensure fairness.

I have to tell you, there are a lot of people out there who think we should handle small farmers differently from big farmers, or woodlot owners differently from timber corporations, and so on. It's very easy to get drifted off into those kinds of lacunae, of consideration of special things, but generally speaking, I think Mr. Affleck's suggestion was that we could at least put in the regulations some kind of procedural principles that would make sure of consistency of treatment. I must say, that makes some logical sense to me.

Mr. Peter Affleck: In the legislation. You said “in the regulations”.

Dr. Peter Pearse: Did I? I'm sorry, I meant to say legislation. Thank you.

The Chair: Thank you.

Mr. Roth, please.

Mr. Dwayne Roth: Thank you very much, Mr. Chair.

I'm with the Métis National Council, and of course, the Métis people in Canada are a landless people, so I certainly can't speak for landowners on this particular question. And I don't intend to get into the question of the 10% threshold, and so forth, as it relates to landowners. But as it relates to the question of principles of fair compensation with respect to aboriginal people in general and the Métis people specifically, I'd like to first comment on Dr. Pearse's report. It seems to me that the report is vague in terms of how this is going to apply to aboriginal people, which is not necessarily a bad thing.

My question to you, I suppose, is whether or not you envision the 10% criteria and the 50% evaluation for compensation as applying to compensation for aboriginal peoples as well.

However, we want to make it very clear that the Métis National Council certainly supports the principles as contained in Dr. Pearse's report for compensation of aboriginal people, on page 29, higher value than other forms of rights, and so forth. I won't get into them all. You can all read them, and probably have.

For us, the focus is still on voluntary stewardship initiatives, not on compensation. These are on lands where Métis people hold a constitutionally protected interest in the particular lands.

We have to remember that Métis people are unique aboriginal peoples in Canada. We have been the forgotten people, probably from November 17, 1885, when Riel was murdered, to 1982 when we were included in the Constitution. Presently we are still far too often just lumped in with other aboriginal groups.

At present, we don't have reserve lands, but we do have a number of precedent-setting cases that deal with Métis rights of access to lands for harvesting, hunting, fishing, gathering, that type of thing. The Powley case in Ontario is a recent example. So we do have established case authority to back up our claims that we have historical lands that we have access to.

What I want to point out today is that Métis people have specific issues, specific concerns, specific rights, and specific land territories that are different from other aboriginal groups. Our focus is on voluntary incentives. In either event, voluntary incentives or compensation, whatever regime we propose, they must apply not only to legal title lands, like reserves and land ownership lands, but also to traditional harvesting territories for all aboriginal people, including the Métis.

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In terms of what the threshold is and what the numbers are, the 10% and the 50%, from my reading of the report I don't think you intended for it to apply to the discussion on aboriginal people. It wasn't clear, but I don't think it applies. You talk about other principles, and so forth.

I think the parameters for any compensation package should be defined in the accord between the government and aboriginal governments that we're currently working on with the aboriginal working group on species at risk, and further to that, they should be specifically set out in the regulations at the end of it.

We can work with the permissive wording in the section of the act as it is right now. It allows the minister to do all these things. We don't need to change any of it, but we do have to put that down somewhere to give ourselves some peace of mind. The accord is a good place to do it politically, and the regulations are the place to actually set all this stuff out.

I like the idea of the principled approach, particularly for aboriginal people. If the government says, we're going to prohibit you from access to a particular piece of land, I don't think we're going to be able to say that we value the loss at 10%. How do you value a cultural loss at 10% of the value of the property? You can't.

So I like this idea of the principled approach, and I think we can work towards perhaps some principles in the accord and in the regulations so that we can give ourselves some peace of mind again to say, if these occur, then it will trigger the compensation, and so forth.

The Chair: Thank you, Mr. Roth.

Let's now work towards wrapping this theme up, if we can, so that we move to the last item.

Mr. Rounthwaite, would you like to make an intervention?

Prof. Ian Rounthwaite: I would like to make a comment about what Mr. Affleck said. I'm a little bit troubled by what he said when he referred to his three principles, one of which was that losses should be based on fair market or full market value.

To me, that's an allocation of risk away from the resource extraction industry to 100% risk on the taxpayer. It seems to me that these are public resources, be they forests, oil and gas, or rights of way and easements over land for pipeline companies granted by provincial and federal governments. They are public resources, and for that, industry pays a price in the form of a royalty.

If that contract or property right is rescinded in the interests of this act, it seems to me that's a rescission issue, and the law of rescission says that when a contract is rescinded, you return the parties to their original positions. You don't give them future expectation losses or profits. You return them to their original position by paying them out-of-pocket expenses to make them whole.

The Chair: Mr. Menzies, please.

Mr. Ted Menzies: I think Bob was ahead of me.

The Chair: I'm sorry. Mr. Dobson, you're next.

Mr. Bob Dobson: I have a couple of points to make, and one of them was made earlier.

It's that last 10% of our land or the last 10% of our operation that we really depend on to provide the net income each year. If we lose that 10%, it would be off the top. We'd get down to maybe no net income left.

When we're talking about a $20,000-a-year income and it's affected by a 10% loss, that's $2,000. The first $10,000 is set aside, and we pick up $500 in compensation. That's 25%. That's completely unacceptable. I know it's completely unacceptable to agriculture, to farmers and ranchers, and it's going to destroy a lot of goodwill.

I've heard the comment that if the compensation is too rich, then everyone is going to want to go in that direction rather than the stewardship direction, but I cannot see that. We have not been able to determine, in talking to people across this country, that any farmer would want to go in that direction. There would be forms to fill in; it would be cumbersome. It would be much better to go the stewardship route.

So the compensation has to be there, and if it isn't, it's going to cause a lot of ill feelings and bad will, and people are not going to want to get on board.

We're talking about a whole range of species, not just endangered species. It's species we've looked after for years and years, and included in that are endangered species too.

But some of these comments or ideas really concern me, that we're going to lose a whole lot that has been gained over the last 30, 40, or 50 years.

The Chair: Thank you.

Mr. Menzies.

Mr. Ted Menzies: I will be brief, Mr. Chairman.

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We, as landowners or leaseholders, want nothing more than fair compensation. As I stated before, we want to grow the best crop we ever could on our farm land, and we don't expect that sort of compensation. We would call that an extraordinary crop. We wouldn't want, we wouldn't ask for, that type of compensation. All we're asking for is fair compensation.

If I as a landowner am expected to forfeit 50% of any parcel of land, then every taxpayer in this country should take 50% of their wages for 10% of their working year and forfeit that also. There's no difference. If I as a landowner am being asked to contribute that, then the taxpayer should be asked to contribute the same thing. We feel it's not fair. The numbers in here are not fair. It should be at market value if it is taken out of production totally, but fair compensation is all we would ask.

Mr. Bob Dobson: One small point I forgot to make is that farmers are taxpayers too. This is double-dipping into farmers' pockets to cover this program. We're already paying our taxes like anyone else. Hopefully, we have enough income to pay taxes on.

The Chair: We have to relinquish the room at one o'clock.

Mr. deMarsh, followed by Madam Howe.

Mr. Peter deMarsh: I'm going to leave this session with a real sense of regret, perhaps even failure, that we somehow have not been more successful in combatting the view that compensation, especially the overly generous notion of it, is in conflict with voluntary action.

I want to make two quick points. There are many examples across the country, both in cases of conventional expropriation, highways and so on, and land use regulation where approaches to compensation that are viewed as unfair cause landowners to turn their attention and their efforts from cooperating, being good citizens, to seeking legal recourse that will reduce the financial pressure they are now experiencing. I mentioned examples earlier last month. This is not hypothetical. It's not an attempt to seduce the Government of Canada into paying us for something that we, if we were more ethical, would be doing because it's the right thing to do. It's about financial pressure and how people whose livelihood depends on the land will react to perception of that pressure.

If the notion of compensation is problematic in respect of precedents and so on, call it something else. We don't care what it's called. Call it sharing the cost between landowners and the public. It doesn't matter what it's called. It's not fundamentally a property rights issue of principle here; it's a pragmatic issue.

Further, if the preoccupation continues to be great nervousness at a trade-off between too much compensation and too little voluntary activity, there are other trade-offs the government needs to consider as well. I'm thinking of the cost of enforcement. That hasn't been raised yet, but believe me, there are plenty of experiences that show that where landowners cannot be engaged in a process on a cooperative, voluntary basis, and the government is intent on ensuring that the legislation succeeds, the cost of enforcement will increase.

What the landowner folks here are attempting to say to you is, you've got a choice: either put the money into the partnership between government and landowners that the minister referred to a year ago, invest the money there, or face the prospect of a considerably greater cost of enforcement.

The Chair: Thank you.

Ms. Howe.

Ms. Nicole Howe (Policy Analyst, Canadian Federation of Agriculture): Thank you, Mr. Chair.

I'd like to reiterate some sentiments that have already been expressed here today. Farmers see that their covering 55% of the cost of protecting species is just unfair and unjust. That would be half of 90% on top of the 10%.

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I would also like to say that we are calling for full compensation, and that should include issues such as inputs, their use to grow a crop. Not only should they be compensated for the price of that crop, but there are also seeds, pesticides, fertilizers that are purchased to produce that crop and should be taken into consideration as well.

I know we don't have a lot of time to cover other issues, but looking at alternatives to compensation, such as land swapping, I'd like to say that if those alternatives are used, there must be clear guidelines, and the swap must be mutually agreed on by the landowner and authorities. If there is no agreement, then we would look at compensation in monetary terms.

There's been some talk about the balance between stewardship incentives and this compensation issue, and I know Mr. Friesen, before he left, wanted to raise this point. There's a little uncertainty or a lack of clarity as to how the system would work. Take, for example, the case of a farmer who wants to cut hay, but that would interfere with, say, some bird's nest or an endangered species' nest. If he enters into a voluntary agreement not to cut that hay, I'm assuming he would receive money as an incentive. Perhaps he feels that he really needs to cut the hay, that what they are asking is an extraordinary circumstance, so it comes to a situation where regulations are imposed, and then a compensation scheme falls into place. Would what that farmer would receive as an incentive payment be taken into consideration for compensation? I'm not sure how the two systems would work together or whether there are any ties between them. Perhaps that's something that needs to be addressed in the future.

Thank you.

The Chair: Mr. Affleck, would you like to make a comment?

Mr. Peter Affleck: I'll make it brief, Mr. Chairman. Thank you.

In response to Professor Rounthwaite, there needs to be a clear obligation in the legislative part of this act. Fair market value is a clear, binding piece of other compensation legislation across Canada. The point is that there needs to be procedure protection, as you've heard from a number of witnesses today. As a point of information for Professor Rounthwaite, if in fact the procedure of fairness was to make the original party to the contract whole, you ought to know that in our case, part of that contract is an appurtenance clause for us to build hundreds of millions of dollars of milling facilities. I think you need to keep that in consideration when you talk about whether or not we should be made whole in a contractual impairment.

The other thing I'd like to end with, Mr. Chairman, is that compensation can only be triggered by government action. There's nothing that a landowner or land user has that can unilaterally trigger it. Therefore, the government remains in charge of that triggering event. It seems to me that we need to have a clear obligation for compensation in the act, so that when decisions are made, discretion is used in defining prohibitions under this act. That balance is there for the decision-maker to know, rather than its being simply an easy taking—and that's putting it simply, I know that wouldn't be the case. There should be an understanding that if there is a taking, there's also an obligation to undertake procedural processes for potential compensation, payable compensation.

The Chair: Fair enough. Thank you, Mr. Affleck, for that intervention, which I think is intended also to give some degree of reassurance.

I don't know how to sum up these discussions, so that we can move to the last item and conclude by one o'clock. Quite frankly, all I know is that when humans and wildlife come into contact, there is conflict, and how to resolve this conflict is the big question before all of us. This bill really is not so much on the protection of wildlife, but is mostly on how to moderate the behaviour of human beings, and then how to provide for stability in society.

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I don't know how to quantify, for instance, in monetary terms the flight of an eagle, or the appearance of a beluga whale in the Arctic Ocean—you name it. You know that. You know what we all have in mind in this aspect.

So there are certain values, as some have already said, that are unquantifiable. Some have stressed the importance of a proper process in the compensation approach. Mr. McLean, in his opening statement, reminded us that stewardship and compensation are interlocked; they are a continuum.

Obviously, the desire is for a good piece of legislation to put, if not all, then most of its eggs in the stewardship basket, and leave, to a very marginal role, the extreme necessities, the unresolved items, to the compensation sector. That would probably be the ideal approach.

Forgive me for not being able to summarize better the discussion on this item three, because it is a very difficult one.

Can we devote a few minutes to item three, which was put to you some hours ago, namely, will the cost of compensation interfere with funding for other measures contained in Bill C-5?

Mr. McLean, can you give us your outlook on this question?

Mr. Robert McLean: I guess I was a little afraid that you might actually turn to me at this stage and ask for a view.

The note I made to myself under this item was that it's compensation and incentives. I started much earlier today by indicating that for me the two were inseparable. A number of the interventions throughout the morning have indicated that is very much the case. I think they're inseparable, in terms of the funding that's required, and the way we try to come to grips with this notion of valuation, whether it's through fair market value or some other means.

The first point I would make because they are linked.... I know the previous discussion talked about compensation being high-cost, but I continue to believe that the use of the regulatory restriction will be very infrequent. I mentioned earlier why I think that when it's used, we won't necessarily be talking about compensation being paid. So the greater cost will be associated with stewardship programs.

The second point I want to make is the importance of working on a partnership basis. There are many stewardship programs that roll out in a particular area. I will go back to prairie Canada, to talk about the habitat stewardship program for species at risk, and the ecological gift program. Many of you will have heard about the North American waterfowl management plan. We're going to spend $75 million this year in Canada on wetland habitat, not just for waterfowl, but for all the species that find wetlands important.

Those are just three programs within my area. There are many other stewardship programs. So working on a regional basis, we probably have more money than we might realize directed at stewardship. Can we organize those expenditures in a way that speaks to the highest priorities? That's what I meant earlier about integrating recovery plans.

Once we have the habitat goals in an area and understand the net effect of the stewardship programs, we really begin to answer the question about how much additional funding is needed. We could spend a lot of time on that, but it's more important to understand the habitat objectives and establish those partnerships.

The partnerships are also really important for this question of compensation. Let's say that at the end of the day we have to struggle with that issue. We have the partnership of people who can actually come up with how best to provide the compensation. Maybe it's not the Minister of the Environment or the federal government that is best positioned to provide compensation. Maybe it's a provincial government that has the tool that will respond to the need.

It's not always a question of money. Dr. Pearse, in his report, talked about land swaps and exchanges of rights. If one area is not open for hunting and fishing, can there be other areas where the same opportunity is provided? That would speak directly to several interventions related by aboriginal people and the importance of addressing those cultural issues.

I'll stop there in the interest of time.

The Chair: Thank you.

Let me now be a bit despotic for the next ten minutes, and make this proposition to you. You have one minute each, if you wish to make an intervention. You may want to make it on this particular item or make a general statement, whichever is your preference, starting with Mr. Affleck and finishing with Mr. Roth.

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Mr. Affleck, you're first.

Mr. Peter Affleck: I really just want to echo what Bob McLean just said, Mr. Chairman. I think the issue of cost needs to be a packaged issue.

I don't know that we can quantify any attempt at what the compensation bills might be. My sense is, as with Mr. McLean, that as it's currently drafted it's not going to be that significant. I would hope that the package is going toward the focus of cooperation that the spirit and intent of the bill are really trying to engage.

The Chair: Thank you, Mr. Affleck.

Madam Wilson.

Ms. Peggy Wilson: Thank you.

I'll make two points. First of all, the Constitution of this country is the highest law of the land. It recognizes aboriginal title, aboriginal land treaty rights. I would encourage the members to support efforts that will embody those rights in whatever legislation is adopted, particularly with compensation. Property rights of aboriginal people are recognized in the Constitution and those should be reflected in the legislation.

The second point I want to make is this. I appreciate the comments from Mr. McLean with respect to partnership. We're very much interested in working on a government-to-government level with the federal government to address specific issues that first nations have with respect to the legislation. We would welcome further opportunities to engage in those discussions.

Thank you, Mr. Chair.

The Chair: Thank you.

Mr. d'Eça.

Mr. Michael d'Eça: Mr. Chairman, the whole issue of access to compensation and stewardship funds is one that I think is of great importance to aboriginal peoples. They're very nervous. Dr. Pearse, in his report, acknowledges that. He also endorses the idea of having a separate aboriginal stewardship fund, because if you put out a competition for limited funds, you can be pretty sure that aboriginal people are going to suffer because of that. There should be a separate aboriginal stewardship fund; there should be a separate aboriginal compensation fund.

Just as important, government has to sit down and work out arrangements with aboriginal peoples, together with bilateral agreements. We talked about the accord. That kind of initiative has to be given a priority and has to have the commitment of government.

The last thing I want to mention, Mr. Chairman, is this. As we said in our submissions to the committee, section 64 as presently written locks out a number of people who operate under land claims agreements. We need amendments to that section to fix that inadvertent error.

Thank you.

The Chair: Thank you.

Mr. Peters.

Mr. Johnny Peters (Interpretation): Thank you, Mr. Chairman.

I would like to note that the Inuit in Canada, especially in northern Quebec, that I represent are very different from...what has been raised as a concern by people here. We also support their concerns, as we all should. All of us are concerned about what we are here for.

I would like to make a last point. The Inuit concerns are very different from the rest of the table here.

We agree with Michael's remarks that perhaps some kind of a different approach could be developed in writing so that we don't mix up one another, make it complicated to understand for all of us, because we have completely different concerns from those people have been raising here.

Thank you very much.

The Chair: Thank you.

Mr. Menzies.

Mr. Ted Menzies: Thank you.

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I'm hearing over and over again that partnership is what is required and what is desired. I believe you heard that in my previous submission and I would like to reiterate that. This will fall flat on its face if there is not partnership as the basis to this legislation.

On the budgeting process, the people of Canada are very much aware of the endangered species concerns; they're very supportive of that. I feel it is incumbent, when we're talking about budgeting and money for these programs—be it compensation or whatever it may be. We need a public awareness campaign to let people know that the protection of the environment, the protection of the species that inhabit this land, comes at a cost. That I feel is the role of legislators, to make sure the public is aware of that, that everyone is willing and everyone wants to do that, but it will come at a cost.

I think then you will gain public support for this legislation. I hope and pray that this compensation issue isn't the straw that breaks the back of this legislation. I think we've spent far too much time here today just talking about it. It can be solved quite easily.

The Chair: Non-protection of the environment comes at a cost too.

Mr. Ted Menzies: Absolutely.

The Chair: Mr. Dobson.

Mr. Bob Dobson: I don't have too much else to say, other than that we feel there is really not any reason to believe that the cost of the compensation would interfere with funding other measures of Bill C-5. The fact that the government has not put adequate resources towards endangered species and conservation over the years is generally widely known. The public supports adequate resources put towards this.

The Chair: Mr. McLean.

Mr. Robert McLean: There are two other values of the regional partnerships that I've been alluding to. One is the importance of involving aboriginal people in the regional partnerships. The key there is involving aboriginal people in decision-making rather than aboriginal organizations simply being, in the case of the habitat stewardship program, funding recipients. They should be part of the decision-making process.

The second value of the regional partnerships is.... I talked throughout about how they direct habitat conservation programming. More importantly, what's influencing habitat across broad landscapes is sectoral policy, agricultural policy, forest policy, energy, and other policies. These policies, I think, will have a much greater influence on the overall success of recovering species at risk and preventing them from becoming endangered. We're still losing habitat in prairie Canada.

The Chair: Thank you.

Mr. deMarsh, we leave you to the last—briefly, please.

Mr. Peter deMarsh: I think it is possible that landowner representatives here may be overreacting to the real threat that the debate around consultation may in fact represent. Mr. McLean, in his first intervention, referred to the fact that the key approach under the legislation will be at the landscape level, which certainly would seem to take a good deal of pressure off the individual property.

As associations across the country, we want to encourage stewardship; that's where we want to put our effort. We want to talk to Mr. McLean about playing a role in the regional partnerships around the stewardship fund. The importance to us of the government getting the message right on compensation is that it will be a key tool that will allow us to focus on promoting stewardship rather than on the perceived threats, real or exaggerated, on the part of our members.

The Chair: Thank you.

Mr. O'Ferrall.

Mr. Brian O'Ferrall: I have two points. One, if there is no right at least to claim compensation, whether or not it's awarded, I ask the rhetorical question, what incentive would the minister have to fund the cost of stewardship, i.e. to fund the cost to a landowner of a program that was designed to conserve species but cost you money?

The second point I would make is—and I take your point, Mr. Chairman—if there is not adequate funding available to ensure that all landowners and/or resource owners who are truly, directly, and adversely financially impacted by the prohibitions in their legislation, if there is not adequate funding for that, then as a society we cannot afford the public interest objective that is sought by the imposition of the prohibition. I make that statement recognizing what you've just said: can we afford not to? If it imposes an undue burden on any particular segment of our population, the answer is, we can't afford it.

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The Chair: Ms. Howe.

Ms. Nicole Howe: As has been mentioned, producers have long been excellent stewards of the land, and they continue doing this. The producers need to know that if, at the end of the day, a voluntary agreement cannot be reached and if monetary losses are suffered, there is the security of full compensation. Once that security net is in place, then we can start focusing on the more important issues like partnerships and conservation efforts.

The Chair: Thank you.

Mr. Rounthwaite.

Prof. Ian Rounthwaite: I have nothing further, Mr. Chairman.

The Chair: Mr. Roth.

Mr. Dwayne Roth: In the interest of time, I'll give my minute to Dr. Pearse.

The Chair: He will have his minute too.

Mr. Dwayne Roth: So he'll have two minutes.

The Chair: Two minutes. Thank you.

Dr. Peter Pearse: I'll be brief, Mr. Chairman.

I think we all have to remember, when we're talking about compensation especially, that the great thing about this legislation—and I think most people agree with it—is the stewardship, the cooperative approach, the partnership arrangements that were talked about. Those will almost certainly work best, be most efficient, be less intrusive on people's land—there are all kinds of reasons why we all want that to work. Everybody agrees with that, I think.

This resort to the compulsory prohibitions is something we don't want. It will be a last resort thing. It will be picking up the pieces where, for one reason or another, people are not willing or are unable to engage in a voluntary effort.

With respect to the compensation, it seems to me that we are dealing with a very important shift in the government's willingness to compensate people for regulatory intervention here.

It's clear that the recommendations I've made are not sacrosanct, I'd be the first to admit. The point is that we should be trying to balance, very carefully, the making of a substantive commitment to share the costs with the landowners, on the one hand, and, equally important, to avoid diminishing the incentives to work with the stewardship system.

We don't know how this is going to work, no matter how well we ruminate over it—and being Canadian, we're probably going to chew this over further yet. We'll come up with some kind of a compromise and what we think is a collective balance, but we won't really know in advance how it's going to work.

My suggestion, my advice to you, is that you put in place a substantive compensation regime for when the stewardship option fails, with the intention that, in light of how it works out five years from now, you'll do what the legislation tells you to do, which is to have another look at it. But I don't think you should be too aggressive in setting it up at this stage.

Thank you.

The Chair: That's it.

On behalf of my colleagues, thanks for this terrific session. It was quite a learning experience for all of us. We'll make good use of this.

In particular, I would like to ask Mr. McLean, in front of you all, whether he is willing to ensure that he and his colleagues in the department will study thoroughly the proceedings, as they are printed, of this particular meeting, so that the interventions that have been made will not be forgotten but will become the object of a very thorough agenda on the part of departmental officials at a time when the regulations will be written, and, even before then, at a time when the final touches will be given to the legislation. Do I have this assurance from you?

Mr. Robert McLean: Yes, absolutely. I wasn't even able to take comprehensive notes. I look forward to that report.

The Chair: Thank you to you all. It was a great meeting.

We're adjourned.