ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, October 31, 2001

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[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Order, please.

I have one information item. I promised to keep you up to date on negotiations with Senator Jeffords in Washington, on a possible meeting between our committee and the equivalent in the Senate in Washington, at a date to be established at the time of the last conversation.

You may recall my informing you at the first meeting of this committee in September of conversations with that senator in July and August, and his unlimited enthusiasm for the idea that we should have a joint meeting to discuss climate change. Subsequent to those conversations, there was a transatlantic event organized by our mission in Brussels, whereby four members of this committee, including Madam Redman, Monsieur Bigras, Mr. Mills, and myself, participated by way of a video conference at the Department of Foreign Affairs and International Trade.

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During that conversation, we asked the Europeans whether they would be interested in participating in this still vaguely sketched out meeting with the Americans in Washington, in the early part of next year. They said yes, quite emphatically.

So at this stage I can only report that we are discussing, with Senator Jeffords and his people, the possibility of a trilateral meeting toward the end of January in Washington, with three parliamentary committees, namely the American, the Brussels European, and ours, to discuss these matters. When this is hopefully brought to a conclusion with a specific date and arrangements, I will bring this matter to the committee for discussion and hopefully approval. Then, if approved, the clerk can make the necessary travel arrangements.

So I would urge you to possibly keep one day in the last week of January relatively free, if that happens to be the correct guess on my part. I hope to be more precise in a couple of weeks.

Is there a question?

Mr. John Herron (Fundy—Royal, PC/DR): Can I raise a new business issue, very briefly?

The Chair: Yes, but be very brief, because we want to go to the bill.

Mr. John Herron: A lot of members of Parliament have been very interested in the issue of climate change for quite some time. I don't know if the committee would be willing to schedule an extra meeting of two the week after next when we get back. We don't want to lose any time because we want to get the bill done in the most expeditious way possible. So if the minister were to invite some of the opposition members to go to Marrakesh, I'd be interested in entertaining that, but I don't want to miss clause-by-clause, because that would defeat the whole purpose of the work.

I don't know if the will of the committee would be to have a short recess next week.

The Chair: No, the will of the committee is not to have a short recess next week, I can tell you right now.

Those who want to go to Marrakesh will have to make the choice. The dates are the 7th, 8th, and 9th, and you'll probably leave a day before. If you cannot attend the meetings, a colleague of yours will probably have to pitch in, or you will have to make some kind of other arrangement.

Mr. John Herron: I've been here too long for this. I have to see it though.

The Chair: Thank you.

The next item for information of the members is this. The adviser to the committee, Dr. Rounthwaite, is willing and ready to come next Tuesday to be available to committee members for questions on certain passages and thorny points in the bill. However, this is not engraved in stone. Mr. Rounthwaite is the person this committee approved as an adviser or consultant at the very beginning of our deliberations. Could I have some brief indication from members of the committee whether he is needed next week or not, so the clerk can finalize arrangements with him?

Madam Kraft-Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): It seems we have a lot of amendments that we could probably get through fairly quickly next week, to speed up the process of the bill a bit. Maybe we can assess the situation at the end of next week and decide if we'd like to invite Mr. Rounthwaite after the recess, if there are still outstanding questions.

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The Chair: Thank you.

Madam Redman.

Mr. Bob Mills (Red Deer, Canadian Alliance): We did—

The Chair: Madam Redman.

Mr. Bob Mills: Oh, sorry. Go ahead.

Mrs. Karen Redman (Kitchener Centre, Lib.): People confuse us all the time.

The Chair: Is that possible?

Mrs. Karen Redman: I certainly concur with my colleague that it would be in everybody's best interest, and certainly species at risk, if we were to move expeditiously with this bill. Perhaps next week would be good timing, because it seems that a few of the very substantive items are being stood down, in anticipation of his coming. Having him come next week might be very good timing, in order to deal with those very large overarching issues and discussions that need to be had.

The Chair: Mr. Mills.

Mr. Bob Mills: My only comment is we have stood down some amendments because we're waiting on that. Depending on the order we want to go, one way to clear them up and get them behind us would be to have him here. But I don't feel strongly about that.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I just want to clarify what I said. There are a lot of amendments that are fairly straightforward, and we're coming to sections that are fairly straightforward. It might be just as easy to get them out of the way, and then at the end of next week we could assess whether we would like Mr. Rounthwaite to come after the recess or not.

If we have him come on Tuesday, for example, and deal with some of the issues that have been stood down, in another two sessions or so we might realize we'd like to talk to him again. So it might be just as easy to go through some of the straightforward amendments, get them out of the way, and then decide. It might be more cost-effective to bring him here once to deal with a number of items.

The Chair: Your preference is after the recess. Madam Redman was indicating a different approach.

Madam Scherrer. Were you scratching your head or raising your hand?

Ms. Hélène Scherrer (Louis-Hébert, Lib.): No, I was just waving to you.

The Chair: I'm waving back.

Mr. Mills could go both ways. Keep in mind that Mr. Rounthwaite will say he's not qualified to answer legal issues. He's an expert from an ecological perspective. That is his field.

Can you let me have some reading on this by tomorrow morning? Then we can make a decision whether to have him next week or whether to have him the first week immediately when we come back after the recess.

Let's move to clause 34, tackle this monster by the horns, and see whether we can have a brief, tight, crisp round of discussions on the amendments various members have, so we can start the discussion and voting on each amendment very soon.

Perhaps Mr. Bigras should be given the opportuntiy to give us a quick

[Translation]

overview of his amendment, which is on page 103.

[English]

Then I will call on Madam Kraft Sloan and others, in the same order as they are listed in our book.

[Translation]

Mr. Bigras, it is your turn.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Mr. Chairman, I move that Clause 34 be amended as indicated. It would read:

unless the appropriate provincial minister makes a written request to that effect

So this is an amendment I am putting forward.

The Chair: Thank you.

[English]

Madam Kraft Sloan, would you like to read us an overview of your amendment, please?

Mrs. Karen Kraft Sloan: Sorry, Mr. Chair, do you want me to give an overview of my amendment on page 104?

The Chair: Yes.

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Mrs. Karen Kraft Sloan: Mr. Chair, essentially this amendment provides an application of all species to the federal provisions, unless the individual province has species legislation that meets certain criteria, as laid out in this clause. And if those criteria exist, it means the federal safety net does not apply. Essentially, Mr. Chair, it provides clarity on when the safety net would apply. I think this is a really important point, because we've had a lot of discussion about discretion, and that does not give a lot of people good feelings about predictability. So in terms of having greater clarity and predictability, this clause lays that out.

Also, the minister provides reasons in the public registry for his or her determination, and a draft agreement goes into the public registry with comments. The minister has to summarize how comments were dealt with, and then there's a termination agreement, as well.

The Chair: Thank you.

Mr. Herron, would you like to elaborate on your amendment, please?

Mr. John Herron: I certainly would, Mr. Chair.

The amendment we've put forward essentially models the same kind of safety net process we have in the Canadian Environmental Protection Act. So it's not precedent-setting; it's not new. We're just mimicking what the Government of Canada decided was an appropriate course of action just a couple of years back.

This option basically ensures that the prohibitions against direct harm to a species or its residence in clauses 32 and 33 apply on all provincial lands unless the provincial lands have an equivalent law in place. It does this by providing that the minister and the province may agree that provincial laws provide effective protection, and therefore the prohibitions in clauses 32 and 33 don't apply.

The tricky issue is the criteria for equivalency sometimes can be debatable, so we've decided to help out the committee and actually write in the amendment itself what our definition of “equivalency” would be. Again, it's the same exact course of action of rule of law that we have under the Canadian Environmental Protection Act. We don't know what “equivalency” means, so we're putting it in there. We're saying it covers all lands, except where there's a provincial law that is the equivalent.

There's also a mechanism for us to be able to.... No, I'll leave it at that. That's essentially my amendment.

The only difference between Mrs. Kraft Sloan's amendment and mine is I'm saying the minister will make that determination, which the folks on the government side might have a problem with. Karen's would be a very acceptable compromise, in my view, in that she's saying the GIC can do that. So that's the intent of the motion.

The Chair: Thank you.

Now, Mr. Knutson, would you like to elaborate on your amendments, please?

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

Through you and to our viewers at home, clause 32 is the grand prohibition clause. It would prohibit killing, harming, and disturbing nests. Then clause 34 is the great exemption clause. We set out in clause 32 with this lofty ideal of preventing killing, for example, of animals that are on the endangered species list, and then in clause 34 we say we're not going to protect all of them—at least not at first instance—only if they're birds covered under the Migratory Birds Convention Act or if they're on federal lands.

My simple amendment on page 108 would include transboundary species. I don't think there's a really good reason we should give birds covered under the Migratory Birds Convention Act special protection that we don't give to all transboundary species. I think there's solid argument in law that all transboundary species are within federal jurisdiction.

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The Chair: To what extent do your amendments differ from Mr. Herron's?

Mr. Gar Knutson: If Mrs. Kraft Sloan's and Mr. Herron's amendments were passed, we wouldn't need to vote on my amendments. Mr. Herron's amendments are a little stricter. In the first instance, I think we should support Madam Kraft Sloan's amendments, and as a second position I would support Mr. Herron's. As a final position, I would support my own.

The Chair: Thank you.

Mr. Mills, would you like to elaborate on your amendments, please?

Mr. Bob Mills: To give a little bit of an overview, again I come back to the problem of cooperation, which is the whole intent of this bill. In our consultation with some of the provinces, they say they're very concerned about this particular clause, and they're worried about changing the wording from what they signed originally in the agreement with the federal government three of four years ago to what this bill may well change it to.

It centres around the word “equivalent”. I would ask Ms. Kraft Sloan if she would accept a word like “similar”, which is somewhere in the middle, but it does gives the provinces a little more.... Their word was “complementary”, and that's the one they signed to. They're very concerned that “equivalent legislation” would be too regimented, too restrictive. And there's the old thing about honey, instead of using the hammer on them.

Our amendment would simply be added to this, and it's not really relevant to the point I've just made. It does make it a little clearer, and I feel the addition of those two lines provides a little more accountability to the public and to the provinces.

Mrs. Karen Kraft Sloan: The lines added to your amendment here?

Mr. Bob Mills: Yes.

Mrs. Karen Kraft Sloan: Mr. Mills, I am the chair of the honey caucus. Need I go any further? I would be willing to accept the amendments you have given us on page 133.1 as friendly amendments.

The Chair: All right, Mr. Mills.

Mr. Herron.

Mr. John Herron: Thank you, Mr. Chair.

I'd just like to say to Mr. Mills that I like the spirit in terms of trying to work with the language, and I concur with that issue. I bounced this issue off Gary Mar when he was environment minister. This bill's been alive that long, going back to when we had the file after Ty Lund had it. He had some reservations about it, but he was still comfortable with the 1996 process that established the first protocol on what “equivalency” means.

You're looking for “similar”. We're shopping for “equivalent” as well. I'm okay with “similar”, but what about the word “comparable”?

Mrs. Karen Kraft Sloan: “Comparable” is fine with me, Mr. Chair.

Mr. Bob Mills: I guess I'm more comfortable with “similar”. I think that gives them the room. I've bounced that off two ministers, two different provinces. They're not totally happy with this whole clause, but they felt the word “similar” was more.... I can't comment on “comparable”.

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The Chair: We'll let this question settle down for a little while. We'll go to it very soon. A choice among “equivalent”, “similar”, and “comparable” is not an easy one. We'll let you mull it over.

Are there any other interventions on clause 34? Madam Redman.

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

I have some thoughts and comments I would like to make, and then call on staff. Does not Mr. Comartin also have a motion in this bundle?

The Chair: I apologize to Mr. Comartin, who was patiently waiting.

Mr. Joe Comartin (Windsor—St. Clair, NDP): I'm used to being overlooked.

Some hon. members: Oh, oh.

Mr. Joe Comartin: [Inaudible—Editor]...Mr. Knutson's with regard to the transborder. The wording is slightly different but it has exactly the same effect.

The Chair: Mr. Mills.

Mr. Bob Mills: Could we ask Mr. Near for a comment on the legal basis of these words? Perhaps he could clarify it for us.

The Chair: We have three words: “equivalent”, “similar”, “comparable”.

Mr. David Near (Legal Counsel, Department of Justice Canada): Equivalency is by far the more astringent, more difficult to prove. It's the highest of the three words, obviously. As to “similar” and “comparable”, similar is probably a slightly lower standard than comparable, not terribly much, but slightly lower than the term “similar”. That would be my off-the-top analysis of those three words.

The Chair: Thank you.

Madam Redman.

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

This clause deals with the safety nets. The safety nets come into play when provinces or territories have not acted in a way that, in the opinion of the minister in concert with the Governor in Council, protects species at risk. It's interesting to see that Monsieur Bigras and some of the wording in one of Mr. Mills' motions actually weaken this. The intent of this clause 34 is actually to ensure that no species at risk would fall through the cracks.

Having said that, it is based on cooperation with the provinces and territories. There are agreements outside of this piece of legislation, such as bilateral agreements, that go a long way toward making sure that we are all doing what is necessary in order to protect species at risk. Some of these amendments, in a large way, preclude provincial cooperation. That is the basis of this entire piece of legislation, and, I would contend, one of its profound strengths.

We've already dealt with the fact that we're looking at “comparable” as opposed to “equivalent”. I would tell you that “equivalent” may end up having us go back to provinces and territories and asking them to rewrite legislation that's already in existence. That would create delays and is certainly not something the government would support.

Bill C-5 has one clear purpose, and that is to protect species at risk. Its approach is cooperative from beginning to end. Because of that, we feel that the wording in clause 34 is fundamental to this bill, because the safety net does provide a backstop. It also invites provinces and territories to act in a responsible manner. Quite clearly, it's not something the federal government can or would choose to do in isolation. This is why we have built it on the kinds of strengths and some of the initiatives that are already happening by wildlife management boards as well as in provinces.

There's some wording in some of the amendments, and one of them deals with transborder species. I would ask Monsieur Nadeau if he could speak to that and some other aspects of some of these amendments. The fact that we're looking at changing fundamentally how this safety net provision works is a fundamental change in the way this bill was structured to invite cooperation.

I ask Monsieur Nadeau and Ms. Wherry to speak.

The Chair: Let's hear Monsieur Nadeau, and then I'll call upon Madam Kraft Sloan and Mr. Knutson.

Mr. Simon Nadeau (Head, Endangered Species Recovery, Environment Canada): The only thing I have to say relating to the notion of transboundary species is we've looked into that according to the definition of species that either migrate or have a range that extends across an international border. If we were to add this as a federal responsibility, it would mean that for threatened and endangered species the federal government would have responsibility for 94% of all species at risk.

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The Chair: That sounds nice.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: If the parliamentary secretary is concerned about the word “equivalency”, and indeed Mr. Mills had expressed some concern as well, I'm more than prepared, as I had said, to move to “comparable”, and also to “similar”. If I can broker a deal, shall we say, between the Conservative Party and the Canadian Alliance, I'd be more than happy to broker with “similar”—not that I'm calling you guys similar.

Mr. John Herron: They're not even comparable. However, we have a similar position on this particular issue and I would defer to the honourable member from Red Deer.

Mrs. Karen Kraft Sloan: Absolutely.

Mr. Bob Mills: Mr. Chair, I would just like to make a comment to Madam Redman.

Where we talked about the “must” and “may”, I would withdraw that amendment 119 where we were changing it to “may”. This then eliminates one of the concerns you mentioned.

Mrs. Karen Redman: Mr. Chair, if I may respond, I appreciate the spirit of cooperation. I would ask Ms. Wherry or Mr. Near whether they would like to comment on this, because I would again underline that this is a fundamental change. The safety net is built on the cooperation, and the focus is on whether we protect species at risk, not on the how. I would ask Ms. Wherry whether she would like to comment.

The Chair: Ms. Wherry, then Mr. Knutson. Could we have a brief intervention please?

Ms. Ruth Wherry (Director, Species at Risk, Canadian Wildlife Service, Environment Canada): Just to reiterate that this bill is built on cooperation with provinces and landowners and on the assumption that provinces will continue to do what they have been doing. They are primarily responsible for the management of most of the species. They've been doing it for decades. They are the ones with the expertise and the resources and the experience of doing it. The whole notion of this bill is built on giving the provinces the option of using their own legislation, and if they don't do it, then the minister has to step in and do it.

I would also like to point out that in the area of wildlife protection it is somewhat different from in the area of environmental protection. As Mr. Herron has pointed out, the precedent in CEPA is completely different. The working and cooperative relationship with the provinces and territories on protecting wildlife is not the same as in pollution. The whole history has been that provinces managed species and land use planning. They are the ones that have always done it.

Mr. John Herron: It's the same formula of cooperation, though, isn't it?

Ms. Ruth Wherry: Not quite, not in the area of wildlife versus pollution.

Mr. John Herron: No, it's the same formula of cooperation for interprovincial arrangements among federal and provincial governments.

The Chair: Mr. Knutson.

Mr. Gar Knutson: I just want to make a couple of points.

The first point is that if the provinces are doing a good job, this bill won't apply. The second is that when we did our original study of the legislation, we heard evidence about the rate of extinction of animals way beyond the normal or natural rate. So I would suggest that perhaps the provinces haven't done a great job for decades.

In terms of this being such a fundamental change, I'd point out that the wording of subclause 34(3) makes reference to the minister being of “the opinion that the laws of the province do not protect the species.” Again, as I have pointed out on previous days, that language provides the minister with absolute discretion. So I think the proposal by the Canadian Alliance and my colleague, Madam Kraft Sloan, is simply trying to give some criteria. I think it's worth supporting, and I would support the word “similar”.

The Chair: Is the friendly subamendment accepted, then—the word “similar” in place of “equivalent”?

Mrs. Karen Kraft Sloan: I accepted that already, Mr. Chair.

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The Chair: Fine.

Yes, Madam Redman.

Mrs. Karen Redman: Thank you, Mr. Chair. I'm wondering if we could hear from Ms. Wherry on the provision of criteria as proposed in Mrs. Kraft Sloan's amendment.

Ms. Ruth Wherry: With respect to the criteria that are in there, I would just suggest that most of our effort and focus would be on trying to determine whether or not legislation is equivalent, similar, or comparable. We would spend all our time doing that, as opposed to just trying to protect the species.

As has been pointed out, it's probably highly unlikely that the provincial legislation is going to be completely similar or equivalent. Then what would happen is we would never be able to conclude any of these agreements. This would mean that the federal legislation would end up applying to probably about 90% of the species right away.

I would also like to add that under the accord, the provinces, territories, and federal government have agreed to work together. They are trying to come up with bilateral agreements that address some of the very issues you're addressing—ensuring that the provinces and territories are protecting the species in the exact spirit of what's in SARA. And if they're not doing so, then there's all the evidence the minister needs to make his recommendation to the Governor in Council to bring in the SARA legislation.

The Chair: Thank you.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I meant to say that first of all this amendment—because it adds clarity—would build on the cooperation with the provincial governments and also recognize the work that's being done on the land.

Now, the other thing is, if you look at paragraph 34(2)(a), this is prohibition against killing an endangered species. I don't think that requires a huge determination. You have an endangered species that's either killed or not killed. I think in many respects this amendment, along with the amendment that Mr. Mills has given us on page 133.1, which I have accepted—I've also accepted his amendment with regard to changing “equivalent” to “similar”—shows a great deal of cooperation. It shows that people do care about endangered species and providing clarity to the provinces so they know when the federal law would come into play.

I would ask the chair if he'd be willing to call it to a vote.

The Chair: Madame Redman.

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

I'm wondering if the chair could recognize Mr. Near. He has something to add to the discussion.

The Chair: Mr. Near.

Mr. David Near: I just wanted to seek some clarification and to make sure that I understand what exactly is being proposed.

As I understand Mrs. Kraft Sloan's amendment, she's introducing the notion of an equivalency agreement under species at risk, and then outlining the criteria that would have to go into that agreement. It's based basically on a CEPA-type model. I would point out to the committee that since 1988 we've had one successful equivalency agreement on one chemical in the province of Alberta.

The second thing I should point out is that if the definition of transborder species is accepted by this committee—and the Department of Justice, as has been already indicated, does not agree that it automatically becomes a federal species—then virtually all species become a federal species. The automatic prohibition applies and you don't even get a chance to apply the safety net.

Is that the intent of the amendment? I'm just seeking clarification.

The Chair: Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Mills can go ahead.

The Chair: Mr. Mills.

Mr. Bob Mills: Again, I think the point is well made that the provinces are really not going to be very happy about the heavy hand we're talking about. So I'm quite concerned about the modifications. Maybe we shouldn't be going quite as far and quite as regimented as we are.

I think we do have to take a little time to really think about what our expert witnesses are saying. I know our provincial colleagues are looking at this. To them, this is one of the most important clauses. If they get their backs up at this point, we're not going to get cooperation and we're going to defeat the whole purpose of this bill. So I think we should be very concerned about that and make sure we've got the wording so that it's not too strong. Maybe we really have to examine subclause 34(2), this amendment on 104. I think we have some problems there in terms of how the provinces are going to react to that.

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The Chair: All right.

Mrs. Karen Kraft Sloan: What suggestion do you have, Mr. Mills, under subclause 34(2) then?

Mr. Bob Mills: Give me a minute here. If you want to, go ahead, Mr. Chair.

The Chair: Yes. Madame Redman, Mr. Herron.

Mrs. Karen Redman: Mr. Chair, just to add to the specific amendment before us, I'm wondering if Mr. Near could again provide some clarification. It seems to me that we've focused in on some of the wording. But if you look at the section on page 104, starting at clause 34, it talks about equivalency and then goes on to list the criteria. That is problematic as well.

The Chair: “Equivalency” has been dropped.

Mrs. Karen Redman: Well, my question would be whether we have dealt with this throughout the entire clause.

The Chair: The term “equivalent” has been subamended with the term “similar”, so we have moved out of that.

Mr. Near, do you want to comment further, and then Mr. Herron?

Mr. David Near: Further to my remarks earlier, if you proceed with the amendment on page 104, you require an equivalency agreement. And the agreement itself must provide the things that are constituted in subclause 34(2). Some of the later proposed amendments in clause 34 don't actually require a federal-provincial agreement between the provinces. And then the amendments impose those types of pre-conditions as to how the minister would determine whether or not the province is effectively protecting the species. It's important to recognize that difference.

If you proceed with the amendment on page 104, you will need a federal-provincial bilateral agreement based on subclause 34(2).

The Chair: Mr. Herron and Mr. Knutson.

Mr. John Herron: Mr. Chair, I'd like to say to Mr. Mills on a couple of those points that, first, the bottom line is the minister has discretion.

Second, there already is—if we're talking about issues where there haven't been accords or arrangements between provincial governments—a mechanism in place with respect to the accord and the goodwill that was built in the 1996 protocol with the ministers for the protection of wildlife.

Third, there's nothing really ambiguous in terms of what similarity would be. We're talking about similarity with respect to criteria that are established in Mrs. Kraft Sloan's issue. So the minister has discretion to determine if there's a similar law in place that's doing a pretty good job. The minister will say that we use the provincial law; our law need not apply. The minister has the capacity to do that, and it's still discretionary.

We all know that a federal government would not want to use this power too unilaterally. So that's why I think there's enough comfort there and still a true safety net in that regard. And that's why I'm strongly in support of Mrs. Kraft Sloan's initiative.

The Chair: Thank you.

Mr. Knutson and then Madame Redman.

Mr. Gar Knutson: In my mind, the point of our discussion right now is in on pages 104 and 105 with the change—

Mr. Bob Mills: As well, page 114.

Mr. Gar Knutson: —of the one word “equivalent” to “similar”. If we pass pages 104 and 105 with the subamendment “equivalent” to “similar”, we haven't dealt with the issue of transboundary. Can we leave the issue of whether we think there should be a grand prohibition against killing a species that's on the list throughout the country, regardless of whose jurisdiction it is in? Can we leave that discussion and just deal with pages 104 and 105?

The Chair: That's all there is before us.

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Mr. Gar Knutson: It's just that in some of the testimony of the officials, they talked about the fact that if you include transboundry, you're going to cover 93% of the....

The Chair: Thank you.

Madam Redman.

Mrs. Karen Redman: We were having a global discussion at that time, and I would ask Ms. Wherry if she would make a final comment on the ramifications of the amendments on pages 104 and 105.

Ms. Ruth Wherry: Yes. I would like to add to a comment that was made earlier that it can't be that big a test to determine if a province has a law or not that prohibits. I agree, and the approach that's in the bill provides for that. If it's not protected by a province or a territory, then the minister must make the recommendation. I would argue that this point applies to the approach that's in the bill.

I would also like to make the point that for the approach on pages 104 and 105, regardless if you use the words “similar” or “equivalent”, at the end of the day what we're talking about is that the federal government does the first approach. Only if the province can demonstrate something similar or equivalent will the federal government back off. The approach in the bill is built on cooperation. Let the provinces show us, and if they can't do it, we have to go in. We're talking about whether they are or aren't protecting it by their legislation, which is what the words in the bill say.

The Chair: Thank you. I am glad that you enlightening us with your perception of the bill.

Before we get too carried away about the record so far on the part of any provincial government, may I remind members of the committee of the particular submission that was made to the committee in relation to the performance to date of the provinces on their endangered species.

We have now Madam Kraft Sloan and Mr. Mills.

Mrs. Karen Kraft Sloan: Mr. Chair, I'd like to remind the committee that despite what Madam Wherry has just said, clause 34 now refers to the opinion of the minister. As Mr. Knutson pointed out when he made his initial intervention, the decision is made at the sole discretion of the minister.

The provinces really don't know when the minister is going to decide whether he or she should recommend that the federal safety net be applied. It's now at the sole discretion of the minister. What my amendment does is set out criteria for clarity, and I think that's the most important thing.

I talked to many leaders in business and industry, and they tell us they want clarity. Mr. Mills and Mr. Herron have spoken with the provinces. They want clarity and predictability, and that's what my amendment does.

The Chair: Thank you.

You may have one final intervention, Mr. Mills.

Mr. Bob Mills: Madam Kraft Sloan asked me what I might prefer, and what I'm concerned about is that changing “shall” to “may” on page 114 and leaving it the way it is without those criteria now gives room for the provinces to feel that they are part of that decision and that protection. I'm just worried that if we have those detailed criteria, it will antagonize some people rather than clarifying the matter. Of course, if we pass 104, then 114 is gone.

The Chair: Excuse me, Mr. Mills, may I interrupt you? On page 114, where do you see the word “may”?

Mr. Bob Mills: After “Governor in Council” it should be “may” instead of “shall”.

The Chair: When was that changed?

Mr. Bob Mills: Remember, we talked about that when we were doing the general conversation.

Mrs. Karen Kraft Sloan: I'm sorry, Mr. Mills. That isn't part of this amendment.

Mr. Bob Mills: Well, no. I'm just worried that if we pass 104, then 114 is gone.

The Chair: If we pass 104, then 114 definitely will not be dealt with, because they deal with the same lines of the bill. That's correct.

Mr. Bob Mills: I think the provinces would be a lot happier with that being “may”, leaving subclause 34(2) the way it is, than with these solid criteria. I think we're just asking for non-compliance and are going to antagonize the very people we're trying to get to work with us.

The Chair: Mr. Herron.

Mr. John Herron: I think that by setting out the actual list of criteria we would create a situation whereby nothing could be done on a ministerial whim when they're faced with whatever aspect of a law they're not comfortable with. It sets it down as those particular building blocks so the minister can't do this on an ad hoc basis. It takes away from the minister that kind of almost excessive power to be able to ask whether the province is on a similar basis covering this particular aspect of a tool kit that's required to protect species at risk.

• 1620

My view is that I believe we think somewhat the same on provincial rights issues. I'd rather know what would make the federal government engage or not engage in an action.

The Chair: We have had a very good discussion so far, so I will ask whether you're ready for the question. If you are, then you have heard the motion on pages 104 and 105 by Madam Kraft Sloan.

(Amendment negatived) [See Minutes of Proceedings]

[Translation]

The Chair: Mr. Bigras, it is your turn.

Mr. Bernard Bigras: Mr. Chairman, I withdraw my amendment.

The Chair: Thank you.

[English]

Then we have page 106, Mr. Herron. You have the floor, Mr. Herron.

• 1625

Mr. John Herron: Mr. Chair, we've just had a very good round of debate on this particular issue. Now, there are still other options before us. There's what I call a softer version of what I just put forward, which is also in Mrs. Kraft Sloan's name. My amendment essentially reflects where Mrs. Kraft Sloan was coming from. It was a very close vote that we just had. I'd like to suggest to the committee that given the importance of this particular issue, we move from clause 34 for the moment, that we stand it down and maybe come back to it later.

The Chair: No, we have had plenty of time. We are now examining whether you are ready to move your motion on page 106.

Mr. John Herron: I'm asking if we can stand this motion.

The Chair: You can stand this motion if you wish.

The next motion is on page 107.

A voice: It's a duplication of page 106. Ignore that one.

The Chair: All right. We come to page 108.

Mr. Knutson.

Mr. Gar Knutson: I'd like to move the amendment on page 108.

I'm not sure why we give birds covered under the Migratory Birds Convention Act special protection that they won't be killed, their nests won't be disturbed, and they won't be harassed or harmed when we don't give all birds that protection.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: I'm wondering whether, if this motion of Mr. Knutson's passes, it affects Mr. Herron's amendment on page 106. Also, does it affect my amendment?

We're still on clause 34.

Mr. Gar Knutson: We are.

Mrs. Karen Kraft Sloan: Mr. Knutson's amendment is on page 108, and I'm asking, if this passes, does it affect Mr. Herron's amendment on page 106 and my amendment on page 114 or whatever?

Mr. Gar Knutson: It would affect Mr. Herron's amendment.

The Chair: It does affect the motion of Mr. Herron's we just stood, but not others.

Mrs. Karen Kraft Sloan: This amendment has to be stood, then.

The Chair: Well, I don't know how long we can stand everybody's motions. According to my understanding, we can discuss this and pass it, and if it affects Mr. Herron's, then it affects it.

Mrs. Karen Kraft Sloan: Then we won't be able to deal with Mr. Herron's amendments. If Mr. Herron has requested that his amendment be stood, then perhaps Mr. Knutson will see fit to request the standing of his amendment.

Mr. Gar Knutson: Is this consequential logic at work?

Mrs. Karen Kraft Sloan: No, it's inconsequential to the saving of species.

The Chair: It's backward logic. I'm disturbed by the fact that having postponed motions until today, we still have a request to stand amendments to clause 34. There's been plenty of time for reflection and elaboration.

Mr. Knutson, if you wish to proceed, proceed.

Mr. Gar Knutson: I've moved it. I would accept my learned friend's intervention as a point of order. You've ruled that my motion is in order. That's the implication of what you're saying.

I don't object to waiting until Mr. Herron is ready to proceed so we can deal with both of them at the same time—as long as he's not in Marrakesh next week.

• 1630

The Chair: Mr. Herron, I wish you would reconsider your decision to stand it, because you are holding up the whole process.

Mr. John Herron: Mr. Chair, the issue I have is that this is a very critical aspect of the bill. I think it helps provincial clarity to have the criteria actually included in it. I'd like to have a chance to talk to my colleagues in further depth on that aspect. It simply comes down to this: I believe this amendment is worth fighting for that much that I just don't want to let it go right now.

I think the sense of the committee can be easily changed on this very critical aspect, and given how close the vote was on the last issue, we should give all members of the committee a chance to reflect on this issue.

So I would ask Gar, in his wisdom, to think of setting it aside. We have lots of amendments to handle, so let's go forward to something else.

The Chair: Shall Mr. Knutson's amendment stand?

Mrs. Redman.

Mrs. Karen Redman: I would respectfully submit that I have not felt at all that the chair has cut off any debate, but my understanding is that we have another couple of hours, and if we need to continue the debate right now, we're more than happy to do that.

The Chair: It's not an issue of cutting off the debate. Evidently Mr. Herron sees it in a different perspective. It's more than just debate. So I'm asking whether there is consent that Mr. Knutson's motion be stood so that it will not interfere with Mr. Herron's motion and so that we can continue on and deal with Mr. Comartin's motion in the hope that it does not interfere with any of the preceding motions that have been stood.

Is there agreement that Mr. Knutson's motion be stood? Agreed?

An hon. member: No, it isn't.

The Chair: Mr. Mills.

Mr. Bob Mills: Can I ask Mr. Herron to comment?

My amendment was an attempt to try to give the provinces some breathing room, where the provinces and the government would develop the criteria. That way they will feel the cooperative approach and feel that they have part in building those criteria, rather than us setting it out. What is your feeling on that? I think it's something we should talk about, because that would give them the room to do that.

Mr. John Herron: I'd say that all the elements that are in Mrs. Kraft Sloan's amendment and mine are understood to be aspects that are required in order to protect species at risk. I don't think there's any debate even among those at this table in that regard.

Your flexibility amendment, with the words—

The Chair: Address the chair, please.

Mr. John Herron: Through you, Mr. Chair, the amendment to use the word “similar” gives that space.

If we agree that this is the list, these aspects have to be followed in order to protect species at risk, and to that degree, all reasonable folks who have studied this issue would agree that the word “similar” provides the flexibility aspect to it. Then you add that to another aspect of it, that it's still discretionary. So these aspects are going to have to be developed anyway.

“Similar” gives us space, and “discretion” gives us further space.

The Chair: On a procedural matter, having heard no consensus about standing—

Mr. John Herron: I'll move my amendment. Let's go.

• 1635

The Chair: All right. That saves us an enormous amount of complication. Thank you very much.

We then go to page 106, to the motion in the name of Mr. Herron, and he has moved it.

Would you like to introduce it once more or elaborate on it so that we can have a good discussion?

Mr. John Herron: If I were to be moving that package, which would be the amendment on page 106—

The Chair: The same one is also on page 107. They are exactly the same.

Mr. John Herron: No, they did that by mistake when they put that in.

I'm moving the amendment on page 106 and....

Could the clerk help me with what the exact pages would be?

Ms. Susan Baldwin (Procedural Clerk): Those would be the one on page 113—

Mr. Gar Knutson: Page 112.

Ms. Susan Baldwin: —pages 117 and 118—

The Chair: How about page 112?

Ms. Susan Baldwin: No, it's migratory stuff, isn't it? Yes.

The Chair: Oh yes.

Ms. Susan Baldwin: Just a second now, where are we? Pages 125, 132, and 133.

Mr. John Herron: So that's the package.

Ms. Susan Baldwin: That's the package.

Mr. John Herron: For the committee, the people who photocopied made a minor mistake. They've added the same page a couple of times. That's why it looks confusing.

We've had the debate on countless occasions. The formula we use is a pre-existing one that the Government of Canada uses right now under its principal piece of legislation that controls the use of toxins in our environment. That safety net provision has been put in place.

There are aspects or elements of a tool kit that are required to recover species at risk under any law, whether federal or provincial. Those aspects are well known. They're included in the amendment set that we're about to vote on. More importantly, the key word is “similar”. That provides a lot of discretion for us.

As you can see, Mr. Chair, there are a lot of conversations going on for good reason, because a lot of members are on the edge.

The Chair: Madame Redman.

Mrs. Karen Redman: Mr. Chair, on a point of order, I would agree with counsel's bundling of these motions. Aren't they almost exactly like the motion we've just defeated? They're virtually the same, so how can we deal with this when we've...?

The Chair: They're not exactly the same. They are worded in a different manner and organized in a different fashion. If you see in Mr. Herron's motion a comparable approach, that is for you to decide. But as far as the work of analysing the motions from a clerical point of view is concerned, they have to be considered as different.

Procedurally, it is one thing; the political content is another.

Mrs. Karen Redman: So the ruling is that these are not substantive and the same and therefore can be dealt with as a package?

The Chair: Definitely.

Mrs. Karen Redman: Okay.

Mr. Chairman, I don't know if John wants to speak to it, but all the rationale and discussion that I have put forward, as has staff, I would underscore again. But I would also point out to this committee that the cooperative efforts that are the bedrock of this piece of legislation have been years in the making. And what we are now looking at is the possibility of having one half of a partnership fundamentally deciding some rules.

• 1640

So we are now going to set out criteria. I recognize that people have been calling for clarity, but we are now, as half of a relatively complex partnership, and I would say even a multi-partner partnership, deciding on criteria by which we will now operate. And it's taken years to get the kind of goodwill and cooperation that has gone into the fact that we have before us, in the government's opinion, a piece of legislation that will work on the ground and will protect species at risk, which is fundamentally something that Canadians have said they wanted, and we are now deciding a piece of that puzzle unilaterally.

The Chair: Mr. Knutson.

Mr. Gar Knutson: With respect, the last time I checked, we're parliamentarians sitting in the Parliament of Canada and our job is to pass laws for Canada. To say it's all going to be worked out in some other forum is well and good, but I'm sorry, we do have a responsibility to pass laws in the best interest of the country and do it in an open and transparent way and not throw everything off to some other forum, whether it's bilaterals or whether it's this.

The suggestion that simply us passing a law that sets out criteria for when a minister is going to act, instead of leaving it to his absolute discretion, which is the way the language is written, somehow violates the spirit of cooperation and somehow it's waving a red flag in front of somebody and it's going to break down all this goodwill I find hard to accept.

I think we should put some criteria in the legislation. And to suggest that putting criteria in the legislation is somehow uncooperative, I don't catch that argument at all.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I feel very strongly that we need criteria for clarity. If there's a desire to have an element of cooperation, I think there may be a way of doing it. And I think Mr. Mills has a possible way for building the cooperation and the flexibility in, working with the provinces and the federal government, as well as addressing the biological need of the species.

Many times we forget why we're here. And this bill has to make biological sense.

The Chair: Madam Redman.

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

I would again ask Ms. Wherry if she could reiterate the fundamental shift in this amendment to this piece of legislation.

The Chair: Could you please, Madam Wherry?

Ms. Ruth Wherry: I would make the point that the approach Mr. Herron is presenting, much like the approach Ms. Kraft Sloan did, would have the federal government do it first. That's the fundamental issue here. Whether or not you put criteria in, the issue is that the federal government would act first and only if it was judged that the province's was equal. Then you would have to get a province to agree to an agreement for the federal government's law not to apply. And we've had very little success in getting the provinces to do those kind of agreements, so the net result is that the federal government would then be taking care of all the species, pretty well.

The Chair: Thank you.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, what we're dealing with is if a provincial government has legislation where endangered species are not killed. It's set out fairly clearly.

But I think we have a whole new discussion on the table, and it's a discussion that Mr. Mills has brought forward. While there are some of us who feel there should be a lot of clarity in this, that there should be real protection for endangered species, and as Mr. Knutson has pointed out, maybe parliamentarians who are elected by the people of Canada should have the right in making the laws of this country to say they'll protect species in this country, instead of some kind of a hidden process, still it's important that we have a way of having some accountability in this legislation and understanding how we're going to move forward.

I think Mr. Mills' amendment and suggestions have been good ones, and they're worthy ones to hear. This changes the debate around the table.

• 1645

The Chair: Mr. Tonks.

Mr. Alan Tonks (York South—Weston, Lib.): The amendments we've made thus far have certainly applied a rigour to the public register with respect to the minister, within a statutory limitation of time, having to report on a recovery plan. The rigour has been very clear. The rigour with respect to the principles of dialogue, with respect to two areas of jurisdiction, is very clear here.

In fact I sit on the other committee, the HRDC committee, which is presently reviewing the principles of another piece of provincial and federal legislation, which is the social union framework. Mr. Chairman, I think it's very important that when you come forward with a program on which depends as much as it does the protection of wildlife across the country, then in fact you should attempt to stay within certain principles.

The devices we have had amended with respect to the rigour on statutory time limits and so on are important. We have supported those. But the principles with respect to the dialogue of two jurisdictions is equally important, and that is where it is most entrenched in this legislation.

I don't want to take that lightly, and I say it quite unequivocally, if you will, Mr. Chairman: I think we should stay with the wording in the act. I think in this case it's a matter of some commitment to the provinces. There's been huge dialogue on this legislation. I'd like to make it clear where I'm coming from in terms of the principles that I see and the dependency that I see for the success of this legislation. I think you'll place that in great jeopardy if you start to tamper with this particular legislation in the manner that's been described.

Thank you.

The Chair: Thank you for your enlightened clarification, Mr. Tonks.

We have now Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, with all due respect to what my colleague has just said, this clause is the least rigorous of any clause in this bill, although, mind you, I can find quite a few more that have a huge lack of rigour.

This clause has the minister, in his opinion, making a decision. It is a full discretion, as Mr. Knutson has already pointed out: the minister acts in full discretion as to his or her own opinion as to whether the legislation in the provinces protects species.

I would suggest that what Mr. Mills wants to bring forward as an amendment to Mr. Herron's amendment involves the province in a very notable and a very meaningful way. If Mr. Mills is ready to proceed with the discussion of his possible amendment, I'm sure committee members would like to hear it.

The Chair: Do we now proceed with a vote on Mr. Herron's amendment, which is before us, on page 106? We had a good discussion. Are you ready for the question?

Mr. John Herron: Mr. Chair—

The Chair: No, I'm calling the vote, Mr. Herron.

(Amendment negatived) [See Minutes of Proceedings]

The Chair: This vote applies also, and we'll repeat the numbers earlier called by the clerk, to page 113, 118, 120, 125, 132, and 133. I called page 118, but it was an error. So page 118 is not affected by this vote. Therefore, Mr. Herron can still move his motion on page 118.

• 1650

We now move to Mr. Knutson's amendment. Here we are going to group them.

Madam Redman.

Mrs. Karen Redman: I have a point of order, Mr. Chair. I would have agreed with the original assessment that page 118 was consequential. I would ask Mr. Near and Ms. Wherry to speak to that issue if we're still unresolved.

Mr. John Herron: If you want to save 25 minutes, go to Karen's amendment.

Mrs. Karen Redman: My amendment?

Mr. John Herron: No, Karen Kraft Sloan's. We'll do Karen Redman's later.

The Chair: As to whether or not page 118 is consequential, we are informed that it isn't. If you feel that it is, give us the reason so that we can resolve it right now.

Ms. Ruth Wherry: The amendment on page 118 says “The Minister shall provide reasons for his or her determination”. What determination is being referred to?

Mr. John Herron: I'm not moving the amendment.

The Chair: We're asking Ms. Wherry.... Oh, you're not moving it.

Mr. John Herron: I'm not moving the amendment. It's a moot point. I would like to see if we could go to—

The Chair: Fine. Then that resolves it. Thank you, Mr. Herron.

Now we are back to Mr. Knutson's amendment to the Migratory Birds Convention Act. There are a number of amendments on this subject. We will do our best to deal with them in the same debate.

I will ask Mr. Knutson to refresh the committee's memory about his amendments. Other members also have amendments. They may identify in their intervention the page number of their amendments to help the clerk. Once we have completed the discussion, we can proceed in an orderly fashion as indicated in the collection of amendments.

Mr. Knutson.

• 1655

Mr. Gar Knutson: I just make the point that I don't understand why we give migratory birds covered under the Migratory Birds Convention Act, as opposed to all migratory birds, special protection under this bill. If the provinces are doing such a great job with the migratory birds that aren't covered under the Migratory Birds Convention Act, why don't we give them authority for the birds covered under the Migratory Birds Convention Act too? This distinction doesn't make sense, that we cover birds under the Migratory Birds Convention Act based on—I can't remember the word—

Mrs. Karen Kraft Sloan: Empire.

Mr. Gar Knutson: —an Empire Treaty. I don't know how that fits into doing things that work on the ground.

So I think it would clarify things a great deal to say that if the animals cross the border and therefore are involved with two national governments, ours and somebody else's, most likely the Americans, then it makes sense that they be under federal jurisdiction and that we accept our responsibility and protect them at least to the point of prohibiting killing and give them the protection that's intended under clause 32.

The Chair: Who else would like to speak on his or her amendment on migratory birds? Madam Redman.

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

I would ask through you if Ms. Wherry or Mr. Near would like to comment on how this could impact the bill.

Mr. David Near: If I may, Mr. Chair, I believe it's page 108 and following that we're now on. The issue is not solely with regard to migratory birds. In response to Mr. Knutson's question with regard to migratory birds, the reason it's migratory birds as protected by the Migratory Birds Convention Act is that those are the birds that are within federal jurisdiction as determined by the extent of the Empire Treaty, which gives the federal government jurisdiction over those birds in the first place.

The larger issue of the amendment is all transboundary species. As defined, Mr. Knutson is quite correct. It's not only things that would move across the border but also things that exist on both sides of the border whether or not they move across any given international border. It is that aspect that really bumps up the numbers, if you like, as to the current definition of transboundary species. The government's position is that the mere fact that something moves across or exists on both sides of the border does not automatically place it within federal jurisdiction.

With regard to protection of the general prohibition, in this particular clause, if transboundary remains, it means the prohibition automatically applies basically upon listing. If this is taken out, these species could be protected by the exercise of the safety net. That's the difference.

The Chair: Thank you.

Mr. Comartin, you have an amendment as well, NDP-7.

Mr. Joe Comartin: It's basically the same, and Mr. Knutson's points are exactly what mine would be.

The Chair: Madam Kraft Sloan, you have some amendments. Would you like to elaborate briefly, please.

Mrs. Karen Kraft Sloan: My amendment again deals with transboundary. Mr. Chair, in the last endangered species bill the government saw fit to have a mandatory safety net with regard to transboundary species, so the government recognized transboundary species as federal jurisdiction in 1996 and 1997.

The Chair: Thank you.

Mr. Mills.

Mr. Bob Mills: In this regard I think Mr. Knutson is right in saying that in fact we should be trying to protect these birds that are not part of that Migratory Birds Convention Act. The problem is, however, that the provinces need to be part of this negotiation in order to make it work. By us saying it won't make it work, unless the provinces are on side with it. That's why I believe we have to build in the negotiations with the provinces to clarify this transboundary issue. We're talking about 90% of the species. I think that you're going after the provinces, and they're just not going to make it work. I agree with you, though, that if we really want to protect species, we have to get the provinces onside to do that.

• 1700

The Chair: Mr. Knutson.

Mr. Gar Knutson: While I appreciate Mr. Mills' input, all clause 32 does is prevent killing, harming, harassing, and the capture or taking of an individual or wildlife species that is listed. This isn't about protecting habitat. It isn't about recovery plans. This is about the simple act of no killing or harassing. I think blanket prohibition should exist to 97% or 93%, whatever the number is from the officials, without reservation.

If it somehow waves a red flag in front of someone and destroys the spirit of cooperation, then I would suggest the spirit of cooperation is built on a house of cards. How's that for a metaphor?

The Chair: Madam Redman.

Mrs. Karen Redman: Mr. Mills actually made the point I wanted to raise, Mr. Chair.

The Chair: Mr. Herron.

Mr. John Herron: I want to say it out loud. At a minimum, we're trying to protect species at risk and actually protect the species. In order to do it, we need to ensure the species has a chance of survival in growing, breeding, and other things. The very minimum of the whole equation, the starting point of the whole discussion, is to not kill it. For a listed species at risk, we think you shouldn't kill it. It's all this amendment is about.

This is not an earth-shattering issue of interprovincial relations. I'm a strong provincial rights advocate on 99% of the issues. I think any province, any lawmaker, or any Canadian across the board wants the Government of Canada to say don't kill it.

If we want to water down our jobs in Parliament even more, we're going to send it off to a subcommittee asking whether we should kill it or not. It's all this amendment is about.

Can't we agree on the one point from a federal context? I'm frustrated with this.

The Chair: Thank you.

Madam Redman.

Mrs. Karen Redman: I have a final comment, if I may, Mr. Chair. This bill is saying the provinces and territories are in a better position to make the call, with the backstop being the federal government.

(Amendment negatived) [See Minutes of Proceedings]

The Chair: The vote on this amendment would also apply—with your concurrence, of course—to Mr. Comartin's amendment on page 109; page 110, in the name of Madam Kraft Sloan; page 111; page 112; and any other amendment of a similar scope and impact that may be in our collection of amendments.

Do you also agree that this vote applies to your motion on page 18 when we stood it on clause 2?

Mr. Gar Knutson: The motion on page 118?

• 1705

The Chair: The motion on page 18 at the very beginning. It is related to the vote we did.

Mr. Gar Knutson: I would acknowledge your ruling. I wouldn't quarrel with it.

The Chair: Thank you.

I invite you to turn to page 114.

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

The amendment on page 114 is the beginning of a series of amendments on different pages that would make the safety net mandatory, provide a backbone to the backstop, as well as provide criteria and a citizen request trigger for the use of the safety net.

Before we proceed too far, Mr. Chair, Mr. Mills has an amendment I would like to consider as a friendly amendment. I would like Mr. Mills to discuss it, if he's ready, through you, Mr. Chair. Would he like to present his amendment to my amendment?

Mr. Bob Mills: Yes, Mr. Chair.

The Chair: Is this the one that was tabled under page 133.1?

Mr. Bob Mills: Yes. We'll have to change the numbering and so on.

The Chair: You're suggesting your amendment be replaced by Mr. Mills' amendment?

Mrs. Karen Kraft Sloan: No. Actually, Mr. Chair, I was thinking perhaps Mr. Mills would like to move his amendment.

The Chair: You can't move two amendments at the same time.

Mrs. Karen Kraft Sloan: I haven't actually moved my amendment yet, if I can be clear about it.

The Chair: Yes, that's correct.

Mr. Bob Mills: This can become a friendly amendment.

Mrs. Karen Kraft Sloan: Yes. Mr. Mills' amendment could become a friendly amendment to mine. I wanted to clarify that I haven't moved my amendment yet.

The Chair: The amendment applies to page 18. Your amendment applies to page 17.

Mrs. Karen Kraft Sloan: Mr. Chair, the amendment on page 114 is the beginning of a package of amendments that have been split up.

The Chair: You would group them all together.

Mrs. Karen Kraft Sloan: I thought, for clarification of process, that we're having a bit of a discussion.

The Chair: How many amendments submitted by the member for York North are addressed by the amendment prepared for the member for Red Deer?

Mrs. Karen Kraft Sloan: I believe....

Mr. Bob Mills: Mr. Chair, for clarity, I think we're saying we would have a mandatory safety net in place. The criteria I'm proposing would be added to it, and would then make the consultation with the provinces. Once it has happened, and the criteria are developed, then the automatic safety net would in fact be implemented. It brings the whole concept together. If we put ours together, it would accomplish what we both want.

The Chair: It's fine. Your explanation is very helpful. All we need to know from Madam Kraft Sloan is which of her amendments are covered by your amendment. We can discuss your more comprehensive amendment in place of hers. That's all.

Mrs. Karen Kraft Sloan: I believe my amendments on pages 122 and 124 are affected by Mr. Mills' subamendment.

The Chair: The amendments on pages 122 and 124?

Mrs. Karen Kraft Sloan: Yes.

The Chair: As well as the amendment on page 114?

Mrs. Karen Kraft Sloan: As well as my amendment on page 114.

• 1710

The Chair: All right. We need someone to move Mr. Mills' amendment on page 133.1. It's a page that is by itself. This page would replace the amendments on pages 114, 120—

Mrs. Karen Kraft Sloan: No, Mr. Chair. It doesn't replace my amendment.

Mr. Bob Mills: It would be added on to it.

Mrs. Karen Kraft Sloan: It's a subamendment to the amendment that deals with the contents on pages 122 and 124. I have a package of amendments.

Mr. Bob Mills: Combining the amendments on pages 114 and 122 with my friendly subamendment 133.1 will give us the package we're looking for. We'll have to do some numbering here.

The Chair: Let's recap. The motion on page 114, plus the motion on page 122, plus the motion on page 124, plus the motion on page 133.1 are being dealt with as a package. Mr. Mills made an intervention a few moments ago explaining the essence of his contribution to this package, namely 133.1.

I hope the members of the committee can follow this minor acrobatic feat and bear with us.

• 1715

I will give the floor to either Madam Kraft Sloan or Mr. Mills.

Mr. Bob Mills: I think Madam Kraft Sloan has the amendments.

Mrs. Karen Kraft Sloan: I want to thank members for their patience on this item. As Mr. Herron, Mr. Comartin or someone pointed out an eon ago, this is a truly important section of this bill.

I would draw members' attention to my amendments on pages 114 and 122. The amendment on page 124 will be struck. So I withdraw that, Mr. Chair.

Mr. Mills' amendment on page 133.1 will replace the amendment on page 124.

Just to clarify for members, we're voting on these amendments as one package.

The Chair: For the purposes of clarity and reasonable discussion, we are now putting forward for discussion a package that consists of the amendments you have on pages 114, 122 and 133.1.

These are the three items in one package, if I understand you correctly. This is what the discussion is on. Mr. Mills already made one intervention, but if one of the two of you would like to recap, so the members of the committee can get the flavour it, I will recognize committee members as is customary.

Mrs. Karen Kraft Sloan: Yes. Did Mr. Herron have...?

The Chair: No. Mr. Herron has to wait for his turn.

Mrs. Karen Kraft Sloan: Okay. That's fine, Mr. Chair.

Mr. Mills, do you want to say anything?

Mr. Bob Mills: No, it's okay. Go ahead.

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

As the chair pointed out, we're doing the amendments on pages 114 and 122, and the amendment on page 124 is replaced by Mr. Mills' amendment on page 133.1.

• 1720

The amendment on page 114 makes the safety net mandatory, and the amendment on page 122 adds:

the laws of the province do not effectively protect the species or the residences of its individuals.

The word “effectively” is added.

On Mr. Mills' amendment, I will read it very slowly because Mr. Mills has made some changes to it, if you want to turn to the amendment on page 133.1. There is new numbering. It reads that Bill C-5 in clause 34 be amended by adding after line 37 on page 17 the following:

(3.2) Within six months of this Act receiving royal assent the Minister shall, in consultation with the appropriate provincial ministers and other appropriate persons, develop criteria for determining what constitutes “effective protection” of species at risk throughout Canada.

(3.3) The Minister shall, within the period mentioned in subsection (3.2), place these criteria in the public registry for a period of 60 days for public comment.

Then there is a new section:

(3.4) Once the criteria under subsection (3.2) are implemented, subsections (2) and (3.1) immediately apply.

Mr. Knutson.

Mr. Gar Knutson: I want to commend the Canadian Alliance for bringing forward this amendment. The gist of it is that we're going to give the government six months to work out what effective protection is. This should not wave a red flag in front of provincial authorities.

Regardless of what I think of the Canadian Alliance's position in a more general sense, they've been clear in protecting provincial authority and the right of the provinces, as part of their principles of why they exist. I think this amendment is important, it provides clarity, and we should support it.

The Chair: Thank you.

Mr. Mills, Mr. Herron.

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Mr. Bob Mills: Some of you might be concerned what will happen if they don't come to an agreement in six months. At that point, a friendly amendment to the amendment could simply take care of the fact that if they did not come to an agreement, the automatic safety net would be instituted. That way they would be forced to have that agreement within six months. I'm not sure of the exact wording, but I think the intent you have would then force the province and the federal government to be serious about it, and it would be a backstop to the concern—

Mr. Gar Knutson: Each other in good faith.

Mr. Bob Mills: Yes, and both would then enter negotiations in good faith.

The Chair: Mr. Herron, you're very anxious to take the floor.

Mr. John Herron: In that same vein, as a fallback position, I would like to move a friendly amendment to the friendly amendment with language we already have in place. I would say if the aspects haven't been able to be negotiated within that six-month period, we would revert back to the aspects that were in the language of Mrs. Kraft Sloan's amendment on page 124.

Through you, Mr. Chair, I would see if there's some flexibility with the Canadian Alliance on that issue, so if we don't have it done in six months, then the aspects would fall back into what we had on page 124.

Mr. Bob Mills: I think that's getting too complicated. It would be better to simply put in there that if you want a backstop, put in the backstop. If you don't agree, then obviously the automative safety net cuts in—end of story.

The Chair: Madame Redman.

Mrs. Karen Redman: Thank you very much, Mr. Chair.

We've heard all these arguments. I guess this is the third Coalition attempt to get this through. The government's objection to this is the fact that years of negotiation in good faith with our territory and provincial partners have gone into the structure of this bill, and because of that, we don't feel that this amendment in any way improves the bill.

Mr. John Herron: Okay.

The Chair: Are there any further comments? Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I'm very willing to accept Mr. Mills' amendment to the amendment to my amendment. We just need to get the wording fine-tuned.

The Chair: Well, we have nothing in writing here. We have Mr. Mills' amendment, with an addition of subclause 34(3.4), but nothing further is available.

Mr. Bob Mills: I think just to get the backstop is the concern, and—

The Chair: Unless you are willing to read what would probably be subclause 34(3.5), we are in suspended animation.

Mrs. Karen Kraft Sloan: Do we have seven minutes to suspend the animation, Mr. Chair?

Mr. Bob Mills: I think we could come up with it very quickly, Mr. Chair.

The Chair: Madame Scherrer, do you have a question?

[Translation]

Mrs. Hélène Scherrer: Thank you. I would like to have some clarification of the amendment, where it says:

(3.1) Within six months of this Act receiving Royal Assent the Minister shall, in consultation with the appropriate provincial Ministers...

Is the consultation mandatory? Can a province refuse to take part in the consultation? Is the consultation just wishful thinking? If they refuse to take part, what will be the legal consequences?

[English]

Ms. Ruth Wherry: While David is getting ready to respond, I would say that the way I would read the language in here, there's no way you can force the provinces to consult or to develop the criteria. So if they choose not to be involved in the consultation, the wording in the bill would require that it would take place, the criteria that the minister developed. I think I answered your question.

Mr. Gar Knutson: If they don't cooperate, if they don't deal in good faith—and our members from Alberta here are confident that Alberta, at least, will deal in good faith—then the safety net kicks in, which is the spirit of the bill. If they don't do the job....

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Mr. John Herron: There's no safety net provision.

The Chair: Thank you.

Mr. Mills.

Mr. Bob Mills: I will move this subamendment. I guess the numbering would be subclause 34(3.5).

The Chair: Would you do it slowly, please?

Mr. Bob Mills: It would read:

In the event there is no agreement within six months, then subsection (3.2) shall apply.

The Chair: All right, you've heard this final subamendment. Are you ready for the question?

Mr. Near.

Mr. David Near: I'm not sure what the amendment actually reads now. The numbers that are referenced don't seem to jibe with one another.

The Chair: As we have it here at the table, the first line would read that Bill C-5, in clause 34, be amending by adding after line 37 on page 17 the following.... Then you have have subclause 34(3.2), from “Within six months” to the words “throughout Canada” in the text of the amendment before you. Do you follow?

Mr. Bob Mills: That's added after line 37.

The Chair: Yes.

Then you have subclause 34(3.3):

The Minister shall, within the period mentioned in subsection (3.2), place these criteria in the public registry for a period of 60 days for public comment.

Then you have subclause 34(3.4):

Once the criteria under subsection (3.2) are implemented, subsections (3.2) and (3.1) immediately apply.

Mr. David Near: What's the reference to “(3.2)” there?

Mr. Bob Mills: The “(3)” that you have on line 34 becomes “(3.1)”. So subclause 34(3.1) reads: “The Minister must recommend that the order be made” and it goes on from there.

Then, after line 37, you have subclause 34(3.2), and so on.

The Chair: Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I believe these numbers can be fixed up.

The Chair: All right, you have the substance, at least. Whether the numbers are exactly the same, that can be easily corrected. The substance is before us.

(Amendment agreed to) [See Minutes of Proceedings]

The Chair: You have an amendment on page 121, also on clause 34, dealing with lines 36 and 37.

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Mr. Gar Knutson: I'm ready. This is a fairly minor amendment. I hope the government can find it in its wisdom to support it. It's on clause 34. The way it reads now is:

With respect to individuals of a listed wildlife species that is not an aquatic species or a species of birds that are migratory birds

The Chair: That's page 121.

Mr. Gar Knutson: In subclause 34(3) I'm going to change where it says:

The Minister must recommend that the order be made if the Minister is of the opinion that the laws of the province do not protect the species.

I would add “or the residences of the individuals ”.

The Chair: So the new part is “or the residences of the individuals”?

Mr. Gar Knutson: Yes.

The Chair: Would you like to explain briefly?

Mr. Gar Knutson: At first glance this may seem rather picky, but I think it goes to the point.... I'd rather it say “protect the critical habitat”, but we've had a lot of discussion about why critical habitat isn't going to be protected, and I think residence is an important element in protecting the species.

The Chair: Thank you.

Madam Redman.

Mrs. Karen Redman: I'm going to have to ask if that can be read again. Is Mr. Knutson moving it the way it's written on page 121, or is he...?

The Chair: Yes, he is, but the new part is the part following the word “species”.

Mrs. Karen Redman: I'm trying to ascertain.... I see two additions; one is not....

The Chair: We've finally discovered what we were wondering about. This amendment has already been covered by the previous amendment, so we don't need to—

An hon. member: What page are you on?

The Chair: Page 121.

We don't need to put it. Sorry, Mr. Knutson.

Mr. Gar Knutson: That's okay. It's my fault. Mea culpa.

The Chair: You're withdrawing it.

Page 123 is no longer applicable. Page 124 was withdrawn. Page 125 is covered, disposed of. We come then to page 126, an amendment to clause 34 in the name of the member for York North.

Mrs. Karen Kraft Sloan: I'm sorry, page 126?

The Chair: Yes.

Mrs. Karen Kraft Sloan: Mr. Chair, on page 17, line 41 we have some numbering changes—and I'm not going there. All I'm really doing is adding “the public”.

The reason I'm adding “the public” is that I think it's a good opportunity to open up the process, to be more inclusive. It gives landowners and conservation NGOs an opportunity to participate. So I would ask the committee to pass this amendment.

The Chair: So it would be “and the public?”

Mrs. Karen Kraft Sloan: Yes, Mr. Chair.

The Chair: And what happens to paragraphs 34(4)(a) and 34(4)(b)?

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Mrs. Karen Kraft Sloan: It's just a renumbering. It's just technical. It's paragraph 34(4)(a), “the appropriate provincial minister;” then it adds a semicolon and an “and” after “management board”.

The Chair: Madam Redman.

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

I would point out that page 127 has exactly the same amendment. Through you, if I could clarify the intent of the mover, there are already consultation requirements in the bill, when orders are developed through the regulatory policy, so this would seem to be consultation upon consultation. I'm just wondering what the value added would be when this is already clearly outlined in the process as it exists.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Then I guess we should delete consultation with the appropriate provincial minister and the wildlife management board as well. Here's an opportunity. You're making specific reference to consulting with the provincial minister and the wildlife management board. Let's open it up to the public as well, because there are situations when the public have comments about what's going on in their provinces. Let's open it up for accessibility.

Mrs. Karen Redman: Mr. Chair, perhaps we need to outline the public consultation specifically as it exists in the process.

Mr. David Near: I think I went through this a few days ago. Any time the statutory instrument is produced by the Government of Canada, there's a requirement to comply with Treasury Board guidelines on regulations. That includes the development of a regulatory impact assessment statement, and part of that requires consultation with anyone who wishes to provide comments to the proposed regulation once it's published in the Canada Gazette part I. After that consultation period is over, the minister will consider the comments received, and then the regulation is finalized and published in the Canada Gazette part II.

The Chair: Thank you for your patience, Mr. Near, in repeating what you said a few days ago.

Mr. Mills.

Mr. Bob Mills: This bill is built on cooperation. Let's say the public is going to be consulted. Again, who reads the Canada Gazette? So let's say it. It's the public. That's who we want to consult. That's the most important.

(Amendment agreed to) [See Minutes of Proceedings]

The Chair: We'll skip the amendment on page 127 and move to Mr. Knutson's amendment on page 128. We may have two similar amendments, one on page 128 and one on page 130.

Mr. Knutson, would you like to proceed?

Mr. Gar Knutson: I'll withdraw it.

The Chair: Thank you.

Madam Kraft Sloan, would you like to conclude with yours?

Mrs. Karen Kraft Sloan: Yes.

Falling in line with the wish of the committee to ensure there's public access and accountability in this legislation, the amendment on page 130 is a mechanism for a citizen's request. An individual can submit a request to the minister, again, supported by reasons, requesting the minister make an order under subclause 34(2), which is the indication of the safety net.

The Chair: Are there any comments? Madam Redman.

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

Any citizen is currently free to write a letter to the minister. I would ask Mr. Near or Ms. Wherry to talk about the impact this potentially would have on the varied landowners and farmers who will implement this legislation on the ground, and who are the people protecting species at risk as we speak. This may potentially open them up to a kind of exposure that may be disquieting to them. I would ask whether Ms. Wherry or Mr. Near would like to speak to this.

• 1745

Ms. Ruth Wherry: Basically this is saying that any citizen can ask to have the minister review whether or not the province is meeting the standards or the criteria that will be put in place, in terms of protecting species or residences on private or provincial crown land—that is, whether they're effectively protecting the species.

The Chair: Mr. Mills, then Madam Kraft Sloan.

Mr. Bob Mills: For me, this raises the potential issue of abuse. You may have someone who doesn't like you very much. By having “any person” can request that, it could become a way to get back at your neighbour. I would really question having that possibility in there.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, this isn't a citizen suit provision. This is a citizen request that the minister take a look at the safety net provisions to make sure that the federal government is using the safety net provision properly. It's a request for the minister to examine the safety net. This is just for clarification on the committee.

With regard to what the parliamentary secretary said, I know a lot of people can write the minister letters, but the minister doesn't have to reply within 60 days after receiving the request under subclause 34(5). The minister certainly doesn't have to indicate to the applicant whether he or she intends to make an order, and give reasons for their decision with regard to whether the federal government is implementing the safety net provision or not.

So this just provides accountability and access to the public. If individuals are concerned about what's happening with their province, then they have a right to send a letter or a request—with reasons—to the minister to ask that the minister take a look at the situation in their particular province. The minister has to respond with reasons.

(Amendment negatived) [See Minutes of Proceedings]

The Chair: Now, Hallowe'en is calling, but we have one more amendment and then we can at least complete clause 34—almost.

Ms. Susan Baldwin: No, we don't. What do we have?

The Chair: Well, we have an amendment on page 131. No, that was Mr. Knutson's.

Mr. Gar Knutson: A photocopy mistake.

The Chair: Then we are finished on clause 34 and we can call it.

(Clause 34 as amended agreed to)

The Chair: Thank you.

Now, shall we give precedence to Hallowe'en, or do you want to do clauses 35 or 32 or 33?

Some hon. members: Oh, oh.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: As a point of clarification, we're covering clauses 32 and 33 tomorrow in committee.

Thank you very much, Mr. Chair.

The Chair: Or more—depending. I don't want to be....

Mrs. Karen Kraft Sloan: Lots more. Very good.

The Chair: Thank you.

This meeting is adjourned.