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HERI Committee Meeting

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[Recorded by Electronic Apparatus]

Tuesday, October 30, 2001

• 0907


The Chair (Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.)): This is a meeting of the Standing Committee on Canadian Heritage


meeting today to study Bill C-10,


an act respecting the national marine conservation areas of Canada.

I should mention as we start that we have a problem and will have to make a decision. There are 25 government amendments, and we've just received this morning 30 amendments from the Canadian Alliance. The committee legal staff need to be able to find out how these tally with your amendments and how they can be classified. We can't just study your amendments without knowing what the Canadian Alliance has brought forward. It takes time to sort them out and put them in order and so forth. If there are two amendments on the same clause, we are obviously going to study them together instead of studying yours and then coming back to the Canadian Alliance's. They have to be sorted out.

The legal staff tell me it takes about two hours to do this, so there are two options. Number one, maybe we can spend a bit of time with you, Ms. Katz and Mr. Lee, to find out what your amendments are about. At least it will bring us forward that far. Or we could just adjourn the meeting for two hours and come back, but then members have to expect that we are going to have to work longer hours in the afternoon and evening.

Mr. Dennis Mills (Toronto—Danforth, Lib.): I think we'll save in the long run, Mr. Chairman, if we can put the officials together on this. Let's see if everybody can put some water in their wine, and then we'll all be better off.

The Chair: So shall we say 11:30?

There are two items we could clear up right now. There is first of all a letter from Mr. Provenzano and Mr. Wood that was tabled with us for action, and we could deal with that. The second one was a letter from various broadcasters about the Canadian Television Fund.

• 0910

Starting with the last one.... I'm just giving you my views, and I'm not trying to influence any of the members at all. I'm a little leery about setting a precedent, where we send a resolution about the budget to someone. From what I've been able to gather, I don't know whether this is exactly the role of the committee . If we agreed that it's important to keep this fund going, there could be a letter sent to the government to express the wish of the committee that the fund be kept going—or something like this.

Ms. Bulte.

Ms. Sarmite Bulte (Parkdale—High Park, Lib.): Mr. Chair, perhaps the committee could pass a motion, hopefully unanimously, supporting the continuation of the Canadian Television Fund.

Mr. John Harvard (Charleswood St. James—Assiniboia, Lib.): I so move.

The Chair: Mr. Abbott.

Mr. Jim Abbott (Kootenay—Columbia, Canadian Alliance): I share your concern, Mr. Chairman, about setting a precedent. I had my colleague, Mr. Burton, read into the record where I am coming from as the heritage critic for the official opposition. Restated, it is simply that because we are engaged in the broadcast act review, we should maintain for the moment the status quo. Therefore, I'm not expressing an opinion for or against the fund. I'm simply saying to leave it alone. I have no difficulty with the motion, except that I think that we as a committee have to give serious thought to what precedent we're setting. In other words, if prior to a future budget we have this motion so approved, or at least the appearance of the content of the letter being approved, we could find ourselves inundated by requests from various people with various axes to grind.

The Chair: Could we put a qualifier on the motion to the effect that we don't want to set any precedent regarding our budget and so forth but that we endorse the idea of the Canadian Television Fund being kept going, or something of that nature?

Ms. Bulte.

Ms. Sarmite Bulte: With respect, I find myself almost having to concur with Mr. Abbott here.

Mr. Jim Abbott: The sky is about to fall.

Ms. Sarmite Bulte: I agree on two things. One is about the status quo, because we are undertaking this broadcasting study. There may be other recommendations we would make. Perhaps we need to think about it a little so we can somehow make it unanimous that pending the completion of the study, we recommend maintaining the status quo of the fund. Is that acceptable to you? This is so we're not making any new commitments. I don't think we should, because maybe there will be commitments, maybe we'll want to make it permanent, or—

The Chair: Or not.

Ms. Sarmite Bulte: —for three years, or whatever. Maybe it should have a sunset clause of three years. If we're agreed on the pending-the-outcome proviso, we support the continuation of the fund pending the outcome of our study and recommendations.

The Chair: Okay, is that fair enough?

Ms. Sarmite Bulte: So it's continuation as opposed to—

The Chair: You'll make a motion on this this, Ms. Bulte?

Ms. Sarmite Bulte: Yes, but maybe somebody else should.

The Chair: Okay, Mr. Harvard was prepared to move it.

(Motion agreed to) [See Minutes of Proceedings]

The Chair: In regard to the other issue, we'll just have to wait for... We said that after the clause-by-clause is over, we'll probably invite one of the authors of the letter to state their case or we'll decide what we do from there.

Mr. Jim Abbott: Mr. Chairman, I find myself in a very unusual position. I've often found myself very sympathetic to the position of the Bloc and our friends who are unilingual French speakers. I've had some sympathy for them. Now I have an actual case in point of having real sympathy for them because I received that letter in French, and unfortunately I am unilingual. Therefore, I don't have a clue as to what the letter says. It would have been helpful if the movers or at least the people who presented the letters to us had—

The Chair: There must have been a misunderstanding. When I got it, it was in both French and English.

Ms. Sarmite Bulte: There must have been a mistake, because they were in both French and English.

Mr. Dennis Mills: It was initially presented in English, and we held it up.

Ms. Christiane Gagnon (Québec, BQ): They talk for the Bloc.

The Chair: It was sent in English, so we wouldn't have sent it out until the French version was ready.

Ms. Sarmite Bulte: We don't table anything here unless it's in both official languages.

The Chair: Okay, so the meeting is suspended till 11:30. I hope you'll all be back. Thank you.

• 0915

• 1132

The Chair: We'll resume the meeting.

Could I have a show of hands as to who needs a copy of the bill? We are going to give you a package of amendments.

The package of amendments have now been put together—both the Canadian Alliance and the government amendments. The Canadian Alliance amendments show as CA and the government amendments show as G and the package runs from page 1 to page 81. Those are all the amendments that we've received and that will be considered today.

I'd like to mention to members that we have with us today, from the Parks Canada Agency, Mr. Tom Lee, who is chief executive officer, Mrs. Susan Katz, who is the director of the legislation and policy branch, and Daphne Porter, who is a legal counsel. They'll be assisting us in explaining the government amendments.

As is the usual procedure, pursuant to Standing Order 75(1) of the House, consideration of the preamble and clause 1 is postponed. We will start with clause 2.

Mr. Andy Burton (Skeena, Canadian Alliance): Mr. Chair, there's something in the preamble.

The Chair: No, we've postponed the preamble and that is the way it goes. We'll postpone the preamble and clause 1 and start with clause 2. Clause 2 is on page 7 of your booklet.

I have received advice from the legislative officials, so I want to mention to the government officials who are here that amendment G-3 at page 7 is out of order. It's a substantive amendment to an interpretation clause and cannot be accepted. So we'll pass on.

• 1135

We'll go to page 9, a Canadian Alliance motion, CA-3. Mr. Burton will speak to it.

Mr. Andy Burton: Mr. Chairman, do I read the motion out?

The Chair: You don't have to read it. You can just explain to the members what you're trying to achieve.

(On clause 2—Definitions)

Mr. Andy Burton: We're concerned about the province not having the right of veto if they have a problem or if there's a jurisdictional dispute. There is a mention of aboriginal veto, and we felt the province should also be mentioned in order to give some clarity and to prevent any misunderstanding of who has what rights in terms of veto.

The Chair: Mr. Abbott.

Mr. Jim Abbott: Mr. Chairman, I would like to expand on my colleague's comments.

I'm rather expecting that some of the government members may be inclined to suggest this issue is covered by the consultative way in which the bill is phrased. I would suggest with respect, as my colleague has indicated, that if this were very explicit, as opposed to implied, as it is presently in the legislation, the feeling of comfort of the petitioners—the members of the Union of British Columbia Municipalities and the other stakeholders—would be increased. An explicit expression of the government's intent would go a country mile to defusing the concern in the province of British Columbia.

The Chair: Mr. Harvard and Ms. Bulte.

Mr. John Harvard: Could I just ask a question?

The Chair: Of course.

Mr. John Harvard: I do believe the witnesses are there to—

The Chair: Yes, they're there to assist us.

Mr. John Harvard: This may sound like a wasteful question, but what is the point of that clause at all? One assumes that when we prepare statutes, implicit is the fact that we don't take away rights already offered to anyone under any other particular statute or constitution. So why is it needed?

The Chair: Ms. Katz or Ms. Porter.

Ms. Susan Katz (Director, Legislation and Policy Branch, Parks Canada Agency): The Constitution provides protection to powers granted to provinces under the Constitution, so it would therefore not be necessary to make such a statement. Those powers are already covered under section 92 of the Constitution.

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: I just want to add, Mr. Chairman, that it is the government's position that to the extent the national marine conservation areas deal with provincial lands—this came up time and time again in the testimony—this already provides for requisite provincial agreement under paragraph 5(2)(b). If you'll recall, Mr. Chairman, this came up time and time again during the hearings.

The Chair: Mrs. Hinton.

Mrs. Betty Hinton (Kamloops, Thompson and Highland Valleys, Canadian Alliance): I don't disagree with any of the comments that have been made so far, but if it's necessary to include aboriginal peoples in this particular passage, it's also necessary to include the provinces.

The Chair: Mrs. Katz, did I understand from you, following our discussions the other day, that you were going to broaden paragraph 5(2)(b) inwith respect to the conditions for agreements, which would again reinforce paragraph 5(2)(b)? Is this being done? Do you have a proposal regarding paragraph 5(2)(b)?

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Ms. Susan Katz: There is a proposal to amend the circumstances under which reserves may be established. I'm not sure if that's your question, sir.

Ms. Daphne Porter (Legal Counsel, Parks Canada Agency): There is an amendment to subclause 10(1) to make it clear that the requirement to consult with provinces on the establishment of marine conservation areas applies to any proposed marine conservation area.

The Chair: That's exactly what I meant. I got myself confused.

Mr. Abbott.

Mr. Jim Abbott: Mr. Chair, we're not entering into debate for clarity. I believe the point my colleague, Ms. Hinton, was making in response to the comments by our witness, Ms. Katz, is that if there is a requirement for an explicit statement vis-à-vis the interests of aboriginal communities, wouldn't it...? I don't really understand if there's a requirement for that, one which presumably would be to assuage the concerns of our aboriginal communities.

By the same token, what we have been saying all along—and perhaps you heard it quite clearly in the testimony before committee—is that there is the same level of anxiety on the part of other people in British Columbia. If the government is prepared to put a clause in that is explicit with respect to the interests of the aboriginals, why would the government not also be prepared to put in a clause that is explicit with respect to the concerns of the general population of British Columbia?

The Chair: There is a provision regarding provinces that is pretty explicit: paragraph 5(2)(b). It's already there, and it refers to provinces as such:

    in a case where Her Majesty in right of a province has the administration and control of any of the lands to be included in a marine conservation area, the government of the province has agreed to the use of the lands

Unless the government has agreed to the use of those lands, it doesn't happen. I repeat, there's already a specific clause about provinces in paragraph 5(2)(b). Ms. Katz promised during the discussions the other day to amplify—my reference was wrong, and I gave her the wrong clause.... When we look at subclause 10(1), there has to be consultation with the provinces and with any other party regarding any proposed marine conservation area. This will take care of the case that was discussed here concerning areas that are in dispute, that are felt to be neither provincial or federal. This is why there was a suggestion last week during testimony that this be made clear in subclause 10(1). I understand there's going to be an amendment to clarify this so there will be no ambiguity as to what happens in the case of a disputed area. If you have paragraph 5(2)(b) and subclause 10(1) together, the amendment under subclause 10(1) just takes care of any province having to be consulted. We cannot avoid consulting with the provinces.

Mr. Jim Abbott: Without jumping too far forward and at the same time recognizing that we're dealing with a specific clause, it's nonetheless my understanding on advice that the majority of the government amendments that deal with other issues here are fundamentally strengthening the veto position—we'll call it—of the aboriginal communities. The government is responding, I suggest, to the expressed concerns of the aboriginal communities. Yet at the same time, although I take what you're telling me in good faith, they are not making the same level of response to the concerns of the non-aboriginal communities in the province. It seems to me—and I'm not saying this in the pejorative—that there's a double standard here.

• 1145

The Chair: I'll ask Mr. Lee to explain, but the fact is that under subclause 10(1) this was really the discussion.

There is already a provision about the provinces under paragraph 5(2)(b), and if subclause 10(1) solidifies it to say that it covers any proposed marine conservation area, whatever the circumstances, it certainly takes care of other provinces just in the same way as the aboriginal people.

Mr. Lee, would you care to comment?

Mr. Tom Lee (Chief Executive Officer, Parks Canada Agency): Thank you, Mr. Chair.

To summarize, the rights of the provinces are clearly protected under section 92 of the Constitution Act. No federal legislation can be passed that abrogates in any way those rights. That's point one.

Point two is that paragraph 5(2)(b) very clearly requires the agreement of the province in establishing an area if there are provincial lands involved. The province would have to agree, or the area could not proceed. So there is no distinction being made. The rights of both provinces and aboriginal people are being clearly recognized in this bill.

The Chair: Mr. Burton.

Mr. Andy Burton: Mr. Chairman, I really believe that we're not just talking about British Columbia here. There are ten provinces in Canada, and every one of them needs to have the certainty and the assurance that they will have the ability. I think this clause clarifies that to a much greater degree than the other section the gentleman mentioned. I think it just behoves us, on behalf of all the provinces of Canada, to take that into consideration.

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: Thank you, Mr. Chairman.

While I understand where Mr. Burton is coming from, Mr. Chairman, I think that what happened has had the opposite effect. Where lands are clearly within the jurisdiction of the federal government and belong to the crown, this clause would perhaps have the unintentional effect of requiring provincial veto, thereby provincial powers over federal.

So again, if the interests of the provinces are concerned under paragraph 5(2)(b), then that is addressed. But what this clause could actually do is give the province ultimate veto in a case where the lands are clearly within the federal government's jurisdiction.


The Chair: Madam Gagnon.

Ms. Christiane Gagnon: We too would be in favour of writing into the act an obligation for the federal government and of clearly setting out that this obligation is part of the law, because in the two provisions you have mentioned, namely paragraph 5(2)b) and subclause 10(1), this is not very explicit. The text says “shall provide opportunities”; it does not require of the federal government that it negotiate with the provinces. Therefore, for us, this is an amendment that it would be important to make. This must also take precedence... If we wish to protect the rights of aboriginal peoples and of reserves, then it is also important to protect the jurisdiction of provinces. We are in this regard quite adamant. As a matter of fact, this was one of the irritants in the bill on marine areas.


The Chair: Mr. Harvard.

Mr. John Harvard: I think, Mr. Chairman, that the sovereignty of the provinces is quite clear under the Constitution. Their rights are protected. There's nothing we can do here to take away the rights of the provinces, so I would simply call for the question.

(Amendment negatived) [See Minutes of Proceedings]

The Chair: We'll now move to amendment CA-4, on page 10.

Mr. Burton.

• 1150

Mr. Andy Burton: I don't need to read the amendment, Mr. Chairman, but I'll read the rationale. It's similar to our previous amendment, except it ensures that parallel legislation on this must be passed in the legislative assembly of an affected province or provinces. It provides for certainty of consultation with the province and the approval of a province prior to the creation of an MCA. So I urge you to support it.

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: I'd like to remind members of the committee that this is framework legislation, enabling legislation. While there is the example of the St. Lawrence and Saguenay bill, which did have mirror legislation, it is up to the individual provinces to decide. The whole point of enacting this legislation is that we establish the framework to consult with provinces, to work together to be able to establish. So it's not necessary in every individual case. It doesn't take away the rights, as the case may be, for the individual provinces to decide, if that's what they want to do, but this provides us a framework to go ahead and proceed.

The Chair: Is there any further discussion?

Mr. Andy Burton: Mr. Chairman, I'd like to point out that this is a consequential amendment, and our amendments 9, 10, 11, 13, 14, and 15 are related, so there's quite a repercussion here.

The Chair: Do you suggest this amendment be stayed? Do you want it stayed until we study the others?

Mr. Andy Burton: Until we get there? I suppose that would be all right.

The Chair: Otherwise, we'll vote right now.

Mr. Andy Burton: I'd prefer that we get a chance to discuss the others and see how they relate.

The Chair: All right, so we'll stay this amendment for now. We'll stay amendment CA-4.

(Amendment allowed to stand) [See Minutes of Proceedings]

The Chair: We'll now proceed to amendment G-4 in clause 2, on the application of act to reserves. Mrs. Bulte.

Ms. Sarmite Bulte: Mr. Chairman, this is just a technical amendment on behalf of the Government of Canada that moves clause 30 of the bill to a more prominent position in the legislation, making it clear that the act applies to a reserve as if it were a marine conservation area. There was some question that came up, I believe, in Mr. Mercredi's testimony at some time.... Actually he was the one who brought it up to us last May or June, and I think this is just to allay any concerns. So it's strictly technical, because it was never intended to be what Mr. Mercredi thought it was at the time.

The Chair: Ms. Katz, do I understand you then that clause 30 would fall away?

Ms. Susan Katz: That's correct, Mr. Chairman.

The Chair: So it's purely technical, clause 30 falls away. This is just putting it in a different place.

Mr. Abbott.

Mr. Jim Abbott: I'd like to gently point out to the parliamentary secretary and to the other members of the government that this is exactly what I was referring to in my previous comments. I respect the fact that this is a technical amendment, and it is for greater surety, and it does clarify the situation with respect to comments by Mr. Mercredi. I respect that; I have no difficulty with that whatsoever. But I would ask the government members to consider that in addition to Mr. Mercredi, and in addition to his aboriginal constituents, there are other people in the country who also are looking for the same kind of clarity and assurance, and it's in this spirit that we have been putting forward the various amendments and will be putting forward other amendments that we'll be dealing with.

So all I'm asking for is for the consideration that we take a look.... There may be a small degree of redundancy in some of the amendments we're proposing, or it may be that they are simply technical clarifications. That may well be the case. But if we're going to pass the government's fourth amendment here in the spirit of making it clearer, we would simply ask for the same consideration on the rest of our amendments.

• 1155

Ms. Sarmite Bulte: To reply directly, this is already in the bill, Mr. Abbott. We're just moving it under clause 2. It was already there under clause 30. So clause 30 does fall away.


The Chair: Madam Gagnon.

Ms. Christiane Gagnon: I would simply like a clarification with regard to the scope of the amendment. In other subclauses, 5(1), 6(1), 4(1), 4(2), there is no distinction made between “marine area” and “reserve”. Therefore why at this stage, in this clause, should such a distinction be made?

I was rather saying the contrary.


The Chair: Have you understood the question, Ms. Katz?


Ms. Susan Katz: I do not believe I quite understood the question, Madam.

Ms. Christiane Gagnon: In subclauses 5(1), 6(1), 4(1) and 4(2), there is a distinction made between “marine area” and “reserve” and here, in an amendment, you want it to be the same. Why?

Ms. Susan Katz: In the subclauses you have just mentioned, we are dealing specifically with the establishment of reserves and the establishment of marine conservation areas, and the drafters therefore concluded that within these clauses dealing with the establishment of these areas, a distinction must be made between the two, given that the procedures are quite different. But elsewhere in the bill, we use the term “marine conservation area” and we do not say “reserve and marine conservation area”.


(Amendment agreed to) [See Minutes of Proceedings]

The Chair: In accordance with our decision of before, we will stand the vote on clause 2 and revert to it later.

(Clause 2 allowed to stand)

(Clause 3 agreed to)

(On clause 4—Purpose)

The Chair: There are amendments to clause 4. We will now go to amendment CA-5, at page 13.

Mr. Burton.

Mr. Andy Burton: The amendment is to delete the words “and the world”, I believe. We wish to delete those words, since this bill we believe should only be concerned with the needs of Canadians and not try to meet some world quota. We just don't think those words are necessary.

Mr. Paul Bonwick (Simcoe—Grey, Lib.): Mr. Chair, where are we right now?

The Chair: We are on subclause 4(1), and there's an amendment by the Canadian Alliance, page 13, CA-5. The purpose of the amendment of the Canadian Alliance is to delete the last line “and the world”, to leave out the words “and the world”.

Mr. Andy Burton: That's correct. Yes.

Mr. John Harvard: And the reason for that?

Mr. Andy Burton: We just don't believe it's necessary. I think we should be doing these things on behalf of Canadians and we're not out to meet some specific quota for the world, in my mind.

Ms. Sarmite Bulte: It's not, Mr. Burton, to develop some specific quota. It's consistent with our international obligations to develop a network of marine conservation areas, and that's why I would strongly argue in favour of retaining those words.

The Chair: Mr. Abbott.

Mr. Jim Abbott: I had the opportunity last week to be in Germany and meet with many of the MPs and MLAs in the areas we were in and also get some input from our people in our embassies.

• 1200

One of the difficulties we face in the province of British Columbia is a high level of distortion of our conservation policies on the part of certain organizations based in that country. It is a deep concern to the people in the Canadian embassies, and it's somewhat of an embarrassment to some of the equivalent MLAs and the federal members of the German Bundesrat.

I would concur with Mr. Burton that if this were left in, heaven only knows where some of these organizations would take it. It's not really necessary. It may be something that is nice to leave in, but it has the potential to create problems for the people who are working very hard for the people of Canada, both at our professional diplomatic level and as well at the municipal and civil-servant level in the province. Eliminating this “world” is not a big deal, but it has the potential to be a big deal if some of these forces—particularly from Europe, and to a certain extent from the U.S.—were to try to use it as some kind of trampoline or bouncing point.

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: Mr. Chairman, if I may, I think anytime the government enters into an international agreement—be it in trade, be it otherwise—it does so on behalf of the people. It's an act of sovereignty in itself to have done so. We are leaders, and we have just signed the Costa Rica agreement. We just signed other international agreements.

This is part of our international obligations. We should be proud that we have taken such a step on behalf of the people of Canada, for the people of Canada. I don't think we take anything away by showing that we are honouring our obligations on behalf of the people.

The Chair: Mr. Lee, do you want to give us an explanation of why these words are there?

Mr. Tom Lee: They're there in recognition of the fact that Canada does have a number of agreements and undertakings of an international nature. The marine conservation areas contribute to that larger global undertaking. I suppose if I could give you one specific example, it's the convention on biodiversity. Both our national parks, and in this case our marine conservation areas, are part of Canada's contribution to the biodiversity conventions.

The Chair: I'm sorry, Paul.

Mr. Paul Bonwick: There is one thing I wanted Mr. Lee to expand on. It was raised by Mr. Abbott.

As a bureaucrat, Mr. Lee, do you envision any problems that having “world” in there is going to create within our civil service as they're communicating with their counterparts in other countries—whether that be in Europe or wherever—putting some sort of stranglehold on them or impacting them in a negative way?

Mr. Tom Lee: I could not anticipate that would happen. The facts are that those situations happen even without these words there. The fact is they exist.

I'm very familiar with the situation to which the member refers. It had to do with certain practices regarding forestry in Canada. The fact is that other forces from outside Canada play in that field, and will continue to play, and have played in the past, with or without this clause.

The Chair: Very briefly, Mr. Bonwick.

Mr. Paul Bonwick: Contrary to Mr. Abbott's remark that this is a fairly simple deletion, I would suggest quite the opposite is true. Using the word “world” is very far-reaching. Canada is viewed in many areas as a world leader on environmental issues and initiatives. I think it's only appropriate that we set the bar and let people know that it's not simply for Canadians, but that we are moving on a global line with environmental initiatives.

(Amendment negatived) [See Minutes of Proceedings]

• 1205

The Chair: We'll now go on to amendment G-5 from the government: “Purpose of reserves.” Mrs. Bulte.

Ms. Sarmite Bulte: Thank you, Mr. Chairman.

This is again addressing a concern that was, I believe, echoed by Mr. Mercredi with respect to the way the legislation was worded. He thought any time there was a land claim under this legislation, automatically a reserve for a marine conservation area would be put in.

That was never the intention at all. Reserves must be created the same way under this act as the marine conservation areas, which is with consultation. By taking out “Reserves for marine conservation areas” and saying “Reserves are established”, we hope it makes it clear that reserves are not automatically put in place every time a claim is accepted for negotiation. Reserves, again, can only be established in accordance with the act.

It also makes it clear that reserves could be established in the Maritimes or B.C. where there are settlement processes for claims to aboriginal rights other than just a comprehensive claims process.

Mr. Jim Abbott: This is just a point of clarification. I gently remind my Liberal friends that this again is along the lines of what we've been saying. Speaking as one person, I don't have any difficulty with this idea, for greater clarity for Mr. Mercredi or the aboriginal community or anybody else. We're simply asking for the same thing. But if I come down my list of proposed amendments, it says under CA-6: “If G-5”—which is this amendment—“is agreed to, CA-6 cannot be put.” I'd like to have some clarification on that. Who made that ruling, and why?

With your permission, Mr. Chairman, I'd just like to take a look at G-5 and CA-6 together, because of the comments that have been put to us by the committee staff. CA-6 says:

    No marine conservation area shall be established unless the Minister determines that the affected coastal communities agree with the creation, size, location and proposed permitted uses of the marine conservation area.

I don't really understand why, if G-5 is agreed to, we can't put CA-6.

Secondly, I would anticipate that if we vote in favour of G-5 for greater clarity for the aboriginal community, we would naturally vote for CA-6 for greater clarity for the non-aboriginal community.

The Chair: I'd turn to our legal expert here to answer it.

Mr. Philip Mela (Legislative Counsel to the Committee): There is a conflict of line between those two amendments, and you can vote only once on the same line. Now, if you would like to add something to the government amendment, you can always proceed by subamendments to their amendment.

Mr. Jim Abbott: May I propose a subamendment, that our motion CA-6 be added to G-5? Would that satisfy the legal requirement?

The Chair: I'm told this would be in order.

Ms. Sarmite Bulte: Mr. Chairman, I'll defer to our officials here, but just looking at what we're speaking about, these amendments deal specifically with reserves, and reserves are something that come about where there are potential land claims. CA-6—

A voice: —deals with coastal communities.

Ms. Sarmite Bulte: —talks about something totally different.

Mr. Andy Burton: Mr. Chairman, I'd point out that we're really talking about a new clause here that we want to see added. I guess the question is why could it not be put in? It's a new clause.

Mr. Jim Abbott: Well, my question came about as a result of this line business, but perhaps there's some clarification here, if it's an insertion of another clause.

Mrs. Betty Hinton: He just explained it. If we don't insert it now, we can't deal with it.

Mr. Andy Burton: But the question is, could it be put forward as a new clause?

• 1210

The Chair: Hold it a minute. I understand that we can use CA-6 to create a new subclause, which would be subclause 4(5). So that's what we will do. We will consider G-5 as it now stands, because it obviously refers to the reserves, which are under subclause 4(2). Then we'll deal with CA-6 as a new subclause 4(5).

We'll now deal with G-5.

(Amendment agreed to) [See Minutes of Proceedings]

The Chair: We'll now turn to amendment CA-6, which will now become subclause 4(5), but the wording stays the same.

Mr. Burton.

Mr. Andy Burton: Mr. Chairman, if I may, many of the witnesses we heard from were from affected coastal communities, and their prime concern was consultation and what would happen if coastal communities did not want a particular MCA in their area. In terms of protecting their interests, I think this amendment should be passed.

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: Mr. Chairman, from the testimony we heard the message was loud and clear that coastal communities want to be consulted. It is the government's position that there is consultation provided for throughout the bill, subclause 10(1) being the main one, along with the interim advisory plan and the management advisory boards, which are also in the bill.

While I fully understand where Mr. Burton is coming from, the concern is that with the wording of this new subclause 4(5), what in fact would happen—and I know it's not what is intended—is that the coastal communities would essentially have veto over the provinces and the federal government.

The Chair: Mr. McNally.

Mr. Grant McNally: I'm not sure that's the intent of the amendment.

We had a fairly good discussion the other day about this whole issue of consultation. I think it would send a positive message to those people who have these concerns. I think it would be positive for the government too. Perhaps our legal people can clarify the point Ms. Bulte made, and if it doesn't change the intent but just.... In the same way Mr. Abbott mentioned about the different amendments with regard to the aboriginal issue, if this just sends a message rather than changing the intent of the legislation, I think it would be a win for the government to send that message to those who have concerns, and it would be a win for the entire committee.

Perhaps this isn't the clause to put it in. Maybe it should go into a different clause.

The Chair: Mr. McNally, I remember you bringing this up. I understand that because of your intervention the other day, there's an amendment about this under subclause 10(1).

Next is Mr. Harvard, followed by Mr. Bonwick.

Mr. John Harvard: I think I would say to Mr. McNally that we're doing more than sending messages. We're writing law. So we have to be very careful.

I think it already has been pointed out a number of times that implicit in the legislation is the requirement for consultation. If the local communities don't want this to happen, it's not going to happen. You've heard Ms. Bulte say that many times.

But with the way it's written, you'd have to ask yourself, what is an affected coastal community? You could get into a great wrangle as to how far out in a particular area you would go to include affected communities. If you had three communities in a proposed area and one objected and the rest approved, does that constitute a veto on the part of one community?

That's why I mentioned that we're writing law here and not just sending political messages. On those grounds, I don't think that amendment would be acceptable.

Remember that we're talking about the requirement of consultation anyway, and that's implicit throughout the whole bill.

The Chair: Mr. Bonwick.

Mr. Paul Bonwick: I think Mr. Harvard dealt with what I was going to mention.

• 1215

The Chair: Are there any other comments? Mr. Abbott.

Mr. Jim Abbott: I believe that in testimony Ms. Katz professed that the department wouldn't create an MCA in an area where the coastal or affected communities weren't in favour of it. Contrary to what my friend Mr. Harvard just said, the point of this amendment is to solidify the issue and make it very clear to everyone in those communities affected by the MCA that they must agree to its implementation.

With the greatest respect, I don't accept Mr. Harvard's assertion that the fact that there will be some kind of consultative process means that the coastal communities will not simply be overridden. The concern on the part of citizens anywhere in Canada—in coastal communities, prairie communities, mountain communities, Lac St-Jean, I don't care where—is that control of what is happening in their neighbourhood will be wrestled away or that some power from on high, namely Ottawa, will make these determinations.

I realize that throughout Bill C-10 there is a very sincere effort to talk about consultation, the engagement of people, and so on and so forth, but there is a lack of faith on the part of the people in these communities. They're saying those are words, and what we want is something in writing saying that in fact we will have some power and some say.

The Chair: Before I give the floor to Mr. Bonwick, Ms. Katz, perhaps you could address how you are going to deal with Mr. McNally's suggestion of the other day to make it clear that coastal communities and other groups involved will be consulted, not just possibly but for sure. He raised the issue of conflict between the federal and provincial levels. Perhaps if you explained this, that would take care of this amendment.

Ms. Susan Katz: Thank you, Mr. Chairman.

I'd like to make a couple of points, one with reference to the bill in front of the committee at the moment. We do have a proposed amendment to the consultation provisions that makes the requirement to consult on the part of the minister much more direct, that rather than the minister providing opportunities to consult, the minister shall consult. So the obligation is much more direct and straightforward.

There's also a requirement that the requirement to consult applies to any marine conservation area, so that it wouldn't necessarily be with regard to the establishment of a marine conservation area where it's clear that the province owns the submerged lands but with regard to any marine conservation area that would be in the vicinity of that province.

Elsewhere in the legislation we talk about a requirement to consult with affected coastal communities, again a very direct obligation there. The requirement to consult doesn't end with establishment. It is also carried forward into the planning and management of marine conservation areas, and that's laid out in the structure and mandate given to advisory committees.

Behind the legislation there are Parks Canada policies with regard to establishment and the steps the organization must go through in order to establish a national marine conservation area. So the requirements that are laid out in the bill are backed up by a very detailed set of policy statements on how these areas are established.

The Chair: Thank you.

Mr. Burton.

Mr. Andy Burton: Mr. Chairman, I truly believe that this bill was written with all good intentions, but there's an old saying that the road to hell is paved with good intentions. For the sake of communities across Canada that will be affected, it's not unreasonable to request that this amendment be put in this bill. I know the intent is there. Why not clarify it and make it clear?

The Chair: Mrs. Bulte.

Ms. Sarmite Bulte: We're in agreement with what the intent is, but my concern, Mr. Chair, is that the way this amendment is worded it gives coastal communities a veto over both the federal government and the provinces. Consultation is clear throughout. Mr. Burton may have the best intentions here, but I think we're addressing those concerns elsewhere in other amendments within the bill.

• 1220

The Chair: Mr. Bonwick.

Mr. Paul Bonwick: I don't question the Canadian Alliance's position or intent.

I was a municipal councillor in a coastal community before I came here. There are dozens of them around that particular coast. Quite clearly, agreement versus consultation is the problem. There have been many initiatives on Georgian Bay where the bulk of the communities have come together and agreed on a certain direction and one community says no. You can't possibly create a clause where one community could have veto power over all the rest of the municipalities, all the other organizations affected, the provincial and the federal government. And that's clearly what this does.

The Chair: Mr. Burton.

Mr. Andy Burton: Mr. Chairman, it's called consensus. You work to consensus—prefer an area for a region. I think all we're asking for is that the affected communities have the opportunity to work toward that consensus. For that reason, I ask that this be included.

Mrs. Betty Hinton: It's called majority rule.

(Amendment negatived) [See Minutes of Proceedings]

The Chair: We go on to amendment C-7 of clause 4. Mr. Burton.

Mr. Andy Burton: Mr. Chairman, we're proposing that we add the word “severely” in that clause. The rationale is that this amendment will serve to better define what is deemed as an acceptable result of resource use within MCAs. Adding the word “severely” will ensure that any zoned usage of the MCA is allowed, even if slight changes in the structure and function of the ecosystem are made. The purpose is to clarify again what's allowed. It's too broad without the word “severely” in there. There has to be some clarification of how far you'd go.

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: Mr. Chairman and committee members, if we wait for severity—and how do you define severity?—it's going to end up with increased costs for conservation. If we wait until something totally goes.... How do we define severely? That's number one. I think it also weakens the standard of protection. So our recommendation would be not to include that word.

(Amendment negatived) [See Minutes of Proceedings]

The Chair: We turn to amendment G-6 on clause 4. Ms. Bulte.

Ms. Sarmite Bulte: In this bill we are deleting certain clauses at the beginning of subclause 4(4). We're suggesting to delete “For the purpose of achieving sustainable use of marine resources”. We're deleting this because we feel it's a repetition of the purpose of the act as set out in subclause 4(1).

The other changes are made to clarify that there would need to be at least one zone for ecologically sustainable use, at least one zone for full protection, and there could be other types of zones as well. The term “fragile” was changed to “sensitive”. Sensitive is a term that is used in scientific literature. The term “ecosystems” was expanded to “elements of ecosystems” to provide greater flexibility in zoning regulations.

Mr. Andy Burton: Mr. Chairman, if I may, perhaps as a show of good faith and to show that we're not here to fight and argue about everything, we could agree to this and we would be prepared to remove our amendment 8.

• 1225

The Chair: Thank you, Mr. Burton.

(Amendment agreed to) [See Minutes of Proceedings]

(Clause 4 as amended agreed to)

(On clause 5—Establishment or enlargement)

The Chair: We now move on to clause 5, amendment CA-9. We stood amendment CA-4, and CA-9 is consequential to CA-4. So is CA-10 and I believe Canadian Alliance amendments 11, 12, 13, 14, and 15. So I would suggest that we stand those and we take them as a package.

Mr. Andy Burton: So do we go back, Mr. Chair? I apologize for this, but this is a new process to me.

The Chair: That's fine.

Mr. Andy Burton: It's my first experience. So it's a learning process. Are we now discussing clause 4 again, which was stayed in relation to the rest of it?

The Chair: Did we stay clause 4?

Mr. Andy Burton: I'm sorry, amendment number 4, sorry, not clause 4.

The Chair: Amendment 4 of clause 2. Clause 4 has been carried.

What we're going to do is leave all the amendments you've presented that are conseqential to CA-4 of clause 2. These are numbers 10, 11, 13, 14, 15. We're going to leave them and study them as a package, because otherwise they would make no sense.

Mr. Andy Burton: Okay, so once again the rationale for amendment CA-4....

Ms. Sarmite Bulte: I don't understand. What is it we're voting on now, Mr. Chairman?

The Chair: A lot of the amendments that the Canadian Alliance has brought forward relate to their amendment CA-4, which related to clause 2. We stayed this, because the other ones are consequential to it. These are numbers 9, 10, 11, 13, 14, and 15. We're going to stand those down and then deal with them as a package.

Ms. Sarmite Bulte: Are we dealing with those now?

The Chair: No, later.

Ms. Sarmite Bulte: That's all I wanted to know.

Mr. John Harvard: We're going to amendment G-7 now then.

The Chair: We're going to go to amendment G-7. Ms. Bulte, amendment G-7.

Ms. Sarmite Bulte: Mr. Chair, these are technical amendments to make the English and the French consistent. These technical amendments are made so that the parliamentary process for establishment of marine conservation areas in reserves is the same as the process for the establishment of national parks and national park reserves in the Canada National Parks Act, which was proclaimed in February of this year. These are strictly technical amendments.

The Chair: Are there any questions regarding amendment G-7 for Ms. Bulte?

Mr. John Harvard: This applies to amendment G-8 as well. That's what it says. So are we going to do both at the same time?

Ms. Sarmite Bulte: Sorry, I've made a mistake. We are doing our amendment G-7 on clause 5. Is that correct?

The Chair: We're doing amendment G-7 on clause 5, and if we vote for G-7, it applies to G-8 as well. So G-8 carries at the same time.

Ms. Sarmite Bulte: You may have to ignore my previous comments, Mr. Chair. This is again a technical amendment, but I was looking at the wrong technical amendment. I apologize.

This is a technical amendment to fix the tenses in the paragraph, thus removing logistical inconsistency. The motion provides a tool to allow the Governor in Council to remove lands for a marine conservation area by Order in Council where a court finds title is not clear. The tool would allow the Governor in Council to remove lands for a marine conservation area by Order in Council if a court finds that aboriginal title exists and the titleholder does not want the land to remain as part of the marine conservation area.

• 1230

Mr. John Harvard: I have a question.

The Chair: Just one second. There's a problem that, in fairness, I should mention to the members.

If we vote in favour of G-7, which automatically carries G-8, then we cannot put CA-13, CA-11, and PCDR-1, because they are all on the same line, and you can't have two votes on the same line. As long as you're clear on it—that's the way it goes. The government amendments were the first ones received and they carry on this line, so we cannot repeat the vote on CA-13, CA-11, and PCDR-1.

Mr. Andy Burton: Mr. Chairman, then in fairness we should discuss those before we vote on this.

Mrs. Betty Hinton: The ones that were set aside.

The Chair: Yes, you can do that too. Sure.

An hon. member: Let's do it.

The Chair: Yes. Let's do it.

Mr. John Harvard: So we go back to CA-4 on this?

Ms. Sarmite Bulte: Mr. Chairman, would you repeat what you just said? Which clauses are affected here? We're talking CA—

The Chair: Because they are on the same line we cannot—

Ms. Sarmite Bulte: You said main clauses. What amendments are affected?

The Chair: The amendments are CA-13, CA-11, and PCDR-1.

Mr. John Harvard: So now we're going to go to page 10 of the package, to CA-4, right?

The Chair: Yes.

Mr. John Harvard: So when we dispose of this particular amendment, that will take care of those higher numbers—9, 10, 11, 13, 15?

The Chair: That's correct.

Mr. John Harvard: Okay.

Mr. Andy Burton: But we have the opportunity to discuss this before we—

The Chair: No, no. Let's discuss them as a package now, because they are consequential, Mr. Burton. So if we discuss page 10, CA-4, we are also picking up the others at the same time.

Is this clear to members? We are now discussing CA-4.

Mr. John Harvard: And if CA-4 is defeated, all those other ones fall by the wayside as well.

A voice: That's right.

The Chair: That's correct.

Mr. John Harvard: That's fine.

The Chair: If CA-4 carries, all the consequential amendments carry; if CA-4 is defeated, all the consequential amendments are defeated. Is this clear?

Mr. John Harvard: Yes. And that's 9, 10, 13, 14, 15—

The Chair: So we take them as a package: CA-4 and 9, 10, 11, 13, 14, and 15.

Mr. Burton, could you address it as a package and explain what the consequences are in those amendments?

Mr. Andy Burton: Okay, Mr. Chairman.

Our rationale for all these amendments is basically that there has to be parallel legislation passed. What we want is the opportunity for the provinces to pass parallel legislation to approve any MCAs that are created or changed.

If you look at CA-9, it would ensure that the Government of Canada must introduce new acts of Parliament to create, enlarge, or decrease the size or scope—legislation for each creation or change. CA-11 is similar, requiring that an act of Parliament be passed in order to create, amend, or remove an MCA. CA-13, CA-14, and CA-15 have the same rationale.

We're looking for legislation each time an MCA is created so there's discussion and Parliament would have the opportunity to be involved to a greater level and for clarity on all sides, including the provinces.

The Chair: Because it is on the same line, my advice from the legal officials is that this would pick up PCDR-1 as well.

• 1235

We won't vote on PCDR-1. We'll vote on CA-4 and all the consequential amendments, which are 9, 10, 11, 12, 13, 14, and 15. Is this quite clear?

Ms. Bulte.

Ms. Sarmite Bulte: Yes. Now it's clear to me because now I understand what they're trying to do with these amendments. Essentially these amendments are trying to take away the whole purpose of this act. Each of these amendments would require a separate act of Parliament. I'm sorry. It sort of all fell together. It takes me a while to connect the dots, but they're connected. Every one of those amendments requires a brand-new act—no Order in Council process, no enabling legislation. They would defeat the whole purpose and the intent of what we're trying to do here.

I would recommend we don't accept them.

The Chair: Any other comments? Mr. Burton.

Mr. Andy Burton: This is a big concern we have. We are of course concerned about the power in the hands of the minister and we want to see this put to Parliament. We're all here as elected members of Parliament to deal with these issues on behalf of our constituents and on behalf of the country. I simply fail to see why there would be any problem with supporting this. This is supposed to be a democratic process.

The Chair: Madam Gagnon, Ms. Bulte, and Mr. Bonwick.


Ms. Christiane Gagnon: I believe the government started with a list to which the bill would apply and everything outside of that list should require a new act of Parliament. I think there are already enough irritants in this bill on marine conservation areas in terms of protecting provincial jurisdiction and consulting communities. I do not see why we would pass legislation giving the federal government so much room to manoeuvre, beyond this list.

I believe it would be acting in good faith to say O.K., we go ahead with the list. Even so, the bill would be difficult enough to pass. We heard several witnesses who raised all sorts of environmental and economic issues. I believe Parliament should have a say in any proposal extending the scope of the bill.

The Chair: Are you aware that clause 7 already requires the government to lay before Parliament every proposal for a marine conservation area?

Ms. Christiane Gagnon: According to my reading, it is only in committee.

The Chair: No. If you look at subclause 7(1), it says that the proposal may go to committee, just as with any other bill, but that it needs first to "be laid before each house of Parliament". Only then may Parliament refer it to a committee.


The Chair: Ms. Bulte, Mr. Bonwick, Mr. Harvard.

Ms. Sarmite Bulte: You just repeated what I was going to say about clause 7. Clause 7 does provide for scrutiny by Parliament. But again, I just wish to stress that what essentially these amendments would do is delete the entire purpose of this legislation, which is to provide enabling legislation, provide a framework that through consultations would then establish a marine park.

The Chair: Mr. Bonwick, then Mr. Harvard.

Mr. Paul Bonwick: Mr. Chair, this is obviously.... As you read through it all, there's the one line. Basically, as the parliamentary secretary has clearly stated, it's trying to take away the role of the actual government to fulfil its responsibility to Canadians. It's so short-sighted. If you ever had a minority government, you would never have any minority governments creating marine conservation areas. It goes on to look at.... If Parliament wants to become engaged, opposition parties have opposition days to raise these kinds of issues.

Where does this stop? If the Solicitor General decides to locate an RCMP detachment, does he bring that back to Parliament to vote on whether it should or shouldn't be there? Government has its responsibilities.

I would call for the vote.

The Chair: Mr. Harvard.

Mr. John Harvard: I don't want to sound repetitious, but Mr. Burton is seeing concerns that are just not there.

• 1240

Let's remember we're dealing with two different kinds of crown lands. When it comes to provincial crown lands, the bill is very clear: we cannot proceed without provincial approval. They have jurisdiction over their own provincial crown lands, so nothing can happen.

When it comes to federal crown lands, again the bill is replete—and I say “replete”—with assurances that there will be consultation. But of course the federal government—which I would submit is as caring about Canadians as any other jurisdiction—is not going to cede its sovereignty to any other jurisdiction. As Mr. Bonwick points out, the federal government has its own responsibilities.

So the assurances are there, and the concerns being expressed here simply don't exist. We should have the question.


The Chair: Madam Gagnon.

Ms. Christiane Gagnon: Precisely, I see here the requirement to consult Parliament but it does not say whether this would be subject to a vote in the House. It says that the motion, which would be debated for a maximum of three hours, can be deemed to have been passed. So it could really be consultation through the back door, being so short. We are told that the deadline has been lengthened from 20 to 30 days to allow the committee to consider this. Are these 20 sitting days of the committee or 20 days where the committee...? You know very well how difficult it can be to fit something into our work plan. There are all sorts of loopholes in this to get around consultation and which mean that we could be blind-sided.


The Chair: Ms. Bulte.

Ms. Sarmite Bulte: On Madam Gagnon's question directly, we decided to take out three-hour debate because the witnesses felt it was too restrictive, for one reason. So it's a matter of not limiting the debate; that's why we took away the three hours.

And with respect to there being a motion, absolutely, because they're asked for a motion to concur in subclause (2), and that would trigger a vote in the House.

We took away the three hours because we felt it was too limiting—you couldn't properly deal with this matter in only three hours. The intention is to provide for as much debate as possible.

Mr. John Harvard: I am calling for the question.

The Chair: The question has been called, so we are now voting on amendment C-4 and all the consequential amendments that....

Ms. Bulte.

Ms. Sarmite Bulte: Mr. Chair, can you go slowly as to which are the consequential amendments so we get them right?

The Chair: Okay. The consequential amendments to CA-4 are the following: CA-9, CA-10, CA-11, CA-12, CA-13, and CA-14.

Mr. John Harvard: Not CA-15?

The Chair: Not CA-15.

Mr. John Harvard: You didn't say clause 4.

The Chair: Could you hold on a minute? I have been given a revised list; I'll just check it.

The confusion is over the two numbers there. Under CA-12, it says “13 consequential”, so we'd better clarify this.

An hon. member: And CA-12 is basically the same premise.

The Chair: Hold on a minute. It's confusing because they put two numbers on there. This is what happens.

Our lawyer has consulted with the Canadian Alliance because there's confusion about numbers, with CA-12 and then “13” in brackets. Let's ask him to explain.

Mr. Philip Mela: The number on top of the page is the one that counts, the one that says “CA”, “BQ”, “PCDR”, or government—“G” something. The other number has been provided by the Canadian Alliance or other members for their own records. So the number 13 you have on amendment's actually CA-12, not anything else.

The Chair: So am I right to say that CA-4 applies to CA-9, CA-10, CA-11, CA-12, CA-13, and CA-14?

• 1245

Mr. John Harvard: Not amendment CA-15, just amendments CA-9 to CA-14 inclusive.

The Chair: Then amendments CA-9 to CA-14 inclusive, in that package. The numbers are listed at the top. So amendments CA-9 to CA-14 inclusive are the consequential amendments to amendment CA-4.

I call the question.

(Amendments negatived (See Minutes of Proceedings))

(Clause 2 as amended agreed to)

(On clause 5—Establishment or enlargement)

The Chair: We go to clause 5, amendment G-8. G-7 is stood. Mrs. Bulte, could you give us—

Ms. Sarmite Bulte: Yes, certainly. I apologize for my error the first time.

This one has to do with fixing the tenses in a subclause to remove logical inconsistencies. In addition, we're proposing an amendment that would allow the Governor in Council to move lands from a marine conservation area by an Order in Council, or where it finds the title is indeed not clear. It would also allow the lands to be removed by an Order in Council if a court finds that aboriginal title exists and the titleholder does not want their lands to remain as part of the marine conservation area. It facilitates the process when a court finds there is no clear title, or finds aboriginal title.

The Chair: Mr. McNally.

Mr. Grant McNally (Dewdney—Alouette, PC/DR): I just want to clarify this. The amendment I put in addresses part of the second part of this amendment, the one about jurisdiction. Yours is on page 23. Mine is on page 27.

The Chair: Are you talking about amendment PCDR-1?

Mr. Grant McNally: Yes. If we do amendment G-7, how does that affect amendment PCDR-1? You can't do both, right?

The Chair: You can't do both.

Mr. Grant McNally: Okay. Let me just make the point that I'm guessing this is the government's response on how to handle that.

The only question I have is that the second part of amendment G-7, subclause 6(3)—“If a court of competent jurisdiction...”—assumes the MCA has already been created, and then we find out the land is in dispute and we withdraw it. My amendment reflects what we said in the previous debate, that the government wouldn't have to backtrack in that regard. In other words, they wouldn't have to withdraw one because they wouldn't introduce one if the territory were in dispute.

• 1250

It's really two sides of the same coin, but I think my amendment would actually be more positive for the government, because there wouldn't be the creation of an MCA and then a big “oh wait a second, it's in dispute as to jurisdiction”, and having to withdraw it later. In essence, this might be a better route to go. Maybe I'm wrong, but this part assumes the MCA has been created—

The Chair: I understand.

We have a request to speak from Ms. Bulte, Mr. Bonwick, and Mr. Burton. In between, do you want to say anything, Mrs. Katz, to clarify what Mr. McNally brought up, or do you—

Mr. John Harvard: Let's hear from her first.

The Chair: Mrs. Katz.

Mrs. Susan Katz: Thank you, Mr. Chairman.

The establishment provisions laid out in the bill would require a marine conservation area to be established where the federal government believes it has clear federal title. What this amendment allows for—

The Chair: When you say this, do you mean the government amendment, or Mr. McNally's?

Mrs. Susan Katz: The government amendment.

What the government amendment would allow for is if some years down the road a court were to determine that in fact there was not clear federal title in these lands, those lands could be withdrawn by the Governor in Council. Or the government could also have the opportunity of negotiating with the titleholder a means by which those lands could stay in the marine conservation area.

What the provision provides for is if in the event some years down the road a court declares there is no clear federal title, there will be a mechanism to remove those lands, if that's what the titleholder wishes to see happen.

The Chair: Let's hear from Mrs. Bulte, Mr. Bonwick, Mr. Burton, and Mr. Harvard. Then if Mr. McNally wants to comment again, by all means.

Mrs. Bulte.

Ms. Sarmite Bulte: Just following up on what Mrs. Katz said, this is also a more efficient way of removing the land, through Order in Council, as opposed to having to do an act of Parliament. I think that's also reflective of the testimony we heard on questions about why an act of Parliament is required to remove the lands from the MCAs. We're trying here to address those issues as well.

The Chair: Mr. Burton.

Mr. Andy Burton: With respect to Mr. McNally's motion, it appears to me it's a much more positive way of dealing with things. I think the government amendment is a bit on the negative side. It basically puts the province in the position of having to go to court and argue against it after the fact. The other approach, I think, would be much more positive and probably a lot more effective.

The Chair: Thank you, Mr. Burton.

Mr. Harvard, and then Mr. McNally.

Mr. John Harvard: Mr. Chairman, if we're talking about the two amendments concurrently here, I think really we're talking apples and oranges. I think the two amendments anticipate separate and different questions.

In Mr. McNally's case, he's talking about a situation where before an MCA is established, there is a question of land being in dispute. As I understand it, the amendment submitted by the government is really talking about a situation after the fact, where an MCA has been established and some years later there is a question that the land now inside an MCA is under dispute. I think we're talking apples and oranges.

I would have one question, though, for Mrs. Katz. It relates to Mr. McNally's amendment. If there's a situation where before a conservation area is established there is a question about land title, would the legislation anticipate that the question around title would be settled before going ahead with the MCA?

The Chair: Mr. Lee.

Mr. John Harvard: Am I clear in my question?

Mr. Tom Lee: Yes, I think so, but let me try to answer it.

• 1255

Maybe I can help by giving you a picture of how these things usually work. There are obviously some areas of Canada where that jurisdiction is under dispute. In dealing with those, the governments traditionally have tried, without giving up their jurisdiction, to move together in a cooperative fashion, recognizing that some day the dispute might be resolved by the courts or something.

So the past practice has always been to be prepared to go ahead in that way without either party giving up their rights, or saying they give up, or they won't do anything. This would be inconsistent with the way the parties have approached this.

We actually have a very practical example in this case, because in the Gwaii Haanas the area between the Queen Charlotte Islands and the mainland is disputed. The federal government claims that it owns the seabed, and the province claims that it owns the seabed. What was the solution the parties arrived at? The Province of British Columbia, asserting that it owned the rights, passed an Order in Council transferring the seabed to the federal government so the marine conservation area could be established. The federal government accepted that OIC without admitting that it didn't have jurisdiction. This is the way it works, and it just doesn't apply to this practice.

I wouldn't personally support putting in an amendment to this bill that had the effect of giving a veto power to one of the parties, saying you can't do anything without my approval. I recognize what we're trying to do here, but it wouldn't reflect the practicality of how things have to work, and have to go together and move ahead, in spite of the fact that you have those types of difficulties.

I think the Gwaii Haanas thing illustrates the spirit of cooperation that people can engage in when they face those things, and still make progress.

The Chair: Can I ask you one supplemental question, Mr. Lee, arising from the example of Gwaii Haanas?

So there's an Order in Council by the province saying they are going to cede but they don't recognize that they don't have jurisdiction, and the federal does the same thing. They each keep their positions but they agree to cede. What happens to the actual ownership then? Does it stay in limbo?

Mr. Tom Lee: No. The provincial government actually transferred what they claim as their right of ownership to the federal government. So from the province's point of view, we clearly now own the seabed. From the federal point of view, we thought we always did.

The Chair: So the transfer is completed?

Mr. Tom Lee: It is. It has been done. An Order in Council has been passed and we now “own” it. From a provincial point of view, they have ceded their interest in the seabed to the federal government. We didn't make any comment; we just....

The Chair: Ms. Bulte and then Mr. Burton.

Ms. Sarmite Bulte: Mr. Chair, I think subclause 5(3) needs to be read in light of paragraph 5(2)(a), where we deal with the need for clear title and unencumbered right, and paragraph (b), which deals with the transfer to the provinces. I think it's already taken care of by paragraphs (a) and (b); therefore subclause 5(3) is not necessary. I think subclause 5(3) is there to allow the use of the Order in Council process in case there is a court case after the fact but not before. I think the safeguards are there on the before side.

Mr. Andy Burton: I have a question and I think a point of order, Mr. Chairman.

The Chair: Yes.

Mr. Andy Burton: As Mr. Harvard pointed out, the government amendments and Mr. McNally's amendments are actually apples and oranges. If that's the case, why can we not deal with them separately? I'd ask the legal counsel.

Ms. Sarmite Bulte: We are.

Mr. Andy Burton: We're not, because you're saying if G-8 and G-7 pass, the other one cannot be put. If they're apples and oranges, why?

The Chair: Because they're on the same line.

Mr. Andy Burton: I don't think so. We obviously determined that they aren't: one's before the fact and one's after.

The Chair: No, same line. The same line, the same legal line.

Mr. Grant McNally: Can we stand it down like we did the last one?

Mr. Andy Burton: Yes. That's fine then.

Mr. Grant McNally: Is the content too similar? Is that the reason why it would not be an order?

Ms. Sarmite Bulte: No, it's just because it replaces the same line.

Mr. Grant McNally: So we can't do the same line. We could slide it down.

Ms. Sarmite Bulte: [Inaudible—Editor].

Mr. Grant McNally: But the heart of the debate is really the similarity between the two.

• 1300

The Chair: To save a lot of time, and in fairness to Mr. McNally, we are going to insert it as subclause 5(4) and treat it separately. Then everybody has a chance to have a say.

We'll now call the question on amendment G-7, which carries G-8 automatically.

(Amendment agreed to) [See Minutes of Proceedings]

The Chair: Just before I go on to Mr. McNally's amendment—and there's also one from the Bloc Québécois, BQ-1, I should—

Mr. John Harvard: On a point of order, Mr. Chairman, this meeting is scheduled to end at one o'clock. According to my watch, it's one o'clock, and I have another meeting.

The Chair: I know. I was going to address this.

With the consent of the members, except those, of course, who have a duty call and must go, we have provided for sandwiches here. We missed two hours in the morning. If members are ready to carry on and have sandwiches and coffee, we could break for say ten minutes and just revert. Then we'll carry on until two o'clock if there are enough of us.

Mr. Harvard, I appreciate that it is one o'clock. We'll certainly understand if you have other commitments.

Mr. John Harvard: I was going to upset the government majority.

The Chair: Yes. We will suspend now for ten minutes. We'll just have a few sandwiches.

• 1302

• 1312

The Chair: The meeting will come to order.

Mr. Burton.

Mr. Andy Burton: Mr. Chairman, my colleagues from the Bloc and from the PCDR would like to leave at two o'clock for question period. In deference to them, I'm going to have to do the same thing. I do have a number of amendments, and I'd like my colleagues here for support down the road. If we could, I'd like to sit till two and then possibly come back at 3:15, 3:30, or thereabouts.

The Chair: Sure, if there is unanimous consent. We certainly aren't going to force people to stay. Shall we say 3:15? Done.

Meanwhile, we'll go on to BQ-1, clause 5. Madame Gagnon.

(On clause 5—Establishment or enlargement)


Ms. Christiane Gagnon: It is a provision that would say:

      d) in a case where a provincial legislature has passed legislation to protect marine conservation areas, the government of Canada must negotiate, with the province in question, an agreement allowing the government of Canada to establish a marine conservation area in the province.

This would establish a requirement to consult provinces even if the lands have been declared federal lands. We would like this amendment to be passed because it would be important to have cooperation with provinces and for the federal government to limit its ambition to establish conservation areas. We believe it would be a good way to demonstrate a willingness to negotiate with provincial governments even when the territory comes under federal jurisdiction.

Since the environment is an area of shared jurisdiction, it is important to ensure that this negotiation happens by prescribing it in the act itself. This clause would balance the federal approach regarding the establishment of marine conservation areas.

• 1315


The Chair: Are there any other comments? Madame Bulte.

Ms. Sarmite Bulte: Thank you, Mr. Chairman.

Paragraph 5(2)(b) requires that before a marine conservation area is established, there must be a transfer of the administration and control of the lands. Since they also have to have transferred their administration, I think the intent of the proposed paragraph 5(2)(d) is already reflected in paragraph 5(2)(b). However, maybe our officials can correct me if I'm wrong here. I don't think this framework legislation precludes a different model.

The Chair: Mr. Lee.

Mr. Tom Lee: I just have two comments. One is that the paragraph referred to, 5(2)(b), clearly requires provincial approval where there are provincial resources. In a later amendment we have proposed that the bill be modified to include a consultation requirement even where there is no provincial jurisdiction. We've gone that far.

My other comment, just on the wording of this, is that the current wording would require the province to pass a bill in the legislature. In fact, that is not the current practice amongst the provinces: some do and some don't. We probably shouldn't put anything in this bill that would require a particular provincial procedure. It should be up to the province to determine that.

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: But then, Mr. Lee, it wouldn't preclude a province from passing it formally.

Mr. Tom Lee: Absolutely not. It's flexible; it's whatever the province desires. If they want to pass a bill, if they have to pass a bill because they have laws that say so, that's fine. But if they don't need to pass a bill yet make a cabinet-level decision, they can do it that way as well. It has historically been done both ways, and this bill does not change that practice or prevent a bill if it's required.


Ms. Christiane Gagnon: The amendment spells out clearly that this has to do with provinces who want to pass legislation. We know that Quebec wants to put into place a legal framework for the protection of marine areas. This talks only about provinces who want to do so. It so happens that Quebec wants to. You wanted to put the distinct society of Quebec into the constitution and sometimes you need to be consistent.

I would have thought that an amendment such as this would be quite agreeable to you in view of your commitments to distinct society and the right to negotiate. I believe this would make the bill stronger and affirm your respect for provincial jurisdiction. Thank you.


The Chair: Mr. Bonwick.

Mr. Paul Bonwick: I just have a couple of questions, Mr. Chair; maybe I've lost something in the translation.

First of all, this one is for Mr. Lee. Do any of the provinces have an obligation to consult with the federal government or your department should they be interested in creating their own marine conservation area aside from any federally owned lands or any properties the federal government may not have any rights to? My second one will be for Madame Gagnon.

Mr. Tom Lee: No, there is no general requirement that the province consult Ottawa on its land and resource decisions if those are totally within their jurisdiction. There is no requirement.

Mr. Paul Bonwick: The second question I have is for Madame Gagnon. Is the intention behind the bill to allow a particular province the right to veto the federal government's attempt to create a marine conservation area even though it may not have any direct interest whatsoever with regard to the property? Rather, the province has the opportunity simply to veto the federal government and the players that would be involved.

• 1320


Ms. Christiane Gagnon: It is to compel the federal government to negotiate with provinces even if the land comes under federal jurisdiction. I do not know if you could call this a veto. Federal legislation is full of vetoes. When such an area is established within an province, there are consequences for the community. This would also ensure respect for legislation provinces may have passed.


The Chair: Very briefly, Mr. Bonwick, and then we'll have Mr. Burton.

Mr. Paul Bonwick: That clarifies it for me. This would quite simply be a provision to allow the province to veto the creation of a water conservation area regardless of whether they have a direct interest or not. Certainly, that would be something I could never support. That would be suggesting that the federal government has less concern for the residents of one province than another, pitting it against the particular government that's in place provincially. I don't see any reason for that whatsoever.

The Chair: Mr. Burton.

Mr. Andy Burton: I just want to let the committee know that I certainly support Madam Gagnon's position. From a British Columbia perspective, we have a lot of common concerns with her province—and all provinces in Canada. Again, I know from the government that the intent is probably very good, but I repeat, the road to hell is paved with good intentions. We just want some clarity here, so it will be very clear that the provinces have the necessary input. We have to get closer to home with these kinds of decisions. It's always the top-down decisions we hear about when we go home; they tell us that we're coming from the top and going down. Let's get back to the people.

Mr. Dennis Mills: But don't you represent them?

Mr. Andy Burton: Yes, absolutely I do, and I listen to them.

The Chair: Please.

Ms. Bulte.

Ms. Sarmite Bulte: I'd like committee members to look again at paragraphs 5(2)(a) and (b). I think they address the concerns that are raised by Ms. Gagnon's amendment.

The Chair: Madame Gagnon.


Ms. Christiane Gagnon: The proposed amendment aims at ensuring things will be done in good faith, like it happened in the case of the Saguenay marine park. I do not understand. There never was a problem in that instance. We negotiated and reached an agreement. The environment is an area of shared jurisdiction. This would ensure a balance between what you want to put into place and what is being done in some provinces. We need to respect the commitment of provinces to protect marine areas.

We will not be able to go along with this bill without an amendment such as this. We require this protection. We need assurances that the federal government will negotiate with provinces, in our case with Quebec.

Quebec has taken steps in several areas and is often referred to as a model. A motion passed in the House says we are a distinct society. We said this was not good enough and indeed it is becoming clear here: every time we propose something that takes into account a specific reality in Quebec, the door gets shut in our face.

I wrote the amendment carefully in such a way as to make it acceptable and implementable in the context of this bill, considering the reality of what is happening in Quebec and what we wish. It is all very well to say in a bill that provinces will be consulted, but there is quite a way to go between “shall” and “will”. We know that once a law is passed, there can be more or less consultation, as we have seen in other circumstances.

Let us take for example funding for homelessness and heritage. Quebec was not even consulted. The decision is made to provide a given amount only to find out later that things are being done differently in Quebec. There is a whole society there, with institutions that perhaps sometimes have a slightly more complex way of doing things than institutions elsewhere. There are areas where we do not want to put into place all these structures but where they already exist in Quebec.

So, if you want us to support this bill, you need to pass this amendment because we really need it.

The Chair: And would paragraphs 5(2)b) and c) and subclause 10(1) not do the trick?

Ms. Christiane Gagnon: If 5(2)b) and 10(1) were sufficient, we would not have moved this amendment.

The Chair: I believe that is a good answer: if you had been satisfied, you would not have moved the amendment. I think this is a very good answer.

• 1325

Ms. Christiane Gagnon: I try to be rational.

(The amendment is negatived)

The Chair: We now go to amendment PCDR-1 on subclause 5(3).


Mr. McNally.

Mr. Grant McNally: Thank you, Mr. Chair.

I'm wondering if this would cause too much trouble to actually change my amendment a bit, just to reword it...if that's in order. I don't know. I'm looking at the chair.

The Chair: You'd have to have consent and I'm sure we won't object.

Mr. Grant McNally: I'd like to change it so that it doesn't say “shall not”, because that is rather negative. I'd like it to say.... I'm sorry, I'm not sure what the text would be in French, but in English—

The Chair: Well, it would be adjusted automatically.

Mr. Grant McNally: Okay.

    For greater certainty, the Governor in Council shall create a marine conservation area only if the title or ownership of the submerged lands and water column of the area is considered to be under jurisdiction of either the federal or provincial government.

In other words, it's not “...not create a park in a place where it's under dispute”. The intent really is the same, but I think it's a much more positive way to say it. Does that work?

The Chair: No, it wouldn't work. You would have to have “is not under disputed jurisdiction”. Otherwise, it makes no sense.

Mr. Grant McNally: No, no. I don't....

    ...only if the title or ownership of the submerged lands and water column area is considered to be under jurisdiction of either the federal or provincial government.

In other words, if the land is under dispute....

The Chair: Oh, you are striking “dispute”.

Mr. Grant McNally: Right. Strike “disputed”. Should I reread it?

The Chair: Just let me make sure now that we understand. So it will read:

    For greater certainty, the Governor in Council shall create a marine conservation area only if the title or ownership of the submerged lands and water column of the area is considered to be under jurisdiction of either the federal or provincial government.

Is that what it is?

Mr. Grant McNally: Exactly.

The Chair: Yes. Okay.

First of all, do we agree to these? Of course. Okay. So the amendment is to read just as I've read it, and the French version will be adjusted accordingly.

Mr. McNally, do you want to address it?

Mr. Grant McNally: Just briefly, because we've been through this territory a fair bit before.

The intent is that we don't get an MCA in a disputed jurisdiction. I know from the drafters of the bill that this isn't its intent. Our original debate from last time was whether 20 or 30 years down the road there could be a government that would go ahead and make an MCA in an area where there was disputed jurisdiction.

I think it would be a good thing for us to put this in to send a signal. Mr. Harvard isn't here to debate me on that point, but—

Some hon. members: Oh, oh.

Mr. Grant McNally: —to send a signal, but also to include the point in law that if there is dispute over the jurisdiction, we don't create an MCA.

Now, I know that the previous clause we put in says that if there's a dispute later on, after an MCA is created, there's a mechanism in place. I agree that this is very different.

The government can still—provincial or federal or another party—dispute an MCA's creation years down the road. But I think this clause would establish that an MCA wouldn't be put in place in an area where there's dispute, which I think would go a long way to allay the concerns that Mr. Burton has made and that we heard from the witnesses when they were video-conferencing. If there was agreement on it—if the intent was to send this message but also to include it in law—that this would be a positive thing to do, then maybe we could go ahead and do that.

• 1330

The Chair: I would really like to get some clarification. The way it reads now, it could mean that the federal government could create a marine conservation area even when the land is under provincial jurisdiction, and almost automatically. That's the way it reads now.

Mr. Paul Bonwick: You'd have to lose “provincial” first of all—“or provincial”—and say just “federal government”—

Mr. Grant McNally: You're right.

The Chair: Because otherwise you're giving the Governor in Council the right to create, and he would create—

Mr. Grant McNally: So how do we get around that?

An hon. member: It's a question of semantics, anyway, if we're not going to—

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: I hate to sound repetitive, but how does paragraph 5(2)(b), Mr. McNally, not address your concern—and also Mr. Burton's concerns and Ms. Gagnon's concerns?

It seems to me that in paragraph 5(2)(a) we have to have clear title and unencumbered right of ownership. In paragraph 5(2)(b) the government of the province “has agreed to the use” and “has transferred their administration and control”. So we'd need something proactive. It just can't happen unless the province does something.

I think this is repetitive.

Mr. Grant McNally: Okay, maybe I missed that in paragraph 5(2)(a), and maybe we didn't include that in our discussion the other day. Does that speak to—I'm just asking our experts—the jurisdictionally disputed lands? Would it address that concern?

I think what you said earlier was the government may believe it has clear and unencumbered title, and when they believe that to be the case they could create an MCA. But in effect, the province might believe the same thing, so I guess there's not a clear definition of the disputed territories.

The Chair: Mr. Lee, there's one point that I think should be addressed. In the French version, it says:


“il est convaincu que Sa Majesté”,


—the Governor in Council “is convinced”. In the English version, it says “is satisfied”. Does “satisfied” say “convinced?” Does it mean “convinced” in legal terms, or should we say “convinced?” I'm just asking the question, because if it means the same in legal terms, that's fine, but I'm wondering, because in French it seems much more categorical to me.

Ms. Daphne Porter: The instructions to our legislative drafters were to make them mean the same thing. That's the intention.

The Chair: I appreciate that, but it seems to me the French version is a stronger version than the English version. If “satisfied”—in legal terms, for these purposes—means “convinced”, then that does it. I'm just posing the question because it seems to me the French version is stronger.

Ms. Daphne Porter: I think it would have the same effect. The Governor in Council would have to look at the same title information and make a determination on whether title is clear or not. I don't think the difference in those two words would have a substantive effect.

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: To address Mr. McNally's concerns about being satisfied with respect to land, in the registration process for title there are clear ways of indicating whether you have clear title or not. There's a legal method of determining it. There can be disputes or unregistered title, but I think from a real estate law point of view there are certain ways we can determine whether you definitely have clear, unencumbered title.

Correct me if I'm wrong. If it's in dispute, this doesn't cover disputed lands, I think, but if it's clear, there are ways of evidence showing that it's clear. It's not just a case of saying “We think it's clear”.

Mr. Grant McNally: Yes.

I have no problem with the creation of MCAs in federal lands or provincial lands. It's those nebulous, never-never lands. To fix the amendment we'd have to strike out “or provincial”—strike out “either” and strike out “or provincial”.

The Chair: Mr. Bonwick.

• 1335

Mr. Paul Bonwick: The intent being covered off, Grant, in my opinion, is somewhat repetitive in nature. I want to make one correction just for the record.

Grant me the comment that twenty or thirty years down the road, we don't want the federal government making a unilateral decision to create an MCA when there is a dispute in question. The bill very clearly states that can't happen.

Mr. Grant McNally: That's open to consultation.

Mr. Paul Bonwick: Consultation?

Mr. Grant McNally: Yes.

Mr. Paul Bonwick: If provincial lands are deemed to be involved, then without the support of the provincial government you can't do it. So three months, three years, or three decades is irrelevant at that point, unless the government of the day makes an amendment to the legislation, of course.

The second issue I have is that the system in place right now between the federal and provincial governments works very well, whether through Parks Canada, through Human Resources, or through Finance at a bureaucratic level. To hand-tie both bureaucracies, to not allow them to move forward, I think would do a disservice to the act. That's certainly one of the reasons why I couldn't support it.

Mr. Grant McNally: I wonder if I could just make one last comment.

The Chair: Yes, sure.

Mr. Grant McNally: I don't disagree with your point that the legislation is fairly clear in the areas involving clearly federal lands—or provincial lands, where there's consultation required. My big issue in the whole thing has been those disputed lands. If we can make it clear, so that in essence the law is blind in terms of time, and the situation is the same in perpetuity, let us do that. Maybe it's covered in paragraph 5(2)(a).

But as we said earlier—and Mr. Abbott when he was here made the point—sometimes built-in redundancies aren't necessarily a bad thing. Even if it's here, is it only a built-in redundancy that gives a clear message that this is the intent of the legislation? We won't be around, and I doubt anybody is going to check the record thirty years from now to see what the intent of the drafters was. Perhaps they will. Maybe my concern is not one I should worry about, but it's one I bring forward.

The Chair: You're quite right to bring it forward.

The only worry I've got on the wording as it is now—and I'm questioning the legal drafters—is the way it's written, Gwaii Haanas couldn't have taken place, because there was a dispute as to title. This wording is almost to say that unless the title is totally clear and there's no dispute, you can't attempt to create a marine conservation area.

Mr. Tom Lee: That is my interpretation of what would happen: that you couldn't have proceeded. I might just reiterate my previous point.

For various reasons, governments, either federal or provincial, do not want at certain times to deal with the issue of jurisdiction, but they want to be able to move ahead. I don't think either a province or a federal government would want to give up that ability under this legislation, because it's in the interests of the parties to proceed in certain areas in spite of jurisdictional questions.

I don't think the federal government would say “I'm giving up my right to proceed where I claim I have jurisdiction”. And the province wouldn't want to give up that right either. If you are the provincial side, you're not going to give up to the federal side and say “I'm not going to proceed on something I need and have to do until somebody finally determines title”. I think the current system does work and permits parties to move ahead.

The Chair: Mr. Burton had asked to speak.

Mr. Andy Burton: No, I'm satisfied, Mr. Chairman.

The Chair: Okay.

Ms. Bulte.

Ms. Sarmite Bulte: I think one of the ways of ensuring clear or unencumbered title.... Again, in law there are various ways it can be done. It doesn't matter whose jurisdiction it is. Actually, at some point either party, where there is some doubt, can quit-claim or release into title, which then makes it clearer. There are mechanisms that exist under real estate law—it doesn't matter whose jurisdiction it is—to ensure clear title to the release or to quit claim of different titles.

• 1340

The Chair: Yes. In effect, in Gwaii Haanas there was a form of quit claim—an indirect form of quit claim.

Mr. Tom Lee: That is in essence what the provincial government did in passing the Order in Council. They basically gave up to the federal government any rights they might have had in that area.

The Chair: Mr. Burton.

Mr. Andy Burton: Yes, on Gwaii Haanas, I think we have to recognize there has been a change of government in British Columbia since that happened. There could possibly have been a little different outcome to that specific agreement, but that's done. I really think Mr. McNally's amendment should be passed; it's important. I think it's critical.

I would just like to ask a hypothetical question, possibly of Mr. Lee. Just for clarity, because I'm not sure, in the Hecate Strait between the Queen Charlotte Islands and the mainland, which is under dispute between the federal and provincial governments, what would be the situation if, for instance, a year from now it's decided there's going to be an MCA of some significance there? Would it proceed? Would it not proceed?

I think for the clarification of all members of the committee it would be useful to know.

Mr. Tom Lee: The point on the Queen Charlottes is that there is a federal-provincial agreement that dates back to—

Mr. Andy Burton: No, Mr. Chairman, I understand Gwaii Haanas, but that only goes ten kilometres outside the Queen Charlottes. There is a huge area between the Queen Charlotte Islands and the mainland that is under moratorium at this point in time.

Mr. Tom Lee: And your question was, if there were a decision to create one of these marine conservation areas in there, what would the procedure be?

Mr. Andy Burton: Yes.

Mr. Tom Lee: Basically, you would follow the procedures of this act, in terms of consultation.

It would be done in conjunction with the province. And assuming the parties worked as they would have in the past, if there were finally an agreement to establish an area, the process I just described with regard to land “transfer” would occur.

The province would do a quit claim through an Order in Council, giving up any interest they might have in the seabed, and only after that was done could you establish a marine conservation area.

The Chair: In other words, if that didn't happen, it wouldn't go forward.

Mr. Andy Burton: Mr. Chairman, this is a disputed area.

The Chair: I know. He's talking about it.

Mr. Andy Burton: It's just not clear to me. And I think that's why we need this amendment, to clarify for everybody that there is a process and it's clearly laid out.

I think that's a very reasonable request. If the intent of the bill is to do that, then it shouldn't be a problem to pass this amendment.


Ms. Christiane Gagnon: May I add something?

The Chair: Yes.

Ms. Christiane Gagnon: We always go back to paragraph 5(2)(b) which, it is being claimed, provides guarantees to provinces, and to subclause 10(1). I am looking at clauses 5(2)(b) and 10(1) and they are unclear. In subclause 10(1), it says: "the Minister shall provide opportunities for consultation—"

The Chair: This will be changed, Madam.

Ms. Christiane Gagnon: It will be changed? Fine, because "provide opportunities" does not mean—

The Chair: "Provide opportunities" is meaningless. We are fully in agreement.

Ms. Christiane Gagnon: Paragraph 5(2)(b) allows the province to transfer its title—

The Chair: So does paragraph 5(2)(a).

Ms. Christiane Gagnon: Yes, 5(2)(a) also, but at the same time it is not clear enough.

The Chair: It is 5(2)(c).

Ms. Christiane Gagnon: We will look into this and come back to it, because this is the sticking point. There are no guarantees for the provinces.

The Chair: 5(2)(a), 5(2)(b) and 5(2)(c):

    5(2)(c) the requirements on any applicable land claim agreement respecting the establishment of the marine conservation area have been fulfilled.

There is also 5(2)(b) and 5(2)(a).

• 1345

Ms. Christiane Gagnon: This does not guarantee that the federal government will not proceed if the title is challenged by a province. Paragraph 5(2)(c) does not guarantee this.

The Chair: Agreed, but if it says the federal government needs to have clear title, it will need to prove it has clear title. Otherwise, if there is a dispute, it is not a clear title.

Mr. Lee explained that in the case of Gwaii Haanas there is shared jurisdiction, as well as in the case of the Saguenay. Therefore the federal government was unable to proceed unilaterally. It was impossible.

Ms. Christiane Gagnon: It is both judge and party in the dispute.

The Chair: It is required to consult the provinces. It cannot be judge and party.

Mr. Duplain.

Mr. Claude Duplain (Portneuf, Lib.): I did not agree earlier with Ms. Gagnon, but I am starting to wonder and to partly agree with her.

In the case where a province has a right of ownership in a marine area, what happens? Can the federal government decide to proceed anyway with a marine conservation area even if the province does not want to transfer its title and claims ownership? Can the federal government establish the conservation area against the will of the province?


Mr. Tom Lee: I hope I'm not repeating myself, but I have only one answer to this.

Where there are disputed areas, the practice is that neither party gives up the right to do what they think they have to do, whether it's the province or the federal government. What they do is find some way, as long as that dispute exists, to do something together. That's what the practice is. Neither party tries to override or exercise its.... This is a two-way street: two parties are claiming title.

Could the federal government act unilaterally? Yes, it could. Could the province act unilaterally? Yes, it could. Do they do that? Very rarely. They try to sort their way through it and find a solution that works. We're not going to solve that problem within this bill. This should be dealt with outside the bill.

The Chair: Mrs. Bulte.

Ms. Sarmite Bulte: I heard what Mr. Lee said, but I think if you read the legislation the interpretation is—to the best of my best legal interpretation—it would not be clear title, an unencumbered title or an unencumbered right, if there were a dispute.

Mr. Lee says it doesn't matter who owns what, but cabinet cannot act until all three—(a), (b), and (c)—are satisfied. If it's disputed, it's not clear and it's not unencumbered.

The Chair: Mr. Burton.

Mr. Andy Burton: Mr. Lee just talked about what the practice is; however, sometimes it does happen and the government would or could override. I think that's why we need this clause, for greater clarity, greater certainty. What's the problem with it? It just clarifies the government's intent, and that's all we're asking for—some clarification of the intent. Intent is wonderful; let's clarify it.

The Chair: Mr. Lee, have you any comments before we call for the vote?

Mr. Tom Lee: I don't think so. I've tried to give you the best of the knowledge I have.

Mr. Grant McNally: Just so we have it on the record, obviously it is the intent of the drafters that an MCA happen only when there is consultation in all these different areas. Maybe 30 years from now we might actually have to go back to the debate we had to look at the intent of the drafters. That is the intent—to proceed in a consultative manner for the creation of an MCA.

• 1350

(Amendment negatived) [See Minutes of Proceedings]

(Clause 5 as amended agreed to)

(Clause 6 as amended agreed to)

(On clause 7—Amendment to be tabled in Parliament)

The Chair: We'll now look at clause 7. CA-14 on page 33 falls away, and I call your attention to CA-15 on page 33.

Mr. Burton.

Mr. Andy Burton: Mr. Chairman, this amendment would amend paragraph 7(1)(a) by saying the report shall include information on consultations undertaken, including “a list of the names of organizations and persons consulted, the dates of the consultation and a summary of their comments,” etc. The reason is that the act is actually created by an Order in Council, and since the only parliamentary scrutiny is through a standing committee, we felt it necessary to ensure that parliamentarians and senators be given all the details of the minister's consultations. Oftentimes consultation means different things to different people. A detailed report including a list of who the minister's team consulted with, dates when the consultation took place, and a short summary of their comments is vital to understanding the results of those consultations.

In my opinion, it comes down to the right of an MP or a senator to expect to be given all the details of consultation if we are to determine whether or not an MCA needs to be created in a particular area. I believe this amendment speaks to the parliamentary privilege of an MP to have all the facts, and I would urge all of you to support it. One day you too may be in opposition and would then likely be more concerned about being involved.

The Chair: Ms. Bulte.

Ms. Sarmite Bulte: I would encourage all members of the committee to support this amendment.

(Amendment agreed to) [See Minutes of Proceedings]

The Chair: We'll now move on to amendment G-9 on page 34.

Ms. Sarmite Bulte: It's on page 34 in the English version.

Mr. Chairman, these are technical amendments. Let me just go through the first one. Amendment G-9(a) is a technical amendment to make the English and French consistent. Again, G-9(b) and (d) are technical amendments for the purposes of establishing the marine conservation areas on the same basis as found in the Canada National Parks Act so they will be consistent. In short, it's a French-English amendment, and it's so the terms will be exactly like those of the national parks.

The Chair: We have a problem if G-9 carries because it's on the same line as CA-16, 17, 18, 19, and 20, which then cannot be put forward.

Ms. Sarmite Bulte: In the interests of working together, let's do the others first.

The Chair: It's nearly two o'clock now. Why don't we just leave this until we return?

Ms. Sarmite Bulte: We'll adjourn until 3:15.

On a very positive note for Mr. Burton, you leave with an amendment.

The Chair: You're coming back, eh, Paul?

Mr. Paul Bonwick: I don't know, Clifford. I don't think so.

• 1355

The Chair: The meeting is suspended until 3:15.

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