ENSU Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, February 16, 1999

• 0915

[English]

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

We have quite an interesting number of amendments ahead of us today. Today may go down in history as Knutson day, because most of those amendments are in the name of Mr. Knutson.

Before we start, the clerks have very kindly produced a list of clauses that have been stood. It will be distributed for your guidance and information, although it may not be necessary, but the purpose of the distribution is to ask the government officials whether they could let us know, at their convenience, the clauses of the bill they are ready to proceed with, so they can sort them out better.

Secondly, on schedule 1, which we touched upon briefly last night, the parliamentary secretary made a very good suggestion by saying that the question should be precise. With that thought in mind, I invite members to ask any questions they have on schedules.

For my part, I will put forward some questions for the officials, who of course will have to decide how they intend to answer them and when, but evidently the examination of schedules is an important step because it gives us an idea of the effectiveness of the bill—of the legislation actually, of the existing legislation, what it has achieved over the last 10 years. So the schedule is somehow a summary of business accomplished, so to speak, and how it is accomplished.

With that in mind, I would appreciate very much if the officials could provide the members of this committee with answers to items 6, 7, 8 and 9 of schedule 1, where the question is, why do they deal with limited releases? What is the significance of the term “limited”, and why can't we deal with all releases? How is the line drawn, at what level, and by whom? Of course, if the releases are undesirable, poisonous, deleterious to human health, then one would want to have a complete banning. Evidently there is something here that needs clarification for items 7, 8 and 9.

There is also the question on item 7 as to why secondary lead smelters are the target of the schedule and not primary lead smelters. On the question of secondary lead smelters, therefore, there must be a reason, and it would be interesting to know what it is.

A supplementary question to that is, are there other types of lead smelters? If there are, should they not also be regulated for the release of lead?

• 0920

Then there is a question that relates to certain headings. Maybe it is the wording that creates the question, and maybe it can be easily dealt with.

For instance, on item 4 you have a distinction between “quantities that may be manufactured” and “prohibition on manufacture”. So they are prohibited by regulation and regulated by regulation with respect to quantities that may be manufactured and imported. How can that be?

That question applies to item 4, chlorofluorocarbons; item 10, a certain bromochlorodifluoromethane; items 11 and 12; item 18, tetrachloromethane, in particular carbon tetrachloride; and items 19, 20, 21, 22 and 25.

As you will see, there is a pattern here. In each case there is a category (a) and a category (b), and it would be useful to understand the rationale that leads to these two subcategories. There is a prohibition on manufacture, and then there is some regulation on quantities that may be manufactured or imported. I realize this is probably the domain of very few, probably Mr. Buccini in your department; I don't know. But it would be helpful if you could come back to us with answers to this—and I'm sure there are other questions.

Mr. Charbonneau would like to ask a question.

Mr. Yvon Charbonneau (Anjou—Rivière-des-Prairies, Lib.): I agree with you that this is problematic.

The Chairman: Yes, it's problematic.

Then it would be helpful to be given assurance when it comes to schedule 3 that this is an absolute prohibition, that it is 100%, that it is all substances from mirex to chloromethyl methyl ether, items 1 to 10 in part 1, and part 2—I won't read the names—which contains, of course, dieldrin, endrin, and lead arsenate. We'd like assurance that these are absolute, complete prohibitions.

Then, on schedule 5, it would be helpful to understand whether what is under “Waste or Other Matter” is a list, because if one reads subclause 122(1), it is not quite clear whether this schedule lists items that are permitted rather than items that are prohibited... From Mr. Mongrain's nodding, I assume they are permitted.

Mr. Steve Mongrain (Representative, Canadian Environmental Protection Act Office, Department of the Environment): This schedule 5 comes out of the 1996 protocol of the London Convention, and in Bill C-32 we've taken a reverse onus approach. These are the substances that are permitted.

The Chairman: Whereas in schedule 3 you list substances that are not permitted...

Mr. Steve Mongrain: If it's not on schedule 5...

The Chairman: No, what is the contrast between schedules 3 and 5?

Mr. Steve Mongrain: Schedule 5 is limited to ocean disposal.

The Chairman: Yes, I realize that. Schedule 5 is for items that are permitted.

Mr. Steve Mongrain: Schedule 5 is what is permitted. Anything that is not on schedule 5 is not permitted for ocean disposal.

The Chairman: Right, and in the case of schedule 3, all those items are—

Mr. Steve Mongrain: They relate to exports. We'll get back to you with the details.

The Chairman: All those are permitted or not permitted?

Mr. Steve Mongrain: We'll get back to you on that, sir.

• 0925

The Chairman: You don't know? I'm asking you for the whole of schedule 3. What is the difference between schedule 3 and schedule 5? You're telling me that schedule 5 is for items that are permitted under the London Convention.

Mr. Steve Mongrain: That's for ocean disposal.

The Chairman: It's for ocean disposal. Under schedule 3, these are substances that are...

Mr. Steve Mongrain: They are controlled or prohibited, and they relate to the export.

The Chairman: So we cannot assume that they are all prohibited. Some of them are controlled.

Mr. Duncan Cameron (Legal Counsel, Legal Services, Department of the Environment): Mr. Chairman, it depends on which part of schedule 3 you're referring to. Schedule 3 is divided into three parts. I'm referring to our amendment to schedule 3, not to the version currently in the bill. Part 1 lists those substances that are prohibited in Canada. Part 2 of schedule 3 lists substances that require export notification under the Prior Informed Consent Convention. And part 3 of schedule 3 lists those substances that are restricted in Canada.

We've done this because, under the Prior Informed Consent Convention, each of these three different categories of substances is required to have different notification procedures when they're being exported from Canada to another country. In the case of prohibited substances, we can only export those substances if the export is for the purpose of destroying the substance.

The Chairman: It's very helpful to have this on record. Can you indicate to us where part 3 of schedule 3 is?

Mr. Duncan Cameron: Yes, I can, sir. If you look in the government amendment that starts on page 55 of the small package, you'll see that we've divided schedule 3 into the three parts I just described. Part 1 lists prohibited substances, part 2 lists substances subject to notification or consent of the importing country—those are the substances that are on the so-called “pick list”—and part 3 lists those substances that are restricted in Canada.

The Chairman: At the time the bill was printed, why was part 3 of schedule 3 not ready?

Mr. Duncan Cameron: The Prior Informed Consent Convention had not yet been finalized.

The Chairman: And these are substances that are restricted by Order in Council.

Mr. Duncan Cameron: They are restricted by domestic law in Canada, laws such as CEPA, but other laws as well, such as the pest control legislation.

The Chairman: Well, you have explained to us the background to schedule 5. Can you now explain to us the background to schedule 6, please?

Mr. Steve Mongrain: Mr. Chairman, that also comes from the 1996 protocol to the London Convention related to ocean disposal. These are essentially the steps that an applicant for an ocean disposal permit must go through as part of the application process. They provide a framework essentially to reduce and prevent pollution as it relates to ocean disposal.

The Chairman: Is this schedule in the existing legislation?

Mr. Steve Mongrain: It is not, sir.

The Chairman: It is new.

Mr. Steve Mongrain: That's correct.

The Chairman: What is the basis for it, besides the London Convention? Is this the result of recommendations emanating from the department? In other words, how was the national action list arrived at? Through which process?

Mr. Steve Mongrain: These are the types of things that have been taken into account under the existing legislation. They have been formalized through international negotiations in the London Convention, and Canada has agreed to implement this waste assessment framework for ocean disposal.

The Chairman: Can you give us the background to the national action list?

Mr. Steve Mongrain: I don't quite understand you, sir.

The Chairman: How has that been arrived at? Who has been consulted?

• 0930

Mr. Steve Mongrain: Are you asking about the international negotiations?

The Chairman: No, I'm asking about the national action list under clause 9 in schedule 6.

Mr. Steve Mongrain: I'll have to get back to you on that, sir.

The Chairman: In light of what you said earlier, can we assume this is a recent list?

Mr. Steve Mongrain: The protocol in the London Convention dates back to late 1996, so this is relatively recent.

The Chairman: Yes, but the question one would like to understand is how the list is arrived at. Perhaps you might let us know, unless Mr. Lincoln knows the answer.

Mr. Clifford Lincoln (Lac-Saint-Louis, Lib.): No, I was going to ask a question.

The Chairman: Please go ahead, Mr. Lincoln.

Mr. Clifford Lincoln: I wanted to ask about schedule 1 and schedule 3. If you look at schedule 1, item 1, “Chlorobiphenyls that have the molecular formula C₁₂H_10-nCl_n in which “n” is greater than 2”, paragraph (e) says, “prohibition of the export of waste”. If you look at items 10 and 11, for instance, they prohibit “import or export, except for authorized uses”. I take it those tie in with the Basel Convention.

Yet when you look at schedule 3, item 1, there seems to be an outright prohibition for item 1 of schedule 1. It doesn't except authorized uses, yet it's in the schedule requiring export notification. I wonder why there would be export notification of something that is banned for export, period. In the other cases—for instance, number 10, which we will find in number 15, schedule 3—you do provide for exceptions for authorized uses, which I presume is to tally with the Basel Convention and the protocol.

The Chairman: Would you repeat your question, please? I lost track of it, and I think others have too.

Mr. Clifford Lincoln: If you look at schedule 1, chlorobiphenyls, etc., you will see under paragraph 1(e) that there is prohibition for the export of waste. If you look at item 10 of that schedule, it also excludes export, but excepts authorized uses. I want to know if “authorized uses” is there to take care of our commitments under the Basel Convention. If you look at schedule 3, which has to do with notification for export, we seem to allow for notification for export, whereas we ban export completely in schedule 1. That doesn't make any sense.

The Chairman: Thank you.

Mr. Clifford Lincoln: If we ban exports, why do we ask for notification?

Ms. Karen Lloyd (Manager, Canadian Environmental Protection Act Office, Department of the Environment): In the government amendment, Mr. Chair, the prohibited substances in item 3 of schedule 1, polybrominated biphenyls, are on part 1 of schedule 3 as a prohibited substance. Item 23 in part 2 of schedule 3 is polychlorinated biphenyls, so there's a difference between the polybrominated and the polychlorinated.

Mr. Clifford Lincoln: I'm talking about the same thing. I'm talking about item 1 of schedule 1 and item 1 of part 2.

Ms. Paddy Torsney (Burlington, Lib.): Mr. Chair, I think I can help. I think Mr. Lincoln needs to look at page 55 of the amendment book that was handed out yesterday. There's a new schedule 3. As Ms. Lloyd has identified on the new schedule 3, item 2—

The Chairman: Does that answer your question, Mr. Lincoln?

Mr. Clifford Lincoln: I guess so. If it's in the amendment, then...

• 0935

The Chairman: It's item 2 on page 55, if I understand the parliamentary secretary.

I will come back to you, Mr. Lincoln. In the meantime, Madam Kraft Sloan, do you have a question?

Mrs. Karen Kraft Sloan (York North, Lib.): Why is it currently identified this way in paragraph 90(2)(a)?

Mr. Clifford Lincoln: It's still there, except that it's under part 2, item 23, in the amended version of schedule 3.

The Chairman: It's under item 23. Could you try to cast some light here at this stage, or is the question not clear enough?

Ms. Karen Lloyd: No, I don't understand the question.

The Chairman: All right, let's rephrase it.

Mrs. Karen Kraft Sloan: Mr. Lincoln identified this contradiction in the act as it is currently worded, and we were just wondering why it's there.

The Chairman: Is the answer that the amendment is taking care of the contradiction or not?

Mr. Lerer.

Mr. Harvey Lerer (Director General, Canadian Environmental Protection Act Office, Department of the Environment): Mr. Chairman, these are very specific, quite legitimate questions. What I would propose is that, having received a list of them and having heard the questions, we would bring the appropriate people to the committee so that these questions can be answered, if that is the pleasure of the committee. Given the technical detail, I would suggest to you that, except for certain instances, we would prefer to bring the appropriate people in.

The Chairman: Thank you, Mr. Lerer.

[Translation]

Mr. Charbonneau.

Mr. Yvon Charbonneau: Mr. Chairman, I have a question on part 2 of schedule 3. In the amendment, at number 23, there is a reference to polychlorinated biphenyls, or PCBs. This amendment would make these substances subject to notification or consent.

This allows us to note two things: first, the inclusion of PCBs on the list, which, if I am not mistaken, were not mentioned in part 2; second, the addition of the phrase "or consent."

Could you explain why PCBs will be included in the part 2 list of substances which can be exported subject to notification or consent? It seems to me that PCBs are a fairly special case. I would like an explanation, at least for this kind of substance.

[English]

Mr. Duncan Cameron: Mr. Chairman, perhaps I could respond to that.

We have developed part 2 of schedule 3 in the amendment package so that Canada can implement its obligations under the Prior Informed Consent Convention that was initialled by Canada last fall, and which Canada is hoping to ratify through the passage of the CEPA bill.

The Prior Informed Consent Convention deals with three categories of substances, and it sets up different notification regimes for each of those categories. In the case of prohibited substances, through this legislation, Canada has imposed on itself an obligation that those substances may only be exported if the purpose is to destroy them. That applies to those substances listed on part 1 of schedule 3. Again, that's schedule 3 I'm referring to, not in the bill as it was tabled but rather in the government amendment at page 55 and following in the small package.

• 0940

Part 1 of schedule 3 lists prohibited substances. Part 2 of schedule 3, which your question referred to, lists those substances that are on what is called the prior informed consent list, or the PIC list. This is a list of substances that the international community has identified as requiring prior informed consent. What is intended by that is the countries that are party to this convention have agreed they will not export substances on that list to other countries that have indicated they are not willing to accept imports of those substances. In other words, we may only export those substances to countries that have indicated their prior willingness to accept. And under the PIC Convention there's a process by which parties may indicate to the secretariat whether they are willing to accept individual substances on the PIC list.

Now, I can't speak to the specifics of PCBs, but one could imagine that one country that is party to the convention may indicate they're not willing to accept PCBs, in which case Canada as a party to the convention would not export those substances to that country. In the case of another substance to a different country, we would be able to export if the country had indicated its prior informed consent to receive those shipments.

In part 3 of schedule 3 we list those substances that are restricted by law in Canada. Under the PIC Convention those substances have yet a different type of notification process. Under the convention, for substances that are restricted, or severely restricted, Canada would be required to provide notification under the PIC procedure to a country of import for the first movement of the substance and then again for the first movement in each calendar year thereafter.

That in a nutshell describes Canada's obligations under the Prior Informed Consent Convention. This schedule is necessary for Canada to implement its obligations under the agreement.

[Translation]

The Chairman: Mr. Charbonneau and Mr. Lincoln.

Mr. Yvon Charbonneau: Is this on the same subject? I will get back to it later.

Mr. Clifford Lincoln: It is on the same issue, that which we discussed earlier.

[English]

If you're talking about PCBs, that's what my question referred to, which is item 1 in schedule 1. It says in there there's an

[Translation]

prohibition of the export of waste,

[English]

a prohibition of the export of waste. It doesn't qualify it at all as item 10 does, “except for authorized uses”, as item 11 does. Okay, in schedule 3 we've shifted PCBs from item 1 to item 23, but the effect is the same. In item 23 of part 2 of schedule 3 we are allowing export of PCBs subject to notification. If we have a prohibition of the export of waste, period, how can we allow...unless that regulation says things that we don't know.

Mr. Duncan Cameron: Part 2 of schedule 3 has been developed by the international community, by the PIC secretariat. This is the so-called PIC list. All we have done is to take that international list that Canada is going to recognize through ratifying the convention and incorporate it into CEPA.

The Chairman: I understand that, Mr. Cameron. But I'm just saying to you that if you pass the law with schedule 1 as it is, if it says in the regulation what it says here, then on one side you say there's a total prohibition of the export of waste, and under the other schedule you say you're allowed to export subject to certain considerations because of international commitment. Surely we are in for a contradiction in terms. That's what I'm trying to say. You know, one says there's a total prohibition, and the next time you say you can export it.

Mr. Duncan Cameron: I don't believe there's a contradiction, but what we will do is go back and speak to the program scientists responsible and we'll get a better explanation for you.

• 0945

[Translation]

The Chairman: Mr. Charbonneau.

Mr. Yvon Charbonneau: Part 2 of schedule 3, as it exists, contains substances which are moved to part 3 by the amendment. For example, with the amendment, numbers 21 and 22 of the current text of part 2, tetraethyl lead and tetramethyl lead, are now in part 3 of schedule 3. Do more recent studies allow us to say that these will now be restricted substances? These substances used to be in part 2.

Furthermore, certain substances have completely disappeared. For example, it seems that dieldrin, at number 11, is not in part 3 according to the amendment. It is no longer in part 2 and is not in part 3.

A voice: It is in number 8.

Mr. Yvon Charbonneau: In number 8.

The Chairman: In a limited quantity.

Mr. Yvon Charbonneau: Anyway, my question still holds for lead. Why can it now be used in a restricted way? This, Mr. Chairman, refers to your initial concerns about lead. They have disappeared.

[English]

The Chairman: Mr. Charbonneau has two questions. First, why is tetraethyl lead being moved to part 3? The second one he explained very clearly.

Mr. Duncan Cameron: When the CEPA bill was drafted, the Prior Informed Consent Convention had not yet been finalized. At that time, we believed the best way for Canada to implement what we felt were the likely obligations to be vested in that agreement would be to develop a schedule 3 that had two parts.

It was clear from the way negotiations were going that we would have to have a special part dealing with prohibited substances. It also appeared at the time there would be a separate track of notification for another category of substances that were generally referred to as substances requiring export notification. That is why, at the time CEPA was tabled, schedule 3 contained two parts.

As the negotiations continued and came to an end, it was decided at the PICC negotiating sessions there would be three categories of substances, each requiring separate notification procedures. I've described those three categories to you.

As a result of that subsequent change, we now have an amendment before the committee that will allow Canada to fully implement the final version of PICC, which requires developing three categories.

We haven't changed the science, we've just changed the terminology. We've taken the list of substances in part 2 and divided it into two other parts. There is the part that requires prior informed consent notification under PICC, the so-called PIC list, and another category, which we refer to as restricted substances.

In short, we've taken part 2 of the old schedule 3 and divided it into two separate parts. I do not believe there are any gaps because we haven't dropped any of the substances. We've simply refined our obligations by putting them into two separate categories instead of lumping them together. For example, in the case of the dieldrin, which used to be item 11 in part 2, it is—as you pointed out, Mr. Chairman—item 8 in part 2 of the new schedule 3. Likewise, items 21 and 22 also appear, but now as items 13 and 14 in part 3 of the new schedule 3.

• 0950

Mr. Yvon Charbonneau: Strychnine is a very violent poison and is now in part 3.

The Chairman: Do I see no further questions?

Let me conclude this round, which is becoming more and more intriguing as we go into it, by saying that under schedule 1 you have two categories popping up now and then. One is the authorized uses—it pops up in a number of cases. The other one is certain uses.

One can be at ease with the notion of authorized uses, and you will find them in the cases of item 4, chlorofluorocarbons, and item 10, bromochlorodifluomethane. You'll find them again in items 11, 12, 18, 19, 20, and 21.

Then we have the other category called certain uses, which implies they are not authorized. Is that what it means? If so, what does it mean? It pops up rather frequently in item 2, dodecachloropentacyclo, and item 5, polychlorinated terphenyls—

A voice: Item 3.

The Chairman: No, item 3 is authorized. I'm after the certain uses—items 2, 3 and 5 then again you'll find it, for certain uses, in 23 and 24.

So what is the difference between the two categories? It's something we have to explore.

Finally, there has to be a plain language explanation of how 10 is greater than 2, so we can understand the significance of where the line is drawn. It pops up in very important items like 1, 3, 5, 16 and 17. From the perspective of pollution prevention and public health, it would be useful to know what that really means in plain English and French, so we know what we are approving.

Does that conclude the questions on the lists?

Mr. Laliberte.

Mr. Rick Laliberte (Churchill River, NDP): I just want to understand, going back to clauses 90, 91 and 93, you have limited atmospheric releases to the environment but you don't have prohibited atmospheric releases. You have prohibited manufacture use, sale, offering of sale, import and export. It seems as if people can handle it and hold it, but you don't prohibit them from releasing it. Is there an oversight there, or am I missing that?

Mr. Harvey Lerer: These are simply short titles of the specific regulations. We would be pleased, in each of these instances, to provide you with the actual regulation and its wording. As we come back through the chair to discuss the other questions on these schedules, we will address that one as well.

The Chairman: Thank you. To me, this study of schedules, cut and dried as it is and it appears, on a non-political plane could be under the heading of humanity coming to grips with its own waste. This is how we organize ourselves in dealing with our own production as we discover its impact on us and on nature and how we dispose of the substance on a planet that has a limited capacity. It is a very difficult exercise. We don't underestimate that.

• 0955

It is important also to understand the conceptual organization of that exercise so as to have a better handle on it.

Anyway, this is not a meeting of philosophers, so we had better move to the next motion.

[Translation]

Ms. Girard-Bujold has arrived. Welcome. We can start with you.

[English]

Let me also take the opportunity of this small intermission giving Madame Girard-Bujold time to adjust to the meeting to thank you for the attendance yesterday, which was intended to have taken the place of the meeting of March 3. There will be another meeting on a Monday that is intended to take the place of the meeting that was originally scheduled for March 4. We are having meetings so as not to sit on March 3 and 4.

[Translation]

Ms. Girard-Bujold, please, on page 348.

Ms. Jocelyne Girard-Bujold (Jonquière, BQ): That's it, Mr. Chairman.

The Chairman: Ms. Girard-Bujold, you have a choice between four amendments: yours and the three proposed by the government. The choice is yours.

Ms. Jocelyne Girard-Bujold: Could you give me a minute, Mr. Chairman, please?

[English]

Mr. Clifford Lincoln: Where are the other amendments, Mr. Chair?

The Chairman: The other amendments will be found in the small package on pages 48.d, 48.e, 48.f, and 48.g.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I have reviewed all the possibilities, and I would favour amendment 31.1. I do not know who proposed it. I believe it was Ms. Kraft Sloan.

A voice: No, it was us.

Ms. Jocelyne Girard-Bujold: It was us. So we proposed amendment 31.3.

The Chairman: BQ-31.1.

Ms. Jocelyne Girard-Bujold: It is written:

about administrative law and, where the order to be reviewed was made in relation to aboriginal land, the people who are knowledgeable about aboriginal issues

This is the amendment I would favour, Mr. Chairman.

Mr. Yvon Charbonneau: Which amendment?

Ms. Jocelyne Girard-Bujold: 31.1.

The Chairman: Amendment 31.1, on page 48.d.

Ms. Paddy Torsney: That is not what she read.

The Chairman: No?

Ms. Paddy Torsney: She mentioned that number, but the words are different.

Ms. Jocelyne Girard-Bujold: One moment, Miss. I will give it to you. It's 48.d.

Ms. Paddy Torsney: Yes.

The Chairman: That's it, 48.d.

• 1000

[English]

Ms. Paddy Torsney: No, it's not.

The Chairman: No?

Ms. Paddy Torsney: Well, it is, but the words that Madame Girard-Bujold used were different. They were in fact BQ-31.

A voice: On what page?

Ms. Paddy Torsney: On page 348.

A voice: Of the big package.

Ms. Paddy Torsney: It just says that—-

[Translation]

Ms. Jocelyne Girard-Bujold: Madam, it is not the same.

Ms. Paddy Torsney: But you read the...

The Chairman: Excuse me one moment, Madam Parliamentary Secretary.

Ms. Girard-Bujold, could you read your amendment one more time?

Ms. Jocelyne Girard-Bujold: Yes, Mr. Chairman. My amendment reads as follows:

about administrative law and, where the order to be reviewed was made in relation to aboriginal land, the people who are knowledgeable about aboriginal issues

The Chairman: This is the amendment of page 48.d.

Ms. Jocelyne Girard-Bujold: That is correct, Mr. Chairman.

[English]

The Chairman: Mr. Lincoln.

[Translation]

Mr. Clifford Lincoln: I believe there is a consensus on the aboriginal issue; we all agree that aboriginal participation should be included in the bill.

Ms. Girard-Bujold might want to consider a friendly amendment. The phrase "the persons who are knowledgeable about aboriginal issues" may pose certain problems. I may think I am knowledgeable of these issues, but I may not be able to well represent aboriginals in their claims. They want aboriginal representation, by aboriginal people. In its present form, the amendment does not guarantee at all this representation. Anyone could claim they are knowledgeable about aboriginal issues. It would become very subjective.

Could we not add the notion of an aboriginal representative who is knowledgeable of the issues? We could perhaps keep the wording of amendment BQ-31, although you may not agree with this. Finally, we could indicate that it would be an aboriginal person rather than a person who is knowledgeable of aboriginal issues. This is what we did in the past, but it did not work.

The Chairman: Thank you, Mr. Lincoln. I, too, hesitate to support provisions that would distinguish between people who are knowledgeable from others who are not. This distinction is very difficult to establish.

Ms. Jocelyne Girard-Bujold: This is why, Mr. Chairman, I had first proposed the amendment on page 348. However, I changed it because it was suggested that we leave room for other possibilities. As Mr. Lincoln was saying, with the amendment I had proposed, the people were in fact nominated by the aboriginal people involved. This approach did not seem to achieve a consensus, so I changed it. I would certainly be satisfied if we returned to my initial proposal, which is on page 348, Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, I can understand the government's reservations concerning amendment BQ-31, which might leave nominations completely open and allow the aboriginals to nominate anybody. If we said "aboriginal representation," it would not be determined who nominates a representative; it would have to be an aboriginal representative with the required skills.

The Chairman: Thank you, Mr. Lincoln.

[English]

The problem arises because of the fact that clause 247 has the word “Canadian” thrown in, as if the Canadian environment is something that has a peculiar notion to it that could not be understood or could not include the aboriginal environment. I begin to wonder whether this issue could be resolved by deleting the word “Canadian” in clause 247, because the emphasis in clause 247 is on knowledge. That's what is needed—knowledge. This distinction that is brought in by the word “Canadian” then creates the political necessity, so to say, of saying, well, knowledge of the Canadian environment is not enough, we need also someone who has knowledge of native environment. Then we need someone who is knowledgeable about urban environment, and then we may need someone who is knowledgeable about rural environment. Before you know it, you've just mixed up the purity of the original concept, which is knowledge.

• 1005

[Translation]

I wonder, Ms. Girard-Bujold, if it wouldn't be appropriate to delete the word "Canadian" before the word "environment."

[English]

I would like to hear some comments. The parliamentary secretary.

Ms. Paddy Torsney: First of all, let me say that on the issue you've now raised of removing the word “Canadian”, that would clearly make a lot of sense.

But I think the other issue that's on the table is, as we did in clause 2, encouraging some language around people having traditional aboriginal knowledge, which may become a tad redundant with the second “knowledge”. I think the onus would be on the government to make sure that as many people as possible who are on this review panel know about environmental health, administrative law, and aboriginal issues for all of the cases that are before them, not just for some case that is only related to a very narrowly defined aboriginal land, because that in and of itself raises some issues. How do you determine that it's only aboriginal land? How do you know that the case before them is not affecting something in another area that's not technically designated as aboriginal land?

So if the goal is to have aboriginal knowledge be part of the pool of information people should have in determining their suitability for becoming a review officer, I think that's a good concept. It's just that we need to figure out where it goes within the groupings. As you mentioned, removing the word “Canadian” would be a smart idea.

[Translation]

The Chairman: Ms. Kraft Sloan.

[English]

Mrs. Karen Kraft Sloan: Mr. Chair, it was my understanding that the original amendment proposed by Madame Girard-Bujold posed some concern simply because there may be a conflict of interest if this individual were nominated by the aboriginal people concerned.

Perhaps what we could say is that where the order to review was made in relation to aboriginal land, the individual should be aboriginal. Then we get rid of the concern Mr. Lincoln has posed, that anybody can be knowledgeable about aboriginal issues. I think if someone has traditional ecological knowledge, they would more than likely have to be aboriginal in order to have a full understanding of that, because that comes not from just reading stuff in a book but from a way of life.

However, having said that, perhaps we can identify the concern originally flagged by Madame Girard-Bujold as well as the concern originally flagged with this amendment around the conflict of interest and just say that this person should be an aboriginal, and just handle it that way.

The Chairman: The parliamentary secretary, followed by Mr. Lincoln.

Ms. Paddy Torsney: I think people need to realize that this a quasi-judicial responsibility here and that in Canada we have a system that says you have to have people who are skilled to make these kinds of decisions. In the same way, we don't say that only women judges can judge cases that relate to women's issues or men can only judge men; we have a system where you have people who are well informed about issues making decisions in a legal framework.

So I think the goal of having people who are knowledgeable of traditional aboriginal issues is a good thing in this case. But the suggestion that only aboriginal people could judge issues related to a narrow definition of aboriginal land when you could be dealing with aboriginal land and non-aboriginal land would mean to me that this would not be a progressive justice system.

The Chairman: Thank you.

Mr. Lincoln, followed by Madam Kraft Sloan.

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Mr. Clifford Lincoln: I think the parliamentary secretary has a good point, because we're talking here about the appointment of a review officer. Somehow, I think there's a consensus here as to what we want to do. We want to make sure that the people who are going to deal with aboriginal issues are sensitive to these issues.

I would suggest this. We aren't going to finish today. Maybe the parliamentary secretary and Mrs. Girard-Bujold could agree that we could find an appropriate wording that would rally everybody, because I think there's a consensus as to what we want to try to do.

I agree with the point that we shouldn't... On second thought, it makes a lot of sense if you have a review officer...hopefully they'll be aboriginal people, but they could also be used in other circumstances.

The Chairman: Thank you.

Madam Kraft Sloan, Mr. Charbonneau, and Madam Torsney.

Mrs. Karen Kraft Sloan: I think obviously you'd have to have an individual, if they were from the aboriginal community, who had the other skills that were required. That's not what I said, that they wouldn't have these skills.

Secondly, it's a representational issue. When you're talking about women's issues, sometimes it's less significant than it is for aboriginal communities because of the whole issue of self-governance and the relation to their own environmental management of their own lands. So I think representation plays a role here as well.

The Chairman: Thank you.

[Translation]

Mr. Charbonneau.

Mr. Yvon Charbonneau: Mr. Chairman, since we are debating so freely on this issue, I feel that the phrase "Canadian environment" is clearly appropriate if we think of the importance of its underlying meaning. Most of Canada's land can be considered as aboriginal land. If we require that the people know about the Canadian environment, how can we imagine that they do not know about aboriginal realities? This is why we chose the word "Canadian." We may know about the general environment. If I were a Mexican, I might know about the environment, but I might not be familiar with the Great North. But if I know about the Canadian environment, in my opinion, this in fact includes the realities of the Great North. And if we fully understand the meaning of this phrase, there is no need to look for amendments to satisfy the aboriginals; if I know about the Canadian environment, I cannot ignore aboriginal realities. We are just sharing ideas.

The Chairman: Thank you.

[English]

The parliamentary secretary is next, and then we will come to Madame Girard-Bujold.

Ms. Paddy Torsney: I'd like to direct members' attention to 48.f in this small package in English, or 48.g in French. We have drafted a government amendment that tries to deal with the issue in the same way as we dealt with it in clause 2, which is to insert traditional aboriginal knowledge.

Again, let me just review that we're talking about an appointment of an individual who is part of a group of review officers. The assignment of people to various cases based on their experience and knowledge would be within the responsibility of the chief review officer.

The government has a policy of making sure there are people who reflect the scope of who is in Canada in any of these groups of people. So I would imagine you would have men, women, aboriginal, and non-aboriginal people within that group of potential review officers, and that you would assign them to the cases they're working on in a manner reflective of their skills and suitability to those particular cases.

I think the other issue people need to focus on is how are you... If you're reviewing a case and you're going to narrowly define it as cases that relate only to aboriginal land, it doesn't work. You could be reviewing something, but the impact could be on an aboriginal community not related to the piece of land that's under review. You would hope the review officer would be thinking more broadly than just the piece of land they are looking at, that they would be looking at the broader Canadian environment, including an aboriginal population for whom the activities could have an impact.

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The Chairman: Thank you. The parliamentary secretary is drawing the attention of the committee to page 48.f, where the person would have knowledge of environmental health, administrative law or traditional aboriginal knowledge.

Madame Girard-Bujold.

[Translation]

Ms. Jocelyne Girard-Bujold: I have listened carefully to what Mr. Lincoln, Ms. Kraft Sloan and Mr. Charbonneau said. I totally disagree with what Mr. Charbonneau said. That is not at all my line of thought.

I think the parliamentary secretary's proposal weakens mine, because she says: "about administrative law or traditional aboriginal knowledge."

Mr. Chairman, after having listened to everybody, I would come back to my initial proposal, BQ-31, and the members of the committee will vote. I believe there will not be a consensus on proposal BQ-31.2. I therefore prefer my BQ-31 proposal.

The Chairman: Would you read it one more time, please?

Ms. Jocelyne Girard-Bujold: Yes, Mr. Chairman.

about administrative law and, where the order to be reviewed was made in relation to aboriginal land, the people nominated by the aboriginal people concerned

Thank you, Mr. Chairman.

[English]

The Chairman: We have now Mr. Laliberte on the list.

Mr. Rick Laliberte: On the issue of knowledge, if you want to be holistic, I have a problem with the commas, and then it goes to “or”. The preamble of this bill also deals with human health, and if anybody's knowledgeable about human health they would not be considered to be a review officer. The holistic aspect of this issue is also terminology. I think there is common terminology—

The Chairman: May I interrupt you? Which page are you looking at now? Madame Girard-Bujold has now moved amendment BQ-31.

[Translation]

Ms. Jocelyne Girard-Bujold: I return to page 348.

[English]

The Chairman: It's on page 348—

Mr. Rick Laliberte: That's clause 247.

The Chairman: Yes, but which page are you looking at? Which amendment are you looking at?

A voice: That's page 48.f, the government—

The Chairman: Exactly, that's my impression.

Mr. Rick Laliberte: She made her concluding statement, and I wanted to participate before she did that.

The Chairman: All right. She has abandoned that amendment and gone back to her original amendment, BQ-31 on page 348. That's the one that is before us.

Mr. Rick Laliberte: That's what I'm speaking on as well.

The Chairman: All right.

Mr. Rick Laliberte: If you look at the amendment that's before us, where the order is to be reviewed and made in relation to aboriginal land, unless that person has been nominated by the aboriginal people concerned... If you define aboriginal land, there's a whole concept of aboriginal persons in this country that doesn't fall under the definition of aboriginal lands. It's not all-encompassing. That's why I said “in a holistic view”.

Even if you look at knowledge—as a Canadian environmental concern—of environmental health and administrative law, why is human health not a part of that? I would like to see a review officer involved with the condition of our health and have knowledge of that; not only environmental knowledge, but human health knowledge because we're dealing with endocrine disrupters. How do endocrine disrupters deal with environmental health? They deal with human health. That's the holistic aspect.

The other aspect is that we're dealing with traditional ecological knowledge, and TEK is a common terminology being used by us and other departments. Maybe we should synchronize ourselves by calling it “aboriginal traditional ecological knowledge”. Otherwise, if you slide in “traditional aboriginal knowledge” it could mean governance knowledge or social knowledge. That's why the holistic view of “knowledge” here is a very precarious aspect. That's why I opened up the discussion.

The Chairman: Thank you for waiting until now.

Who's next? Madam Kraft Sloan and the parliamentary secretary.

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Mrs. Karen Kraft Sloan: Mr. Chair, I have two questions. I always thought it was more accepted to use traditional ecological knowledge because, as the member from the NDP has pointed out, traditional aboriginal knowledge can relate to governance and other kinds of things.

I also have a second question. There are commas with an “or”, so a person could be a review officer if they were knowledgeable about administrative law, but they wouldn't have to be knowledgeable about the environment. Is this a concern?

The Chairman: That's a good point.

Mrs. Karen Kraft Sloan: Should there be an “and”? I realize we're trying to deal with Madame Girard-Bujold's concerns that they always have to be knowledgeable in every situation about traditional ecological knowledge, or however you're going to classify it. But certainly the way the clause currently is written, I would be rather concerned if review officers are only knowledgeable about administrative law. I apologize for not noticing that sooner.

The Chairman: We have the parliamentary secretary and Mr. Lerer at the same time.

Mr. Harvey Lerer: Perhaps with your indulgence I could review what the clause is intended to do. This is specific in terms of a quasi-judicial review that is asked for on the issuance of a compliance order, which is a new authority granted to enforcement officers under this bill. The minister will appoint a chief review officer. That chief review officer will be responsible for setting the rules of the review process and will also be responsible for appointing a roster of review officers that can be selected from by the chief review officer to hear whatever case is under review.

What we have tried to do here in clause 247 is say this is some of the expertise we will need in that pool of review officers, from which you will choose, depending on the situation.

I would suggest, for example, that depending on the situation and what is under review, administrative law would be very important if the appeal of the compliance order was a matter of process under law. It may also be important, depending on the situation, to have an ecological knowledge or a scientific knowledge, if that issue was before the review.

That is the reason for the “or” in this clause; it's to make sure the roster is complete enough that in any specific situation there is enough of a pool to allow the chief review officer to select the appropriate people.

That is my explanation of how this system would work. I hope it is helpful to the committee.

The Chairman: That's very helpful, Mr. Lerer. Could you perhaps advance your thinking and comment on the desirability of also having people with knowledge of holistic aboriginal matters in the pool you described?

Mr. Harvey Lerer: I believe that would be very important in certain circumstances. I cannot foresee all the circumstances, but I think it would be very important, which is why in the government amendment we've used the phrase the committee agreed to in previous wordings on traditional aboriginal knowledge. We chose that deliberately because there may be instances where aboriginal governance issues are the case in point before the review. It may be that traditional aboriginal ecological knowledge is required on the review. So we have taken the wording the committee had agreed to previously to make it as broad as possible, because we don't know what situations will arise for review.

The Chairman: I want to ask a question of Mr. Lerer, but go ahead.

Ms. Paddy Torsney: I'm just following through on what Mr. Lerer has been talking about. If Mrs. Girard-Bujold's amendment were to pass as it's written, it says “where the order to be reviewed was made in relation to aboriginal land” the review officer would be appointed by the aboriginal people who are concerned with the very case. How could that ever be viewed by anybody as an independent, quasi-judicial process? If you want to take it away from the aboriginal people, that would be like saying the person who has administrative law, and it's a legal technicality issue...the person who was being reviewed had to be from the same law firm that was challenging the case. That would be appalling.

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The Chairman: That is an excellent point, and it is quite clear that amendment BQ-31, on page 348 before you, places the onus of nomination on the aboriginal people concerned. BQ-31.1 instead shifts that onus away from the people concerned and it brings in the qualification for that person, namely being knowledgeable about aboriginal issues.

Ms. Paddy Torsney: It still focuses on aboriginal land, which is somehow, I think, disrespectful of the fact that the compliance order could relate to an activity in another part of the country but the impact could be on an aboriginal community.

You would narrowly define it by saying, well, the person doesn't have to have information or knowledge about the impact of whatever the activity is on traditional aboriginal peoples because technically the compliance order related to an activity on a piece of land that's not aboriginal. That's not acceptable to me. I would think you would want the broader pool of people to care about the aboriginal issues, whether it's governance and/or ecological.

The Chairman: So there is another objection.

Ms. Paddy Torsney: We've made it broader than 48.f.

The Chairman: It looks as if we will have eventually to abide by the earlier suggestion of Mr. Lincoln and have this matter re-examined, because it's becoming clear that we have to resolve matters on two fronts rather than one.

Mr. Lincoln.

Mr. Clifford Lincoln: Mr. Chairman, after listening to Mr. Lerer, I think he is right, we are talking about a review board. I think the amendment on page 48.f will do the trick. I think 48.f will do it because what we're talking about is giving to the reviewing officer the review powers of appointing people in different circumstances, depending on their skills, for a particular purpose. If we include traditional aboriginal knowledge, I think that will do it, and perhaps if Madame Girard-Bujold will agree with the explanation, Mr. Lerer, we can move on and agree to 48.f.

[Translation]

Ms. Jocelyne Girard-Bujold: Frankly, Mr. Chairman, I do not understand. I do not understand the parliamentary secretary. She accepts the entire beginning of clause 247, which reads very well:

247. A person is not eligible to be appointed as a review officer unless the person is knowledgeable about the Canadian environment, environmental health, or administrative law.

To this I add:

and where the order to be reviewed was made in relation to aboriginal land, the people nominated by the aboriginal people concerned

I think it is very clear, Mr. Chairman, and I understood the review process very well. This is a quasi-judicial review, as opposed to an order. There are rules which govern the review process, there are review objectives, and there is a chief review officer who will give orders and hire people who will do the work, be it in the administrative, judicial, Canadian environment, or health areas.

Currently in Canada, the autonomy of the aboriginal peoples is recognized. Mr. Chairman, these aboriginal peoples have laws and an environment that is very different from ours. With this clause, my intent is that, where there is an order to review on their land, a person knowing everything that goes on with the aboriginals will have the right to sit and provide a clear in-depth view of the case under review. This is what I want to add with this proposal. I am adding nothing else, Mr. Chairman.

The Chairman: You think the proposal on page 48.f is too weak?

Ms. Jocelyne Girard-Bujold: Yes, Mr. Chairman.

[English]

The Chairman: Mr. Lincoln.

Mr. Clifford Lincoln: If you took out “Canadian” and included human health, and you stuck to 48.f, I think that would be broad enough for us to reach a consensus.

The Chairman: But Madame Girard-Bujold finds 48.f weak because of the word “or”, as she said earlier.

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Mr. Clifford Lincoln: I agree. I'm just saying maybe we could get a—

The Chairman: Yes, Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): I agree with Mr. Lincoln.

My difficulty with Madame Girard-Bujold's comments is that we're not talking about advisers, we are talking about people who sit as judges, and they can't be biased before the process begins. They can get representation from witnesses or whatever to give them expertise on a particular case.

I think with Mr. Lincoln's suggestion of deleting the word “Canadian” and adding “human health” to 48.f, you would get a majority vote, if not unanimity. I think we should—

The Chairman: I'm sorry, but there is no consensus on deleting the word “Canadian”. This being an item that relates to native people, it should be resolved by consensus and not by a vote. I think we have to find a solution that goes through without forcing a vote, because of the subject matter before us.

The parliamentary secretary.

Ms. Paddy Torsney: If it would help, we could simply amend 48.f to say “environmental and human health”. It was certainly intended that humans are part of the environment.

The Chairman: Mr. Laliberte.

Mr. Rick Laliberte: I understand Madame Girard-Bujold's perspective here, respectfully, but the term “aboriginal land” as defined under the Indian Act is very specific as being reserve or land set aside for bands.

If you look at the Arctic contaminants, the whole northern region of this country is not under Indian Act jurisdiction. If you look at an Inuit, traditional knowledge is locked in the language, and you want to trigger that language to come out and give you the knowledge that's intact in our languages, I should say, the Cree language and the Inuit language.

You want to have knowledge of the caribou herds and the impacts they've realized over the generations, but this motion as you stated it doesn't define that. Aboriginal lands aren't the whole Arctic region. Indian Act lands are very specific, and they're very small. It doesn't deal with the larger ecosystem of the lands. It deals with small municipal centres, villages, or hamlets along the rivers or lakes, but it doesn't deal with huge tracts of land. So that's the only concern I have here.

If you want to acknowledge the traditional knowledge, then broaden it for not only aboriginal land issues but also for other issues in a broader sense. I'm just suggesting that aboriginal traditional ecological knowledge could be tapped at any time. It could be dealing with the Great Lakes as an overall issue, and you could tap aboriginal traditional knowledge.

Being specific about lands is my concern. You're not dealing with the Métis. There are Métis communities throughout Canada. You're not dealing with those under this definition. You're not dealing with Inuit, plus the many traditional villages and communities throughout Canada that aren't defined under the Indian Act.

The Chairman: Thank you.

Madam Hébert.

Ms. Monique Hébert (Committee Researcher): I would just like to make a clarification, Mr. Laliberte. I believe the definition of “aboriginal land” goes further in this bill than what is provided under the Indian Act. Under clause 3, which is the definitions clause, there are several paragraphs dealing with aboriginal lands. Paragraph 3(1)(b) stipulates that it includes lands subject to a comprehensive or specific claim agreement or self-government agreement. Therefore, it's not just those lands that are addressed under the Indian Act. It would go further, but perhaps not as far as you would like.

Mr. Rick Laliberte: Is that in the bill?

Ms. Monique Hébert: Yes, it's in clause 3 of the bill, sir.

A voice: It's on pages 4 and 5 of the bill.

The Chairman: Mr. Jordan and then the parliamentary secretary.

Mr. Joe Jordan (Leeds—Grenville, Lib.): I was just wondering if Mr. Laliberte could suggest a friendly amendment to 48.f. Is that a salvageable approach?

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Mr. Rick Laliberte: On page 48.f, if you referred to human health, because that's the other side that's missing here—

Mr. Joe Jordan: I will agree with that.

Mr. Rick Laliberte: —and the aboriginal traditional ecological knowledge, I think it would strengthen the knowledge base that you want at the review officers. Is that okay?

The Chairman: The parliamentary secretary.

Ms. Paddy Torsney: Again, earlier in the bill we've used traditional aboriginal knowledge because the issue could be (a) governance or (b) ecological knowledge. So if you're using the broader one and then not narrowly defining it, surely you're getting more of what you want rather then less of what you want.

The second thing is that again I'm not sure Madame Hébert's intervention didn't skew what Mr. Laliberte was trying to say, which was that the activities that could be governed could be under question from the compliance order, could affect the people in the Arctic. However you want to define aboriginal land, the effect of what's happening could be in the Arctic. As Madame Bujold has written 31, information or knowledge about aboriginal issues and what's happening with the aboriginal people in those areas would not be involved in the requirements for the review officer because it wouldn't be narrowly defined as aboriginal land under Madame Hébert's definition or Mr. Laliberte's original definition. You're trying to be broader. You're trying to recognize that there are more areas than just aboriginal land that could be affected. It would be a good thing for all of our review officers to have some information about traditional aboriginal ecological knowledge as well as governance.

So we've left it broad in 48.f, and the only other issue that I think doesn't have consensus is the issue of whether we want “Canadian” in or out. We haven't had that debate.

The Chairman: We had that debate, and it is not in because there's no consensus.

[Translation]

Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I believe we are drifting. I have never questioned the word "Canadian" in this. In my proposal, I do not take out the word "Canadian."

I do not go along with what Ms. Torsney says. This is really, as the gentleman explained, a review process. There is a chief review officer who has a clear mandate, who will hire a review officer for a specific task.

I simply say that, if aboriginals are involved, I want it to be a person who knows about aboriginal traditions, who knows about the aboriginal people and everything that relates to it.

Mr. Chairman, I think we could discuss all day. Personally, I am prepared to support the amendment of the parliamentary secretary. However, I would amend her proposal of page 48.g as follows:

about environmental health, human health, administrative law, traditional aboriginal knowledge.

I am prepared to go that far.

The Chairman: Could you read it one more time?

Ms. Jocelyne Girard-Bujold: Yes, Mr. Chairman.

about environmental health, human health, administrative law, traditional aboriginal knowledge.

[English]

An hon. member: That's exactly what—

[Translation]

Ms. Jocelyne Girard-Bujold: No, no, she had written "or."

I am prepared to go that far, Mr. Chairman.

[English]

The Chairman: The parliamentary Secretary.

Ms. Paddy Torsney: Legally there are differences when you list things and then put an “or” or an “and”. In putting an “and”, you might be limiting yourself to five people in the country or one person in the country who had that combination of skills. Again, as we do with a number of different panels or groups that we have in Canada, we're looking for people with a variety of skills and people with an ability to do certain things. You couldn't have “and”.

[Translation]

Ms. Jocelyne Girard-Bujold: I did not say "and."

[English]

Ms. Paddy Torsney: And if we can just clarify, I think we read into the record an amendment to this amendment that already has environmental and human health.

[Translation]

Ms. Jocelyne Girard-Bujold: I did not say "and," Mr. Chairman, that was a comma. An "and" and a comma are very different. I put a comma. I did not put "and."

The Chairman: There. Could you repeat your amendment, please?

Ms. Jocelyne Girard-Bujold: I take the amendment of the parliamentary secretary exactly as it is, but I take out the "or":

about environmental health, human health, administrative law, traditional aboriginal knowledge.

There is the choice of all these people.

The Chairman: You take out the "or."

Ms. Jocelyne Girard-Bujold: Yes, Mr. Chairman.

[English]

The Chairman: She has eliminated the word “or”.

Mr. Lincoln.

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Mr. Clifford Lincoln: I want to ask Mr. Cameron, from the legal drafting point of view, can you do this, and what is the significance?

Mr. Duncan Cameron: No, Mr. Lincoln, I don't believe you can do it.

Mr. Clifford Lincoln: I don't think you can.

Mr. Duncan Cameron: I believe you'd end up with a sentence that is not grammatically correct, and there would be tremendous uncertainty as to what the intent of Parliament was if that language were to pass. In my view, since the debate has focused on whether the review officer is supposed to have all of these traits or only some of them, the only choices before you would be to say “and” or “or”.

Mr. Clifford Lincoln: Mr. Chairman, I would like to ask Madame Girard-Bujold, and this time...

[Translation]

I agree with you 100%, but if, for example, you have a case on urban environment, in Montréal, Toronto, or Vancouver, the chief review officer may then look for someone in administrative law, or someone who is more knowledgeable in a specific area. Then there will be no question about traditional aboriginal knowledge. Administratively speaking, we can only use "or" or "and." If we put "and," we are asking for the impossible. So we must put "or."

[English]

Mr. Yvon Charbonneau: “And/or”.

Mr. Clifford Lincoln: Can we, Mr. Cameron, put “and/or” legally?

Mr. Duncan Cameron: No, I've never seen that in legislation before.

Mr. Clifford Lincoln: Okay.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I think we are dramatizing. I do not want to dramatize anything here. Mr. Chairman, I will phrase this clause in a way that reflects what I want to say and which will achieve a consensus here.

Personally, I really want this clause to contain... Mr. Chairman, I am not asking for the impossible. It is already in clause 247: "about the Canadian environment, environmental health or administrative law." Mr. Chairman, there is already a comma. I do not understand why the gentleman says that a comma can change everything, that it cannot be done in a legislative text.

The Chairman: Mr. Cameron's problem is not about the use of the comma. It is about the fact that there is more than one option. It is the use of "and" instead of "or."

[English]

Would you mind repeating your problem?

Mr. Duncan Cameron: Certainly. If we were to take the “or” out and replace it with a comma—

The Chairman: Please go slowly so the translator can translate.

Mr. Duncan Cameron: If we were to take the word “or” out and replace it with a comma, clause 247 would read as follows:

A person is not eligible to be appointed as a review officer unless the person is knowledgeable about the Canadian environment, environmental and human health, administrative law, traditional aboriginal knowledge.

The question I would have as a lawyer trying to interpret that would be whether Parliament intended that the review officer must have all of those characteristics or only some of those, and the reason we add either the word “and” or the word “or” is to clarify Parliament's intent on precisely that issue.

[Translation]

Ms. Jocelyne Girard-Bujold: Mr. Chairman, I do not understand, because the amendment on page 48.g was proposed by the parliamentary secretary. In the original text, it is clearly written: "the Canadian environment, about environmental health." There is no comma, but the parliamentary secretary puts one in her proposal.

By saying "about human health, administrative law, aboriginal knowledge," the review officer can be chosen among several individuals. That is what it means in French, Sir.

[English]

The Chairman: Mr. Pratt, then the parliamentary secretary.

Mr. David Pratt (Nepean—Carleton, Lib.): Mr. Chairman, I think we're spinning our wheels here to the point where there's very little tread left on the tire. I think if you went around the table based on the discussion that has already occurred, you would find a consensus for the inclusion of “and human health” and leaving the end of the amendment as it is, with “or traditional aboriginal knowledge”. I think the suggestions that have been made by Madame Girard-Bujold are grammatically incorrect, as has been indicated, and produce nothing but confusion in that particular clause.

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So I think we really should get on with voting on this particular item. I don't think we're going to achieve a perfect consensus around the table, but there is a general consensus that needs to be decided upon here.

The Chairman: But it would be nice to include the mover of the motion in that consensus, you see, particularly on a matter like this.

Madam Parliamentary Secretary, please.

Ms. Paddy Torsney: Thank you.

Let me just clarify that the debate is not about the comma that is in 48.f after “law'. The debate is about the “or” versus an “and” versus nothing. It's my position that we need the “or”.

The Chairman: This is what has also been made clear by Mr. Cameron. The interpretation by the judge, if you like, would be on what should be the qualification. Are we looking for a reincarnation of Leonardo da Vinci here—someone who has many dimensions of knowledge—or a person who has either of these characteristics, depending on the requirements of your pool? This is the problem. Evidently, the law has to provide persons who have requirements to meet the changing specific needs of the pool, and not encyclopedic people.

Ms. Paddy Torsney: Mr. Chairman.

The Chairman: Yes, Madam Torsney.

Ms. Paddy Torsney: Maybe we need some time. We can drag this out for another fifteen minutes, or we can come back tomorrow and—

The Chairman: We're very close, so just wait a second.

Mr. Laliberte.

Mr. Rick Laliberte: I just wanted to throw into the loop here that “traditional aboriginal knowledge” and “traditional ecological knowledge” are two different terminologies. I would tend to favour “ecological knowledge” in this issue because traditional aboriginal knowledge is very broad, it's all-encompassing. But someone with ecological knowledge is the kind of person you want in a review. Having someone like that makes it more specialized, it locks in the language issues, and the terminology is an accepted one amongst different departments and organizations in this country.

The Chairman: You will find it in the second amendment by the Bloc Québécois, BQ-31.2. The word “ecological” is there before “traditional”.

[Translation]

Ms. Girard-Bujold, I am sorry, but can we convince you to leave the word "or" in the page 48.g version? We have almost reached a solution. We could just leave the word "or." If you agree on this, we can adopt the spirit of your proposal, for the reasons given by Mr. Cameron.

Ms. Jocelyne Girard-Bujold: As far as I am concerned, Mr. Chairman, I thing I will... Anyway, I will consider what the legal advisor and the other gentleman say. I hope that when they define what Madam has just said, they will closely consider, when it come to aboriginal issues, "about traditional aboriginal knowledge."

I will therefore go with the majority. I will trust the word of the people who spoke here and accept that wording, Mr. Chairman.

The Chairman: Thank you, Ms. Girard-Bujold.

[English]

So, then, is it understood that we have Madame Girard-Bujold agreeing to leave the word “or”—and ou in the French version—and that we agree to the insertion of the word “ecological”, as suggested by Mr. Laliberte, in place of “aboriginal”? Is that acceptable to everybody?

An hon. member: And “human health”.

The Chairman: And “human health”, as already suggested by the parliamentary secretary. We have three elements. If they all sit, we can move ahead.

Madam Parliamentary Secretary.

• 1050

Ms. Paddy Torsney: Can I just point out for the record that by using “traditional ecological knowledge” you have ruled out the governance issues, but if that is the pleasure of the committee, let's go.

The Chairman: No, no. It's not a matter of... Mr. Laliberte, do you appreciate what has been just said?

Mr. Rick Laliberte: Yes, I understand the governance issue. If you look at the administrative law aspect, it's in there already. Administrative law in this country also deals with aboriginal administrative law. You want a trigger and you want to have review knowledge on traditional environmental knowledge. That's the trigger. People of the land have knowledge, if you open it up to the broader sense. That's all I'm saying.

The Chairman: All right. Thank you.

“Human health” is in, “or” is in, and “ecological” is in as well. Is that agreed?

Ms. Paddy Torsney: Mr. Chair, the amendment has to be read out in full. You have to read it out in full; otherwise the drafters will be going crazy.

The Chairman: All right. Then it would be, reading from the text on page 48.f:

ment, environmental and human health, administrative law, or traditional ecological knowledge.

No? Madam Hébert.

Ms. Monique Hébert: My only comment is that when I saw a reference to traditional ecological knowledge I had no idea what that was. I don't think it's a phrase that has a particular significance, at least not in law, and I think it's important, if one goes with ecological, to specify aboriginal at the same time.

The Chairman: What do you suggest?

Ms. Monique Hébert: I would suggest “traditional aboriginal ecological knowledge”.

The Chairman: All right. Is that acceptable? Let's hope it will fly.

Mr. Cameron, would you like to comment?

Mr. Duncan Cameron: From my perspective I'm at the pleasure of the committee. I don't see any legal difficulty with the language that's been proposed.

Ms. Paddy Torsney: So it's “traditional aboriginal ecological knowledge”.

The Chairman: Correct.

Mr. Jordan.

Mr. Joe Jordan: Was the Canadian debate resolved?

The Chairman: No, there was no consensus.

Mr. Joe Jordan: Can we throw that in there now and say take it out?

The Chairman: No, there was no consensus.

Mr. Joe Jordan: Okay.

The Chairman: So we leave it.

Is there agreement then on these points? “Human health” is in, “or” is in, and “traditional ecological aboriginal knowledge” are in.

Ms. Paddy Torsney: “Aboriginal ecological”.

The Chairman: Yes. Agreed?

[Translation]

Ms. Jocelyne Girard-Bujold: I do not understand what the word "ecological" has to do with this.

The Chairman: It is because of Mr. Laliberte's declaration.

[English]

I take it there is consensus and that this amendment is adopted.

(Amendment agreed to)

(Clause 247 as amended agreed to)

Ms. Paddy Torsney: Mr. Chair, just before we break, I believe it's in another clause. I think it might even be clause 334, and that the amendment BQ-32 was on the table on page 379. It hasn't been moved, but there was one in our books. Perhaps we could make the amendment at this point since we've got this consensus.

I could read the amendment into the record.

The Chairman: Give us the page you're on.

Ms. Paddy Torsney: I'm on page 379 in the big binder.

The Chairman: Why do you want us to jump over there?

Ms. Paddy Torsney: Because it's the same issue.

The Chairman: Is it the one we stood yesterday?

Ms. Paddy Torsney: Right. We stood the clause 334.

The Chairman: Correct.

Ms. Paddy Torsney: This is the only amendment to clause 334, so I thought we might just go right along.

• 1055

The amendment I'm proposing is that clause 334 be amended so that it would read:

334. (a) A board of review shall consist of not fewer than three members.

(b) A person is not eligible to be appointed as a member of a board of review unless the person is knowledgeable about the Canadian environment, environmental and human health, or traditional aboriginal ecological knowledge.

That would be exactly consistent with what we've just done.

The Chairman: Where is the text for that?

Ms. Paddy Torsney: We didn't include administrative law. I don't think it's—

The Chairman: Where is the text of that amendment?

Ms. Paddy Torsney: It's just right on a scribble of paper that I have.

The Chairman: Perhaps you may want to bring it forward when we meet the next time.

Ms. Paddy Torsney: Well, I think it's exactly the same issue, but maybe we could have a 45-minute debate on that tomorrow.

The Chairman: It would be preferable and more orderly if it is done on a piece of paper.

Ms. Paddy Torsney: As you desire.

The Chairman: It will also reinforce the recollection of the members as to what we have just done.

Give us the text slowly so that it can be understood in the French version, you see.

Ms. Paddy Torsney: Perhaps to help members, I suggest they turn to clause 334 in the bill, on page 211. Right now, clause 334 just says:

A board of review shall consist of not fewer than three members.

The Chairman: Read it slowly for the translators.

Ms. Paddy Torsney: On page 211 of your bill, clause 334 says:

[Translation]

334. The board of review, hereinafter referred to as the "board," shall consist of not fewer than three members.

[English]

In light of the fact that Madame Girard-Bujold had made an amendment that was in our books and has not been moved—it is called BQ-32 and is on page 379—I'm proposing that we reflect her desire to include this kind of information and reorder the first line that's currently in our bill, which would be the (a), and put in a (b):

A person is not eligible to be appointed as a member of a board of review unless the person is knowledgeable about the Canadian environment, environmental and human health, or traditional aboriginal ecological knowledge.

I could do that in French.

The Chairman: The translator will be glad to do it for you and probably has done so.

Ms. Paddy Torsney: And it will probably be more music to your ears.

The Chairman: It is a question whether Madame Girard-Bujold is satisfied with the translation.

[Translation]

Ms. Jocelyne Girard-Bujold: The parliamentary secretary has just said that she wants to include the wording that we have just adopted for clause 247 as it is in clause 334. Is that correct? She would want it to be phrased in the same way instead of leaving it as I worded it on page 379.

[English]

Ms. Paddy Torsney: Basically.

[Translation]

Ms. Jocelyne Girard-Bujold: It's perfect, Mr. Chairman. I agree.

The Chairman: Thank you.

[English]

So moved?

Ms. Paddy Torsney: So moved.

The Chairman: Any comments? Madam Hébert.

Ms. Monique Hébert: I just have one comment, and that is that under clause 247 administrative law was one of the qualifications. The proposed amendment here drops that particular one. I'm just drawing this to the members' attention because it's not exactly the same as was adopted in relation to clause 247.

The Chairman: As Mr. Lerer reminded us earlier, the administrative law person is necessary in the pool.

Ms. Jocelyne Girard-Bujold: Non.

The Chairman: No?

Ms. Paddy Torsney: No, it's not necessary. I think the issue that's before us is the spirit of what Madame Girard-Bujold was trying to achieve. It is not necessary for all of those people to have administrative law knowledge.

The Chairman: Mr. Lerer.

• 1100

Mr. Harvey Lerer: In clause 334 we are discussing not a quasi-judicial process but a scientific board of review. Therefore administrative law would not be a necessary requirement of the pool.

[Translation]

The Chairman: Ms. Girard-Bujold.

Ms. Jocelyne Girard-Bujold: I did not understand what Madam said. Could you repeat, please?

Ms. Monique Hébert: Yes. You will remember that the amendment adopted for clause 247 comprised four qualifications, including an expertise in administrative law. Here, a similar amendment is proposed, except that this qualification is not there. So there are three instead of the four we see in clause 247.

Ms. Jocelyne Girard-Bujold: Thank you, because I thought the parliamentary secretary had used the wording adopted for clause 247 and had applied it to clause 334. If it does not include the administrative law... Yet, she did say it was exactly identical.

The Chairman: Ms. Girard-Bujold, we must once again listen to Mr. Lerer. Mr. Lerer.

[English]

Mr. Harvey Lerer: In the previous amendment, Mr. Chairman, we were dealing with a quasi-judicial review process. What clause 334 refers to is a board of review under the act. Boards of review are held when there have been scientific objections. Therefore, what we're trying to do in the suggestion for clause 334 is provide for the same expertise. But administrative law would not be required for a board of review, given that it is a scientific determination.

The Chairman: That's also what the parliamentary secretary told the committee.

[Translation]

Everybody agrees?

[English]

(Amendment agreed to)

(Clause 334 as amended agreed to)

The Chairman: It being 11 a.m., I thank you very much.

[Translation]

We will see you tomorrow.

The meeting is adjourned.