ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 8, 2001

• 0913

[Translation]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good day, ladies and gentlemen.

[English]

We welcome Madame St-Jacques to our committee.

[Translation]

Welcome.

[English]

We hope to see you more often. Stay with us; you are in good company. We serve nice water, clean and nicely filtrated, and there is tea and coffee at the end of the room.

Ms. Diane St-Jacques (Shefford, Lib.): Thank you. It's very different from other committees.

The Chair: There's no champagne today, but come next week.

Mr. Bob Mills (Red Deer, Canadian Alliance): Is that a promise?

The Chair: Oh, yes. But you have to be here next week.

Today we will complete the unfinished work on clause 59, and then we will try to tackle clause 8 in the hope people are ready for it. If that is done, we'll do clause 62; and if that is done, clause 65; and if that is done, clauses 66, 67, 69, 71, 72, and 73. In other words, I will continue to be flexible for the requests of members who feel that certain clauses must be stood in order to complete negotiations, as I did yesterday. However, the flexibility of the chair will diminish as time goes by, and I would hope that when we come back we will not be asked to stand clauses any longer.

• 0915

Next week, on the subject of consequentiality—which is a new term in the legal dictionary for those of you who are lawyers—I will hold meetings with the researchers, the clerk, and the legal advisers here to ensure that we do not make any further mistakes in announcing consequences. It is a very difficult science, as you know, so we will do our best to prevent mistakes of the kind that happened yesterday. As you must have noticed, it is not an easy science, and we must be extremely careful and clear on that.

I would like to announce that the week we come back we will start as usual on a Tuesday, because some members are travelling overseas and will need time to readjust. But beginning the week of the 26th, I will be calling meetings for Monday afternoon until we finish. In other words, please enter in your diaries the fact that on the week of November 26 we will sit on that Monday and on any subsequent Monday required until we finish. We have definitely entered the second half of our journey, and with some goodwill and with shorter clause-by-clause discussions if at all possible—although I'm the first one to recognize that we had some very good discussions yesterday—we will be able to move through our voluminous work in a speedier fashion.

Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): I'm just wondering if we might consider evening meetings starting the week of Monday, November 26.

The Chair: I don't know; it depends. Three hours of this kind of exercise are quite exhausting, and I've noticed that after three hours we begin to waver and become unclear. I think three hours a day is a good dose of medicine.

Mr. Gar Knutson: I'm also finding it's exhausting week after week.

The Chair: I would hope the work will decline.

I will keep that in mind as a possibility, but we will start on Tuesday, November 20, continue through Wednesday and Thursday of that week, and then start on Monday the following week.

And to those of you who are going abroad next week, I wish you a good visit.

We will now continue and complete section 59. When we have completed that, I would invite you to go back to clause 8. But let's first of all see how we can, in an orderly fashion, complete clause 59.

As you will remember, we finished yesterday by carrying motion 218A, which was in the name of Mr. Knutson, reference 13029. Then we decided to adjourn when approaching Mr. Knutson's motion L-26 on page 219.

Mr. Knutson, would you like to elaborate on your motion on page 219?

• 0920

(On clause 59—Regulations re federal lands)

Mr. Gar Knutson: I would remind you that yesterday we passed a part of a clause that said the minister “may” make regulations. In the spirit of cooperation and in recognition of the foundations of the bill, we should amend subclause 59(2) to say, as stated on page 219, that if we have a stewardship agreement with the landowner and where the landowner has voluntarily gone and gotten a permit, then the regulations won't apply. This is a good thing in terms of cooperation and respecting the rights of landowners.

The Chair: Thank you.

Are you moving a motion?

Mr. Gar Knutson: I am.

The Chair: The motion is moved.

Madame Redman.

Mrs. Karen Redman (Kitchener Centre, Lib.): Mr. Chairman, I noticed something in the wording of the motion. I would ask through you to the mover if there is a reason it says “habitat” and not “critical habitat”. I would then ask Mr. Near to speak to it.

Mr. Gar Knutson: That's an oversight.

Mrs. Karen Redman: So you would consider putting “to any critical habitat” on the second line?

Mr. Gar Knutson: Yes.

Mrs. Karen Redman: I don't know if Mr. Near would like to speak to the impact of this amendment, Mr. Chair.

The Chair: Your amendment is changed to read on the second line, “not apply to any critical habitat”. Is that the understanding?

Mrs. Karen Redman: That's my understanding.

The Chair: All right. You have this amendment before you. Are there any questions or comments?

Mrs. Karen Redman: I would ask that Mr. Near comment.

Mr. David Near (Legal Counsel, Legal Services, Department of Justice Canada): Mr. Chair, I wanted to point out, as I did briefly when we were discussing clause 58, that the inclusion of sections 11, 74 or 75 is problematic.

Clause 11 agreements are not to authorize any activity that would adversely affect an endangered species. This is, in essence, an exception to a prohibition; you are implicitly acknowledging that clause 11 agreements could adversely affect an endangered species. It's illogical.

The second point, with respect to clause 74 or 75, is that these exceptions are already contained in the general exception section in clause 83. So you would have a situation where you have, in essence, a prohibition that says, thou shalt not do something except in accordance with a permit under clause 74 or 75. Then you have a general exception clause in clause 83, which has other exceptions plus clauses 74 and 75, which already exist.

There are two rules of statutory interpretation. The first is that the more specific would govern over the more general. In the first instance, the only exceptions to the general prohibitions that would be allowed would be under clause 74 or 75, and you would lose national defence activities under a conservation agreement, a land claim agreement, and some of those other items in clause 83. However, it's very likely that a court would actually provide that clause 83 would carry the day because this is a criminal-type prohibition. Therefore, any ambiguity that's introduced into the legislation would operate to the benefit of the accused if we tried to prosecute him.

My concern is that it introduces confusion into the bill in clause 58 and, if we do it here, clause 59. I think there's similar language in clause 32—in other words, all the prohibitions, including the new motion from Madame Kraft Sloan on clause 74.

The Chair: Mr. Knutson.

Mr. Gar Knutson: In terms of the latter concern, we can fix that by adding section 83, so it reads: “sections 11, 74, 75 and 83”.

I'm assuming Mr. Near agrees that this is helpful.

• 0925

Mr. David Near: It's not really my place to draft the correction.

The difficulty with that, of course, is that the language continues to refer to agreements or permits, and clause 83 has much more than that. I think that's about as helpful as I should probably be.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): Mr. Chair, just in response to Mr. Near's comments regarding clause 11, I think we've had some debate in this committee suggesting that conservation agreements may not always be to the benefit of a species. I think my colleague on the other side has shared some of those concerns as well.

The Chair: Mr. Mills.

Mr. Bob Mills: Through you, Mr. Chair, I'd like to ask, should that not read “stewardship agreement”?

Mr. Gar Knutson: The word “agreement” would include stewardship agreements.

Mr. Bob Mills: For me, it would make it clearer if we added “stewardship” to “agreements”.

Mr. Gar Knutson: Okay.

The Chair: Mr. Herron.

Mr. John Herron (Fundy—Royal, PC/DR): I suggest, Mr. Near, that we take out the provision for sections 11, 74, and 75 and just put in section 83. Is that more workable?

Mr. David Near: It's consistent with the logic of the bill.

Mr. John Herron: That sounds as if it's workable, then.

Mr. David Near: It's my way of saying yes.

Mr. Gar Knutson: He can be helpful.

The Chair: We have now the insertion of the word “critical” before “habitat”, the addition of “83” after “75”, and then the insertion of “stewardship” before the word “agreement”.

Mr. Bailey.

Mr. Roy Bailey (Souris—Moose Mountain, Canadian Alliance): Mr. Chair, I have a question for Mr. Near.

We are discussing here agreements that may be made by the minister or the Governor in Council with a given group or indeed an individual. By making these changes, are we then questioning the legitimacy of that agreement? I heard somebody say that it may not always be right. It may not always be proper. It may not always be conducive to the protection of the species. Then we are placing judgment upon that minister.

What will this amendment do to stop that? How are we as individuals on this committee or anyone else going to know whether that was a good agreement he made for the preservation of the species?

Mr. David Near: It's important to understand that clause 11 stewardship agreements do not provide exceptions to the prohibitions. That's because by definition they're not supposed to harm the species. Clause 11 is really, as I said before, somewhat illogical to include here because we are talking about activities that could adversely affect a species, and you are trying to permit that activity through the issuance of a permit.

I don't know if that answers your question.

Mr. Roy Bailey: Thank you.

The Chair: Mr. Herron.

Mr. John Herron: Through you, Mr. Chair, I'd say to my dear friend, Gar, that if you look at paragraph 83(1)(b)—

Mr. Gar Knutson: She's smarter.

Mr. John Herron: She's already got it done. That's not saying a heck of a lot; I know that.

If you look at paragraph 83(1)(b), the provisions you're looking to cover off with respect to clauses 74 and 75 are there. If you just linked it to clause 83, I think that would accomplish what you're trying to do.

Mr. Gar Knutson: Okay. I think the criticisms about clause 11 are extremely picky, but I'm flexible. I don't think it does any harm to have clause 11 referenced.

Mr. John Herron: Clauses 11 and 83.

• 0930

What I'm saying is that clauses 74 and 75 are referenced if you go to paragraph 83(b).

Mr. Gar Knutson: Fine.

The Chair: Would you please indicate, Mr. Knutson, how line 3 would read?

Mr. Near.

Mr. David Near: I'll attempt to be helpful. If you retain the words “agreement” or “permit”, it doesn't solve the problem because section 83 is wider than just agreements or permits.

Really, the only way to solve something like this would be to just refer to section 83. It already exists, but I guess you could point to it if you wished. In other words, if you just say “that is the subject of an agreement or permit”, well, section 83 has exceptions for things that are beyond permits and licences—for example, as I indicated, national defence, public health, and conservation activities pursuant to land claim agreements.

The Chair: Mr. Knutson.

Mr. Gar Knutson: That's fine. We'll just put “Regulations made under subsection (1) do not apply to any habitat that is subject to section 83”. Section 83 refers to activities authorized under section 74. It refers to licences, to public safety—a lot more than just critical habitat—so let's just refer to the whole section. So “Regulations made under subsection (1) do not apply to anything”—

Some hon. members: Oh, oh!

Mr. Gar Knutson: —“that is subject to section 83”.

Mr. David Near: I would suggest “that meets the requirements of section 83”, rather than “subject to”.

The Chair: It is agreed then, Mr. Knutson, that your amendment would read “Regulations made under subsection (1) do not apply to anything that meets the requirements of section 83”?

Mr. Gar Knutson: That captures it, yes.

The Chair: All right, you now have the amendment. If this amendment carries, it is consequential to the amendments on pages 223, 225, 227, and 228.

Madam Redman.

Mrs. Karen Redman: Thank you.

Those consequential amendments would then be amended to match the wording and intent of this new motion, right?

The Chair: Correct.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Is section 11 remaining in the amendment?

The Chair: It was not read. It's only section 83, as far as I know.

Mr. Knutson, are you firm on the way it is now?

Mr. Gar Knutson: Yes, it's fine.

(Amendment agreed to) [See Minutes of Proceedings]

• 0935

The Chair: The amendment on page 220 disappears into outer space because it amends something that has disappeared in the process of the work done so far. So we cannot call it.

We come to page 221, another amendment in the name of Mr. Knutson, amendment L-24. The floor is yours.

Mr. Gar Knutson: I'd like to move this amendment. It includes the word “shall”. It's important that we include provisions prohibiting activities that may adversely affect the critical habitat, and I don't think we should use the word “may”.

The Chair: We have two new colleagues on the committee, so you may want to explain for their benefit what you are trying to do, since they are new to the subject.

Mr. Gar Knutson: Okay.

If you read subclause 59(1), the legislation authorizes the government, whether it's the minister or the Governor in Council—I won't get into that right now—to make regulations to protect critical habitat on federal lands. All I'm doing, in my view, is slightly toughening up the language in subclause 59(3). It says those regulations will include provisions requiring the doing of things that protect the critical habitat and provisions prohibiting activities that may adversely affect the critical habitat.

Protecting critical habitat is the essence of preventing species from going extinct.

The Chair: All right, that has been explained.

Madam Redman.

Mrs. Karen Redman: Can we ask Ms. Wherry to comment on this change from “may” to “shall”?

The Chair: Ms. Wherry.

Ms. Ruth Wherry (Director, Species at Risk, Canadian Wildlife Service, Environment Canada): The only comment I would make on this is that it may be in some cases all that's needed to protect the habitat is something positive like spawning-bed restoration. You don't necessarily always have to prohibit some specific activity. By putting in “shall” it says it has to include a prohibition.

Mr. Gar Knutson: It doesn't make a lot of sense to do spawning-bed restoration if you don't at the same time prohibit activities that will adversely affect that restored spawning bed in the future. I understand the point that sometimes you're just doing positive things, but you still need to build a fence around those positive things to prevent destruction of the habitat you've restored.

The Chair: Madam Kraft Sloan.

• 0940

Mrs. Karen Kraft Sloan: Mr. Chair, I'm wondering about the effect of the “may” in the second-last line of this clause. If this clause passes as amended by Mr. Knutson, it would read “that protect the critical habitat and shall include provision prohibiting activities that may adversely affect the critical habitat”. I'm wondering if the provisions prohibiting these activities are triggered when things exist that adversely affect the critical habitat.

Mr. Gar Knutson: I think that second “may” is a good “may”. It brings in—

Mrs. Karen Kraft Sloan: I agree with you.

Mr. Gar Knutson: Maybe you could let me finish. It brings in the precautionary principle.

Mrs. Karen Kraft Sloan: Yes.

(Amendment negatived) [See Minutes of Proceedings]

The Chair: All right. The motion on page 222 cannot be put because it is negatived by the motion that was adopted on page 223. The same applies to the motions on pages 224 and 226.

Mr. Knutson, I've been told that your amendment on page 228 is no longer relevant because you did take the 60-day time when discussing the previous amendment. Therefore, it cannot be put.

Mr. Gar Knutson: Okay. What about the amendment on page 223?

The Chair: Number 223 is carried, I am told.

• 0945

[Translation]

Mr. Marcel Gagnon (Champlain, BQ): You just said the motion on page 222 is superceded by the motion on page 223. How come?

[English]

The Chair: They cover the same lines. They are overlapping. One was adopted and therefore the other one is wiped out by consequential effect. They cover the same lines.

[Translation]

Mr. Marcel Gagnon: Thank you.

[English]

The Chair: Mr. Near.

Mr. David Near: I have a question, Mr. Chair.

How does the motion on page 223 read now?

The Chair: Mr. Knutson has agreed to replace sections 11, 74, and 75 with section 83.

Mr. David Near: In the last amendment we took out the reference to “agreement”, which qualifies the full section 83.

Ms. Kristen Douglas (Committee Researcher): It seems to me that we did change the earlier part of the clause to refer to section 83, but these three subclauses, which the committee has carried—(4), (5), and (6)—create an obligation for the minister to try to negotiate agreements with landowners. So it doesn't make sense to refer to section 83, because it doesn't have to do with agreements. It seems to me that it might still be a useful part of the clause and consistent with the intention if the obligation were that the minister seek to negotiate stewardship agreements under section 11 and take out sections 74 and 75.

Mr. Gar Knutson: I agree. I thought the objections to section 11 from the get-go were a little picky, but I don't want to redo that today. But I think the learned counsel from the parliamentary library is absolutely right.

Mr. David Near: My primary concern, which we've already discussed, was with respect to the prohibition sections themselves, which we have addressed. It certainly would seem possible for Parliament to direct the minister to try to negotiate agreements for part of the exceptions that may be contained in section 83. I won't bother to re-address the section 11 argument again. I just wanted to know how it would read.

Mr. Gar Knutson: I think we should stick with the original wording, plus perhaps add in section 83.

Mr. David Near: If you actually add in section 83, it would increase the level of confusion on this one.

Mr. Gar Knutson: Oh well, take it out then.

Mr. David Near: It's just to explain, because—

Mr. Gar Knutson: You don't need to. It's out. Whatever you say goes with regard to section 83.

I'll give Mr. Near the final word on section 83.

I think we should consider it passed with the wording that was originally written, which didn't include section 83 but did include section 11. I think it's what the learned counsel from the parliamentary library suggested. She's my authority.

Mr. John Herron: So it's sections 11, 74, and 75 as written. All right.

The Chair: For the sake of an orderly process, the amendment as carried will be circulated for the members of this committee to see at the next meeting so that then there will be a clear understanding as to what was passed, and hopefully it will be confirmed. But I feel that we would be improving the quality of what we are doing if we have another look at it as a result of these brief exchanges. Is that agreed?

• 0950

Mr. Gar Knutson: It's agreed.

The Chair: Thank you.

Mr. Bailey.

Mr. Roy Bailey: Mr. Chairman, I'm referring to Mr. Laliberte's motions. If we look at subclause 59(5), am I right or wrong in saying that this may need some clarification in light of the motions that we passed yesterday?

The Clerk of the Committee: You have an amendment that carried. Mr. Knutson's amendment changes subclause 59(5).

Mr. Roy Bailey: To include the concept of—

The Clerk: Yes.

Mr. Roy Bailey: That's fine.

A voice: No.

Mr. Roy Bailey: No? Subclause 59(5) of the bill.

Mrs. Karen Redman: Mr. Chairman, for clarification, could we ask Mr. Near to comment on Mr. Bailey's question?

Mr. Roy Bailey: Yes, I would like to get that comment.

The Chair: Mr. Near.

Mr. David Near: With respect to the motion found on page 225, if you adopt the same logic that you just adopted with respect to the motion on page 223, there would in fact be no change to the text here. The larger question is whether or not we might be in violation of the Constitution, if a prohibition were to come into place that could impinge upon an existing aboriginal or treaty right. But that would be on the operation of the clause, as opposed to the actual wording. So if you're going to be consistent with what you just passed on page 223, there's actually no need to change the wording here.

Mr. Roy Bailey: I accept that. I wanted that clarification. Thank you.

Mr. Andy Savoy (Tobique—Mactaquac, Lib.): Just a point of clarification, Mr. Chair. We passed the amendment on page 219, and the amendments on pages 223 and 225 are consequential. Then we went on to deal with the amendment on page 223. Are we going to deal with the one on page 225 also? If the amendments on pages 223 and 225 are consequential, why would we deal with them after we deemed them consequential in passing the amendment on page 219?

The Chair: With regard to the amendments that are consequentially affected, we were trying to make sure that they agree with the original amendment. That's what we were doing. That's the extent of it.

Understand also that now Mr. Knutson is confirming that he wants his motions as they are in the consequential amendments, as they are printed in our book.

Mr. Gar Knutson: That's true with regard to the amendment on page 223. But just on this point, I fully trust the learned counsel from the parliamentary library, in consultation with the officials from the clerk's office, to be able to sort this out. So if you'd like to come back to it next week and we can deal with it quickly, that would be fine with me.

The Chair: All right, then, I will not call clause 59, as amended, until that is done.

Mr. Gar Knutson: All right.

(Clause 59 as amended allowed to stand)

• 0955

The Chair: Thank you.

Can we move now to clause 8? Yes, I think we can.

Mr. Mills is here. Mr. Mills, would you like to vote on your amendment to clause 8? Is that the right time for you?

Mr. Bob Mills: Yes. Sure, I'll move amendment CA-9.

(On clause 8—Responsibility of Minister)

The Chair: So we'll clean that up. It is on page 30, a motion in the name of Mr. Mills, which is followed by a motion by Madam Kraft Sloan. We received Mr. Mills' motion first, so we'll deal with his first.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, my amendment on page 30A is on the same line as Mr. Mills' is but it precedes it.

The Chair: We received yours after Mr. Mills, I'm told, so we'll deal with Mr. Mills' first, following the order in which they were received by the table.

Mr. Mills.

Mr. Bob Mills: Basically, my concern here was about delegating to any person, and I would entertain a friendly amendment to change that to “governments” from “person”. I'm not sure if that would then cover the point. My point is that I believe it should be agents of the federal government or provincial governments, not “person”.

Mrs. Karen Kraft Sloan: Or aboriginal.

Mr. Bob Mills: Yes.

Mrs. Karen Kraft Sloan: Mr. Mills, I have a little bit of concern—

The Chair: Just a minute. One at a time.

Mrs. Karen Kraft Sloan: I'm sorry, Mr. Chair.

Mr. Bob Mills: So that would be my concern in now looking back at this and looking at the other amendments: if we could include that instead of “person”, it would then accomplish what I want to accomplish.

“Governments”, I believe—and the experts could tell me if I'm correct—would cover all federal agencies, provincial governments, aboriginal governments.

Mr. David Near: If you use the phraseology “governments in Canada”, which we have used before, yes, because it's such a general term we might avoid the debate as to what is actually a government, but it would certainly include provincial, municipal, and aboriginal governments certainly that have self-government agreements, and potentially more.

Mr. Bob Mills: So “governments in Canada” then.

Mr. David Near: Yes.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: It's my understanding that the government is supportive of my amendment on page 30A. I was concerned about the wording and I wanted to know if the wording is appropriate. So we'd have to make it “governments of Canada”, is that correct?

Mr. David Near: It would be “any government in Canada”.

Mrs. Karen Kraft Sloan: Any government in Canada.

Then the second part of my question is directed to Mr. Mills' amendment, and I'm wondering if officials could comment on “in accordance with the regulations”, the addition of that phrase, which is the substance of Mr. Mills' amendment.

Mr. David Near: The substantive change is that it would require the government to generate a regulation that would outline the requirements of a delegation agreement. That's a policy decision on whether you wish to generate regulations or not.

The Chair: As it stands now, Mr. Mills, what would your amendment read? Would you repeat it?

Mr. Bob Mills: It's “two ministers, delegate to any governments in Canada” and then stop there. We could remove “in accordance with the regulations”.

The Chair: So you heard all the text of the amendment. Are you ready for the question?

[Translation]

Mr. Marcel Gagnon: Mr. Chairman, I would like to have a clarification on what Mr. Near just said about “any government”. He mentioned this would include provincial governments and even municipal governments. How can the federal government delegate anything to municipal governments since these are under provincial jurisdiction? Could he explain?

• 1000

[English]

Mr. David Near: If you put it in the statute, there's nothing to preclude the federal government from delegating to the classes that are specified in the legislation.

[Translation]

Mr. Marcel Gagnon: I do not agree.

The Chair: Thank you, Mr. Gagnon.

Mrs. Kraft Sloan.

[English]

Mrs. Karen Kraft Sloan: Mr. Chair, to the official, wouldn't this be similar to the kinds of things the federal government has done with conservation authorities and the Fisheries Act? I know they're not a government, but they are a creature of the province.

Mr. David Near: The federal government enters into numerous agreements with creatures of the province, if you like.

Mrs. Karen Kraft Sloan: Nothing different, really.

The Chair: Are you ready for the question?

Mr. Mills.

Mr. Bob Mills: My only comment is that by turning it over to governments right now it could go to anybody. It would seem to me I would rather have it go to the government at the local level if these are the ones the federal government deem should handle that situation. That just goes along with common sense, I think.

The Chair: All right. All that needs to be said possibly has been said.

(Amendment agreed to) [See Minutes of Proceedings]

Mr. John Herron: So no 31.

The Chair: That takes care of page 3A, the amendment proposed by Madame Kraft Sloan.

Mr. John Herron: And 31.

The Chair: No. We continue with the amendment on page 31.

Madame Kraft Sloan.

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

I'll move my amendment L-5 on page 31. The amendment we just dealt with, Mr. Mills' amendment, identified who the government would be making an agreement with. In this situation it deals with what is being delegated.

My concern in taking a look at the way the act is currently drafted is that any function or power under the act can be delegated. What this amendment would do is it would restrict it to enforcement. It's my understanding that the government is also supportive of this amendment.

(Amendment agreed to) [See Minutes of Proceedings]

The Chair: We're on page 32. Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, throughout this bill we have put into the legislation reassurances of things that are already being done, or outlining things that already are being done. This amendment provides reassurances that in any activities undertaken under the agreement, around enforcement for example, the government would still remain responsible to carry out the delegated power. So even though there is an agreement to delegate the activity around enforcement, the government is still responsible. I think this is an important amendment, because it illustrates the accountability of government.

The Chair: Thank you.

Madame Redman.

Mrs. Karen Redman: I would ask Mr. Near to speak to this proposed amendment.

Mr. David Near: I have a brief comment.

A delegator always remains responsible. So this would perhaps create confusion that it implies it would be otherwise. But by definition, a person who delegates the responsibility remains ultimately responsible for those responsibilities.

• 1005

The Chair: Where is it spelled out?

Mr. David Near: It's an interpretation of law.

The Chair: I see.

Yes, Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, as I mentioned in my comments introducing this amendment, there are things spelled out in the bill that are already carried out. I think it gives people more comfort to know that while the government is delegating enforcement activities, the government is still responsible. It would provide a lot of comfort for individuals out there.

The Chair: Yes, Mr. Reed.

Mr. Julian Reed (Halton, Lib.): Mr. Chairman, this is obviously a reinforcement of a point of law that is totally unnecessary to the bill, because it's already the law. I would suggest such an amendment would simply add more muddle, if you like, or something to the bill that is superfluous.

(Amendment negatived) [See Minutes of Proceedings]

The Chair: Mr. Mills, would you like to proceed with your amendment on page 33?

Mr. Bob Mills: This simply puts a timeline on the government. They're going to put the report in the public registry, and this simply puts a timeline on it. I'm not married to 45 days. It seems reasonable, once they've done it, they should have a timeline set. It's all this accomplishes.

The Chair: Mr. Herron.

Mr. John Herron: I think this kind of approach is a good amendment. I was trying to work on it yesterday.

If you can't measure it, you can't manage it. Putting timelines in this kind of thing does provide accountability. One thing that irks the Canadian populace is it seems to take forever for the government to actually get going on things.

I'd like to support Mr. Mills' amendment. Hopefully, he can store it in kind, considering the approach we had to do yesterday afternoon.

The Chair: Madam Redman.

Mrs. Karen Redman: I would ask Mr. Near to speak to this.

Mr. David Near: I have a brief point. The obligation to put it in the public registry is annual already. In essence, this would speed it up by ten and a half months, if this were included.

There is some difficulty in my mind with knowing when it has been presented to the minister. There's no mechanism to certify when it happens. It's my legal concern on it.

Mrs. Karen Redman: Could Mr. Mills provide clarification as to what he envisioned with the phrase “presentation to the minister”?

Mr. Bob Mills: Again, it seems it's done annually. If we put in something that is heavy on the other end, we'll probably end up getting it in six months. The minister will deem it presented when he wants to, but likely will not wait the entire year. By putting in an earlier date, it seems the public have a greater chance of finding out sooner, rather than later.

Mrs. Karen Redman: I appreciate the spirit of the amendment. I'm trying to address Mr. Near's concern.

Is it then the minister's discretion as to when it's presented to him? In lieu of a mechanism where we can formalize it, how are we going to deem it has been presented so the clock starts ticking to time the 45 days?

Mr. Bob Mills: I would trust the minister would deem it presented. I think there would be enough pressure on him from those involved to make sure it ultimately gets presented in due course without being too restrictive.

• 1010

The Chair: Mr. Bailey, then Madame Scherrer.

Mr. Roy Bailey: If we wish the general population of Canada to take an interest in what we hope to achieve by this bill, making the report within 45 days, as my colleague has said, and recognizing it will still be in the annual report, will give more interest to what is happening in Canada as it relates to the bill.

If it's in an annual report, what do you do with an annual report? I really think it will create an interest. We may want to change the 45 days. It seems to me the minister would create a great deal more interest if it is periodically throughout the year. Then state it will be in the annual report. I think we'll get more readership.

The Chair: Madam Scherrer.

[Translation]

Mrs. Hélène Scherrer (Louis-Hébert, Lib.): Thank you, Mr. Chairman.

I would like to make sure I understand what Mr. Near said earlier. When we talk about 45 days, it is 45 days after an event that remains discretionary. All considered, the publication in the register could take place at anytime. Even with this 45-day timeline we have no guarantee because we give the minister discretion as to the start of the period.

Is this what you are saying?

The Chair: That is right.

[English]

Mr. Mills.

Mr. Bob Mills: If we were to add the words “upon completion”, would that clarify it? Through you, Mr. Chair, I'd like to ask the experts. Would that now put a timeline on it?

Ms. Ruth Wherry: Could I make one comment, and then maybe Mr. Near can?

It says “presentation to the minister”. It's a competent minister who can delegate. There's nothing in here that says something has to be presented to the Minister of the Environment. It's the competent minister who can make a delegation agreement.

Mr. John Herron: It presumes there is one.

Ms. Ruth Wherry: Is there a competent minister?

Mr. Bob Mills: What about “upon completion”, Mr. Near?

Mr. David Near: Who do you want supposedly in control of determining it? If you say it's upon completion, then it would be more in the control of the person who is preparing the report. For example, if it's a provincial minister, you might get into a bit of a bun fight when he says it was done September 1, and the federal minister says the stamp shows he got it in October. If you leave it to the discretion of the federal minister, it would seem to make more sense. He's the one who is actually responsible for filing the report.

Mr. Roy Bailey: It is a federal act.

Mr. David Near: Yes.

The Chair: There has been a suggestion by Madam Wherry that the word “competent” be inserted before minister.

We are exhausting the nebulous area represented by the presentation date, as discussed so far.

Mr. Mills.

Mr. Bob Mills: Again, I think everyone knows what I'm trying to accomplish here. I'm prepared to adjust the wording. We could use “upon execution by all parties”. It would now broaden to include the groups we're concerned about.

To wait a year is too long. To put some emphasis on doing it sooner, I think the minister would get the message with 45 days in there. “Report the damn thing” is the message we're sending to the minister. I feel it's what we should be doing.

The Chair: Yes, Mr. Reed, please.

• 1015

Mr. Julian Reed: Mr. Chairman, we should understand that the minister, with the one-year leeway, still has the ability to present within 45 days if he or she is able or sees fit. So it would seem to me that instead of forcing the minister, one might hold the minister accountable by giving him or her that timeline. Then, if the minister is of a mind, the presentation could be made any time within that timeframe.

The Chair: In the light of what Mr. Reed just said, Mr. Near, could you please be so kind as to comment whether inserting the word “expeditiously” after “registry”—so that it would read “report must be included in the public registry expeditiously by the competent minister”—would be of any help to what Mr. Mills is looking for.

Mr. David Near: It would indicate the policy intent behind Mr. Mills' amendment. But let's say the minister waited eleven and a half months and somebody said that's not “expeditiously”. Then someone—probably a court—would have to determine what expeditious meant with respect to this clause.

The Chair: Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I think in other situations in the legislation we've often just said “upon completion”, and I'm wondering if that's helpful for the discussion.

The Chair: Mr. Mills.

Mr. Bob Mills: I think, in all respect to Mr. Reed, he and I have both been here long enough to know that if the report is good it probably will get reported very quickly. If it's not so good it may well be eleven months and thirty days before it is reported. I think this, then, puts the pressure on the minister to get on with it, to report it. I think the public are better served by putting that timeline on. I think I would like that better than “expeditious” or something because, again, that's interpretation; what I might think is expeditious and what the minister might think could be two totally different things.

Mr. Julian Reed: That's why we have opposition.

The Chair: We have also another suggestion, Mr. Mills, to insert the words “within 45 days of its completion”. Would that be acceptable?

Mr. Bob Mills: I would accept that.

An hon. member: Agreed.

The Chair: Okay, we have a possible solution to this discussion, by inserting after “within 45 days” the words “of its completion”, period, and deleting the rest of the second line.

Mr. Near.

Mr. David Near: The only difficulty is we have to keep in mind that the person who's actually preparing the report will be somebody else. Let's say they complete it November 1 and don't mail it until January; technically the competent minister would be in violation of the statute. So if you want to use language—general, subjective language, I mean—“presentation” is better than “completion” for that very reason.

The Chair: Does the postal date on the envelope usually provide a sufficient point of reference?

Mr. David Near: It's not determinative.

The Chair: Well, let's conclude this now and take a vote.

Madam Kraft Sloan.

Mrs. Karen Kraft Sloan: What about “upon completion by the competent minister”?

The Chair: It's not the competent minister who completes it.

Mr. Mills.

Mr. Bob Mills: Well, again, everybody understands, I think, what I'm trying to accomplish and hopefully would support it on that basis.

The Chair: No, but—

Mr. Bob Mills: And, again, I'll trust the mail service.

The Chair: You'll trust the mail service?

All right. Would you like to read it, please, as it stands now?

Mr. Bob Mills: I hope I can: “report must be included in the public registry upon its completion”—

The Chair: Period?

Mr. Bob Mills: Period.

A voice: No—“within 45 days....”—

Mr. Bob Mills: —“within 45 days of its completion.” Right.

The Chair: Period.

Mr. Bob Mills: Yes.

• 1020

(Amendment agreed to—See Minutes of Proceedings)

(Clause 8 as amended agreed to)

(On clause 60—Provinicial and teritorial classifications)

The Chair: Then we can go to clause 60, page 230.

This amendment is in the name of Mr. Bigras. If it were to carry, we cannot put the amendments on page 231 and 232 in the names of Mr. Herron and Mr. Mills. So long as you are aware of that, we can start the discussion. You may want to address all three amendments at the same time, but we will have to vote on Mr. Bigras' amendment first.

Mr. John Herron: Where are we, again? I'm sorry, sir?

The Chair: We're on page 230.

Mr. John Herron: On page 230.

The Chair: You can see Mr. Bigras' amendment is to the effect of deleting three lines on page 29—actually four lines, the entire subclause 60(2).

Monsieur Gagnon.

I will ask, after Monsieur Gagnon has spoken, Mr. Herron to explain his amendment and Mr. Mills to explain his, so that there is a convergence here of comments.

[Translation]

Mr. Gagnon, please.

Mr. Marcel Gagnon: I can tell you that this amendment aims at limiting the discretionary power of the minister.

[English]

The Chair: Mr. Herron, would you like to comment on yours?

Mr. John Herron: Yes, I would.

Essentially, Mr. Chair, what the amendment does is empower the minister to make a determination about what habitat needs to be protected in order to preserve a species, rather than the cabinet. The intent of it is to be more expeditious. Moreover, cabinet has been involved in the other processes for developing a recovery strategy, so when it comes to the actual prohibition—the protection of habitat itself—we think the minister should make that call, as opposed to the cabinet in general.

The Chair: Thank you.

Mr. Mills, would you like to comment on yours?

• 1025

Mr. Bob Mills: My intention here is simply that the competent minister be directed—as we have done in earlier clauses—to consult with the Endangered Species Conservation Council set up by these regulations. This would simply make certain they're in the loop as part of the consultation process for regulations.

The Chair: You have heard the three amendments.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I'd like to speak in favour of Mr. Bigras' motion, because I think what it does is respect the provinces' will to protect species. This is essentially a reverse safety net.

Subclause 60(2)—if members would like to turn to that—as it is drafted in the legislation says the clause “applies only to the portions of habitat that the Governor in Council may, on the recommendation of the competent minister, by order, specify.”

So here we have a situation where a province has identified endangered species and there is habitat, as part of that species in a province, on federal lands. But we have a situation in subclause 60(2) where, unless GIC actually identifies that portion of habitat, the habitat may go unprotected.

So what Mr. Bigras' motion says is whether GIC has identified it or not, it has to be protected.

The Chair: Madame Redman.

Mrs. Karen Redman: Thank you, Mr. Chairman. I'd like to make a couple of points. Then I believe perhaps Monsieur Nadeau, as well as Mr. Near, would like to speak to it.

Monsieur Bigras' amendment, which has been moved by Monsieur Gagnon, takes out the GIC. Typically it's the GIC that makes decisions on intergovernmental issues. It's not a COSEWIC issue.

I would point to examples like the Prairie Farm Rehabilitation Act. The fact that it will impact people on the ground requires the consultation of GIC as well as the socioeconomic decisions that would be made. Much the same argument could be made about Mr. Herron's amendment.

As for Mr. Mills', there are often bilateral consultations taking place, as are required, that may impact only one province, so that this might not be covered.

I would ask.... I don't know if Monsieur Nadeau would like to go first, and then Mr. Near.

Mr. Simon Nadeau (Head, Endangered Species Recovery, Environment Canada): Yes.

This clause really deals with species that are not nationally at risk but could be provincially at risk and abundant in the rest of the country. The leopard frog is a good example; it's at risk in some prairie provinces and fairly abundant around here.

There are a few things we could say about this. One is that the federal government is not going to be involved in the provincial listing process as the provinces are in the national listing process. We have no involvement there, so we don't know what the processes are. In some cases, they're not identical to the arm's-length COSEWIC process.

The other thing is we're talking about critical habitat that would be identified again by the provinces without involvement of the federal government. There could be a policy decision by a province to favour protection of critical habitat on federal but not provincial land. So the federal government would have to bear the expense of critical habitat protection for a provincially listed species.

Mrs. Karen Redman: Okay. I wondered if I could hear from Mr. Near as well.

The Chair: Mr. Near.

Mr. David Near: I think Madame Kraft Sloan actually caught the essence of clause 60 here. Generally speaking, federal property is not bound by provincial law. Clause 60 is an indication that where the GIC in effect waives that immunity from the application of a provincial law.... That's why it's for the GIC, because it's a fundamental decision, where the federal government is binding itself to provincial law that it would not otherwise be bound by.

I don't think there's more I can say.

• 1030

The Chair: Thank you.

I have Mr. Bailey, then Mr. Knutson.

Mr. Roy Bailey: I appreciate Mr. Nadeau's comments, because this is a federal act. I'll give you a case in point, Mr. Chairman.

I have about seven or eight PFRA pastures in my constituency that are federal. In the northern part of one pasture we have the burrowing owls. That is the responsibility of the federal government; it's federal land. Because you have to cut down the number of cattle entering that pasture in the spring because that land is being reserved, without subclause 60(2) in here the provincial governments could say “go to grass”. Pardon the pun, but that's what could happen.

This is a federal act, and the onus, no matter what happens, comes back to the federal government. We can't go without that subclause, Mr. Chairman.

The Chair: Mr. Knutson.

Mr. Gar Knutson: Well, Mr. Nadeau has suggested that some of the provincial processes of listing were, I think he used the term “not arm's length”, which suggested to me they're not as legitimate. We've had discussions about the provinces taking the lead. We say don't want to have transboundary because the federal government would then be too responsible, and we have to let the provinces do the job.

Here we have a nice little amendment that basically is going to say if the province declares an animal endangered, and that animal spends some time on federal land or within federal jurisdiction, we're going to protect its habitat. Surely to god this isn't going to wave a red flag in the provinces' face. In fact, if anything, it's going to enhance federal-provincial cooperation, because we're going to remove this subclause out of tremendous respect for what the provinces are doing.

I would think if you have ten provinces with ten lists, and they're doing listing, for us to do our job and protect habitat based on those ten lists, a Governor in Council regulation is incredibly cumbersome. I don't think the regulatory process will ever catch up; consequently, we'll be delinquent in our responsibilities.

I think this is a great amendment in terms of everything the government says this bill stands for—letting the provinces go first and respecting what they do—and we should support it.

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

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

I think there's a lot of wisdom in what my colleague, Mr. Knutson, has said.

Here we have a situation where a province is taking leadership, but the federal government is abdicating responsibility. I think, and we've heard it time and time again, this bill has been built on the spirit of cooperation. Here's an opportunity for the federal government to follow in the footsteps of a province that's showing some innovation.

It's been pointed out by the officials the provincial governments don't have legislation that requires consultation with the federal government. Mr. Chair, how many times have we sat in this committee and heard this very point brought up time and time again, that the provincial governments do not have legislation that requires consultation with the federal government?

When we take a look at our federal legislation, and I can go through lists and lists—CEPA is one major case in point that we spent a lot of time on—every time the federal government turns around, they're consulting with the provincial governments.

We have the harmonization agreement with the provinces, which in many respects is a huge delegation of authority around environmental management to the provinces.

So I would say to members that here is an opportunity for the federal government to show cooperation on its part when the provincial government is showing some leadership, and we have to put our house in order to show the provinces we're willing to protect species just as well as they are.

[Translation]

The Chair: Mr. Gagnon.

Mr. Marcel Gagnon: I always tend to disagree whenever there is interference with provincial jurisdiction.

• 1035

Someone said earlier that we need a spirit of cooperation. It exists around this table but when we talk about implementing legislation there is a risk of it not being applied the same way everywhere. When we give the federal government powers to interfere with an area of provincial jurisdiction, we always have to expect that things will not go as smoothly as they do around this table.

This is what I have to say regarding federal-provincial cooperation. Cooperation exists and it is always possible to achieve it. It is a matter of wanting to achieve it.

[English]

(Amendment negatived) [See Minutes of Proceedings]

The Chair: We have before us an amendment on page 231 in the name of Mr. Herron.

Mr. John Herron: Mr. Chair, I have already spoken to the amendment itself. Again, what it comes down to is that when we get to the point where we have to determine what habitat needs to be protected and we've gone through the whole other process and involving the Governor in Council on all the other steps in that process, when it comes to establishing the habitat, I don't see why we have to go through another arduous process of getting another regulation done through cabinet so that someday, somehow in the future, we would probably kind of get habitat protected. Or we give it to the minister to actually get it done, and obviously anytime a minister acts, it's folly to believe the minister is working in complete isolation. Of course they're having conversations with their colleagues.

On this aspect, the actual implementation, why wouldn't you want the minister to do it, as opposed to having to go through cabinet?

The Chair: Thank you.

Are there any comments or questions? Mr. Near.

Mr. David Near: Briefly, the rationale behind having the GIC do it is that you're binding the whole of the federal government to a provincial law.

The Chair: That is a 30-minute bell, so we have 15 minutes to continue.

Are there any further comments or questions on Mr. Herron's amendment? Mr. Bailey, briefly, please.

Mr. Roy Bailey: I would like to make one overall comment dealing with this, Mr. Chairman.

In regard to the provinces—and let's divorce ourselves from this act right now—when you have agreements between the three levels of government, if there's any form of controversy at either the local or the provincial level, they would much rather have the control or the announcement or the regulations proclaimed by the federal government so that they never have to take the flak themselves. That's as old as Canada itself. So let's keep that in mind here.

I've been involved in watching very closely the kick-boxing revival thing. The provincial government would love to do that, but they don't want to take the flak. It will end up with the federal government. So that's what's going to happen anyway.

The Chair: Are you ready for the amendment?

Mr. John Herron: I have a quick comment on Mr. Near's aspect of it. Because it potentially supersedes a provincial law in play, the concern was to let cabinet make that call, as opposed to a unilateral initiative by a minister. But let's be clear: the cabinet has already been involved in the first place to actually have the federal law engaged. That hurdle has already been overcome, so I see no reason for us having to go back to cabinet a second time.

• 1040

(Amendment negatived) [See Minutes of Proceedings]

The Chair: We shall now go page 232, Mr. Mills' amendment.

Mr. Bob Mills: Mr. Chair, what I'm doing is leaving in the Governor in Council, adding the “competent minister in consultation with the Canadian Endangered Species Conservation Council”, which simply adds that consultation should occur.

I would like to hear Mr. Near—he's looking puzzled. I'd like to hear his comments.

The Chair: Just a moment, Mr. Mills. So you are starting your amendment with the words, “in consultation with the Canadian Endangered Species Conservation Council”?

Mr. Bob Mills: That's right.

The Chair: You're dropping “competent minister”?

Mr. Bob Mills: No. I'm leaving “competent minister in consultation with”—

The Chair: But you said you are leaving “Governor in Council”.

Mr. Bob Mills: Yes, yes. In other words, I'm starting line seven thus: “competent minister in consultation with Canadian Endangered Species Conservation Council, by order, specify”.

The Chair: All right. Sorry.

Mr. Near.

Mr. David Near: My only general comment is it's a bit like putting the fox among the hens. One of those ministers on the council will be the one who wants to bind the federal government to that particular provincial law. It's possible, but it would seem kind of strange that would be the forum the federal government would turn to for advice when they're deciding whether or not to allow that law to bind them in the federal sphere.

The Chair: Mr. Mills, are you still convinced?

Mr. Bob Mills: I guess I'd like to hear anybody else's comment about that. I am not convinced it should be taken out yet, from what Mr. Near said. I'm not sure about the fox and hens.

The Chair: Any other comments?

Mrs. Karen Redman: I would just repeat—and it may be somewhat a different face of this issue—that we may be asking the entire council to deal with something that could be resolved through a bilateral. And there again we would be engaging in cooperative discussions that could be worked out—perhaps not escalate the issue, but find something mutually agreeable to both the competent minister and the province in question.

[Translation]

The Chair: Mr. Gagnon.

Mr. Marcel Gagnon: I would like to react to the metaphor of the fox and the chicken flock. Who is the fox and who are the chicken? We must also be careful not to let the wolf into the sheep barn.

As I said earlier, I am in favour of respecting provincial jurisdiction.

[English]

(Amendment negatived) [See Minutes of Proceedings]

(Clause 60 agreed to)

The Chair: Looking at the clock, I'm inclined to say that we should adjourn for the day and resume on Tuesday, November 20—

Mr. John Herron: Adjourn for the day? Is that what you said?

The Chair: —when we will be ready to continue our work. I don't think there is any point in coming back all the way for a short meeting.

• 1045

Madame Redman.

Mrs. Karen Redman: Mr. Chair, I would just like the record to show that we would be more than willing to continue.

I would seek clarity. We certainly have an understanding. Perhaps we could start our next meeting with the amendments that have indeed been carried so we have some kind of comprehensive picture as to what is still open.

The Chair: We will resume the work as I have prepared it. It would be to deal with clauses 62, 65, 66, 67, 69, 71, 72, and 73, as I announced at the beginning of the meeting. Then we will go into the clauses that have been stood in progressive order, beginning from the lower numbers to the higher numbers.

Mrs. Karen Redman: I appreciate that, Mr. Chair, and I think that clarification is helpful to everyone. But I would also request, at the beginning of the next meeting could we review—so we're all clear where we are—the clauses that have been carried?

The Chair: Oh, yes. A list of the motions that have been carried?

Mrs. Karen Redman: Not the motions, the—

The Chair: The amendments.

Mrs. Karen Redman: Yes. The clauses that have been carried, which will be—

Mr. John Herron: Clauses that are done and over with.

The Chair: That's very easy.

Mrs. Karen Redman: Thank you.

The Chair: Fine.

The meeting is adjourned. Thank you.