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, March 22, 2001

• 0913

[English]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): We now have a quorum.

We welcome the witnesses in this room today. Before proceeding with them, we have to have a brief discussion on time slots for the hearing of witnesses.

You will recall that at the last meeting we were endeavouring to find days when it would be most convenient for members to sit without overburdening our memory and the capacity of the system. At the end of the meeting, the clerk and I were working on a schedule that would have included Monday afternoons, Tuesday mornings, and Thursday mornings from 8:30 until 11. We were informed by members that Monday afternoons are not convenient, nor Monday evenings.

So I'm now asking a question that is very urgent and relevant to the clerk's work in launching the plan—that is, whether the members would prefer to sit Wednesday afternoons, if they are available, or Wednesday evenings. Wednesdays have the disadvantage of votes at times right after question period, but not always. Would members, in addition to the Tuesday morning and Thursday morning slots, also be prepared to attend meetings that will be called for Thursday afternoon, so that we would have a minimum of three meetings a week and possibly a fourth one if necessary, in order to accelerate the process, which extends into the next two months easily—if not into the end of May?

• 0915

Could we have a quick round of views by members, first of all on whether Monday is out, and secondly, whether Wednesday is in, and possibly whether also Thursday afternoons are in?

Mr. Forseth.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, CA): Thank you, Mr. Chair.

Yes, we'd prefer to keep all our meetings on Tuesday, Wednesday, and Thursday, and would be quite amenable to adjust. We can even have four meetings during that parameter. We have difficulties of travel. We also have an issue that we have some other strategy meetings that are regularly scheduled, and we're on other committees. So we will support the committee up to four meetings a week, but as long as they can be on a Tuesday, Wednesday, Thursday.

The Chair: Thank you.

Are there interventions or other comments? Mr. Herron.

Mr. John Herron (Fundy—Royal, PC): Mr. Chair, my concern was that a schedule had been arranged and then we were... Obviously for legitimate reasons the chair thought perhaps Monday might have been a solution. I think Mr. Forseth's comments are in line with what we would like to do—that is, keep it to Tuesday, Wednesday, and Thursday. If we have to slate a fourth meeting on occasion, as opposed to a rule, then we'd be supportive of that—on occasion, as opposed to a rule.

The Chair: Well, I don't know what the meaning of “on occasion” is. Anyway...

Mrs. Kraft Sloan.

Mrs. Karen Kraft Sloan (York North, Lib.): I think that Tuesday morning, Thursday morning... I would certainly prefer Wednesday afternoon, because often there are obligations—if not at other events on the Hill, at least on my desk—on Wednesday evening. So I would prefer Wednesday afternoon to Wednesday evening.

The Chair: Is it fair then to conclude that there is a concurrence of views as to the choice of Tuesday morning at 8:30, Wednesday afternoon, and then Thursday morning at 8:30, and then possibly, when required by other reasons related to availability of planners, to also add Thursday afternoon?

[Translation]

Mr. Bigras, and then Ms. Kraft Sloan.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Mr. Chairman, before coming in, I was not aware of the proposal that has been put forward; I had not looked at my schedule. As you know, we very often belong to other committees as well. Off hand, I see no problem with this, but I would also like the whips of the various parties to be consulted, as I said last time, in order to ensure a certain consistency.

I have no objections, therefore, as long as the whips of the various parties can agree to the proposal.

[English]

The Chair: Look, we can consult the whips until the cows come home, but we have to make this decision, because the clerk has to go out and invite the witnesses and fill the slots. So I think that in the end it boils down to the availability of the member himself or herself. I would appreciate some cooperation here today.

Mrs. Kraft Sloan.

Mrs. Karen Kraft Sloan: Mr. Chair, I would advise against 8:30 meetings. We've had them in the past, and nine times out of ten, Mr. Chair, we do not have quorum. There are members who are here at 8:30 and then the others do not show up until 9 o'clock.

The Chair: Well, that's too bad. But I think we—

Mrs. Karen Kraft Sloan: Well then we sit around and we can't begin our meeting.

The Chair: Whereas if people are on time we can begin our meeting.

Mrs. Karen Kraft Sloan: Well, it never has worked that way.

The Chair: All we need are three members.

Mr. Comartin.

Mr. Joe Comartin (Windsor—St. Clair, NDP): I'm caught in the same situation. I have meetings scheduled every Tuesday and Thursday at 8:30 for a half hour. So I will be regularly here at 9 o'clock, but I cannot be here at 8:30.

• 0920

The Chair: Mr. Herron.

Mr. John Herron: On that same point, I personally won't have any difficulty with the 8:30 aspect of it, but to be fair to our colleagues with the NDP, traditionally—for the whole last mandate—they have a meeting at 8:30 every morning without exception when the House is open. So we're not taking into account something that's well established by one of the five recognized parties in the House.

The Chair: All right. Well, that deals with 8:30, then. So it is 9 o'clock.

Are there any other comments?

Then the clerk will proceed and make arrangements in the hope that Mr. Bigras will be able to convince his whip of the fact that we have a piece of legislation that in some way has a certain degree of precedence. We confirm the meetings—not on Mondays, yes on Tuesday and Thursday at 9 o'clock, and then Wednesday afternoon. Then we will leave open the possibility of Thursday afternoon at the call of the chair, when required by circumstances that are posed by panellists who otherwise wouldn't be available on other days.

Mrs. Redman.

Mrs. Karen Redman (Kitchener Centre, Lib.): Thank you, Mr. Chair. I would like to clarify.

If we're now starting at 9 o'clock, would we then see the half-hour extension being added on at the end of the meeting?

The Chair: We have this infernal system of blocks that requires—most of the time—us to leave at 11. Sometimes we may be lucky and we may be able to spill over into someone else's block—if that is not occupied by another committee—particularly when it is a large panel, which would warrant sitting for two and a half hours or even three. But this is very difficult to predict in advance.

Mrs. Karen Kraft Sloan: I'd be happy to sit for three hours.

The Chair: Sometimes it is possible. It all depends on the activities of other committees. Apparently we could, at times, be bumped off by a committee that requires its block at the last moment.

Mr. Herron.

Mr. John Herron: On the same point, if we know when scheduling can permit us to have a day of a three-hour block and the witnesses on the list aren't that far away, and if they're prepared to appear before the committee, we could utilize that time, because we're all in the same room at that perspective. So I'm amenable to having three-hour blocks when logistics work.

In that same vein, logistically there may be some witnesses who may be closer by. My learned assistant has pointed out that there are two witnesses who weren't on the list who were there before. We don't have the Department of Heritage or Department of Fisheries on this witness list, but we did last time around. I assume that's just an omission—an error.

The Chair: Would you like to make a specific request?

Mr. John Herron: I'm requesting that the Department of Heritage and the Department of Fisheries be added to the list. They were there before.

The Chair: Just a moment. That department has been involved in the preparation of this bill, as many other departments have. So unless there is a very specific item that refers to the jurisdiction of that department, it would be a duplication of effort. We'd better leave it to the end, if necessary.

Mr. John Herron: Well, I guess the point is whether we were completely erroneous last time around when we invited them. Was it a mistake last time? Or is it the fact that one of the most contentious issues pertaining to this part of the bill is the mandatory protection of critical habitat within federal jurisdiction, which would include DFO and which would clearly include Parks Canada?

• 0925

The Chair: It became clear the last time, Mr. Herron, that hearing other departments became a duplication of effort and that we were not acquiring new information. Such would be the case this time, if we want to learn from past experience.

Mr. John Herron: It's a request from the Progressive Conservative Party to include those two parties. If it's not the will of the committee, that's democracy.

The Chair: Madame Kraft Sloan, then Madame Redman.

Mrs. Karen Kraft Sloan: Mr. Chair, if the committee is going to include these witnesses, it seems to me that, as generally is the case, we should hear from the departments before we start getting into all the other witnesses, so that we can hear some of the reasoning as to why they have chosen to draft the bill in a certain kind of way. I think it's helpful to get that clarified before we start to hear outside witnesses, and it's my hope that we'll hear Justice as well, in according with what Mr. Knutson suggested on Tuesday. Of all of the things discussed on Tuesday that was probably one of the most insightful and most relevant for this piece of legislation, considering stumbling blocks we've had with other environmental bills, including this bill in its previous incarnation.

The Chair: The issue of other departments was not raised on Tuesday, so—

Mrs. Karen Kraft Sloan: But the issue of the justice department was raised, Mr. Chair.

The Chair: The presence of an official from the justice department as a permanent member when required by certain witnesses—

Mrs. Karen Kraft Sloan: Well actually, Mr. Chair—

The Chair: Excuse me, may I be allowed to continue?

So the discussion was along the lines of having an official from the justice department when the panel would be of a legal nature. That was requested by Mr. Knutson, and the committee agreed to that. There was no discussion on Tuesday about inviting other departments. If we go down that route, of course, the process would be lengthened, and as I said, it would mainly lead to duplication of views that the committee has experienced in the past.

Madame Redman, and then Madame Kraft Sloan.

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

I realize this is a new bill and a new committee, but this issue is certainly not without history. Perhaps the testimony from the pre-study last fall could be distributed to committee members for their perusal.

My other observation would be that it may be most productive, if this committee were to decide to have DFO and Heritage or Parks come, that they should come at the same time and be part of one panel, so that we could deal with it inclusively.

The Chair: Fine, if that is the wish of the committee.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: The only problem with the testimony we heard prior to this testimony is that we didn't have the bill, and we had to dance around the bill itself. So it's not going to be the same sort of testimony.

But getting back to Mr. Knutson's point, it was my understanding that Mr. Knutson had requested a presentation from the justice department, at least in writing, so that we would understand their legal interpretation of, particularly, constitutional sections of the bill in respect of the federal government's ability to assert its power. I think, as I said earlier, that was one of the most important elements of our discussion on Tuesday, because we have often got into these discussions where the department will say, well, this is what we can do, and then other witnesses from the Canadian Bar Association and environmental law associations and other constitutional experts will tell us, no, the government has the ability to assert its power more broadly.

So I thought Mr. Knutson's suggestion was a very good one, in that we get something from the justice department ahead of time and have an opportunity to discuss it with them, so that we fully understand their position. Then when other witnesses come in, we can examine them in the light of what the justice department has told us in a formal way, Mr. Chair. That was my understanding.

The Chair: Any comments?

• 0930

To sum it up, there is a consensus to have DFO and Heritage together as witnesses for a meeting with departmental officials, and this would be a separate meeting to be held very soon. As to Justice, I need then to hear more from committee members, because what Madam Kraft Sloan is suggesting was not what was agreed upon on Tuesday. Madam Kraft Sloan is suggesting a session with justice department officials. On Tuesday we decided to have instead a Department of Justice official present when certain witnesses requiring a Department of Justice official would be present. Which of the two is the wish of the committee?

Monsieur Bigras.

[Translation]

Mr. Bernard Bigras: I thought, frankly, that officials from the Department of Justice would be appearing before the committee. To reiterate my request, I, as I said, was in fully agreed with Mr. Knutson that we might even ask officials from the Department of Intergovernmental Affairs to appear. As I understood it, the Department of Justice was to make a presentation on how the bill should be construed. I fully agree with Ms. Kraft-Sloan on the way the committee has interpreted this mandate.

[English]

The Chair: All right. Is there any objection to to inviting the Department of Justice to appear before this committee? If there's no objection, it is so ordered.

We welcome you this morning. Sorry for having kept you waiting—it's 9:30. Would you like to proceed, and please would you tell us in which order you wish to proceed?

Ms. Karen Brown (Assistant Deputy Minister, Environmental Conservation Service, Environment Canada): Thank you, Mr. Chairman.

My name is Karen Brown. I'm the assistant deputy minister for environmental conservation at Environment Canada. I have with me Ruth Wherry, who's the director of the species-at-risk team; David Brackett, the director general of the Canadian Wildlife Service and also the chairman of the Species Survival Commission under the IUCN in his spare time; David Wear, on the part of the Department of Justice, legal counsel for Environment Canada; and Isabelle Jacques, also legal counsel with the Department of Justice for Environment Canada.

Mr. Chairman and members of the committee, we've prepared a short presentation—actually it's not that short, maybe about 11 pages—which we have provided to the clerk and hope all members have. I don't propose to go through it all in detail, so as to make maximum use of the time available to the committee this morning. But what we tried to do is build a little bit of the storyline around the species-at-risk proposals and the strategy, as well as the legislation, particularly for the benefit of some of the new committee members. We've given you the basic elements. We'd be more than happy to provide more detailed information at your request.

So the deck that you have in front of you runs through the strategy, the essential elements of the bill itself, and then deals with the changes that we would like to highlight from Bill C-33 to Bill C-5.

Let me start by saying we welcome this opportunity to work with the committee on the species-at-risk legislation. This is an important occasion for all of us. We are now on a new track with respect to the protection of species at risk in this country. Certainly we view, and the minister views, the species-at-risk legislation as one of the key pillars of our three-part national strategy on protection of species at risk. It's an essential pillar, but there are also two other very important pieces of that strategy.

The first is the accord for the protection of species at risk that was negotiated in 1996 and is the basis of our cooperation with provincial and territorial governments. It has been the subject of a considerable amount of work over the last five or six years. It continues to be an important element of our work.

Another essential pillar is our stewardship and incentive programs, which were launched a couple of years ago. And under that you will note that we have indeed launched a habitat stewardship program for species at risk. In addition, under the budget 2000 some important changes were made to the Income Tax Act to provide for ecological gifts programs and to encourage the voluntary donation of lands for conservation purposes. We're also working very closely with all our partners to try to harmonize stewardship approaches across the land, so that we try to deliver in a fairly seamless way for the landowners in this country.

• 0935

The next two or three slides really walk through the framework of the legislation. They talk about the purpose of the act, and they deal with the essential elements. I won't go into them in any great detail. Suffice it to say science forms the foundation of this legislation, as it does for all the legislation we deal with.

We have a science-based species assessment process that is fairly unique, and we can spend some time talking about COSEWIC and the role it plays in this important strategy. We separate and talk about the legal listing process, which is quite different from the science-based species assessment process.

The other major piece, then, is that once a species is legally listed, there are immediate protections that are provided: the fundamental of mandatory recovery and management planning for the species in question; and the requirement in all cases for public involvement at all stages along the way, both from the assessment phase right through to the recovery, management, and action phase.

One of the elements of this bill that makes it different as well is of course the incorporation and the encouragement of stewardship directly in the legislation, and that too is a little unique.

We also have sections dealing with critical habitat protection, which I'm sure we'll spend quite a bit of time talking about. As well, the authority is included in the legislation to provide for a compensation scheme for landowners.

Carrying on, just quickly, emergency authorities are also provided for. Where there's an imminent threat, where the process needs to be circumvented, there are authorities associated to allow that to happen so that we can protect species and protect habitat.

There is also a cross-reference and a linkage to the Canadian Environmental Assessment Act, wherein there are some clauses to which we would like to see some changes, so that we can take better account of the protection of species or the potential for adverse environmental effects under a project assessment process.

Of course, there are the standard enforcement sections of any legislation of this kind, and then the important transitional measures as we move from our existing non-legislated state to the legislated state. We clearly have a very long history of work and body of work that we need to take account of as the legislation is proclaimed.

Let me just move quickly to slide 7. I'll give you a bit of an overview of some of the changes that were incorporated in Bill C-5.

In the first instance, we've made some changes to the preambulatory sections of the bill. We thought it was important to include statements recognizing the habitat of species at risk—habitat being key to their conservation—and to recognize that there will be circumstances under which the cost of conserving species should be shared. Those are pretty fundamental issues for many folks out there.

We also made some changes to some of the definitions in order to provide consistency with those used by COSEWIC, by the Committee on the Status of Endangered Wildlife in Canada. These include some changes to the definitions of “individual” and “species of special concern”. As well, we've made some changes to the definition for “wildlife management board”, to ensure that any body authorized to perform functions in relation to wildlife species and land claims agreements is covered. Wording has also been changed to be consistent with COSEWIC's process for establishing priorities to determine when wildlife species are to be assessed.

There are a number of other changes that were made in Bill C-5 that work towards greater openness, transparency and accountability. One of the key issues for a lot of people is transparency with respect to COSEWIC's assessments, and the extent to which the COSEWIC list is actually public and very much a part of the process of making sure there's greater accountability for taking into account those assessments. The bill provides that the COSEWIC list will be in the public registry as the scientific list of species of risk.

• 0940

A new section has been added as well, and it would require the minister to convene, at least once every two years, a round table of persons and people, all of whom would be interested in all matters related to the protection of species at risk. These provisions mirror and are taken very much from the National Parks Act, which has a very similar requirement. The round table would advise the minister in a very general way with respect to how we're doing on species protection, and the minister would be required to respond to those recommendations. We certainly think that is a very useful change.

Likewise, the public registry has also been expanded to require that we now include annual reports of COSEWIC, general status reports, action plans, the minister's annual reports to Parliament, and any other delegation agreements under the act. Clearly, we're very keen to make sure all of the documentation associated with this bill is available to the public through the public registry.

A couple of changes have been made with respect to recovery strategies. The recovery strategy provisions were reworded to allow for a sixty-day comment period on the proposed strategy, and thirty days for its finalization. This will differentiate between the timeframe for public comment and that required to make any required changes before finalization. In addition, existing plans will become proposed recovery strategies.

In particular, this relates to those areas where there may be existing management plans, whether they be associated with fisheries or perhaps species within national parks or the like, in our attempts to make sure we don't duplicate efforts. However, we did want to make it clear that perhaps all of the elements that may be in an existing management plan may not be meeting a species-at-risk requirement. Therefore, we're requiring that they too be subject to a sixty-day comment period, pursuant to the species-at-risk legislation.

The section on the action plan—this is the action plan with respect to recovery—and the monitoring was changed to ensure that the socio-economic impacts are assessed and reported on every five years, beginning five years after the action plan comes into effect. Socio-economic considerations are very much a major concern for a lot of folks, and these reports will also be placed on the public registry.

We've made some changes to emergency listing. Regarding the timeline for COSEWIC to complete a status report in the case of an emergency listing, we reduced the time from two years down to one year. Clearly, if there is an emergency listing done, we want to make sure the actual assessment document is done as quickly as possible thereafter to ensure that the process continues.

There's another minor change with respect to project review. We changed the terms in the project review section, adding the word “adverse” in front of “environmental effects”. This is to be consistent with the current structure of the Canadian Environmental Assessment Act. We will be reporting on and taking account of any projects for which there may be adverse effects on endangered species.

And the last significant change in Bill C-5 is in the investigation provisions. There are sections dealing with the issuance of progress reports. The progress reports to citizens were deleted. This was to ensure we were being fair to the party being investigated, while maintaining the right of the citizen to request an investigation. The way those sections were structured, third parties were entitled to get updates on how the investigation was proceeding, whereas the person under investigation was not. This was also a concern with respect to the possibility that we may jeopardize the investigation. So those sections were actually removed from the bill.

So, what else have we been doing? In the meantime, the work continues, as you can imagine. In the last year, we've had a very considerable program in place to actually provide for the recovery and development of recovery strategies for species. As you know, we have gotten some new resources as a result of these programs, and we've put in place fairly extensive strategy overviews for some of the more important species.

• 0945

We have also been working very closely with COSEWIC to ensure that their work has continued in terms of providing for reassessments for the species in question, and we've been getting ready, and getting the whole process ready, for the possibility that the legislation or a piece of legislation would come into force. That's a considerable amount of work that we've been working on as well.

In the meantime, as you will all know, the minister has received the report on compensation that he commissioned from Dr. Peter Pearse. I think we have extra copies of that here if members have not already received it, but the minister is still studying that report.

We have been receiving comments from across the country from the various interested parties and stakeholders, and we're doing quite a bit of extra analysis based on the comments we're receiving. Clearly, there's quite a bit of interest in this report, and we're working on this as we speak.

Clearly, we're in the process of getting ready to actually develop the regulatory scheme that would guide the compensation provisions once an act comes into force. That process is also subject to consultation, as required under law, so we are anticipating that we will continue to have those conversations with all of the folks concerned with compensation as we move forward.

We've also been working with the provinces and territories to try to define and scope what bilateral agreements might look like under this legislation. However, we started with the accord itself—the accord that has been signed and agreed to by all provinces and territories—and we have been trying to scope out where some of the interface issues may be with provincial and territorial legislation, but we can't proceed much further until the species-at-risk legislation is actually passed.

We're quite happy this morning to answer questions. I'm very pleased to be working with the committee.

Thank you.

The Chair: Thank you.

Mrs. Karen Redman: Mr. Chair, I just wanted to point out that we have Ms. Jacques and Mr. Near in attendance today. They are actually from the justice department, so if any of the committee had burning justice questions, I would just point out that they would be well able to answer their concerns.

The Chair: Thank you very much. That is in accordance with the decision of Tuesday.

Are there any other witnesses who wish to speak? No? If not, then we will move on swiftly, and I'll ask Mr. Forseth to launch the question period.

Mr. Paul Forseth: Thank you very much, Mr. Chair.

I turn to page 2 in the bill, and line 22 in the preamble. It says “circumstances under which the cost of conserving species at risk should be shared”. That goes directly to the point of compensation.

We've seen the Peter Pearse report. Certainly, he's well known in British Columbia. In his report, he has a lot of nice-sounding phrases, but he comes up with a formula that has not been very well received by anybody I talk to. I would like you to discuss a bit about the whole... seemingly, it's almost like an afterthought of the compensation. At this point, compensation is a big issue in terms of getting general acceptance for the whole philosophy of receiving this kind of a bill. Seeing that it's a work in progress, as on your slide, perhaps you can outline a little bit more what the fundamental principles are that you're likely to look at and that could give us some hint as to where we're going with a compensation formula.

I really think the formula Mr. Pearse has come up with—10%, 50%, and so on—is unacceptable, so we have to look to other areas of law or other principles. One of the ones I have suggested is at least some kind of statement of principle. The regulations would look to the area of expropriation law and what has been litigated throughout Canada as at least some kind of principle.

• 0950

The whole area of compensation is really a difficult one, especially for people in the west. Typically, when they hear of endangered species legislation, those people get all scared and they make inappropriate references to the American experience and all the rest of it. That's not necessarily what this bill is all about, but the issue of compensation is a difficult one for us. Can you discuss that in more detail?

Ms. Karen Brown: Certainly. I'd be happy to.

You're quite right. The whole issue of compensation is absolutely fundamental to the discussions that we've been having over the last several years. We need to keep in mind that the policy with respect to compensation was introduced by Minister Anderson when he assumed responsibility for this legislation.

As you correctly point out, this is a very large and complex public policy area, and there is very little experience with the use of compensation—and certainly not in the United States, as you again correctly point out. There was a considerable amount of work required for us to understand the existing legal structures, including everything from the needs with respect to expropriation, and all the way through. There are certain compensation provisions in provincial law, for example, depending on the circumstances.

At that stage, Minister Anderson requested that Dr. Pearse undertake a review, and that he talk to people to try to get some advice with respect to a possible compensation regime. The minister has now received that report, and it has been made public, as you know.

We are getting a lot of additional feedback. Clearly, the issues and the points that you raise, Mr. Forseth, are very important in terms of our consideration of how this compensation regime will be structured.

We are obviously looking at other models. We're getting quite a bit of feedback from folks who are quite concerned with the percentage models that have been identified in Dr. Pearse's report, and we obviously need to take a very serious look at their issues.

We're also in the process of working with some experts on the assessment and valuation issues, both with respect to private lands and others, and we also have to do more legal research with respect to the precedent issue, which is critical. Suffice it to say our work is not yet done, and neither is the work of the minister with respect to trying to put together the right kind of compensation regime.

For us, the issue here is all the tools that are associated with trying to protect species at risk on the ground. The minister has worked very hard to ensure that we have the right mix of tools—everything from incentives and working with landowners, right through to the regulatory tools that are needed from time to time—and, in that case, if used, the compensation regimes that would ensure that it doesn't in fact become a jeopardy to have endangered species on your property. We're very aware of the balance that's required amongst all those tools, and this piece is clearly one we'll have many more conversations about.

Suffice it to say the principles of fairness and equity are clearly a big part of the consideration in this whole discussion, as is ensuring that the mix of the tools provided for, both in the legislation and elsewhere, ends up doing the right thing with respect to landowners and ensuring their active engagement in the protection of species at risk.

Mr. Paul Forseth: I have one supplemental.

That's a very nice answer, but essentially what it's saying is, trust us. I'm not sure that answer will be totally satisfactory to those who are very concerned and who have a tendency to be very cynical.

You say the work is continuing, that you have ongoing consultations. Can you just describe a little bit about any public process for those consultations? Is it just the ministry doing its own thing, and then we're finally going to have the formula in the end all of a sudden, and then the fight will start? Do we have any public consultation process now?

• 0955

I can understand that the Ministry of Finance would be very concerned about putting in statute an open-ended formula that goes beyond the normal annual budgeting process and whose cost they can't predict. We have to manage the finances of the country. I have to be able to sell to the people I represent the proposition that it should indeed be in the regulations and not in the statutes. Unless we get more from the department and the minister about the direction they're going, the transparency of the process, and the opportunity for others to participate, the pat answer you gave, just to trust you, still raises some very grave concern.

The Chair: Please give as brief an answer as possible.

Ms. Karen Brown: The government is required by law to conduct consultations on all regulatory proposals, and there will be a public and open process to try to finalize any regulations the minister would put forward.

The Chair: There is also an allocation of funds announced that will cover the next five years, so there is a ceiling already established in the announcement by the minister, year per year. Isn't that so?

Ms. Karen Brown: There is an allocation that has been provided for this program. The allocation was provided in advance of any legislation, Mr. Chair, so clearly we would have to take a look at the impact any of the legislation might have on our ability to deliver programs. We'll have to take that into account as we move forward.

The Chair: Perhaps in the second round you would like to deal with that.

[Translation]

Mr. Bigras, please.

Mr. Bernard Bigras: Thank you, Mr. Chairman.

I wish to welcome you to this committee.

It was my understanding, until now, that the protection of natural habitats was a matter of provincial jurisdiction. In fact, in 1989, the Liberal government of Quebec passed a law to protect endangered species. It also passed a law regarding wildlife conservation and development as well as another piece of legislation, the fisheries regulations.

The bill we are concerned with here takes up the concept of essential habitat. But how will this legislation be implemented, considering that the protection of natural habitats is a matter for provincial jurisdiction, and how will it mesh with the 1989 act and other legislation? How far will it go? Will it apply only to federal lands and Crown lands?

Ms. Karen Brown: The act will generally apply to the same areas, that is both to federal and provincial lands.

According to the implementation scheme, stewardship and voluntary measures remain the number one priority, provincial and municipal measures coming right after that. We expect all the provinces to protect natural habitats under their own legislation. Were they to prove unwilling or unable to do so, in cases where it is important that something be done, the legislation will allow the federal government to act whether the area in question is a federal land or a provincial one.

Mr. Bernard Bigras: I have a question of a very practical nature. This bill talks about law enforcement officers, that is to say federal law enforcement officers. But we, in Quebec, also have wildlife conservation officers. We also have, in Quebec, wildlife sanctuaries and wilderness parks.

• 1000

Would you tell us whether federal law enforcement officers will be empowered to act within the borders of a Quebec wildlife reserve in order to enforce this federal legislation? If so, have you given any thought to what kind of protocol will govern their activity?

You have to realize that we will have the intersection of two levels of jurisdiction: Quebec's wildlife conservation officers and the federal law enforcement officers. Will these federal agents be able to intervene within the limits of Quebec's wildlife reserves and, if so, have you given any thought to developing a protocol as a framework for those interventions?

Ms. Karen Brown: I can say, very simply, that we have made provision for this. We are currently working with Quebec and the other provincial governments in order to determine what should be included in these bilateral agreements. I cannot really be much more specific than that at the present time because the legislation has not yet passed. Once this bill becomes law, it will be easier to strike an agreement with the provinces in order to reduce any chance of duplication. That is an important aspect of all this, both for us and for the provinces.

Mr. Bernard Bigras: I have one final question. As I understand it, you wish to give yourselves the requisite legislative powers, and then strike bilateral agreements with the provinces. You wish to grant yourselves these legislative powers first and then negotiate the agreements.

Will the harmonization agreement keep to the same delineation of matters within provincial jurisdiction?

Ms. Karen Brown: The agreement on the protection of endangered species abides by these jurisdictional limits and provides for a number of supplementary programs and legislation to be implemented by the federal government and the provinces. We have worked very hard with both the provinces and the territories in order to try to stay within the various jurisdictional limits.

Mr. Bernard Bigras: One final question, please. Unless I am mistaken, we also have here an official from the Department of Justice. That is what Ms. Redman was saying. Are you sure that this bill will not encourage one of the stakeholders to launch a legal challenge? Do you have any assurances in that regard, and are you, as it were, constitutionally armored?

The Chair: Perhaps, Mr. Wear could give you a brief answer on that point. Go ahead.

[English]

Mr. David Wear (Legal Counsel, Environment Canada): In terms of whether we'll ever be able to give a guarantee that there will never be a legal challenge, I think that will always be impossible to give. Are we anticipating one? Again, that's a hypothetical question. There may or may not be one. The federal government receives constitutional challenges on a fairly regular basis.

Obviously we've assessed the merits of our position, and the Department of Justice is comfortable that we do in fact have the jurisdiction that's assumed in the legislation.

[Translation]

The Chair: Thank you, Mr. Bigras.

[English]

Just to keep you posted, next on the list I have Mr. Comartin, Mr. Herron, Mr. Reed, Mr. Laliberte, Ms. Carroll, and Mrs. Kraft Sloan.

Mr. Comartin, please.

Mr. Joe Comartin: Thank you, Mr. Chair.

Ms. Brown, in your notes you indicate that the regulations—I'm back to the compensation issue—are ready for proclamation. I know it's unusual, but given the widespread concern we have over trust on the issue of compensation, is the department prepared to release those regulations for consideration by this committee?

Ms. Karen Brown: Let me just clarify. In the first instance, we are working towards having regulations ready for proclamation, but we do anticipate an important delay between royal assent and proclamation.

There are a number of regulations that will have to be done prior to proclamation; otherwise, the bill won't work. One of the very important ones is clearly the list of species to which the legislation will apply, which is clearly a fairly major piece of work, and we feel the compensation regulation needs to be ready prior to proclamation.

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The plan right now is that there will be a delay between royal assent and proclamation to enable us to have a very broad and open discussion about what the regulatory regime for compensation should be.

We are quite prepared to have full discussions with the committee about the views of the committee with respect to the compensation issue. We're still receiving all kinds of input from folks who are reviewing the report, and at this point we're attempting to summarize those. We could certainly try to keep the committee updated as to where we are and what we're hearing if that would be helpful. We'd be quite happy to do that.

Mr. Joe Comartin: The answer is that at this point you're not prepared to give us the draft you have.

Ms. Karen Brown: I honestly don't have a draft regulation.

At this stage we have the report from Dr. Pearse. We have a number of submissions coming in from across the country. As I indicated a few minutes ago, we're doing more legal research. We have engaged a couple of additional experts to take on some of the issues of valuation that have been raised, and we're still pulling together all of the inputs. At some point we'll be able to provide a summary of what we've got, but we do not have a draft regulation.

Mr. Joe Comartin: I see on page 11 of these notes it says “regulations ready for Proclamation”. I take it this means they will be ready.

Ms. Karen Brown: Yes, they will, certainly.

Mr. Joe Comartin: And at this point the department does not have a draft position or anything like that.

Ms. Karen Brown: No, we don't, sir.

Mr. Joe Comartin: Those are all the questions I have, Mr. Chair. Thank you.

[Translation]

The Chair: Thank you, Mr. Comartin.

Mr. Herron, please.

[English]

Mr. John Herron: May I have the rest of Joe's time?

I have four questions, which I'm hoping to get in with the full round. Two of them are related to justice issues, which will come back, but given my last name, I thought it would be only appropriate that I do a migratory bird question at some point.

From what I've seen there is a remarkable consensus between national environmental groups and at least two industry groups on areas where the bill can be strengthened. These areas include strengthening habitat protection within federal jurisdiction, rolling over the current COSEWIC list, strengthening COSEWIC'S role on listing, and creating a third-party process to review enforcement disputes.

Now, this consensus is similar to one that was reached in 1996 by the government's task force on endangered species conservation, where an even broader cross-section of resource industry associations in Canada was represented, including pulp and paper, mining, oil and gas, fishing, and agriculture. The same changes are supported by the Canadian Labour Congress—that's for you, Joe—and by over six hundred university and government scientists, as well as by almost every environmental group in the country.

Almost all the changes these groups wanted to see relate to matters under federal jurisdiction, so the government-approved version of Bill C-65 dealt with most of these elements. Given this remarkably broad consensus from outside government, where are the obstacles to strengthening the bill in these areas if such a broad consensus exists across the country? Specifically, who is opposed to habitat protection on federal lands, who is opposed to habitat protection for fish and migratory birds, and who is opposed to using the current COSEWIC list as a starting point for the bill?

Ms. Karen Brown: Thank you, Mr. Herron.

No one is opposed to habitat protection on federal land, and no one is opposed to using the COSEWIC list as a starting point.

At the moment, as I said earlier, we have spent the last year and a half working with COSEWIC to reassess all the species that are currently on the list. It is a huge undertaking, but we're almost 90% there. The reason we are doing it is so those species can be on the first list with respect to the legislation. Unfortunately, it is a fairly time-consuming process.

There are a couple of things to keep in mind with respect to the COSEWIC assessment process. The identification of a lot of the species we have on the list dates back some 25 years, so much of the information is out of date. The process by which they were actually included on the list may not have been as open and transparent as this bill contemplates.

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I'm thinking in particular of some of the fisheries interests that are out there, some of the aboriginal interests, in respect of the amount of information we need to ensure that we have all the right information for the assessment. This bill contemplates a very open and transparent process, so that we have engaged everyone as to the status of those species.

So we are working very hard to make sure that those species evaluations in the assessments are done, that COSEWIC has completed its work in advance of legislation going through. We're working towards that end. No one is objecting. There are a number of species that have to be looked at in further detail. We have considerable aboriginal traditional knowledge requirements for some of our species that we have not done a good enough job with yet. So it won't be a complete match, because there's a lot of work to do.

Mr. John Herron: What I'm trying to touch upon is that there's a consensus among a vast array of Canadians that there are some areas to improve. Now I'm going to try to get into some specific aspects of it.

Let's address migratory birds. SARA does not give federal protection for migratory birds habitat. Mr. Justice La Forest, a widely respected and recently retired judge of the Supreme Court of Canada, wrote the court's last two opinions on the Constitution and the environment. He makes a compelling case that the migratory birds habitat is and always has been within core federalist jurisdiction. His opinion says that the Migratory Birds Convention Act currently covers habitat and that the Government of Canada may make regulations prescribing protected areas for migratory birds and for the control and management of those areas.

The regulations under the Migratory Birds Convention Act also protect habitat to some degree. The act says that no person shall deposit any harmful substance into any area frequented by migratory birds.

Mr. La Forest is a very respected jurist in Canada. On this issue he concludes that the Government of Canada has undoubted authority to protect migratory birds and their habitat. The Canadian Bar Association, in its brief, shares this view. Apparently, despite the above opinions of La Forest and the Canadian Bar Association, some lawyers in the federal justice department—and we have some with us today, which I think is very helpful, so thank you for that—do not share their view.

Wouldn't you agree that given all the above, there is a pretty compelling argument that migratory birds habitat is an existing area of federal jurisdiction?

Ms. Karen Brown: I'm going to ask David Wear to respond to that, if you don't mind.

Mr. David Wear: Thank you, Mr. Herron.

We're well aware of the retired Supreme Court justice's view. In fact, we've had various discussions with him as well in regard to his opinion. There is a variety of opinions as to the extent of federal jurisdiction with respect to migratory bird habitat. I believe the position of the retired Supreme Court justice is that the Migratory Birds Convention itself allows the federal government to do basically anything with respect to migratory birds, migratory bird habitat in particular. I think it is fair to say that the Department of Justice does not share that view. That's the basis of the legislation.

Mr. John Herron: On that specific aspect of it, we have the Department of Justice with its view, we have a former chief justice of the Supreme Court having another view, and the Canadian Bar Association having the same view. So we have a split decision here at best. Wouldn't it at least be prudent to have a third party settle this dispute, given the immense dichotomy we have within the legal community on this particular aspect?

The Chair: Thank you, Mr. Herron.

Mr. Wear, briefly please.

Mr. David Wear: I don't know if there's a way I can respond to that other than to say that's not the way government legislation is usually formulated.

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Mr. John Herron: In a way there's a third party aspect about going into compensation. So I would say from a precedent perspective we almost have that right before us right now.

Mr. David Wear: Well, it's certainly not a legal view. Dr. Pearse was asked from a policy perspective to explore compensation regimes, and that's what he's done.

Mr. John Herron: But the third party dispute, setting it out with another aspect—that's how we've addressed the compensation issue. Now we have a legal issue as well. So the same formula could clearly be utilized to address this divergence of legal opinion.

If I do have more time—

The Chair: No.

Mr. John Herron: I don't, so I'll save it for a second round.

The Chair: You may come back on the second round. Thank you, Mr. Herron.

We have Mr. Reed, Mr. Laliberte, Madame Carroll, Madame Kraft Sloan, and the chair. Mr. Reed, please.

Mr. Julian Reed (Halton, Lib.): Mr. Chairman, the Herron with two r's is endangered.

A great deal of attention is paid to landowners in this bill and the responsibility the bill will help them assume, but I don't see much attention being paid to toilet flushers. The majority of the population of this country is urban. At least half of the endangered species are in water. Around the Great Lakes particularly we continue to degrade the quality of water by putting sewer pipes into the water, and we take water out for our domestic use. So here it seems to me the bill is only dealing with half the problem. Do you have any comment to make on that?

Ms. Karen Brown: In general, there are other tools available to federal and provincial governments. The legislation has a very specific focus, and you're quite right in identifying that focus as being on species at risk.

Within the context of all the species-at-risk legislation, however, as we start to develop the recovery strategies for aquatic fish x or y in the Great Lakes, clearly the process we go through, which includes all the stakeholders and the people in those areas, will start to identify the things that are causing the species to be in peril. In some cases that may well be a chemical contaminant. In some cases that may well be a habitat issue. It could be overfishing. There are any number of areas.

One of the things that's most challenging about the hundreds and thousands of species in this country is that we often don't know very much about what's causing declines. So this bill allows us to put a spotlight on those species that are in particular trouble and to try to deal with them through recovery strategies.

The idea here also is that through a recovery strategy, it may well be that you need to take action under another piece of legislation. Let me give you an example. There may well be a need, from time to time, to take a look at regulations for applications of pesticide spraying or use, depending on the species involved, under the Pest Control Products Act. We may have to look at specific actions on chemicals and other issues related to the Canadian Environmental Protection Act.

So there are a number of tools the Government of Canada has, as well as provincial and municipal governments, who we very much contemplate will be involved in these recovery strategies, particularly if you're dealing with species in the Great Lakes, using those who are experienced with lake-wide management planning processes in the Great Lakes. We really rely heavily on municipalities, the City of Toronto, and other areas to be engaged with us in the attempt to determine how to continue to make improvements in water quality.

So we are very much aware that there are any number of challenges associated with recovery of species. They won't necessarily all be dealt with in this single piece of legislation, but recovery strategies will help us identify where we need to make improvements in other areas.

Mr. Julian Reed: It's obvious that in the regulatory process, when there is a necessity to identify whether or not there is a species at risk involved with, say, the proponent of a project, this will become one more added cost that proponents of smaller projects may not be able to bear because of the time it takes to do the study, piled on top of all of the other studies that proponents are required to undertake at the present time.

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I wonder whether there is going to be any provision to relieve some of the cost that will inevitably manifest itself when somebody wants to undertake a project—particularly on crown land.

Ms. Karen Brown: Since the Canadian Environmental Assessment Act, with which I'm most familiar—and I'm not that familiar with provincial requirements that may exist—came into force, although it's not explicitly stated, all projects that are going forward for approval would in fact have to have taken into account the presence or absence of endangered species.

What we are doing through the consequential amendment that's proposed in this legislation is to make that explicit. So the challenges that we face right now... we would have assumed from a policy point of view that any project proponent putting forward a proposal would in fact have already taken into account endangered species. From our point of view, this doesn't add a new burden or a new requirement. When you're involved in projects at community levels—or even at any of the levels—around the country, the interests of the stakeholders in the community almost always identify whether there are endangered species in and around. So at this stage, I can't say that I would agree that there are incremental costs associated with the identification of endangered species if you're proposing a project.

Mr. Julian Reed: But under the Canadian Environmental Assessment Act any person can stop a project. Then it has to be determined whether or not it is a specious or frivolous challenge. Under the Ontario law particularly that is a fact. I have some pretty good anecdotal evidence that I could bring forward. The trick is if there is a proponent of a small project and then, under the act, an objector comes along saying that the proponent has to stop because this is a bad thing, and then six months later the objection is found to be frivolous, who pays the cost?

Ms. Karen Brown: I'm really not in a position to comment on the assessment—

Mr. Julian Reed: It's the proponent—

Ms. Karen Brown: I'm not aware of the details of what you're talking about. I'd be happy to get back to you—

Mr. Julian Reed: I think there should be some consciousness about the impact that may arise through regulatory process.

Ms. Karen Brown: One of the things that I would just say in addition is that we actually are now trying to develop the information around these species by starting with the COSEWIC process, which is trying to determine where all these species are. Through this process and through the public, open, transparent process we're developing, we're trying to build the database and the information, so that we know where all these species are, and so that it doesn't come as a surprise to a landowner or a proponent of a project, in fact, because that information is made available.

It's a tall order, I'll guarantee you. But more and more we're getting better information and better information systems so that people will know in advance, if there's a project proposal, what kinds of biodiversity they are dealing with in those areas.

Mr. Julian Reed: COSEWIC told us last—

The Chair: Do you want a second round?

Mr. Julian Reed: Sure.

The Chair: Thank you.

Mr. Laliberte, Mrs. Karen Kraft Sloan.

Mr. Rick Laliberte (Churchill River, Lib.): Thank you, Mr. Chair.

You talk about shared responsibility. Much of the intention of that is because of the huge provincial jurisdiction that exists before us. But wouldn't the legal basis stem from the natural resource transfer agreements because of the wildlife and natural resources that were transferred from federal to provincial jurisdiction? Is that the relationship that the federal government has in dealing with the provincial governments?

Ms. Karen Brown: Only in the prairie provinces.

Mr. Rick Laliberte: Only in the prairie provinces. Enlighten me. What about the other... There are more provinces than that.

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Ms. Karen Brown: That's a particular circumstance. The Constitution itself deals with the authorities associated with fisheries, inland seas, seacoast, etc.

David.

Mr. David Wear: Generally speaking, with regard to the provinces that have managed large aspects of wildlife since Confederation, the primary constitutional basis upon which that is based is management of property and the management of natural resources, which is found in the provincial part of the Constitution.

The western prairie provinces have additional overlay with respect to the agreement that you've cited, but generally speaking, provinces have been managing large swaths of wildlife based on authority related to land and management of natural resources found in the Constitution.

Mr. Rick Laliberte: Do you mean the new Constitution or the British North America Act? Where did this jurisdiction flow from? Because I know the provinces in their boundaries—I think their finalization was in about 1912 for Ontario and Quebec. I'm just trying to figure out the legal basis of all this.

Mr. David Wear: There's really only one Constitution. Various documents make up the one Constitution the country is governed by.

In terms of the historical pattern of management of wildlife by the provinces, it's found in section 91 or 92—I forget which one is provincial and which one is federal—but there are aspects that are outlined in those parts of the Constitution with respect to management of natural resources and management of provincial crown property.

In large measure that's been the historical basis for the constitutional authority of management of wildlife by the provinces.

With respect to the federal basis of jurisdiction, there's a specific one with respect to fisheries. There's a coastal aspect in our part of the Constitution as well as the management of federal lands—public property. So there are a variety of heads that the federal government relies upon, as well, to manage our aspect of what we consider to be wildlife.

A specific instance is the Migratory Birds Convention, which is an empire treaty, and that is another additional head that the federal government relies upon to exercise jurisdiction with respect to migratory birds.

Mr. Rick Laliberte: So in terms of jurisdiction, am I right in assuming the jurisdiction of this country was initiated by the treaties that were written, as well, with the aboriginal nations?

Mr. David Wear: If your question is do we have to obviously take into account existing aboriginal and treaty rights, the answer is yes. That's found in section 35 of the Constitution Act.

Mr. Rick Laliberte: In terms of the workability of this bill, there's a specific question I'd like to ask. How is clause 32 related to clause 34, and how does that play out in terms of a play-by-play, if I could say that... Prohibitions.

Ms. Karen Brown: Sorry, I'm just quickly trying to figure it out. I think Ruth is probably the expert on this one.

Ms. Ruth Wherry (Director, Species at Risk, Canadian Wildlife Service, Environment Canada): In clause 32 there is a general prohibition against killing, harming, harassing an individual of a listed wildlife species, endangered or threatened.

In clause 34 it basically refers to species that are not aquatic or not migratory birds or not on federal lands. It would only apply in a province or territory when the Governor in Council makes an order to that effect, on the recommendation of the minister.

Mr. Rick Laliberte: So clause 34 is an exemptive.

Ms. Ruth Wherry: Actually, the way it would work is that if there are not provisions in provincial or territorial legislation covering against the killing of the species or destroying the residence, then the minister must recommend to the Governor in Council to extend those prohibitions by order against those other species in provinces and territories.

Mr. Rick Laliberte: So it would be wise for this committee to familiarize itself with the existing provincial statutes that exist in this area.

Ms. Ruth Wherry: To see whether or not they cover, yes.

Mr. Rick Laliberte: Right.

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There's a term that you use. It's “socio-economic”. In terms of action plan monitoring, you'd based these decisions on socio-economics. “Socio” is a cycle and “economic” is a cycle.

The one thing that's missing is ecological. I think all three dimensions should be brought into the monitoring. If you have species at risk and there are predators in the area, how do you compensate the predators? You're going to have to look at that whole aspect. It's not only the human impact on species, there's the whole food cycle we're dealing with here as well.

I just wanted to make that statement to go beyond the socio-economic impacts and go to all three aspects.

Ms. Karen Brown: Yes, absolutely.

The recovery strategy and the action planning very much deal with the biological and ecological basis. The purpose of the change was also to be clear that we will be reporting on and talking about the socio-economic consideration. It's over and above that.

The Chair: Where is that contemplated? Where is that provision made in the act?

Ms. Karen Brown: The very basis of the action plan, the whole section, has been dealing with recovery strategy and action planning, Mr. Chair.

The Chair: The reference to the three dimensions that Mr. Laliberte is referring to, where is it to be found in the act?

Ms. Karen Brown: He was referring, I think, to monitoring, reporting, and clause 56, referring to the change in the deck in the presentation we made. It's clause 56.

The Chair: Yes, but he was referring to the lack of the ecological dimension. The question is where is the ecological dimension?

Ms. Karen Brown: I believe, Mr. Chair, it's identified within the content of the various sections on what would constitute a recovery action plan and a recovery management plan. We're just talking about the monitoring of those plans.

You need to go back to the sections that are dealing specifically with the recovery action plan in the act.

The Chair: Would you name them, please?

Ms. Karen Brown: They are action plans 47 through 56 inclusive.

Ms. Ruth Wherry: As Karen pointed out, the whole basis of the action planning and the recovery strategy is based on ecological considerations. We're just adding it at the point where you would also take into consideration the socio-economics.

The Chair: Thank you, Mr. Laliberte.

Madam Carroll, please.

Ms. Aileen Carroll (Barrie—Simcoe—Bradford, Lib.): Thank you, Mr. Chair.

I come from a business background and probably have learned what I do know about the environment, which isn't great, since getting elected. Frequently I plug into information that represents an industry or business point of view as we try to marry it with our environmental concerns.

I had the opportunity to be a member of the Prime Minister's task force on the west, and as such we travelled last year. A number of the industry groups who have been umbrellaed by the task forces, to which Mr. Herron has made reference, came forward. Just as an aside, they indeed reflected the views, reflected in their work as part of those umbrella groups, to us in verbal testimony.

I am going to go back to Mr. Herron's question to you. He says the current groups, which included the pulp and paper, the mining, and the 1996 task force that had even a broader industry base, came forward with recommendations asking for a strengthening habitat protection within federal jurisdiction.

You've already taken these notes, because I'm picking from what he chose, so we can stay within a silo here for a response. He talked about rolling over the cost, looked for a third-party process, and looked for things that obviously we're not seeing, or I'm not seeing, reflected in this piece of legislation.

To bring it to a conclusion and make my questions very specific, I think, Ms. Brown, there has been transparency to which you've alluded in this process. I think there has been a broad consultative basis. From my notes, I think the result is we're seeing that business, scientific, environmental, and average folks have set the bar for this piece of legislation higher than what the legislation that has come to this committee appears to exemplify or contain.

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I'm going to bring you back to the question he asked, only because he got to ask it before I did, being opposition in before government: If we have the broad base that I've described, and I think it fits both from doing my homework and experiencing it in conversation in other venues, to whom is this legislation directed?

Again I ask you, who is opposed to habitat protection, or to rolling over the cost of this list, or to the number of items that have come up today and will come up in the future?

I ask you to be specific, if you could, because we don't get a lot of time. Thank you.

Ms. Karen Brown: I can't be specific, quite frankly. I think what you will find as you listen to the witnesses yourselves over the next several weeks is that there is indeed a lot more divergence of opinion than perhaps others would have you believe.

Ms. Aileen Carroll: I think I made it clear that my question isn't a product of what others have told me but comes from my own experience. So I would ask you to—

Ms. Karen Brown: Let me start with the point that, particularly with respect to the groups you've named—SARWG, the Species at Risk Working Group, is one, and there are others—they don't represent all the industrial interests out there. You've named the pulp and paper association and the mining association. They don't represent the agricultural interests or the fisheries' interests. There are a number of large industrial sectors that they don't represent.

The other thing that's critically important to the conversations we've been having and have heard, and you as well will hear, is the aboriginal interests, both south of 60 degrees, which are quite extensive, on Indian reserve lands, but also north of 60 degrees, the wildlife management boards, which are legal entities for the management of wildlife. In addition to that, there are provincial and territorial considerations that go into the development of these proposals. There are a lot of very strongly held views from the various sectors that we deal with, and those are just a few of the ones we have to take into account.

I'm not saying, and I don't want to be misinterpreted as saying, that they are opposed. Everybody has a very different view as to what the best tools in the toolbox are and how extensively they should be used. Some folks would have the legislative toolbox be much more predominant, and some of the people we talked to would like to see us rely more fully on voluntary actions and incentives. Clearly we have struggled very hard to try to identify the right mix of those tools, and that's part of what you see in front of you today.

Ms. Aileen Carroll: Thank you, Ms. Brown. I have one more question.

I'm listening carefully. If I can use your words, the views or the conclusions and recommendations expressed by the 1996 working group—which did have far more than the mining and pulp and paper—did not represent all the industrial interests, a number of large industrial sectors, and not the agricultural or the fisheries interests.

I too am looking forward very much to the work of this committee and the number of groups that will come forward, and that is indeed the onus on us, to benefit from all of what will often be disparate testimony. But I want to be clear at the outset: Since this legislation comes very much from your department, where do you see the need to accommodate?

Finally—because I know I'm doing what I get annoyed at—I would ask Mr. Wear from the justice department... It's dangerous to let you know my background, being married to a litigation lawyer for 32 years who was a former president of the bar in Ontario.

In your response to Mr. Herron, you said the Department of Justice doesn't agree with Mr. La Forest and the Canadian Bar Association. I'm going to look forward to some more details on that. Normally one would say “Pack your bags and go to court and prove your case”. Obviously you intend to tell us why the Department of Justice disagrees.

• 1040

Ms. Karen Brown: Can I answer the other question first, and then I'll ask David?

Ms. Aileen Carroll: I think I'm going to get cut off.

Ms. Karen Brown: First of all, I want to be clear that my comments were with respect to SARWG. I'm not familiar with who was on the task force. That was long before my time.

Ms. Aileen Carroll: It was 1996. That was before my time too.

Ms. Karen Brown: However, the SARWG representation is quite clear.

Ms. Aileen Carroll: Thank you.

Ms. Karen Brown: I want to be very clear that we have not ignored the recommendations from SARWG. We very much appreciate the fact that the industry and environmental groups, have worked very hard to try to forge some consensus and try to put forward some views.

The challenge often comes when you try to translate that into legal text. As we move forward with very broad policy suggestions and agreements, we find that the devil is in the detail, quite frankly. A lot of our consensus starts to fall apart when we actually try to put together the legal language around which people thought they had some agreement. So it's a constant struggle, granted, and one that we're very painfully aware of.

Ms. Aileen Carroll: I do appreciate your comments, but I would think that if I, as a member of Parliament and a member of this committee, must look back to 1996, which, like you, predates me, and my understanding of the task force at that time was that they did have a strong agriculture and fisheries component, and if what they recommended was setting the bars above what we're considering today, then there's an onus on your department to look back to 1996 and find out why they were willing to set the bar there, just as I have to do that.

Mr. Wear.

Mr. David Wear: I'm not really in a position—

The Chair: Ms. Brown, do you want to comment?

Ms. Karen Brown: Yes, I do. Thank you, Mr. Chair.

We certainly don't believe the proposal you have in front of you is below the bar set by the task force, at all. I think the general view is that we're being very consistent with the policy directions. The challenge we have is how it actually translates into legal text.

On the 1996 task force, as well, we have come a long way since that point. We've gone through several other rounds of consultations and several other attempts at putting forward legislative proposals.

There's a lot of history since that point, and I think the minister would agree that we don't believe we're below that bar, that we're very much consistent with—

Ms. Aileen Carroll: It shouldn't be a matter of belief; you have to look at the factual recommendations and what that committee recommended and at whether it's in the legislation or not. It's not a matter of point of view but rather whether it exists or not. But we'll talk again, I'm sure.

Mr. David Wear: I'm not in a position to actually commit 100% that I will personally be here to represent the views of the Department of Justice. It's a rather unusual request to have the Department of Justice appear as witnesses to debate, basically, the legal opinions it provides to a client department. I will look forward to the invitation of the committee to participate, and obviously the Department of Justice will respond to your request at an appropriate level. That's about as much as I can say today.

Ms. Aileen Carroll: My understanding is that when we did CEPA, we had the Department of Justice regularly throughout that. Am I in error?

The Chair: That's correct, but that doesn't deal with the point made by Mr. Wear.

The presence of the department doesn't mean that Mr. Cameron was there to interpret the position of the department; he was there to answer questions by committee members on clauses related to CEPA.

Anyway, you have heard an invitation to present the viewpoint of the department, and it may be a very useful discussion.

Mr. John Herron: On a point of order, I'm confused here, but the specific question that Ms. Carroll was referring to is when you disagreed with—

The Chair: Will you bring that up on the second round? There is time for that, I hope.

Madam Kraft Sloan.

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

Welcome, Mr. Brackett. I'm sorry I didn't recognize you this morning. You have some additional... It looks great, by the way.

I know that's a little out of line. Call me to order, Mr. Chair.

A voice: If a man had said that to a woman witness, it would be an outrage.

Mrs. Karen Kraft Sloan: I'm just apologizing for my bad manners in not saying hello to you earlier.

• 1045

Let's get on with this legislation.

In the legislation that came out before we went into an election in 1997, there was a safety net provision in the old bill. The bill previous to Bill C-33 made it mandatory for the federal government to step in, if the provinces were not providing adequate protection of species.

I have to commend you on this incarnation of the bill, because the safety net provisions are wider in scope. I congratulate you on that. However, I have some concern, because the safety net provisions are not mandatory in this particular bill; they're discretionary. Why was there a move from mandatory to discretionary?

Ms. Karen Brown: First of all, thank you very much for the safety net clarification.

We certainly have worked very hard to make sure the current version of the legislation covers all species in Canada. You're quite right in pointing out that Bill C-65 did not. It was very narrow in its application.

The way the bill is structured, it would contemplate that the automatic prohibitions on the protection of species and residents are automatic for those species falling under federal jurisdiction. Then we are assuming—and clearly we are providing the opportunity for—provinces and territories to ensure their legislation does exactly the same thing, to come back to the points made a bit earlier. In the event they do not, then the minister must request the Governor in Council to put that safety net in place.

We've made it as mandatory as we can, on the expectation that provincial and territorial governments will do the right thing by having their legislative tools in place to protect all the species for which they are responsible.

Mrs. Karen Kraft Sloan: In the previous legislation it was mandatory, even though it was narrower in scope. The safety net provision is still discretionary in this legislation. Why was it mandatory the last time, but now it's discretionary?

Ms. Karen Brown: The issue is more about the choice of terminology with respect to the wording of the bill.

Was the word “shall” used in Bill C-65? I don't know. We'll clarify this and get back to you.

Mrs. Karen Kraft Sloan: Yes, it was a cross-border clause, 33 in the previous bill, 32 and something in this one.

Ms. Karen Brown: Okay.

Mrs. Karen Kraft Sloan: I refered to it as the cross-border shopping provision. Any species who engaged in cross-border shopping would be subjected to mandatory safety net provisions.

This was a very important provision of the previous bill. It meant a lot in terms of having endangered species legislation across this country. It was a real incentive to the provinces to make sure they had their act together on endangered species.

I would ask for some kind of an answer to my question to be given to the committee in writing.

Ms. Karen Brown: That won't be a problem.

Mrs. Karen Kraft Sloan: My second area of concern around the safety net you may possibly have answered, in part.

What criteria will be used to determine whether a province adequately protects species at risk or not? You said the provisions would have to be exactly the same.

We sometimes have situations where we have great laws, but they're not enforced. So when you say it has to be exactly the same, are you referring only to the fact that they must have legislation on their books that looks exactly the same as this legislation? Or are there some other criteria? For example, are they actually enforcing it? Are they actually doing the job to protect species?

• 1050

Ms. Karen Brown: I didn't mean to imply that the provisions had to be identical, because they can be quite different and still achieve the same end. That's a fair point to make.

In some provinces they have legislation specific to endangered species. In other provinces they've incorporated endangered species protection into relevant statutes. I just wanted to make that clarification.

At the end of the day, we need to be sure that those provisions are in fact affording the protection from killing for species and for protection of residence. Clearly, if the provisions aren't affording protection, then the minister would make that recommendation.

The issue of whether or not legislation is enforced is a challenging one for all levels of government, not simply provincial and territorial governments. But in the general aspects of the bill, we want to make sure the legal tools are in place in the first instance.

Through our discussions with provinces and territories on a bilateral arrangement, we will want to work out how we can actually work together to ensure that the enforcement is done. In addition, we mustn't forget that the Fisheries Act will play a role in this entire process. We'll be cooperating with the Department of Fisheries and Oceans and fishery officers to try to work out a way to make sure that we do have the enforcement we require for this legislation.

Mrs. Karen Kraft Sloan: In terms of the criteria for the safety net provisions, can you give us some guidance as to how that will be established?

Ms. Karen Brown: The general prohibitions say that no person shall kill, harm, or harass... The key issue we will have is to look at the wording in the federal legislation and ensure that there are equivalent provisions in the provincial legislation. We will be doing that in some detail with each of the provincial governments, once the legislation gets royal assent or proclamation.

Mrs. Karen Kraft Sloan: Will there be an opportunity for the public to participate? If the minister decides that, indeed, in his or her opinion, the province is protecting species, but a member of the public feels this is not the case, are you amenable to having an accountability mechanism that would allow the member of the public to petition the federal minister to make a recommendation to GIC, who would hopefully apply the legislation after some due course of investigation?

Ms. Karen Brown: We are very hopeful that we will not be doing this on a species-by-species basis. It would make the legislative burden enormous.

We're working toward provincial governments, through their definitions and in their various pieces of legislation, having these provisions there permanently and applied to all of the species. Then we can be assured the actual legal frameworks are complementary and in place in advance. If we have to go through this on a species-by-species basis, we will be in deep trouble.

Not that there may not be the odd time when a particular species is not covered, but since the accord was signed in 1996, eight of the ten jurisdictions have made changes to ensure their definitions are in line with the definitions we are contemplating at the federal level.

That's a really important issue. A lot of the wildlife acts in the provincial governments before this were restricted to game in the broadest sense. Most of the jurisdictions have made changes to wildlife to include plants, reptiles, animals, all of the things that are clearly of great interest to us in the Species at Risk Act.

Those sections are contemplated to be structural and to ensure that the legislative frameworks are complementary, federally and provincially.

Mrs. Karen Kraft Sloan: But if there were a broad track record of a province clearly not having the required legislation or legislation adequate to protect species in general, would you be amenable to some kind of an accountability mechanism that would allow the public to petition the government? You have said that you're encouraging the public to participate throughout the entire process, which would include the COSEWIC assessment process.

Ms. Karen Brown: We will definitely be encouraging public participation during the process of developing the bilateral agreements. This will be a very open and transparent process, which will be available for folks to comment on. We hope they can give us some indication of the extent to which they feel those agreements are appropriate. Under this legislation those will be filed in the public registry, and as well, any further delegation agreements. And you'll note in our changes we've made sure that anything like this would be open and available for comment in the public registry.

• 1055

In addition to that, there are provisions for access for people to request that we take a look and investigate under the federal legislation if there is an infraction. I think the extent to which we can actually go into provincial jurisdiction through that means is a pretty important legal question.

Mrs. Karen Kraft Sloan: Yes. I wasn't suggesting that this would be a way to get into provincial jurisdiction, but it would be a way to certainly encourage the minister to exercise federal jurisdiction vis-à-vis the safety net provision.

Ms. Karen Brown: Certainly they will be very much accountable for the extent to which those safety net provisions are in place on an annual basis and certainly through our annual reporting in the round tables every two years. That's the whole idea behind trying to make sure that people continue to be open, to be accountable in a very public way for administration of the legislation.

The Chair: Thank you, Madam Kraft Sloan. You have two questions for the second round.

I hope you will allow the chair to ask a couple of questions at this stage. I would like to make two brief observations, Ms. Brown, and I hope you will take it as intended, which is to be helpful.

When, in exchanges with Madam Kraft Sloan, you were comparing the two bills in reference to permissive or mandatory legislation, you made a reference to the term that it is a choice of terminology. It struck me as a remark that needs to emphasize the fact that a piece of legislation is a choice of terminology. It is a very important choice of terminology and not one that can be left to other considerations or factors. That's why people pay so much attention to the difference between mandatory and permissive, and this legislation is loaded with permissive choices of terminology.

The other point has to do with Mr. Laliberte's intervention on socio-economic, and he quite rightly drew our attention to clause 46 and onward. There is a very strong reference to socio-economic in paragraph 49 (e), and whenever we go down that path we go down a pretty tricky path.

I would submit to you that the moratorium on cod would not have been called due to socio-economic consideration had it not reached such a crisis two years after the report by Dr. Leslie Harris in 1990. There is a tremendous resistance by the system to move in order to comply with socio-economic considerations and the species then is increasingly at risk because of socio-economic considerations.

This of course is neither here nor there. It is just an observation. The bill is written as it is, but I get very edgy whenever in the bill reference is made to socio-economic, because usually in practice the result is that the socio-economic considerations will override ecological considerations. I think that was Mr. Laliberte's point, with which many of us around this table would concur. I say this just for the record.

• 1100

Following on the questions by Mr. Herron and Madam Kraft Sloan, could you please comment on the fact that last September the departments that appeared before this committee didn't have any objection to the COSEWIC reassess list becoming automatic? We didn't hear any objection to that. COSEWIC itself, when they appeared here as witnesses, told us they understood that the purpose of reassessing the list was that it would automatically become a legal list. So why is that view not then reflected in the bill before us?

Ms. Karen Brown: The bill contemplates that we would roll over the COSEWIC list. The real issue is the extent to the timing, Mr. Chair, of the legislation in terms of when it's ready and when the COSEWIC list is ready. We've been trying to anticipate timing issues for a while, and we'd certainly welcome any views the committee may have as we get closer to putting this legislation in place. COSEWIC continues its work; we are hopeful that at its meeting in May, in Osoyoos, we will get closer to our goal of having completed those assessments. I think we're trying to parallel these two things together, so we look forward to your suggestions.

The Chair: You are inviting amendments, is that one way of interpreting your reply? Thank you.

On aquatic species, could you tell us how aquatic species in the territories would be protected from killing and destruction by residents?

Ms. Karen Brown: It would be under the Fisheries Act, unless it's otherwise specified as a devolution into... Most of the territorial wildlife legislation does not deal with fish, except in the case where there's a specific agreement and there is an inland fisheries agreement with the federal government and the Yukon Territory.

In addition to that, the wildlife management boards have very important responsibilities, as I'm sure the committee is aware, with respect to—

The Chair: Since we are dealing with endangered species, why would you not reinforce that measure by including a reference in this bill as well?

Ms. Karen Brown: We've attempted to make sure that the authorities, at the front end of this legislation, are complementary to the Fisheries Act with respect to the definitions and the application. The Fisheries Act is in fact one of the key tools that the Minister of Fisheries, who is the competent minister in this bill, also has. The same is true for the National Parks Act, and some of the other legal tools that each of the competent ministers has in terms of ensuring that all of the aspects contemplated are put into place.

The Chair: I may come back to this at a future occasion.

Finally, on cross-border species, how would they be protected from killing or destruction by residents? Is that being contemplated in clause 32 and onwards?

Ms. Karen Brown: The safety net provisions treat all species equally, whether they're cross-border or not. So they are afforded the same level of protection as all the species in the safety net provision.

The Chair: And are you referring to clauses 32 and 61?

Ms. Karen Brown: Yes, and the others.

The Chair: Is the protection of cross-border species, in your view, a federal jurisdiction?

Ms. Karen Brown: I don't have a personal view on that, Mr. Chairman.

The Chair: I'm not asking for your view, I'm asking for a legal answer. Is it or is it not?

Ms. Karen Brown: I'll ask David Wear to give a legal answer.

Mr. David Wear: It really depends on what you define as a cross-border species, I suppose. If the question is—

The Chair: It is very simple, Mr. Wear: it is a species that crosses borders.

Mr. David Wear: So if the question is whether something that moves back and forth across a border as part of its range is automatically within federal jurisdiction, the position of our department has been no.

The Chair: That it is not.

Mr. David Wear: Simply by virtue of the fact that it may move back and forth across an international border.

The Chair: It is not.

Mr. David Wear: It is not.

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The Chair: So what is required for a species to be described as a cross-border species? How many times does a species have to cross?

Mr. David Wear: The legislation does not make that distinction, because all species are protected by the same level of prohibitions that are outlined in the statute.

The Chair: But there is a special federal responsibility for anything that is cross-border—for instance, in transport and the management of the airwaves. What constitutes cross-border?

Mr. David Wear: Most of those federal areas of responsibility are premised on the trade and commerce power and not by virtue of the fact that something moves back and forth.

The Chair: On what basis is the migratory act rooted, then, if it isn't by the very fact that they are cross-border?

Mr. David Wear: Federal jurisdiction is premised on the existence of the Migratory Birds Convention, which is a treaty entered into between the United States and Canada. It's considered an empire treaty. As such, that's the grounding for federal jurisdiction.

If the question is what was the policy behind entering into the treaty in the first place, clearly it was to protect a species that crosses a number of borders. But in terms of the straight legal answer, the basis of federal jurisdiction is the Migratory Birds Convention.

The Chair: We'll have to come back to that.

We'll go to the second round. First is Mr. Forseth, followed by Mr. Comartin, Mr. Herron, Mr. Reed, and others. Mr. Forseth.

Mr. Paul Forseth: Thank you very much, Mr. Chairman.

I would like to talk for a little while about the issue of science versus politics. On page 15 of the bill, subclause 27(1) is pretty critical. It says:

The Governor in Council may, on the recommendation of the Minister, by regulation, establish the List of Wildlife Species at Risk and amend the List by adding a wildlife species to the List, by reclassifying a listed wildlife species or by removing a listed wildlife species from the List.

That whole action is a governmental or political action. Certainly many environmental groups have been criticizing this point as to who decides on the trigger in order for the act to come into force concerning a species—scientists or politicians. I want you to address your remarks to how the perverse, you might say, has been avoided where political financial interests may dominate science that says there is a danger. How has the straightforward working of the bill and the intent of the bill been protected from the short-term political considerations to act or not to act? I'm sure you've heard a lot of the discussions and criticism around this whole point of science versus politics. Can you answer the criticisms you've heard related to this controversy?

Ms. Karen Brown: You're quite accurate in identifying it as a controversy. There are very strongly held views on both sides of the equation. There are certain views that would see that the scientists should be determining the legal list.

We make a very big distinction between the scientific assessment and the determination and establishment of the endangered species list by COSEWIC, the identification that species are in fact endangered or in a certain category, versus those species that would then be listed under the legislation and would be afforded the legal protections this bill would put in place. Those decisions could in fact have fairly major considerations to take into account, socio-economic among others, and the very strongly held view is that it is up to parliamentarians and elected officials to make decisions as to those protections.

We have made every effort to ensure that the COSEWIC listing and the COSEWIC assessment process is open and transparent in order to avoid some of the issues you've identified and to ensure that process is scientifically founded and is not subject to some of the political pressure that may happen otherwise. We're certainly very much of a view that the scientists will continue to do that good work. The bill provides that the minister, in formulating his own list, must take account of the COSEWIC assessments. So we've tried to balance both sides of that debate. We understand it's a very important consideration.

• 1110

Mr. Paul Forseth: I recall that not too long ago, within this building, a press conference was given by certain environmental groups denouncing the whole legislation based on this issue of science versus politics. Can you more clearly say how those criticisms are wrong from those NGOs?

Ms. Karen Brown: I'm not suggesting there are wrongs or rights. I think there are just very different points of view.

The species assessment process, or the COSEWIC assessment process, is absolutely fundamental to the well-functioning of this bill. It's the engine that drives the entire process. It has to be extraordinarily excellent in its science. It has to be extraordinarily open, transparent, and available to everyone, to all citizens and all interests out there, stakeholders and landowners. It's absolutely fundamental to our success in the long term in terms of the protection of species.

The approach that you see embedded in this legislation is very much that the scientists have an important role to play, and we will assist them in doing that role. The scientists provide advice, and ministers, parliamentarians, and elected officials decide. That's the basis for this particular approach.

There are lots of different views with respect to whether or not COSEWIC should be given the legal listing chore or not. What you see here is our view that the scientists would advise, and ministers and parliamentarians would make decisions as to which things get protection under the law.

Mr. Paul Forseth: Thank you.

The Chair: Thank you, Mr. Forseth.

Mr. Comartin, one question.

Mr. Joe Comartin: Can I enompass three?

Ms. Brown, in terms of the COSEWIC list, can you tell me how many species have been added to that list since 1993? If you can't give it to me today, can you give it to me later?

Ms. Karen Brown: Yes, we can certainly give it to you.

Mr. Joe Comartin: I wasn't sure from some of your earlier comments, but I thought you were leaving open the idea that the COSEWIC list may in fact be adopted into the regulations?

Ms. Karen Brown: It was always contemplated that the COSEWIC list would be a regulation in the act and would name the species the act applied to.

As you know, the COSEWIC process goes on annually. In fact, they've been meeting more than once a year for the last several years in order to attempt to do all the re-evaluations. The way the structure is contemplated, in order to be able to add species in a fairly efficient matter in the future years—or take them off, in fact, because we do move species between categories and we do have some recovery success—a regulatory tool is the better tool to use. The issues we've been talking about this morning are the extent to which that COSEWIC list will be ready, if you like, for when species-at-risk legislation would in fact come into force, and the so-called rollover of that list.

Mr. Joe Comartin: So we're still at risk of having a period of time when we don't have a list after the legislation's passed.

Ms. Karen Brown: We're making every effort to make sure that does not happen.

Mr. Joe Comartin: But the answer is yes, we're still at risk.

Ms. Karen Brown: The proclamation of the legislation I think is... We would not be able to proclaim until a list was ready.

Mr. Joe Comartin: So we still are at risk.

Ms. Karen Brown: We have the ability to time these things such that we can make sure the list, the rollover, and everything else are all ready for proclamation. At the moment, though, there is no legal requirement to do anything with the COSEWIC list.

Mr. Joe Comartin: We're well aware of that.

The Chair: Mr. Herron, for possibly one question.

Mr. John Herron: I'm going to go down the justice and legal road here, but I want to just briefly make a commentary beforehand. It's not a question just on where Ms. Carroll was coming from.

You know, 1996 wasn't that long ago. The endangered species task force had a broad section beyond the SARWG. We had oil and gas, we had fisheries, we had agricultural individuals who actually had a stake in this. All have said that on the contentious point of federal jurisdiction and listing, they were amenable to setting the bar higher than where we are with this particular piece of legislation. I'm going to leave that aside.

• 1115

The justice issue is a bit troublesome from the standpoint of migratory birds. We had the Canadian Bar Association and Justice La Forest say in very clear language that the Migratory Birds Convention Act is within federal jurisdiction. We also have the Cheviot Mine decision, which clearly determined the Migratory Birds Convention Act currently covers habitat. You said the Department of Justice has a difference of opinion with La Forest and the Canadian Bar Association. I'd like to have some actual detail provided to this committee on that specific issue.

The other aspect I'd like to touch on, which is also a justice issue, is something Mr. Knutson referred to when he was questioning Ms. Brown last time around. A very obscure comment was made by the Minister of the Environment when he talked about having a form of hierarchy in the protection of critical habitat, meaning that mandatory protection of critical habitat on federal land would be subject to a constitutional challenge in some form. We know that under a Canadian statute, the Canadian Environmental Protection Act, we already have a hierarchy about mandatory initiatives that are within federal jurisdiction. So we already have the hierarchy in existence.

Ms. Brown said she would provide to the committee the case law about why the hierarchical comment was made to Mr. Knutson. So I would request that again. Also, I'd like to receive more details with regard to why the Department of Justice disagrees with Justice La Forest and the Canadian Bar Association. I still think a third-party arbiter on this point might be necessary because it might get challenged down the road anyway.

Mr. David Wear: My first comment is I'm not aware of the Canadian Bar Association's view with regard to migratory birds, but it has often been consistent with that particular type of view.

In terms of if you have ten lawyers in a room and whether or not you'll get the same opinion on any given issue, it's just a matter of a difference of opinion on that particular aspect.

In terms of providing specific legal opinions we've generated for Environment Canada, I'm certainly not in a position to undertake to provide those at this point.

Mr. John Herron: What about the case law on the CEPA hierarchy issue that blew up last time? Maybe Gar will have a chance to pick up on that. Do you know what I'm referring to?

Mr. David Wear: No.

Mr. John Herron: The minister stated in his presentation that it be put in hierarchy protection, I think he called it. That would make the bill more challengeable under constitutional law. I wonder if you could flesh out that reasoning and take me through the case law that would support that view. He went on to say “I'm not an expert, but the most recent case that I recall is the Hydro-Québec case”.

In your defence, you clearly said you're not a lawyer. “I honestly don't know the case law, but we can certainly get back to you on that aspect of it”. We'd like to know the case law about why you can't have a hierarchical system where you would have mandatory prohibitions for those under federal jurisdiction and not for others. The minister said that clearly in committee. Yet we know that in other federal statutes, such as CEPA, we already have that in place. You made a commitment to bring that forward to the committee. I don't think the committee has seen that. If you could follow through with the commitment that was made last fall on this, I'm sure the committee would appreciate it.

Ms. Karen Brown: We will endeavour to answer any questions the committee may have, and we'll get back to you on the extent to which there is case law, so to speak.

• 1120

I think the minister was expressing a concern that in fact he feels, or he certainly holds. He would be worried that we may be subject to constitutional challenge some time down the road. I don't think he would be able to quote any particular Supreme Court decision as to whether or not we have consistent provisions in play across the various jurisdictions.

I understand the point that there is additional jurisdiction on federal lands and in federal areas.

The Chair: Thank you.

Mr. Reed, Madam Carroll, Madam Kraft Sloan, Mr. Knutson, and the chair.

Mr. Julian Reed: Thank you, Mr. Chairman.

This may be an unfair question and totally unanswerable, but I hope it's worth asking and putting on the table.

COSEWIC last year told us they did not, or could not, differentiate between the natural cycling of species and detrimental human activity. The species-at-risk list, or that endangered species list, did not differentiate between the two.

The question that arises is are we in danger of at least sometimes interfering with a natural process, and are we, or are we not, as human beings, part of nature?

Ms. Karen Brown: I'm going to ask David Brackett to answer that.

Mr. David Brackett (Director General, Canadian Wildlife Service, Environment Canada): Thank you.

With respect to COSEWIC comments, I must say it puzzles me to some extent. Depending on the timeframe over which they are considering the question, it should be entirely possible to segregate out natural cyclical fluctuations from fluctuations caused by threats such as ecosystem change, whether it's human-induced or not.

On the question of whether we're in danger of interfering with natural processes, most of the bill is responding to the fact that we do interfere with natural processes right now. It's to mitigate that interference, if you will, when those threats have driven a species to being closer to extinction. That's why we get engaged with SARA. It may be that for certain very long-lived species, or in cases where a fluctuation is very rapid, COSEWIC may not be able to make that determination in the earliest instance, but over the longer term I'm confident they would.

Mr. Julian Reed: Thank you.

Thank you, Mr. Chair.

The Chair: Madam Kraft Sloan, please.

Mrs. Karen Kraft Sloan: Actually, I'd like to defer to Mr. Knutson first, because Mr. Knutson hasn't had a chance to ask a question.

The Chair: Mr. Knutson.

Mr. Gar Knutson (Elgin—Middlesex—London, Lib.): Thank you very much, Madam Sloan.

I can't presume what's going to happen, but it may well be that this committee has a debate over a proposed amendment to put in mandatory language about protecting habitat within federal jurisdiction. We may have that debate somewhere down the road.

It would be good if we could get advice on what is federal jurisdiction. We get some from the Canadian Bar Association and some from the NGOs. They sponsored the La Forest decision. Then when we go to the justice department, we get into this difficult world where they say their client is Environment Canada and advice to them is confidential.

I'm sitting here as a parliamentarian, not simply a citizen, but somebody who's trying to help the process in terms of passing better laws. I'm wondering if the justice department comes and says their advice to Environment Canada is confidential, whether Environment Canada can waive the confidentiality. I'm not expecting an answer today. I'm just asking you to think about that.

• 1125

That issue aside, I'm wondering if you are able to point out whether it's a chapter in a constitutional law book or cases that say this restricts the federal government jurisdiction in terms of environmental protection—these are the parameters. Because I would be the last person to want to put forward an amendment, debate, and vote for an amendment that was going to cause the bill to be struck down by the Supreme Court.

I'd just make that by way of comment. I guess Madam Brown is nodding, so I'm assuming that means you'll consider that.

On the issue of migratory birds, was it the jurisdiction that came first or the treaty, or did they both exist?

Mr. David Brackett: Perhaps I could answer that, as the director general of the Canadian Wildlife Service.

The jurisdiction for migratory birds was exercised by the provinces in advance of the 1916 treaty. Its status as an empire treaty provided for federal implementation of the treaty.

Mr. Gar Knutson: So that means that England decided it would be federal jurisdiction?

Mr. David Brackett: The treaty was negotiated between the United States of America and Great Britain, on behalf of Canada, and reflects that in its language.

The Canadian Wildlife Service traces its roots to the beginning of implementation of that treaty in 1917, after the treaty was signed.

Mr. Gar Knutson: So, in effect, are you saying that Great Britain gave the federal government new authority, then, that it didn't have before?

Mr. David Brackett: No, the negotiation of the treaty with the United States provided the authority.

Mr. Gar Knutson: Yes, I think we mean the same thing, then.

So the argument that when we go and sign biodiversity agreements internationally, therefore the federal government has to have authority to actualize those agreements that we sign—how does that play as a constitutional argument?

Mr. David Brackett: Again, I am not a lawyer, I am a wildlife biologist, but there is a break point in the mid-1930s. And I'll defer to David Wear with respect to the constitutional development of Canada.

Mr. David Wear: Basically, to answer your question with respect to treaties, the Migratory Birds Convention is a different type of treaty than the biodiversity treaty, if you like. And in fact the empire treaty conveys constitutional authority to the federal government in a fashion that the other treaties do not.

I think your question gets back to the fact that, with respect to modern treaties, in the non-aboriginal sense, the federal government requires independent jurisdiction of its own before it can seek to implement provisions to an international treaty. In other words, there's that recognition of provincial and federal jurisdiction, whereas an empire treaty, as you rightly pointed out, conveys, in a very special case, jurisdiction to the federal government.

Mr. Gar Knutson: Right.

I have one last comment. Could you also tell me—and you don't have to do it now—the whole impact on the Hydro-Québec case, where the court used the criminal law heading as a hook for federal jurisdiction? I haven't read it recently, but my understanding is that the court said environmental protection is such a serious issue these days that it's akin to a crime. And that seems to open up a fairly wide door for us.

Mr. David Wear: Do you wish me to respond? I'll give a brief response.

Hydro-Québec is certainly a very important case, and we have used the criminal law power in this legislation to provide the hook, if you like, with respect to the invocation of general prohibitions for all species in Canada. So if your question is were the Hydro-Québec case and the use of the criminal law power influential in the premise of SARA, the answer is yes.

Mr. Gar Knutson: No, my original question—not to be determined today—is if we pass an amendment and Parliament passes the amendment mandating the minister to pass regulation protecting habitat within federal jurisdiction, what are the consequences? And, as I said, I don't think we have time to answer that today.

• 1130

The Chair: Ms. Carroll.

Ms. Aileen Carroll: If I can, I think you're wise in saying it doesn't have to be answered today, but it does need to be answered at a point as we move along. Looking at the transcript of Mr. Knutson's questions and the responses from Mr. Wear, I thought perhaps the clerk might send a copy of that to Professor Rounthwaite, who will be working with us at a later date but whose wisdom we might benefit from at this point, insofar as he has a strong constitutional background with particular relevance to endangered species. It might be helpful.

Thank you.

The Chair: Yes, thank you. It will be done.

Madam Kraft Sloan and then the chair, and then we adjourn.

Mrs. Karen Kraft Sloan: Thanks.

Mr. Laliberte asked some questions with regard to clause 56, and his concern was that it looked as if that socio-economic impact would be used as a criterion to evaluate the implementation of action plans, etc. And Madam Wherry had said that actually the action plans are built on an ecological basis.

I guess the question I would have, as a point of clarification, is that this section refers to monitoring and reporting on the implementation of the action plan. So there are two things happening here: the minister has to monitor and report on the action plan itself and assess its implementation, and then the minister has to look at the socio-economic impact. So while the action plan itself is based on ecological considerations or contains ecological elements, does the monitoring itself have an ecological basis?

Ms. Karen Brown: Yes. The short answer is that clause 49 identifies the areas that the action plan must include. The intent of this section is to indicate that the minister must monitor the implementation of an action plan, and the action plan, if you look at paragraph 49(1)(e), has to include an evaluation of the socio-economic costs of the action. So it was simply to clarify that we're actually going to report on both. It was just a clarification.

Mrs. Karen Kraft Sloan: Okay.

I understand that the action plan has ecological components and that you have to address those concerns. But I guess the monitoring itself is still going to talk to those objectives and those particular ends.

Ms. Karen Brown: The monitoring that...

Mrs. Karen Kraft Sloan: The evaluation of socio-economic costs within the action plan itself.

Ms. Karen Brown: That's right.

Mrs. Karen Kraft Sloan: Is that in addition to what's laid out in clause 56? Or is that the thing clause 56 refers to?

Ms. Karen Brown: It's what clause 56 refers to.

Mrs. Karen Kraft Sloan: Okay. So it's not in addition to?

Ms. Karen Brown: No.

Mrs. Karen Kraft Sloan: Okay.

So I guess I would wonder why you would—because its language is important—have ecological and socio-economic elements in clause 49, which sort of lays out the things that are included in the action plan, but in clause 56 it's only the socio-economic impact that's reinforced. While it's the intent of the department to have an ecological filter on the monitoring and reporting, it seems to me there's an overemphasis on the socio-economic impact, unless I'm...

Ms. Ruth Wherry: The whole intent of the change in clause 56, to begin with the monitoring on the implementation, is in terms of reaching the objectives that are set out in the recovery strategies and action plans. Are we really doing what we need to do for the species?

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And at the same time adding in the section requiring a report on the socio-economic, an assessment of the socio-economic, after five years, was mainly to address a tremendous concern out there that the recovery strategy stage include socio-economic considerations. And you will hear from many of the coming witnesses that this should be included in the recovery strategy stage. The whole intent of the recovery strategy stage is to build it on a scientific biological baseline and not to work into the socio-economic at that stage.

So when you're reporting on how did we go about achieving those objectives five years down the road, it will also include an assessment of the socio-economic impacts. It doesn't change what you did in the previous five years.

Mrs. Karen Kraft Sloan: I understand that, but in clause 49 it says that an action plan must include the ecological-biological considerations, but also an evaluation of the socio-economic cost of the action plan and the benefits, etc. So this is an element that must be included. Socio-economic must be included in the action plan.

Clause 56 then says “The competent minister must monitor the implementation of the action plan”, etc., and then it goes on to state “and its socio-economic impact”. So if this identification in clause 56 of a socio-economic impact is not an addition to what's already in the action plan, then I don't think you'd be adverse to having us include something around the ecological-biological impact as well. Because while you may be doing this to reassure certain interests out there, there are other interests who have to be reassured as well.

I think in the work you've been trying to do, you've been working to the end of getting us a good endangered species bill, and sometimes there's a lot of work that goes on in reassuring certain interests. However, there are other interests who I feel sometimes are not as reassured. I think it was reflected in a recent press release that said lobbyists and industry had some comment on the bill. It was interesting that industry was not a lobbyist but environmentalists and scientists are a lobby group.

It just shows you how swayed some of this discussion can be, and language, as we've already noticed, is extremely important. So if this is not an additional requirement in clause 56, then I would suggest the department can consider a possible amendment where we talk about ecological and biological impacts of it as well.

Do I have two more seconds for another clarification?

The Chair: Yes.

Mrs. Karen Kraft Sloan: Madame Brown, when you were talking earlier about the COSEWIC list and how it's being reassessed, you mentioned that there were species on there that had been listed 25 years ago and you said that perhaps the process of listing was not as transparent as one would like, as is outlined in this particular bill. You said you were in the process of fixing up the list. We've also been receiving different kinds of indications that it may be possible to start a rollover of the list once it's cleaned up.

I would ask, on a point of clarification, whether the reassessment process, the review process, is going to take those species that are 25 years old off the list if they're not deemed to be on the list. Is it going to be a COSEWIC science decision or another kind of decision that's going to be made about some of those things that have to be cleaned up on the list? Or is that part of the reassessment process?

Ms. Karen Brown: I think the short answer is it's both. Clearly we need to have an understanding of what the status of the species is at this stage, and this is a process that's been going on. In some cases COSEWIC has, from its own scientific determination, moved a species from one category to another, down-listed or up-listed them depending on the circumstances and the additional information. That's on the one hand. The process would see that list as advice being forwarded to the Minister of the Environment, and that stage would be be incorporated, in some fashion, within the legislation through the process that's contemplated. So both have to happen.

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Mrs. Karen Kraft Sloan: If COSEWIC is not making the decision, and the decision is not a science-based decision, then who else is involved in this decision-making process and how is this going to happen?

Ms. Karen Brown: COSEWIC is making the scientific determinations, let's be very clear. However, they are in the process of getting additional information in some cases. In other cases, they have identified a number of species—seven of them at the moment—that have been referred by the traditional aboriginal knowledge-holders so that we can be absolutely sure we have all the information we need. In other cases, the reassessments are going to take longer because they actually have to go out and do more field work. It isn't just a matter of getting the science down.

So all of that practice is under way. The other part of the re-evaluation that's taken place over the last several years is updated IUCN criteria. We're making very sure that we're up to date with world standards, and this has been an important part of the process. But COSEWIC itself is making the final determinations as to the status of the species.

Mrs. Karen Kraft Sloan: So for those species you mentioned earlier, the ones that were listed 25 years ago and perhaps shouldn't be listed any more or need a change in category, those decisions will be made by COSEWIC.

Ms. Karen Brown: By COSEWIC. That's right.

Mrs. Karen Kraft Sloan: There will be no other process or no other decision-makers involved.

Ms. Karen Brown: No. The whole, entire review is being done by COSEWIC.

Mrs. Karen Kraft Sloan: All right. Thank you.

The Chair: All right. Let's come to a conclusion now.

Ms. Brown, perhaps by way of a comment rather than a question—not to put you on the spot—this morning you very openly indicated some favourable disposition to possible amendments. That is certainly encouraging.

This committee is likely to spend a considerable amount of time on amendments, and therefore the work of this committee would be made easier and less lengthy if the signal about amendments were to come forward sooner rather than later so that it is not left to the last moment. As you can see, the committee is very keen on strengthening the bill in terms of its particular mandate, which is environment and sustainable development, which we take rather seriously. Therefore any advance notice you can provide, or that future witnesses from the department can provide when they will appear before the committee, will be very helpful. I hope this is a reasonable suggestion.

We thank you very much. It was a very informative and substantive meeting. Again, I apologize for the delay in starting. Otherwise we would have finished probably half an hour ago. We look forward to the Department of Justice enlightenment.

Unlike Mr. Knutson, I don't worry very much about the Supreme Court striking down a piece of legislation that would come from this committee. I would worry more about the advice of the Department of Justice, quite frankly, which would perhaps inhibit this committee from making certain amendments that would strengthen the bill and that may not be struck down by the Supreme Court. This is, of course, an area of judgment that will be left, I suppose, to all of us collectively, but I want you to know that your advice is advice that we will scrutinize very closely and not accept very easily if it runs counter to the mandate of this committee.

Having said that, I thank you very much on behalf of my colleagues, and we will see you again, I'm sure.

This meeting is adjourned.