ENVI Committee Meeting

STANDING COMMITTEE ON ENVIRONMENT AND SUSTAINABLE DEVELOPMENT

COMITÉ PERMANENT DE L'ENVIRONNEMENT ET DU DÉVELOPPEMENT DURABLE

EVIDENCE

[Recorded by Electronic Apparatus]

Tuesday, March 27, 2001

• 0907

[Translation]

The Chair (Mr. Charles Caccia (Davenport, Lib.)): Good morning, everyone. Let's start. We have on the agenda, as you know, Bill C-5, an Act respecting the protection of wildlife species at risk in Canada.

[English]

We have three witnesses, whom we welcome cordially, of course. Before we launch the hearing, I have one announcement. It has to do with an invitation extended to this committee by the German Bundestag in conformity with a special program their parliament has. The invitation came through the German embassy in Ottawa to our clerk yesterday, on the theme of environment biotechnology. The Bundestag is inviting seven Canadian parliamentarians to Germany in October, during the week when our House is not sitting.

I'm indicating this to you in case some of you might be interested in going. It would mean that one member of the opposition parties would definitely be able to join the delegation, and that makes four. The balance would be members of the governing party, a proportion that seems to reflect reasonably well the composition of the House, also taking into account the fact that when a minister travels, he or she takes along an opposition member, but not a government member. So this is another consideration.

• 0910

However, we don't need to discuss this matter today. It is only a notice, and we can discuss it in a few weeks, so as to be able to give the Embassy of Germany a reply. I would welcome your indication of interest when the meeting is over today or on another occasion.

As we go now to the business before us, it is interesting to note that a few issues emerged at our last meeting that may be with us for the duration of our hearing or may be resolved. Certainly you must have noted, as I did, the observation by the lawyer from the Department of Justice, Mr. Wear, who said that the Department of Justice does not share a certain view when it comes to the recognition of the position taken by the retired Supreme Court justice on the Migratory Birds Convention itself. I think that item perhaps requires further examination as we proceed.

The Department of Justice official made a reference to the empire treaty, which came as a surprise to many of us at least, a treaty which, in his opinion, conveys a very special case and a very special jurisdiction of the federal government, in contrast with treaties that are not of an imperial nature, so to say.

In addition to this, there was the issue of safety net and cross-border species, as raised by Madame Kraft Sloan, and what emerged there from the answers given by the witness from Environment Canada, Karen Brown, was a considerable reluctance to apply the safety net provisions in the act when it came to the practical application of the bill. I invite members of the committee to reflect on that conclusion.

Then there is the issue of the automatic adoption of the reassessed COSEWIC list, and that is one that may bode well. We don't know how the work of COSEWIC will evolve and at what speed, but there seems to be an indication by the department that there could be an automatic adoption of the list, if and when the COSEWIC list is completed. I'm referring you to the record, indicating the replies given by Ms. Karen Brown.

Finally, the issue of the socio-economic impact in the action plans was crystallized again by Madame Kraft Sloan, who read clause 49 and clause 56. The issue, if I recall it correctly, is whether the ecological, biological impact should not be included in both clauses, so as to provide a certain counterforce to the socio-economic considerations.

I hope I've summarized accurately the thinking on the subject. The only purpose for going over these items is to raise them as we progress, because there will be a point when we want to visit the issues that have emerged during our hearings and decide what we do with them.

Are there any comments on what I've tried to painfully summarize?

• 0915

Mr. John Herron (Fundy—Royal, PC): On the justice issues, I've written to Karen Brown—and copies for the committee probably will be out later today—requesting some information with respect to the line of questioning Mr. Knutson pursued. We reviewed Bill C-33 and what I approached as well, concerning why it should be permissible for CEPA to have different rules and regulations governing federal territories and federal lands and federal jurisdictions, while this bill does not. So I've asked for clarity on that particular point.

I also asked in the letter for some information with respect to what is, from my perspective, almost the cavalier attitude the Department of Justice has taken with respect to their opinion on the applicability of migratory birds to this act, in contrast with what former chief justice of the Supreme Court La Forest and the Canadian Environmental Law Association have said. There seems to be a very large dichotomy, and I've asked for clarification on those two particular planks.

Thank you.

The Chair: And you said you plan to circulate that letter?

Mr. John Herron: Yes. It could be there when you guys get back to the office, but you'll have it by the end of the day.

The Chair: Thank you.

Any further interventions?

Well then, on behalf of the committee, let me thank and welcome the people who have appeared here this morning. Each of you has a wealth of experience and knowledge to offer to the committee, so we look forward to your presentations. Perhaps you could tell us in which order you would like to speak. If you could, please keep your comments within a ten-minute limit, so that there is plenty of time for an exchange of questions and answers.

Who will go first, so that I can introduce the person? Mr. Hummell will go first. As we all know, he is the president of the World Wildlife Fund.

You have the floor.

Mr. Monte Hummel (President, World Wildlife Fund): Thank you, Mr. Chair.

Since I'm flanked by lawyers, I thought I would try to establish my personal, practical credentials for being here. World Wildlife Fund is 40 years old, and I think this panda logo has come to symbolize an effort to conserve endangered species around the world. In that 40 years we've raised about $10 billion for thousands of projects in 140 countries. Over the 23 years that I've been president of World Wildlife Fund Canada we've raised about $150 million and have supported practical field work on species at risk in every nook and cranny of the country.

I've personally studied and tagged and relocated and radio-collared and captured and released and just plain marvelled at everything from humpback whales to polar bears, and birds and snakes and turtles, and endangered dune plants, and butterflies. So I guess I'm the guy with mud on my boots here.

I was also one of the founders of COSEWIC in 1978, when there were no species officially listed at risk in Canada—that doesn't mean there weren't any at risk, but there were none listed. For 15 years I was World Wildlife Fund's official representative on that body. So I've read literally hundreds of status reports and debated with the best scientists in the country as to how they should be classified. Since then we've added, of course, over 360 species to the list, but we've also taken 24 off.

Throughout all of this, I've had the pleasure of working with some very dedicated and underfunded men and women, who devote their lives, their days, their evenings, their weekends, to saving endangered species.

Committee members should also know that the federal Canadian Wildlife Service have been second to none in this regard. They've consistently provided leadership, expertise, and money when others have not. You should also know that the forest and mining companies have willingly and enthusiastically helped out, as have first nations, fishermen, boat captains, and private landowners. For example, Operation Burrowing Owl involved over 1,000 farmers from Manitoba, Saskatchewan, and Alberta, who voluntarily protected their pastures for this endangered species. In fact, in 1987 I stood on a hay wagon with Prince Philip in Saskatchewan, where my grandparents homesteaded, and we handed out the first dozen gate signs to the first bunch of farmers who came forward to help with this work.

• 0920

All of this has been done, notice, without a federal endangered species act. I think it's important to realize and to be realistic about what problems legislation can solve and what problems it can't.

From my experience, the habitat stewardship funds announced by Mr. Martin and the widespread concern and good will out there across the country are two very key factors that will really benefit species at risk. However, if we're going to have a federal act, we might as well have a good one. This one is not there yet.

On the positive side, World Wildlife Fund feels that the bill could apply to all species and to all lands and waters. Bill C-5 requires that recovery strategies be prepared for endangered and threatened species within a specified time after listing. It provides for voluntary conservation agreements, which we very solidly support. In addition, the minister will be required to report to Parliament on a regular basis. Mr. Anderson is to be congratulated and supported for those aspects of the act.

On the negative side, in general we believe that the bill is riddled with too many discretionary loopholes, and I will have to tell the supporters of World Wildlife Fund that this bill might—not will—save species at risk. “Might” is not good enough when we're talking about losing every example of a particular living thing forever.

Specifically, on the negative side, the federal government must lead by example, indicating it will protect the habitat of species at risk on all lands and within all areas under federal jurisdiction. We're not asking the feds to intrude into provincial or private-sector jurisdictions; we're just asking them to take care of the job in their own backyard.

The bill should clearly outline a graduated approach to habitat protection with voluntary efforts as the first step. Where necessary, however, efforts must be back-stopped by mandatory and not discretionary protection. This is what we've called the spongy stick. The safety net provisions should be mandatory, not optional, to ensure that species don't go extinct if one jurisdiction hasn't done its job. Finally, the listing of species should be a factual, scientific activity uninfluenced by politics.

I suspect you've heard all this before. I understand this is a very well-briefed committee. From the questions you've asked, I see you're all familiar with these issues, so I don't think I'm saying anything new.

That's the end of my little presentation.

We think that these improvements are things endangered species need and Canadians expect.

Thank you.

The Chair: Mr. Elgie.

Mr. Stewart Elgie (General Counsel, Sierra Legal Defence Fund): Thank you, Mr. Chairman and committee members.

We had discussed among ourselves the possibility that with the committee's indulgence I might take a little more than the ten minutes and that my colleagues would take a bit less to leave time for questions.

Thank you very much for inviting me. I am the general counsel for the Sierra Legal Defence Fund, which is not the Sierra Club. We're a non-profit environmental law organization with offices in Toronto and Vancouver. We're supported by over 22,000 members across Canada, and we have a staff of over four scientists and a dozen lawyers.

I'm sad to say this is the fifth time I've testified before this committee on the issue of federal endangered species legislation in the last eight and a half years. The first time was in December 1992, following the Biodiversity Convention in Rio, and the result was that this committee recommended the federal government take immediate steps to pass legislation to protect endangered species and their habitat in order to meet the requirements of the Biodiversity Convention.

It's very discouraging that we still have no federal law eight and a half years later. In fact, it's more than that. It's actually shameful that we don't have this in Canada. I give credit to the government and to Minister Anderson for persevering with this commitment, and I truly hope that within the next few months we will at last have an effective piece of legislation in place.

It is also discouraging that after eight years the bill before us is still lacking in some fundamental areas. It has a number of strong points to it, but it needs to be improved in several places if it's to be effective in doing its important job. I'll offer some suggestions as to how I think some of those improvements could be made and where they may be most needed. Let me just say that we strongly support this initiative and believe that with reasonable improvements this bill could make a real difference in protecting Canada's wildlife.

• 0925

The first rule of public speaking is to begin with a joke or humorous story. The committee will excuse me, I hope, if I break that rule today. I have a hard time finding humour in this situation. This is a deadly serious problem.

We are in the midst of the largest extinction epidemic since the time of the dinosaurs. Worldwide, the current extinction rate is over 10,000 times the natural rate over history. To put it another way, scientists estimate that over geological time about two to three species per year went extinct worldwide. The current rate is estimated to be more like two or three per hour worldwide.

Canada has a very serious endangered species problem of its own. Already 27 species we know of have gone extinct within Canada since we've been counting, and 337 more are known to be at risk. The list gets longer every year. It includes not only some of our best-known species, the grizzly bear, the beluga whale, and the swift fox, but many less-known, equally important species, like Furbish's lousewort and the five-line skink, which play equally important roles in their ecosystems.

The main cause, of course, is destruction of habitat, the places where these species live, feed, breathe, and raise their young. We've lost over 99% of the original tall-grass prairie, 75% of our prairies, and over 90% of the Carolinian forest that used to blanket southwestern Ontario. Along with them and other ecosystems we've lost wildlife. So if this bill does only one thing, it must protect habitat. We must fix what is broken if we want to save species.

Now, I won't spend much time with this committee talking about why we should save endangered species. I assume most of you already agree that we should, but let me just put forward a couple of the key reasons. The main one is that the extinction or endangerment of species is the best indicator that ecological health is also in trouble. Endangered species are like nature's canary in the coal mine, an early warning system that shows when fundamental ecological processes are breaking down.

When a beluga whale washes up dead on the shores of the St. Lawrence river in Quebec from too much poisoning and has to be legally disposed of as hazardous waste because it's so full of toxins, that's an indication that the Great Lakes and St. Lawrence River ecosystem is also too polluted. If it's too polluted for the wildlife that lives there, it's too polluted for our children who swim there and for the water we use for our farms. In other words, protecting endangered species is ultimately about protecting us. Endangered species play a vital role in maintaining the planet's ecological functions that support all life, including our own.

Now, there are many other reasons I could list off. For example, 40% of our medicines come from wildlife. Wildlife is a critical part of our national identity. If you look at our flags, artwork, currency, and travel brochures, what do you see? You see species, and you see nature. Protecting endangered species is something that unites us all as Canadians, and that's important in these times.

It's important even in terms of economics. Canadians spend over $9 billion a year in wildlife-related activities, generating over $4 billion in taxes and over 200,000 jobs dependent on non-consumptive uses of wildlife.

Perhaps as important as anything is our global duty. Canada was the first western nation to sign the Biodiversity Convention at Rio, yet we're one of the last western nations to comply with one of its most important obligations, namely, to pass threatened species legislation. I don't see how we can expect other nations that are less fortunate than us—nations that don't enjoy our level of wealth or education and where mothers worry about providing food for their children and having a roof over their heads—to protect biodiversity if Canada, the nation with the highest quality of life on earth, can't muster the courage to effectively protect our own endangered wildlife. We must be a world leader in biodiversity protection.

There are other reasons—for example, public support. I won't go through it, but I've attached to the package of materials I've left a recent poll by a reputable company called Pollara. It's at tab 12 if anyone wants to look at it later on. They found that—and there have been four other polls with consistent findings—94% of Canadians support a federal endangered species law and that there is no gap between urban and rural support. That's a very important point. It has been demonstrated consistently in polls that there is really no gap from region to region across the country and that the support for a federal law is strong from coast to coast. In fact, almost half of Canadians say this is more important than the recent federal tax cuts, and I think that shows the depth of concern.

• 0930

Interestingly, almost 90% of rural landowners across Canada say that they would support endangered species protection even if it restricts the use of their own land to some degree, or restricts logging or mining. So there's a wealth of concern and altruism out there among all Canadians, particularly landowners.

There's also an unusual degree of support from major industry. This committee has already heard from the species at risk working group, which includes representatives of the mining and timber industries. That built on the work of the endangered species task force appointed by the federal Minister of Environment in 1995, which included representatives from six major resource industries, including agriculture, oil and gas, fisheries, and others. That report, or a summary of it, is at tab 10 of what I've given you. Again, that shows that the bill that we have before us today is still not as strong in some key areas as what was agreed to by those major resource industries.

So there is an almost unprecedented level of support among the public and other sectors for this bill and for improvements to this bill.

Now, what's the solution? That's a bit of the why. I agree very much with Monte Hummel that protecting endangered species requires both a carrot and a stick. We need incentives and funding to support folks who want to do the right thing and save wildlife. That's the carrot. But unfortunately, these must be backed by the certainty—and I say certainty—that legal protection will apply where cooperative measures do not work.

It's a lot like highways. You need to have safe driving programs to encourage good driving, but you also need speed limits. Just to emphasize this point—if anyone's interested—at tab 11 of my package there is a survey that's done routinely by KPMG where they ask corporate leaders from across Canada what factors motivate them to improve their environmental performance. Consistently, you get answers like the one on this survey, and that is, the number one reason—far and wide—for improvements is compliance to regulations. That reason was cited by 98% of natural resource industries.

If you look down the list, everything else pales by comparison. If you look at the bottom, voluntary government programs is at 16%. Now, that isn't to say they aren't important. They're very important. But particularly when we're dealing with corporations, we have to recognize that having meaningful laws is the single most important motivator—they themselves say—for improving their performance.

And while private lands are very important, public lands make up almost 90% of Canada, and 70% of our endangered species primarily rely on public lands and waters. So improving corporate behaviour is an important part. We need carrots, but we also need an effective stick.

Let me turn now to some of the specifics. What I thought I would do to start off, since this is early in the hearings, is just to begin quickly with an overview of the bill. If members wish to turn to tab 1, I've included a very short and somewhat simplified schematic chart of this bill and how it will work. I don't propose to go through every word, but it's a useful point of reference to slot in some of the specific changes, and most importantly to recognize how the parts of the act work together.

The first part, of course, is listing, to see what determines when a species is at risk. I would note that the present bill, unlike the 1996 one, begins with no listed species.

Cabinet then decides which species to list. As you see, if it doesn't list it, the species gets no protection at all. There's no ban on killing, no recovery plan, not even these non-controversial methods.

On the left-hand side you see the species that are considered within conventional federal jurisdiction. Those include species on federal lands, aquatic migratory birds, and cross-border species. Again, I would add just as a note that this bill, unlike the 1996 one, does not give federal protection to cross-border species.

Once a species is listed within federal jurisdiction, there's an immediate prohibition on killing or destruction of its residence. Then the next step involves preparation of recovery plans, as well as negotiating conservation agreements with private landowners.

This is a very important part of the bill. One of the things that's allowed for consensus with industry groups is the idea that there will be this opportunity—this is the carrot part—to negotiate cooperative arrangements before legal habitat protection is brought in. We all hope that this part of the bill will do most of the work.

I would add, though, that one of the things that is a weakness in this bill is that there is no interim habitat conservation power while these are being negotiated, which could be two or three years or more. I'll come back to that.

• 0935

Finally, at the bottom line is the most important part of all, habitat protection, as well as the most important weakness of all—that is, it simply says that habitat may be protected even where there's no cooperative agreement in place. Even where the carrot hasn't worked, habitat protection is still discretionary.

There's widespread agreement that this is the most critical area for improvement. Indeed, the last Bill C-65 said “shall” there, not “may”—the 1996 bill.

The other problem I point out was flagged by the chair earlier, and that is you'll notice under migratory birds that habitat protection is not available as a matter of federal jurisdiction—or isn't considered federal—only if the safety net is kicked in. So migratory birds are treated as something not within federal jurisdiction for habitat purposes.

Of course, the remaining species—about 60% of species do not fall within the bill's definition of federal jurisdiction—are dealt with under the safety net. This includes most of the species in Canada. The safety net is fairly simple. If the minister finds the province is not protecting species or its habitat, following a period of lengthy negotiation he shall recommend protection. But then, taking those steps is left to cabinet's discretion. It says “may”.

That's a very brief overview of the bill. I won't go through it, but I've attached at tab 9—if anyone's interested—a summary chart summarizing some of the key differences between this bill and Bill C-65. I would add that there are a number of them. The one improvement I should note is the addition of the safety net. Although the safety net could use some tightening up, it is a step forward from 1996. But in a number of other areas—habitat protection, listing—the bill is not yet up to the level of the final version of Bill C-65.

I would add that this committee fixed a number of these same flaws in 1997 when Bill C-65 came before it, and did so in most cases with all parties' support, and in many cases through government amendments. I would add that most of those changes were sustained at report stage. There were some changes made, but most of the important changes were sustained, although the bill did not pass as the election was called.

I sincerely hope this committee will see fit to improve this bill again, as it did in 1997. Just to summarize the key points, in my view, to improve this bill only four things are needed: to restore the parts that have been weakened since Bill C-65—I'll go through a few of those; to add migratory birds habitat; to ensure the listing process is a scientific one; and to tighten up the safety net. With changes in those four ways together with the stewardship fund, this bill would make a real difference.

Now what I thought I might do is just go through a couple of the points. The main one is habitat protection, because it's really the most important of all.

I won't read from it, but I'll refer quickly to my brief, which is at tab 2 of this package. The first issue is whether habitat protection is mandatory or discretionary. This bill makes it discretionary even within federal jurisdiction. In Bill C-65 it was mandatory. At tab 4 you will see that I've excerpted the actual language—so the committee can see it—from four of Canada's six provincial endangered species laws, as well as from Bill C-65. The committee will note that the wording of this bill is that cabinet “may make regulations to protect habitat”. Bill C-65 said “shall”.

But there's another even simpler way to do it, which is what these four provinces do, and that is for the bill itself to simply say that habitat is protected. There's no need for intervening discretion of any kind. It just says you cannot destroy the habitat of endangered species.

On the next page you will see that this is generally the same formula followed in both the U.S. and the Mexican endangered species acts. I won't go into it in detail. I would add that the Mexican act is a translation, so it may not be precisly word for word.

This is the most important issue, and there's ample precedent for how to make endangered species habitat protection mandatory. The current bill gives mandatory protection to a nest, or to a den, but not to habitat. That's the human equivalent of protecting a person's bedroom, but not protecting the rest of his house or neighbourhood.

I would add that the clerk's been good enough to give me this to use as a slide projector, so I can give you a quick example to make it a bit more real, because we're sitting in a building a long way from some of these species.

• 0940

I have one quick story. The marbled murrelet is a seabird that nests on the west coast of Canada, but this is an example of one out in the waters. It's a threatened species, nesting only high up in coastal forests on the west coast of British Columbia, Oregon, and Washington. Not a single nest had ever been found in Canada, despite years of looking, until 1990.

A team of researchers from the University of Victoria spent the summer shinnying up the tall trees you saw in the previous slide. You'll see a rope, and this is a climber going up. These birds only fly from their nests at dawn.

You have to peer up into this silhouette, hope you can see the silhouette of the bird flying, climb 200 feet up that tree and peer out at a mossy limb in the first light of dawn, hoping you guessed well and picked the right tree. That's why they hadn't found one.

The next slide is a shot of the first marbled murrelet nest ever found anywhere in Canada. Once you get up there, you can see how hard it is even to see where the nest is. If you look right in the middle of the picture, just by a limb on the moss, you'll see a white ring, just to the edge of that cedar bough. Right there, just a teacup-sized depression, is the first nest ever found anywhere in Canada.

The good news is they found a number of other nests in that same valley, including one where they actually saw a chick in the nest. The sad news is they also saw dozens of more murrelets circling in the treetops of other trees, but hadn't yet found the nests.

What the logging company did was to protect the actual nesting trees and a few around them, but they continued to cut the forest areas where the murrelets were seen circling, because they didn't have an actual nest yet. This would have been dozens of marbled murrelet nests. This is not an isolated example, unfortunately.

On the second-last page of my package, you'll see a front page of The New York Times from 1998. It has a picture of the sole marbled murrelet nesting tree left on the west coast of British Columbia in 1998. You'll see a plaque on it saying “Do not disturb—wildlife nesting tree”. But they've cut every single tree around it. I would add, when a reporter went back the next year, the tree of course had blown down in a windstorm.

This is the difference between protecting residence and protecting habitat. This is why I urge you to make habitat protection a requirement, and not just residence protection.

It's important also that we protect all areas of federal jurisdiction. This bill protects habitat on federal lands, but it's well recognized in Canada that federal jurisdiction exists on more than just its lands. We could fire a whole lot of the federal civil service if federal jurisdiction were limited to federal lands in this country. Some may like that idea, but this isn't the Canada we live in.

Other areas, like protection of the habitat of fish and aquatic species and migratory birds, have been protected by legislation in some form in Canada, going back almost a hundred years. These are well-recognized areas of federal jurisdiction. This bill does not protect habitat of aquatic species or migratory birds, except if they happen to be on federal lands or waters.

The federal government must lead by example. As the largest landowner in Canada, the federal government cannot expect provinces and private landowners to protect habitats for which they are responsible if it doesn't show a leadership role by protecting all habitat within its jurisdiction. Again, I would urge cooperation with the provinces.

There may be some areas where there is overlap, as is always the case, and where there is overlap of course there's no need for both governments to be playing. In those cases I would recommend we negotiate cooperative agreements, as we do under CCEA, CEPA, and other bills, to make sure there's one-stop shopping. But the starting point must be the federal government showing leadership in all its areas of jurisdiction.

The chair has referred to the issue of some debate between the Department of Justice and the former Supreme Court of Canada judge who wrote the court's last three opinions on the Constitution and the environment. It's a difficult issue, and I don't envy the committee its job of choosing between them. I know who I think you should choose, but I'll leave that to the wisdom of the committee. In terms of finding a way to resolve the problem, I suggest the committee urge the government to seek independent advice.

Now, I don't know who you would seek as a source, other than the judge who's written the Supreme Court's last three opinions on the issue, but there are other well-respected constitutional experts outside of government. In fact, this committee may want to consider whether it has the power to commission independent advice on these issues, because otherwise you are left with a very difficult issue and no basis for resolving it, perhaps.

• 0945

I'll move quickly now, because I recognize time is an issue, and flag a couple of points and invite questions on them.

There are two more tabs I'll refer you to. One is tab 6 for habitat protection. It would be difficult to design a more cumbersome, discretion-laden, and delay-prone process for protecting habitat than exists in this bill.

If you look at tab 6, you see on the left the number of steps required under SARA to get to habitat protection. If you look in the middle, you'll see the number of steps required under Bill C-65. If you look on the right, you see the number of steps required under the four provincial endangered species acts I referred to earlier.

Under SARA, the species must be listed, and the minister must decide if a recovery strategy is feasible. There's a one-year limit for recovery strategy, but that strategy is not required to identify a species' critical habitat. Unlike Bill C-65, this bill says habitat need not be identified if the minister deems it's not possible. Bill C-65 said it was required in all cases.

Then there's no time limit for completing phase two, the recovery action plan. If critical habitat is identified, protection of that habitat is discretionary, as I noted. But in addition, there's no time limit for deciding whether or not to bring in habitat protection. In Bill C-65 there was a time limit.

This is almost like an artery in the body. I point this out because each one of these steps has to be right, because there are so many steps required to get to the most important part of this bill. It's like an artery: if you have six different blocks, you can't just remove five of them, you've got to remove all six. I urge you to recognize that all of these changes are interrelated.

Let me identify my other points and refer you to my brief. One point refers to tightening up the safety net, the second to listing. The key point I emphasize is the rolling over of the existing COSEWIC list. The definition of residence is weaker here than it was in Bill C-65. That's a very important change needed.

We need to improve the process for granting exemptions. That's critical. The definition of wildlife species has been changed from the one used in Bill C-65 and the one used by COSEWIC, which may render all the species COSEWIC has re-evaluated moot, because the defintion's been changed in this bill.

Also, there's no mechanism to ensure accountability if the bill is not enforced. That's something that is commonplace. These changes are a bare minimum, I would say.

Finally, some will come before this committee and say you should be politically pragmatic, that partial measures are better than none. But with endangered species, that's often not true. We know these species are going extinct, and we know generally what is needed to save them. This legislation must ensure those steps are taken.

Extinction is not the place for compromise. Protecting endangered species is an investment in the future of Canada, a Canada that still includes grizzly bears, beluga whales, and swift foxes in the wild. That would be a very proud legacy to pass on to future generations, and I urge you to make sure that this future becomes a reality.

Thank you.

The Chair: Thank you.

Mr. Hazell is next.

[Translation]

Mr. Stephen Hazell (Executive Director and General Counsel, Canadian Parks and Wilderness Society): Mr. Chairman, ladies and gentlemen of the committee, my name is Stephen Hazell. I am the executive director of the Canadian Parks and Wilderness Society.

[English]

in English, Canadian Parks and Wilderness Society, CPAWS. I have a very few points to add to supplement those of my colleagues.

CPAWS was established in 1963 and we have ten chapters across Canada. Our primary interest is protecting wilderness. We call ourselves Canada's grassroots voice for wilderness. We've helped to protect over 40,000 square kilometres of Canadian wilderness.

Over the past year we have been involved in a door-to-door campaign to talk to Canadians about species at risk and the former bill. We've talked to about 86,000 Canadians. We've collected almost 20,000 signatures on postcards and petitions. We've collected and mailed hundreds of letters to the Prime Minister and other ministers and members of Parliament. All of this is to say that Canadians are very concerned about species at risk.

• 0950

I want next to mention, as my colleagues have not yet mentioned, that there is a consensus group of conservation organizations that believe strongly in the points that Monte and Stewart have mentioned, and I might just review them quickly.

This consensus includes not only CPAWS, World Wildlife Fund, and Sierra Legal, but also the Canadian Nature Federation, the Sierra Club of Canada, and many other conservation organizations. We all accept these six principles for amending the bill: that mandatory habitat protection is essential in all areas of federal jurisdiction; that there be an effective, accountable safety net mechanism to ensure habitat protection for all species at risk; that there be protection for all endangered species and their residences, achieved through a comprehensive prohibition, subject to provincial equivalency; that the listing process be science-based; that the current COSEWIC list be adopted as a schedule to SARA; and that there be an appropriate accountability process to ensure effective enforcement.

I want, in my few minutes, to talk about four specific amendments CPAWS would like to see that fit within this overall rubric. These four areas for amendments are, first, to legislate comprehensive, clear prohibitions; second, that the current COSEWIC list be adopted as a schedule to SARA and not as regulations; third, that critical habitat on federal lands be required as a matter of law; and fourth, that the round table provisions be improved and the dispute resolution measures be added.

With respect to the prohibitions in the bill—I'm talking here about clauses 32 to 34 and the critical habitat prohibitions in clauses 58 to 61—these are fragmented, unclear, and fail to distinguish between federal and other lands, involving federal and other species. These provisions are remarkable in their complexity. It's hard to see how Canadians can actually figure out what's going on, unless they're lawyers, like Stewart and myself—we have a fighting chance of at least figuring out what is intended.

The interesting thing is that if these provisions intend to rely on the federal criminal law power under the Constitution, it may not wash. In the Hydro-Québec decision, which Stewart was involved in, the Supreme Court of Canada broadened the criminal law power, but it also said that one indicator of whether a particular statute can be justified under the criminal law power or is a mere regulatory statute is whether or not the provisions are elaborate or complex. The court said the more elaborate and complicated the provisions are, the more they look like regulatory provisions, the less they look like provisions that can rely on their constitutional substance, on the criminal law power. So these provisions are a problem for you.

What do we say about it? What do we say about these prohibitions? How do we figure they should be amended? We say these prohibitions, first, should apply immediately upon listing, cover all listed wildlife species and their critical habitat, and apply Canada-wide, subject to any equivalent provincial legislation.

I'd like to bring to your attention the Criminal Code provisions on causing unnecessary harm and suffering to animals and birds. They're in some ways similar to the provisions proposed under SARA. Those provisions don't distinguish between federal species and non-federal species. They don't distinguish between federal lands and non-federal lands. Why do we have to do it in this bill? To me, as a lawyer, it makes no sense.

The second point I wanted to talk about was the current COSEWIC list and the importance that it be adopted as a schedule to SARA and not as regulations.

In a former life I was the director of regulations and legislation for the Canadian Environmental Assessment Agency. In that job I had to cope with the federal regulatory policy, which I don't think this committee has had an opportunity to think about, although Karen Brown in her testimony did mention that as part of the listing process posed by the government for the COSEWIC list, regulations and cost-benefit analysis would be required as part of the application of the federal regulatory process.

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I can tell you from experience that this regulatory process, applying the regulatory policy, can take years. It took us over three years to get the regulations for the Canadian Environmental Assessment Act into force.

The other part of it is that there's duplication. The reason you have a regulatory policy is to ensure that we don't have unnecessary regulation, that the impacts on small business and on the economy are taken into consideration. Bill C-5 already does that. Under the action planning and recovery planning process there are references to examination of the socio-economic impact. I would argue that all of this stuff the regulatory policies intend to deal with is already dealt with under the bill through the recovery planning and action planning process.

So we would urge you to include the current COSEWIC list as a schedule to the bill, and not to rely on the regulatory process, at least for that initial list, which we know COSEWIC has gone over. They've updated in the past year, so we know it's up to date.

My third point is a reinforcement of what Stewart and Monte have been saying with respect to critical habitat. Bill C-5 does not require that critical habitat of listed species on federal lands be protected. We think this must be. Surely it must be for national parks, national wildlife areas, migratory bird sanctuaries. So as a bare minimum, CPAWS seeks an amendment to SARA that would require federal departments to undertake and complete processes to identify critical habitat of listed species within specified timeframes.

I want to say something about the round table provisions that have been added between the last bill and this one. We think this is a good idea, and we congratulate the government on including these provisions for a round table that will be held every two years. We would suggest, however, that several amendments are in order. First, we have to understand clearly what the purpose of the round table is going to be-that's not stated in clause 127—and we should also specify that this round table is to be a multi-stakeholder proceeding.

Finally, there's this issue of citizen suit provisions. The failure to include the Bill C-65 citizen suit provisions in Bill C-5 is disappointing, particularly given that no non-judicial dispute resolution measures to complement or replace citizen suits have been included. There was a lot of work done on this in the past couple of years, thinking about other ways of resolving disputes that will inevitably arise under the bill. Not only were the alternative dispute resolution measures not included, the citizen suit stuff was also dropped. So you're left with nothing. We would propose that citizen suit provisions, complemented by third-party dispute resolution measures, be included in SARA.

Those are my comments, Mr. Chairman. Thank you very much.

The Chair: Thank you, Mr. Hazell.

On the list we have ready to go Mr. Mills, Mr. Bigras, Mr. Herron, Madam Kraft Sloan, Mr. Reed, and Madam Carroll.

Mr. Mills, five minutes.

Mr. Bob Mills (Red Deer, Canadian Alliance): Thank you, Mr. Chairman. Thank you, gentlemen, for appearing before us.

There are several issues that I think about and that I hear about out on the farms, the ranches, and so on, certainly in our part of the country, but I think it applies to rural Ontario, Quebec, and Atlantic Canada. This kind of legislation hasn't been communicated very well. They look at the American example, and they see the crisis that has created for some farmers, ranchers, businesses. They say, well, in this bill no compensation is talked about. If you say I'm going to have restricted use of my land, there's nothing here. I know it's going to be in the regulations, but that really doesn't strike them.

So my first question would be, in your opinion, how are we going to communicate? We're all for endangered species legislation, but we want legislation that works. So how are we going to get over that impasse if, in fact, the bill doesn't talk about the issue of compensation and doesn't deal with it directly? I know negotiation and everything will happen before that, but what if their way of life, the productivity of their piece of land, is going to be affected?

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Secondly, when all of you have referred to the list, there are conflicting opinions. There are some who would tell you this list has politics within it and there are inaccuracies in the preparation of the list. I wonder why you would not want the list evaluated from square one and thus be able to communicate that this list is really accurate and based on science, not just the species that happens to be in the very north end of its range or something.

Could you answer those, please?

The Chair: Mr. Hummel.

Mr. Monte Hummel: On the first issue, I'm entirely sympathetic to properly communicating what's in this bill and what its implications would be for other land users. I'm a private landowner. I have an easement. There are conservation provisions I have voluntarily undertaken with respect to my 300 acres up on the shield. Certainly I want to know what my obligations are. I've undertaken them voluntarily.

I think we should communicate what this bill really means, possibly through agricultural agencies and agricultural associations. I come from an agricultural background. I honestly don't believe there is a good reason for landowners and farmers to be fearful of it. If it was well understood, I think they would be appreciative and assured that they aren't going to have their use of the land arbitrarily taken away from them in some high-handed way.

On the second issue, I must say, based on extensive experience with COSEWIC from the inside, whenever anybody tries to bring politics to bear in that setting they are ostracized and reprimanded immediately.

COSEWIC has been an impeccably scientific committee, so much so that I would argue if it ain't broke, don't fix it. The clear understanding for the discussions within COSEWIC is that the listings are to be made strictly on biological criteria. I would say that's exactly what has happened.

As we fiddle with COSEWIC, as we try to change who is represented at COSEWIC, and as we try to make it more of a political entity, the discussions are becoming more and more strained. But up until now, I would be most willing to defend the quality and scientific nature of the decisions that body has made. I say that from 15 years of service on it and having seen it from the inside.

The Chair: Thank you, Mr. Mills.

[Translation]

Mr. Bigras, you have five minutes.

Mr. Bernard Bigras (Rosemont—Petite-Patrie, BQ): Thank you, Mr. Chairman.

My questions are primarily for Mr. Elgie. I agree with many of your premises and observations. Like you, I am hoping that significant improvements will be made to the bill, particularly with respect to land that comes under federal jurisdiction, without alienating other stakeholders. I agree with you when you state that the federal government is shirking many of its obligations. The federal government is refusing to intervene in many areas that come under its jurisdiction.

Among other things, you spoke about the Migratory Birds Convention Act. I am not challenging this legislation, which is now accepted, and which I feel comes under federal jurisdiction. You also felt that most of the provincial laws on species at risk provided for habitat protection and were therefore more stringent than the bill on this crucial matter.

I would like you to elaborate further on the fact that certain provincial laws are more rigorous and demanding than the bill before us today.

Mr. Stewart Elgie: I will speak in English because I do not speak French very well.

[English]

The answer to your provincial question is at tab 13 of my package. There was something called the National Accord for the Protection of Species at Risk negotiated in 1996 and agreed to in 1997.

Each jurisdiction commits to a number, about 12 specific elements, that it will include in endangered species legislation. This is a report card from last October evaluating how each province has done in meeting that. You will see six provinces actually have endangered species legislation. The other seven jurisdictions may have certain provisions in their wildlife acts but don't actually have endangered species laws.

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Four of those six provinces make habitat protection mandatory, which is very good. Quebec used to be one of those; it used to be five. Quebec weakened its law a couple of years ago to make habitat protection discretionary. Certainly we would love to see that change reversed.

As you'll see, none of the provinces have met all of their obligations under the national accord and most of them haven't even met half of them. In those provinces that do have strong endangered species laws there will be some overlap with the federal government, as there always is as part of Canada's federation. The overlap should be avoided and negotiated away through administrative agreements and equivalency provisions.

The bigger problem is not overlap; the bigger problem is neither level of government protecting endangered species. Right now that's the more common situation. If the federal bill does not apply to the full extent of its jurisdiction, it can't count on the provinces to pick up the slack in most of Canada. Most of the provincial laws are either poor or non-existent when it comes to endangered species at the moment.

[Translation]

Mr. Bernard Bigras: I have another question. In a brief—

The Chair: A very short question, please.

Mr. Bernard Bigras: Have I used up all of my time?

The Chair: Yes.

Mr. Bernard Bigras: The question will be very brief. A brief that you, a working group on species at risk, tabled in September 2000, says, on page 7, that the constitutional foundation underlining the safety net, as drafted, is shaky.

I would like you to clarify this statement. Given this situation, don't you think that the best approach would be to establish a law that would force the federal government to intervene in all sectors under its jurisdiction and to leave it up to the provinces to intervene in areas that come under their jurisdiction, such as habitat?

[English]

Mr. Stewart Elgie: This is a question to me?

Mr. Bernard Bigras: Yes.

Mr. Stewart Elgie: First of all, to clarify, I think it's wrong to say that habitat protection is a provincial responsibility. Under our Constitution, it's shared. Obviously the federal government has a number of areas that are its responsibility and the provinces have a number of areas that are theirs. Both should carry out their responsibilities.

In an ideal world, we wouldn't need strong federal legislation, but we don't live in that ideal world. The safety net is not perfect. The biggest problem is that even when a province is doing absolutely nothing to protect an endangered species, it only says the federal cabinet “may” take action; it doesn't actually say they will. It will not actually ensure all species are protected. It will create the possibility of all of them being protected.

I would urge this. If all provinces meet the commitments they made in 1997 under the national accord, the safety net power will never need to be used and this debate will be moot. It will be something we'll look at in the history books and wonder why we were worried about it. But if the provinces don't meet their obligations, the safety net will be vitally important to the survival of some species.

I think it comes down to this. What's more important to this committee, allowing provinces the autonomy to essentially choose not to protect an endangered animal, or ensuring the survival of some of our vanishing species in this country? I leave that up to you.

[Translation]

The Chair: Thank you, Mr. Bigras.

[English]

Mr. Herron, please, five minutes.

Mr. John Herron: Thank you, Mr. Chair. I want to thank the witnesses for the testimony we've heard today.

For the most part, the positions you advocated are replicated in our position paper, where we borrowed a fair amount of information from you on some occasions. Instead of using a spongy stick, we used carrots before sticks.

The position paper had received a fair number of accolades among the environmental community. There is some good news and bad news here. I think we've got a framework where we can actually get a very good bill. That's our position in the Progressive Conservative Party. However, we will not support the bill unless at least the following points are augmented:

(1) Mandatory protection of critical habitat within federalist jurisdiction. That listing is scientifically based.

(2) Rolling over the list as a schedule, as testified a few minutes ago.

(3) One we're spending a little bit more time on, and I'd like to ask my questions on this in a second, is with respect to migratory birds. That has to be included within the framework of this bill as well.

(4) In order to avoid the “shoot, shovel, and shut up” mentality, there has to be more clarity with respect to the compensatory regime. That's awkward.

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Those are the bottom lines for us to support this particular bill.

My first question replies—

The Chair: There will be only one if you don't hurry up.

Mr. John Herron: Okay.

Concerning my first question—and Aileen Carroll touched on the same issue—as we asked the department before, all we're asking the federal government to do is to protect its own house, its own jurisdiction. We asked a very distinct question: Who is against mandatory protection of critical habitat within the federal jurisdiction? We didn't really get an answer from the department.

Why are we not protecting lands north of 60 degrees? Why does this not include parks, or migratory birds, or fish?

Mr. Stephen Hazell: I think the primary answer is that the federal departments have opposed it internally within the government. It's not something Mr. Anderson or Karen Brown can really speak to. It's an internal problem with federal departments.

By and large, federal departments do not want to bear the responsibility, the requirement, of protecting critical habitat on federal lands. That's the main thing. It's not a provincial issue, obviously, because we're talking primarily about federal lands, and it's not a problem with industry. It's the federal department that is the problem. That's something that's very difficult for officials to speak to at the table.

Mr. Stewart Elgie: If I may add to that, I saw the transcripts from the testimony last Thursday, and one issue that has been brought up is this question of not having a different hierarchy of protection within and outside federal jurisdiction. I say, with the greatest respect, that's really a red herring. As a lawyer, it's rare to say that an argument has no merit, but that one has none.

Let me put it to you simply. The argument—and I'm sure all of you here remember it—is basically this: that the federal government, as a matter of constitutional law, can't say habitat protection is mandatory within its jurisdiction and then have a safety net that makes it discretionary outside its jurisdiction.

The first answer is make it mandatory, and the safety net too. But even if you don't want to go that far, even if you just want to make it mandatory in a federal jurisdiction, of course that's within federal constitutional authority. If it weren't, then the other half of this bill is already unconstitutional, because that's exactly what the bill does in the prohibition against direct harm to endangered species. Right? It makes protection mandatory. There's a mandatory prohibition against killing an endangered species or destroying its nest, and the safety net is discretionary.

If it were true that it's unconstitutional to do that, then that whole prohibition would be unconstitutional already. So all they need to do is use the same formula for habitat that they're already using for the direct prohibition. It's well within their jurisdiction.

Steve is right. The real problem is a political, internal one that I'm sure they can't speak about here.

The Chair: Thank you, Mr. Herron.

Madam Kraft Sloan, please.

Mrs. Karen Kraft Sloan (York North, Lib.): Thank you very much, Mr. Chair.

I want to go over some material that has been touched on in this session. I want to seek some clarification on these things.

Last week I spoke to an Environment Canada official about the difference between clause 33, which dealt with transboundary or cross-border species, the protection provision here being mandatory, versus the safety net provision, which is discretionary. I know you've had some discussions about this already, but last week the official had said that the difference between these two areas was merely a choice of terminology. I wonder if you would care to comment on that.

Mr. Stewart Elgie: As a lawyer who has spent a number of days in court arguing environmental law issues, I can tell you that the difference between the words “may” and “shall” is a lot more than terminology. It's the difference between action and inaction.

As far as I know, the Constitution hasn't changed since 1997, and in 1997, presumably, the Department of Justice was of the view that cross-border species were a matter of federal jurisdiction, because they treated them as a matter of federal jurisdiction in that bill. I don't think there can be any legal or constitutional reason they are no longer treated as a matter of federal jurisdiction.

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Mrs. Karen Kraft Sloan: Going back to the earlier discussion on the migratory bird convention, I wonder if you could help. Are you familiar with an empire treaty? Could you explain to us the difference between an empire treaty and a regular treaty?

Mr. Stewart Elgie: In two minutes or less?

Mrs. Karen Kraft Sloan: In two minutes or less, please.

Mr. Stewart Elgie: I'll have to condense a whole constitutional law lecture at my law school into about one minute.

Mrs. Karen Kraft Sloan: Good.

Mr. Stewart Elgie: Essentially, the constitutional opinion done by Justice La Forest and Professor Dale Gibson goes through in great detail the empire treaty power under the Constitution, so I would recommend that you read that. I understand Mr. Gibson may be invited to testify. In that case, I won't give their opinion. I'll leave it to him.

It's simply that a quirk in our Constitution says the treaties that were negotiated by England before Canada became an independent nation back in the 1930s will be treated as matters of federal jurisdiction. Treaties negotiated after that are really grey, but it is clear that anything negotiated before 1937, I think it was, is a matter of federal jurisdiction. So in this case, because the migratory bird treaty signed between Canada and the U.S. in 1916 was an empire treaty, the federal government has authority over that.

To make a long story short, there's a basic principle of constitutional law that is called “necessary and incidental power”. That is, if the federal government has the power in the Constitution to do something—and it's the same for a province, by the way, it applies to both of them—they have the power to address matters that are necessary and incidental to make sure they can effectively carry out that power.

For example, the Constitution says the federal government has authority over fisheries—that's the word in the Constitution—but the Fisheries Act explicitly protects fisheries habitat because protecting habitat is necessary and incidental.

Exactly the same is true for migratory birds. Not only do you have Chief Justice La Forest, but the Federal Court of Canada, in a judgment issued two years ago on the Cheviot Mine, explicitly ruled that under the migratory bird regulations as they exist today, they apply to habitat. They don't apply as well as they should. It's a fairly weak application. But in that case, the court ruled that before a mine can strip provincial habitat in Alberta, they need a permit under the federal Migratory Birds Convention Act.

So it exists today. Unless the government is planning to repeal parts of the Migratory Birds Convention Act, they already have authority over the habitat of birds. They simply need to translate that into this act.

Mrs. Karen Kraft Sloan: Thank you.

The Chair: Thank you, Madam Kraft Sloan.

Mr. Reed, and then Madam Carroll, Mr. Comartin, Madam Redman, and the chair.

Mr. Julian Reed (Halton, Lib.): Thank you, Mr. Chairman.

Are people part of nature?

Mr. Monte Hummel: Yes.

Mr. Julian Reed: Thank you.

Why is it acceptable for a biologist to use the weasel word “may” in delivering a report, and it's not acceptable for a legislator to use that weasel word?

Mr. Stephen Hazell: Of course it's acceptable, in some circumstances, for legislators to use the word “may”. What we're talking about is trying to find a balance between mandatory requirements and discretionary requirements.

The point that Stewart has been making is that if the bill is totally discretionary in key areas, there will be inaction. I think if you look at the Sierra Legal Defence Fund's brief, you'll see that most of these discretionary statutes in the federal wildlife area have not been used because they are discretionary.

There has to be a balance between discretion and mandatory language in the bill. Our point is that, at least in a few key areas, we need mandatory rather than discretionary language.

Mr. Stewart Elgie: In the brief, I've taken four other federal environment acts where the act has said the federal government has the discretion to apply federal authority on transboundary issues if they feel that it's necessary—the Canada Wildlife Act, the Canadian Environmental Assessment Act, the Canada Water Act, and CEPA—and going back 29 years, those powers have never been used.

So I think you're right. Say what you mean. That's the only message I would say. If the Government of Canada intends to pass a statute that says we will protect endangered species and their habitat, they should say that. If they intend to pass one that says we might, then say that.

I would say this, and this would be my submission: There should not be discretion as to whether endangered species will be protected; there should be discretion as to how they will be protected. You can achieve that with an act that says habitat protection is mandatory, but if you have to do something that affects a species or its habitat, negotiate it through the recovery plan, or a conservation agreement, or a permit. In other words, there's a bit of flexibility about how you do it. But if there's no prohibition to begin with, the very threshold issue of whether they get any protection at all is discretionary. I leave it to this committee to decide whether that's the kind of bill they wish to pass.

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Mr. Julian Reed: That allows me to segue into this next question: Who makes the habitat determination? Is it the scientist who uses the weasel word “may”?

Mr. Stewart Elgie: The identification of critical habitat is an example of one of those issues that has to be decided on a case-by-case basis. In some cases it's easier than others to identify the habitat of a species. Most of the time, it's like a lot of other issues in science. You never achieve 100% certainty, all you can do is the best you can. But I would add that you have exactly the same issue with residence.

The bill talks about the mandatory protection of residence. I can tell you we don't know where every marbled murrelet nest is in western British Columbia, but we aren't using that as an excuse for inaction in the bill. We're still saying that where we know there's a residence, it's protected. I would suggest we do the same with habitat. We can put the best scientists we can on a recovery team, and they will identify the habitat. That's the best we can do as human beings, and if we learn more in the future, the recovery plan will elaborate on that and we'll do better.

Mr. Julian Reed: I can show you reports that use the word “may” that are used by approving bodies on various projects as expert determination.

Mr. Monte Hummel: I don't know which biologists you've been talking to, but I hope when they use “may”—

Mr. Julian Reed: A number of them.

Mr. Monte Hummel: —they're referring to situations in which there's uncertainty, in which they're not sure. Rather than say they're sure, they are saying, “This may help, but it may not. We're not certain.”

The “may” we're talking about in this legislation is something we are certain about, which is that habitat needs to be protected, and it's not good enough to say it “may” be.

I think you're asking very good questions about who has a say in all of this—

A voice: Exactly.

Mr. Monte Hummel: —and certainly we've devoted seven agonizing pages at the end of our brief to how all of this might work. We certainly countenance the involvement of landowners, land users, first nations, and people who are out there and know the land. They should be involved very early in the process in terms of helping to identify critical habitat and in helping to determine what needs to be done to protect it. Certainly they have to be intimately involved in the implementation, when you actually do something and take steps to protect habitat.

So I think we need the help from people who live out on the land in terms of identifying habitat, as well as in taking the steps to protect it. There's no reason they shouldn't be involved in that whole process. In fact, it will be better informed, and better to the extent that people who live on the land and have a commitment to it are involved.

The Chair: Thank you, Mr. Reed.

Madame Carroll, Mr. Comartin, Madame Redman, and then the chair.

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

It may be that the answer to my question came out in the course of the conversation, but I would still want to hear the three gentlemen we have here commenting on it.

Last week, when we had Ms. Brown and her officials here, I told to her that my sense was we had had considerable consultation between the Species at Risk Working Group and others, a very widely dispersed.... The result of that was in fact a consensus that was produced, or a bar, if you will. From my perspective, and I think from the perspective of a number of people, that bar is considerably above the legislation that has come to this committee. I asked for her response to that, and in all fairness to her, I think I can safely say it was muddied at least, at minimum.

In the discussions this morning, you've made reference to the fact that we're facing resistance within—if I can just quote you—“federal departments that have opposed protecting habitat, for example, habitat on federal lands”, and implied that Ms. Brown was therefore perhaps unable to respond to me in a way she might have wished to. While that may be difficult for Ms. Brown, it isn't difficult for me, and I would like to have more information on that. I think this venue is the place it should come out.

Finally, I hate to do this, but reference was made to the need to keep provincial autonomy very much on the federal radar screen, and to the idea that maybe what's happening here is that we're seeing a deference to provincial autonomy over a deference to protecting endangered species. Is this all part of the same ball of wax? Can you three gentlemen comment on that?

Thank you, Mr. Chair.

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Mr. Stephen Hazell: She really pulls her punches, doesn't she?

Some hon. members: Oh, oh!

Mr. Stephen Hazell: Well, one thing I would want to clarify is that my comments about the resistance of some certain federal departments were with respect to the mandatory protection of critical habitat on the lands they administer. A number of federal departments are quite keen on protecting habitat. Parks Canada Agency, for example, is doing a lot of good stuff, and other departments are as well.

I didn't mean to suggest they were opposing protecting the habitat of species at risk on federal lands. What we want to have is a law requiring them to do so. That is where the concerns have arisen among federal departments.

I can't give you details of conversations I've had. A lot of them relate to my previous life as a consultant.

Mr. Monte Hummel: It seems everybody thinks we're respecting other people's jurisdiction and turf by allowing this act to be as discretionary as it is: don't worry, we're not necessarily going to do something. I would make the opposite argument, which is that if I was nervous about the federal jurisdiction, the last thing I'd want is for all this discretion to reside with the federal minister. I don't know if that discretion's going to be exercised in my interest or not. Isn't it better to have an act that's clear? Isn't that fostering more unity than disunity? If I was nervous about federal power, this discretion is the exact thing I would not want to see in the act.

So I'm confused. How is it we are respecting and helping those people who are nervous about the feds intruding by maintaining all this discretion? If I was suspicious of federal power, I would feel that's always going to be abused.

The second thing is that rather than arguing over turf, I think we should have a performance-based system. If the provinces are performing and protecting the habitat of endangered species, they're never going to feel the heavy hand of any safety net. It's the same with private landowners. The overwhelming majority of private landowners—and, I would suggest, resource industries—are prepared to come to this table to do something.

If you're coming to the table and are doing something, if you're performing and contributing to the solution, the whole argument of turf and jurisdiction is academic. You're never going to be pushed around. If you're reluctant, if you're not prepared to come to the table, if you're not prepared to take advantage of incentives even with the prospect of compensation at the end of the road, then somebody's going to sit down at some point and say, “Look, we're talking about an endangered species here. We've been able to resolve nine out of ten issues, but there's one left, and this is the way it's going to have to be.” But the first thing an affected party sees is a government agency or someone who's prepared to treat them as if they do care about endangered species and they are prepared to help, rather than treating them as if they don't care and hitting them with a stick right away.

Mr. Stewart Elgie: But there are two separate issues. Just to clarify, there's what the federal government does within its own jurisdiction, and then there's the issue of the safety net. With what Stephen is talking about—some of the resistance that may be internal within the government, which is the biggest problem—most of the changes we're advocating are there so that the federal government gets its own house in order within its areas of jurisdiction. The safety net is where the question of sensitivities with provincial relations arises. I would recommend thinking of those two separately in terms of the issues.

The Chair: Thank you, Madame Carroll.

Mr. Comartin, please.

Mr. Joe Comartin (Windsor—St. Clair, NDP): Mr. Hummel, last week when the deputy minister was here, she was describing the process that was going on around COSEWIC and a review of the list at this point. I was left with two impressions. First, I wasn't sure when that review was going to be completed. I was also concerned about why it was being done, or whether this was one of the attempts—if I can put it that way—to politicize that list.

Mr. Stewart Elgie: Luckily, I phoned one of Monte's employees before I came. I anticipated that such a question might come up—the COSEWIC one.

In the 1997 bill, the existing COSEWIC list at that time was what we call rolled over. Those species were treated as immediately legally listed and protected by the bill, recognizing that future COSEWIC reviews may revise their status and that they may have to be changed. The current bill does the opposite: it starts with nothing listed and says we may add species in the future. The main reason given is that COSEWIC is reviewing these species and applying the IUCN criteria. And let me give you numbers on the results and timing of that, starting first of all with the results.

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COSEWIC has begun to look at all of the threatened and endangered species. It has been doing so for a year. They've gotten to 155 of them, applying the IUCN criteria. What they've found is that out of 155—and this was my math, so I may be off by one or two—130 have stayed with the same status, 23 have moved up—in other words, they're actually more endangered than COSEWIC thought they used to be—and two have moved down, two isolated plant species. What this shows is that COSEWIC's initial assessments were incredibly accurate, and even a bit conservative, in fact. There are problems that are actually a little bit worse than COSEWIC thought.

Now, there are still 55 to go, but my information is that in some of those cases there are information gaps or issues of first nations' traditional knowledge that will make it very difficult to get that completed within the next few months—and you should ask COSEWIC about that.

What I would advocate is that it would be inappropriate, in my view, to hold up the entire rest of this list because of the possibility that COSEWIC may find another one or two species are actually overlisted by one category. Based on the sample we have right now, which is more than half of COSEWIC's list, I think it's scientifically almost certain that will be the case. What you would effectively be doing is giving no protection for hundreds of species that are vanishing to avoid the risk that one or two species might actually be one category of risk lower. To me, that's absurd as a matter of public policy.

So I would argue to go ahead, to roll the list over, and in the event that COSEWIC, in its re-evaluation, finds another one or two species that have to be dropped one category, that can be done. But don't prejudice the rest of them.

Mr. Joe Comartin: Just as a follow-up, Dr. Suzuki was quoted in the Globe last week as suggesting—and I've heard this from other people—that the COSEWIC list is very conservative in the sense that there may be a whole bunch of other species that should be considered on there. I've never understood why. Is it because of the need for scientific certainty, or is it a lack of resources to get at other species?

Mr. Monte Hummel: It's the latter.

Mr. Joe Comartin: Is there any estimate of how many more species?

Mr. Monte Hummell: Thousands.

What you're seeing on COSEWIC's list is just the species we've been able to do status reports on. Preparing a status report is a very thorough exercise. Some of them take two to three years to prepare, and then they're debated and discussed. What you see are the 364 or 365 species, depending on what you count, that we've been able to do status reports on and classify to date. So far, we've done no invertebrates—namely, insects—let alone other life forms.

There are no doubt many hundreds of species that are endangered in Canada, but we will never do status reports on them all and classify them all. The COSEWIC list will always, ever, just represent a small slice of the species in nature that are in fact endangered. Many species become endangered and go extinct before we even have discovered them, and that includes in this country.

Mr. Stewart Elgie: The thing to add, though, is that they have almost all the big ones. In terms of the large species, meaning the mammals and the birds. There are not undiscovered large mammals or birds that are endangered, so the ones that have widespread habitat implications are pretty much on there. It will be the smaller species that will be added.

The Chair: Thank you, Mr. Comartin.

Madam Redman, Mr. Knutson, the chair, and then a second round.

Mrs. Karen Redman (Kitchener Centre, Lib.): Mr. Chair, my first question is for Mr. Hazell.

Last year the U.S. Fish and Wildlife Service placed a one-year moratorium on all new endangered species listings, claiming it just simply didn't have enough resources to process new listings while at the same time defending itself against environmental lawsuits over the past listings. Does this not show us that scientists listing species for protection are influenced, and even restricted in some instances, by economic considerations? Isn't this an argument to keep science pure and at arm's length from the social, political, and economic considerations?

Mr. Stephen Hazell: I'm not sure I'm following your question exactly.

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With respect to the resources question, I think in Canada we have a situation where we don't have any legislative mandate for protecting endangered species at the federal level. As a result, it's been very hard to get very many resources devoted to this.

The way the system works federally is.... Where there is a law requiring that things be done, it's much easier for federal departments to go to Treasury Board and say “Look, guys, we have a legal responsibility to do this; give us some money to do that.” We don't have that in Canada; hence the resources that have been devoted to protecting endangered species have been quite limited.

Now, I recognize that there is the stewardship program, which we congratulate the government for, and that's great stuff. But if there were a legal mandate to do stuff, it would work a lot better.

Mrs. Karen Redman: It's not a resource question. Clearly it's a question of looking at pure science versus the fact that cabinet may look at whether or not prohibitions come on and mandatory protection of habitat.

So the question is are we better off to look at the U.S. model, which has been tied up in litigation, or are we better off to look at what we've tried to do in Canada, which is to have something that works on the ground and invites people to participate, as opposed to—with all due respect to the two lawyers here—make lawyers rich?

Mr. Stewart Elgie: Can I touch that?

The U.S. does not let scientists make listing decisions. In the U.S. system, it's the Secretary of the Interior that makes listing decisions, but the secretary is obliged to do so on a scientific basis.

So it's a little bit different. We're certainly not advocating that as a system. As a lawyer, and as someone who litigates, I would strongly recommend that you take listing out of litigation. I would not want to see the Federal Court of Canada deciding whether a species was endangered, the same way I wouldn't want the federal cabinet deciding it.

I totally agree with you that the questions of how we protect a species are ones that must be decided by politicians—that's why we elect officials. There's a balancing that must take place.

But the issue of whether a species should be listed as endangered must be a scientific one. We're advocating a system, as are many industry groups on SARWG, that I think would be a big improvement over the U.S. one and would take litigation out of listing. I would agree with something that said no one may bring a lawsuit against COSEWIC listing decisions.

Put the best scientists we have in a room and let them do the best they can. Take politics and take the courts out of it. If you want, I'll leave it with you. But the reason for that is at tab 8 of my materials.

We've seen six different provinces that use the system that's going forward in this bill. That is, COSEWIC recommends, but they leave it up to their cabinet to list. The result has been that only 30% of the species that COSEWIC tells them are endangered or threatened ever get legally listed. The other 70% are left with no protection.

In many cases, it's not because they have big implications; it's just because they aren't a high enough priority to make it onto cabinet's agenda. The Ontario government has only looked at two in the five years since it was elected, and there have been dozens added to the list.

I hope that helps.

The Chair: Thank you, Madam Redman.

Mr. Knutson, please.

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

Mr. Hazell, you had recommended that, as a schedule, we attach the current list to the bill. Would you also recommend that we introduce a reverse-onus provision that would allow cabinet, say, within 90 days, to take off anything that's on the list?

Mr. Stephen Hazell: I think that's a reasonable compromise for this position.

That might be one way of going at it. I think the government's position on the question of science-based listing as opposed to listing decisions by the governor in council is pretty clear. This reverse onus idea might be one way of dealing with it.

Mr. Gar Knutson: But is reverse onus part of your submission?

Mr. Stephen Hazell: That particular position is not in our brief, but it has been mooted within our group. Our position is that we want a science-based listing process, but in the context of trying to come up with something that might actually fly, perhaps that might be one way of coming at it.

Mr. Stewart Elgie: I think there's a fundamental question, perhaps, that the committee needs to decide. That is, it's clear that there is a need for political discretion to be applied at some stage in terms of deciding what steps are taken to protect an endangered species. There's a need for accountability.

I think one of the questions is where do you put that accountability in the process? That's why I provided that schematic of how the bill works.

As a member of the endangered species task force, we spent about a year talking about this with a number of different industry groups. It seemed to me, and I think to others, that the best place for that accountability is where it is now, which is in the recovery planning process.

That's the place where you look at all the things you might do to protect the species. You look at what the various costs are of those things. At the end of the day, you decide what are some of those things you simply can't do.

• 1040

If you try to make that decision at the listing stage before you have all the information you're going to generate in the recovery plan process, you may make a very ill-informed decision, because there are almost always some things you can do to protect a species. If you don't list it, you're making a decision to do none of them.

Mr. Gar Knutson: Well, are you not also suggesting, though, that if we make the listing an automatic, “scientific” listing, and then we decide what we're going to do after that.... Are you not also suggesting that we make habitat protection mandatory?

Mr. Stewart Elgie: That's a very good question, and that was the right question to ask, I think. The question of whether we protect habitat should be mandatory. The question of how and where should involve discretion. There's ample room for that discretion in the bill.

By creating a mandatory prohibition on habitat destruction, all you're really saying is this: if you want to destroy habitat, go get a permit, an agreement, or get a permission in the recovery plan. In other words, you have to have some dialogue with wildlife experts to make sure that your destruction of habitat isn't going to wipe the species out.

There's ample room for that. The recovery plans are all approved by the minister. Exemption permits are allowed in the bill, and they're approved by the minister. Conservation agreements that authorize habitat destruction are allowed in the bill, and they're approved by the minister.

So I'm saying that whether you protect habitat is mandatory, but there should be political discretion about how and where you do it. That's all.

Mr. Gar Knutson: Thank you.

The Chair: Thank you.

A couple of questions from the chair, and then we'll start a second round. For that, I have on the list Mr. Mills and Madam Kraft Sloan, and then Mr. Forseth.

My first question is to Mr. Hummel. And perhaps this is a repeat, because you already commented on that. Going back for the moment to the issue of certainty or lack thereof in Bill C-5, could you summarize in one minute what would be the impact or the potential impact on landowners resulting from the uncertainty as articulated in the present form in Bill C-5?

Mr. Monte Hummel: I don't know if I can answer that. I think we're stuck on the horns of a dilemma here.

If there's uncertainty with respect to exactly what needs to be done to recover an endangered species, a conservationist's immediate instinct is to err on the side of conservation and to do something. So landowners under that kind of regime run the risk of being asked to do some things even though we're not certain those things need to be done and that those things would in fact lead to the recovery of the species, which could be perceived as being abusive to the landowner.

On the other hand, if you're uncertain, and then err on the side of saying it's unfair to ask landowners to do anything, you're playing Russian roulette with the existence of the species.

In my view, the answer to this is along the lines of what Stew was suggesting. The principle should be that habitat must be protected to conserve endangered species. But where and how that's done, who pays and how much, are things that should be negotiated and discussed with the affected parties in the course of developing a recovery plan or recovery actions.

That's the point at which landowners can come to the table and ask questions, as Mr. Reed has: Just how much do you really know? Am I being asked to provide a public benefit at private expense? Is it fair to ask me to do this, given that there's some uncertainty?

In our experience—and it's extensive—in dealing with private interests, when they come to the table, you learn more about where the critical habitat is. This assumption that others know more than the people that live there is pretty high-handed, when you think about it. When landowners come to the table, there's greater certainty rather than less, because they can say “No, that's wrong. I know that's what your studies show, but this is what I've experienced, what I've seen.”

• 1045

I believe that rather than get hung up on the horns of the dilemma, you should try to drive down the middle and get the affected parties around the table, draw from them what they know, get them actively involved in the recovery process, and have them help define what needs to be done, where, and how extensively. We can't fiddle and compromise and be discretionary about whether or not it's important to protect the habitat of endangered species.

That's a very nebulous answer, but it's the best I can do.

The Chair: Thank you.

The other question is for Mr. Elgie. In the chart you provided to us, under the heading “We agree to...establish complementary legislation and programs...”, tab 13, you have identified areas in which neither this bill nor the provinces fare very well. They score a bit low. They are the following: consider needs of species at risk as part of environmental assessment process; improve awareness of needs of species at risk; encourage citizen conservation and protection actions; and, finally, recognize, foster, and support effective and long-term stewardship. Some of these are of course advocacy measures. If they were to be included in Bill C-5, would they be part of amendments you have already drafted, or would it be something you haven't yet done?

Mr. Stewart Elgie: We are working on a more thorough submission.

The first eight or so requirements of the national accord are ones that can be met primarily, though not exclusively, through legislation, such as protection against harm, habitat protection, and environmental assessment.

When you get to the bottom ones, some of them are best met through program and policy. In our brief we refer to NL, which means not legislated. For example, when it comes to improve awareness of species at risk, certainly the bill can create the power to do that, but that will have to be done mainly through funding, people, and community-level discussions.

This comes back to Mr. Mill's earlier questions about communication. I'd say the single most important thing for communication is having staff people out there who can ensure human contact with folks. If an endangered species is on your land and someone from either the federal Wildlife Service or the province calls you up or writes you a letter and says, hey, we've got this, here's what you can do to help, what can you tell us, it's going to have a whole different effect on those people in those communities from what it would be if it were done by reading the Canada Gazette or through an ad in a newspaper. So the bill can encourage that, but it can't necessarily achieve it.

The one that can be done is environmental assessment. You could do that quite simply through the bill, or it could be done through a consequential amendment to CEAA at the end of the bill. It's just simply this: before you take an action that authorizes harm to endangered species, you do an environmental screening.

The ones about supporting stewardship and improving awareness will be done largely outside the bill through funding, staff, etc.

The Chair: Thank you very much.

We turn now to the second round, Mr. Forseth, please.

Mr. Paul Forseth (New Westminster—Coquitlam—Burnaby, Canadian Alliance): Thank you very much.

Maybe we can cast our minds to the pragmatic, for those who don't really follow the technicalities of the proposed legislation. Perhaps you could look at the current legal protective environment of British Columbia. Once the bill is proclaimed, would there be a requirement for the safety net provisions to come into force? Just outline what some of the implications would probably be for the operation of this bill given the current situation in, say, British Columbia, from a pragmatic point of view.

Mr. Stewart Elgie: I practised and taught law in B.C. for five years. I don't pretend to be the best expert, but I know a little bit about that.

You'll notice that British Columbia got an F in terms of its compliance with the commitments. These aren't our standards. These are the standards it agreed to as being necessary. There are actually memos from the Ministry of the Environment saying they deserve an F, which have been reprinted in the media in B.C.

• 1050

That isn't to say British Columbia is doing nothing. They're doing a number of things, but they're certainly not doing anywhere near enough by their own admission.

The safety net is critical and necessary, in my view, because what it hopefully will do is encourage the provinces that are currently reluctant—and not all of them are—by their own volition to meet the commitments they've made in this national accord so that the federal government doesn't have to come in and actually give them a push. I'd say that the prospect of avoiding that embarrassment probably will be enough to motivate other provinces that may be reluctant, such as B.C., to meet the commitments they've made. Hopefully, the safety net will never have to be used, or only rarely.

I'll give you an example. As it stands right now in B.C., under the forest practices code there's something called an identified wildlife strategy, which is a euphemism for endangered species. We don't like to say the word “endangered” in B.C., so we call them “identified”. It looks good on paper. We identify species at risk, and we have to develop plans for their recovery. But B.C. put a rule in at the end of it that says that all of the measures you take to protect these species cannot have more than a 1% maximum effect on annual allowable cut in any one timber area. If you look at the COSEWIC website, under marbled murrelet, for example, you'll see something like “B.C.'s restrictions on habitat protection have made the achievement of this recovery plan difficult”. It's like saying to you, we're going to protect your house, but pick the 1% you like best.

Again, the goal is to have all provinces meet the commitments they made in 1997. The safety net is an essential element to ensure that happens and also to make sure that in those rare instances where it doesn't, a species doesn't fall through the cracks and become extinct.

Mr. Paul Forseth: Under the failed Bill C-65 there was the whole issue of civil suits that would have allowed Canadians to compel ministerial action. Maybe you can just comment on whether you believe citizen participation is important to species protection and if you think so, just how we might contemplate including that kind of provision.

Mr. Stewart Elgie: I think we should avoid using litigation to implement this bill. I think the bill will be far better if it's done through cooperation, promotion, understanding, and negotiation. But I also recognize that we live in an imperfect world and that occasionally we get situations where government officials blatantly disregard the duties they're charged with. As an absolute last resort, in Canada we've always had the opportunity of going to court to make sure government officials carry out their statutory duty.

What citizen suits do, and should do, is allow that last resort. They should never be a first resort. The citizen suit provision in Bill C-65 was modelled on Ontario's Environmental Bill of Rights Act, which was passed in 1994. I think the committee can take notice of the fact that Ontario's government has not been what you might call green since 1994, but the citizen suit provisions in the Environmental Bill of Rights Act have had to be used only once in those seven years. The reason is that knowing the option of a citizen suit is there motivates environmental officials in Ontario to do at least a reasonable job.

The way it works is, first of all, you have to put in a request for investigation and ask the government to investigate whether or not there's an offence. You can only bring a citizen suit if it's decided by a court that the government's response to your request for an investigation was so unreasonable that it should be overturned. That's a pretty high standard. But if you didn't have that citizen suit power there, you wouldn't have any quality control or checking mechanism on the investigation request powers.

Because citizen suits are controversial, Environment Canada asked industry and environment groups to negotiate an alternative back in 1997. They put three representatives of major industry sectors and three environmentalists on an alternative dispute resolution committee, and they actually came up with an agreement. I wasn't part of it, but another witness will speak to it. They agreed on a process that involved mediation, negotiation, and an administrative dispute resolution process, not a court. We had certainly hoped to see that in the bill, given that industry groups had agreed to it, and it's very discouraging that even that is not in there. This committee itself documented in its report issue two years ago that without any checking mechanism, non-enforcement can be a huge problem in an environmental area

The Chair: Thank you, Mr. Forseth.

Next is Madam Kraft Sloan, followed by Madam Carroll.

• 1055

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

Mr. Hazell, in your discussion around citizen suits, you made a couple of comments that I just wanted to seek some clarification on. At one point, you said that citizen suits could be replaced by third-party dispute resolution mechanisms or they could be complementary, and certainly it was your choice to see them included as being complementary.

Is it possible for citizen suits, in your opinion, to be replaced by third-party dispute resolution, and what would have to be in support of that to make it actually a replacement, or is that just a very poor sort of second choice?

Mr. Stephen Hazell: Stewart's touched on a few of these points already, but the Bill C-65 provisions relating to citizen suits were extremely complicated as they were and, in my view, highly unlikely ever to be used. In order to bring a citizen suit successfully, first of all the citizen would have had to have been through the application for investigation process. There would have to have been determinations made by the minister, and then as a first step in the citizen suit process itself, there would have had to have been a finding by the court that the minister's decision was unreasonable in a variety of ways. Then, following that, if there was a decision of unreasonableness, it could have gone forward.

I guess the suggestion is that, if citizen suits are too much of a hot-button issue, then you could take them out and include the administrative, third-party stuff that was negotiated among industry and environmental groups back a few years ago. That's one way of doing it. Or you could insert it as another requirement that you go through a third-party process before getting to the citizen suit stuff. You could do it either way.

I would say that the disadvantage of the Bill C-65 stuff was that there were pages and pages on the citizen suit stuff. So it created the appearance that there was actually some prospect that you might, as a citizen, be able to take advantage of these provisions, where in my view the odds of you ever actually making it through these various hoops were very, very low.

Mrs. Karen Kraft Sloan: Exactly. I also wanted to ask a question about the definition of wildlife. I believe Mr. Elgie raised this as a concern. Could you further elaborate why you feel there may be some problems with using the current COSEWIC list with this change in the wildlife definition, that it may exclude a lot of the species?

Mr. Stewart Elgie: Sure. You'll find it on page 17 of my brief, if you wanted to have something more thorough.

Essentially, the difference is that COSEWIC for years has defined a species as a species, subspecies, or geographically separate or distinct population of a species. That's very similar to the definition used in Australia, the U.S., and in provincial endangered species laws in Canada. It's fairly well accepted. This bill changes some critical words. It says “biologically distinct population” rather than the definition that's been used for years of geographically or even genetically distinct. I've talked to a number of scientists who all say that the phrase “biologically distinct” is incredibly scientifically vague, almost meaningless—that it could mean everything and it could mean nothing. I've spoken to COSEWIC members who have no idea why this change has been made.

I guess the basic problem is that COSEWIC has just reviewed 155 of the species on its list, applying its traditional definition. If you want to use those species, but you have a different definition in the act, COSEWIC doesn't know if it meets that new definition because they haven't used that term.

So I would recommend that they stick with the one that's worked.

Mrs. Karen Kraft Sloan: Just a short follow-up, Mr. Chair.

When the department officials were here last week, there was a statement—and I followed up with some questioning on it—that there was this whole process of reevaluation of the COSEWIC list. However, there were some issues that were still outstanding—species that had been put on the list that had been there for 30 years. Some of the processes involved in identifying these species for the COSEWIC list were not as transparent as the officials would like because they weren't as transparent as what the bill lays out, and so there are going to be some readjustments to the COSEWIC list. I questioned the witness and asked who will make those determinations. Will it be COSEWIC, or will there be some extra COSEWIC process involved—i.e., political, departmental, what have you?

• 1100

I'm just wondering if you could comment on that, particularly in light of the fact that there's a definition change in the bill.

Mr. Monte Hummel: COSEWIC has a regular process of reviewing and updating its list. It's part of COSEWIC's procedure to review listings. You don't just list it once and then never revisit it. So species' status can change, and species, as I mentioned, can be taken off or downlisted.

I don't see or understand the need to review the work that COSEWIC has done, apart from the fact that the COSEWIC list is now presumably going to become a legally referenced list. I can understand people saying “Okay, this is now referenced and carries legal implications; therefore the list has new significance”. However, because it has new significance doesn't mean that it's wanting or that some species have been arrived at through a transparent process and others haven't, whatever that means.

Having been inside the room, I don't understand all of this mystery and second-guessing about what COSEWIC has done. COSEWIC has done a hell of a good job. It's a perfectly adequate list to start with, and it has an internal process to update and review that list. It doesn't need to have its review processes reviewed.

So I would be very demanding as to exactly why all of this review is being done. What is it about the COSEWIC list, please, that is requiring all of this second-guessing? Who is it that knows more about classifying species than the people who have been around that room doing it since 1977?

The Chair: Thank you.

Madam Carroll, please, followed by Monsieur Herron and Monsieur Bigras.

Ms. Aileen Carroll: I'm just going to do a follow-up before I have my own, which is to say, Ms. Brown last week was again advising us of this process. I, too, am at a loss as to why they're engaging this process.

Mr. Stephen Hazell: I can answer the question, and it relates to something I said earlier. It's the application of the regulatory policy. The COSEWIC list is going to be brought into force through regulations. So unless Treasury Board gives some special exemption, the regulatory policy will apply.

The federal regulatory policy has certain requirements including that the regulatory authorities must demonstrate both that a problem or risk exists and that federal intervention is justified. So the regulatory body is going to have to make that decision that all possible means, whether regulatory or non-regulatory, of addressing the problem of risk have been considered. This is part of the policy. They've got to do it unless Treasury Board gives them some blessing.

As well, they have to look at adverse impacts on the economy to ensure that they're minimized. All of these are important things to do in the context of most regulations, but we have a list that has been gone through very carefully by a scientific group, and all of this stuff is basically looked at during the action planning and recovery strategy process. So it's unnecessary. That's why we say, put the list as a schedule to the act.

Mr. Stewart Elgie: Do what they did in 1997. I mean, the COSEWIC list was good enough in 1996 to roll over; why isn't it good enough now? It's actually been more reviewed now than was the case then.

Ms. Aileen Carroll: And now my question.

If I could, Mr. Elgie, we are discussing the absence of citizen suits or any ADR mechanism. To your section 13, unless I'm missing it, I don't see a category telling me what the provincial legislation is doing in that area. Am I to assume that there are no mechanisms in provincial legislation for ADR?

Mr. Stewart Elgie: It's rolled into two issues down there at the bottom of the list. One is “encourage citizen conservation and protection actions”, which is third from the bottom, and the final one is “provide for effective enforcement”.

These don't cover every single subclause that one would have in a bill. They deal with larger issues, and, as I said, four jurisdictions in Canada do actually have citizen suit laws. Ontario, Quebec, the Yukon, and the Northwest Territories have had laws on the books for years allowing citizen suits in the environmental context, and I can tell you those have never been abused—not once. You can ask officials from those provinces, but they've made a real difference.

Ms. Aileen Carroll: Thank you.

The Chair: Thank you.

Mr. Herron, Monsieur Bigras, and Mr. Mills.

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

• 1105

What I'd like to touch on first is the question that Ms. Carroll and I followed, the last two cases as well. The bar has been set higher by an unprecedented coalition that exists today, but didn't exist even in Bill C-65—that even evolved before the species at risk working group, the Canadian Mining Association, the Sierra Legal Defence, the pulp and paper woodlot owners, etc.—on listing, on critical habitat, on having a fair compensation regime with regard to migratory birds. I would like to make a quick comment before I get to my question. We have to, as a committee, challenge the federal government, which has got a good framework here, to actually join the consensus that has been established.

One particular aspect I have a problem with on listing is that if we make this up according to politics, as opposed to science, the provinces that do have a political listing right now.... I think it's the case right now that species just don't get listed. Could you explain that to me?

Mr. Steward Elgie: Yes. It's on table 8 of what I've given you. I've given you a list showing the provinces that have a law allowing cabinet to list endangered species. In the left-hand column of the table is the number of species COSEWIC has identified as threatened or endangered in those provinces. I should add that provincial government scientists are part of COSEWIC, so those decisions were made with the provinces' own scientists and information. The second column is the number of species that have been legally listed.

Just look. Ontario has listed 19 of 78 species that COSEWIC and its scientists have said are endangered. Quebec has listed 30%, only 8 of 27. New Brunswick's the only one over 50%. In some cases there are some politics concerning the actual protection, but most of the time it's just a matter of inertia—the cabinet's too busy to worry about whether or not Furbish's lousewort should be listed as threatened or endangered. It doesn't make the priority list. So don't make cabinet the road block for getting species listed and protected.

Mr. John Herron: I didn't mean to cut you off, Stewart. I just wanted to see if I can get another question in on case law.

We currently have, under the Canadian Environmental Protection Act, different rules and regulations under the purview of the federal government from those that are not the federal government's. It was stated earlier in this committee that there are already provisions and prohibitions in this bill that the federal government is required to see to within its jurisdiction. Given that those precedents already exist.... The minister made an obscure comment here before the committee, when we did Bill C-33 on that particular issue. Can you cite any case law the minister may or may not have been referring to that would prevent having a hierarchy of protection for this law?

The Chair: Can you do that briefly, please?

Mr. Stewart Elgie: Yes, in two minutes or less.

I don't want to put words in Minister Anderson's mouth. There is an accurate principle, but it's being misapplied. I'm not sure Minister Anderson is the one doing it, but someone must be. Under the criminal law power—and it's not the Criminal Code, it's the power to make criminal laws—the federal government may deal with matters that are fundamental problems in our society, like murder, like cruelty to animals, but it must pass uniform rules. In other words, they couldn't say it's illegal to murder on federal lands but it's okay everywhere else.

So if you were to pass a law purely under the criminal law power, and no other power, you would have to make it identical everywhere. But that isn't the way the constitution works. The federal government can combine its different constitutional powers in one act, and it does this routinely. CEPA is a perfect example. The toxic substances part of CEPA is under the criminal law power, but CEPA has another part that deals with federal lands and provides different standards. It has another part that deals with oceans and provides different standards. It has another part that deals with import and export of toxic substances across borders.

In other words, in this bill, applying that to SARA, there's nothing constitutionally wrong with the federal government's saying, we're going to deal with our lands and our clearly defined areas of jurisdiction in a somewhat different way from the across-the-board way we deal with the safety net under the criminal law power. They do it all the time.

The Chair: Thank you.

Monsieur Bigras. We'll hear from Mr. Mills, Madam Kraft Sloan, Madam Carroll.

[Translation]

Mr. Bigras.

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

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I would like to go back to the statement made earlier by Mr. Hazell, towards the end of his presentation. I do not have the exact wording, but please tell me if I have understood correctly.

You said that the endangered species legislation should apply on all Canadian territory, subject to an existing and/or equivalent provincial law.

I would like to know exactly what you are suggesting. I would also like to hear Mr. Elgie's thoughts on the matter.

Isn't this a type of opting-out for provinces, providing that they have legislation and existing equivalent programs? Should not this be provided for in the act?

[English]

Mr. Stephen Hazell: The answer is yes. I'm totally in agreement with what Stewart said with respect to provincial equivalency in the prohibition powers, and that if the provincial governments enact equivalency provisions, those would take precedence. So we're very much on the same wavelength in respect of the federal safety net.

Mr. Bernard Bigras: Okay.

Mr. Stewart Elgie: The only hard question is, what if a province isn't doing it? You have to remember what we're dealing with here. We're dealing with the question of whether you should be allowed to kill an animal that's becoming extinct, to deliberately, knowingly go out and kill it, or destroy its actual nest or den. Most provinces are dealing with that already, so there wouldn't be a need for it. But if you had a situation where a particular province hadn't done that, then certainly the federal power should kick in and make sure we aren't going around killing endangered animals. Most provinces—Quebec, Ontario—do it already. That's why it's called a safety net, just in case it's needed as a last resort.

[Translation]

Mr. Bernard Bigras: We agree, but you will also agree, Mr. Elgie, that when a provincial law and existing programs are, to all intents and purposes, equivalent to the prerogatives and provisions of the federal legislation, the provinces could have the right to opt-out.

[English]

Mr. Stewart Elgie: It may be worth recognizing. We should leave that to the province's choice. There may be some provinces that are struggling for resources and may say, well, we wouldn't mind having the federal prohibition apply here. That has happened in some instances actually. So I would leave the choice up to the province.

Think about it from the perspective of the animal. An endangered fish doesn't care whether the thing protecting it has a fleur-de-lis or a maple leaf on its hat. It just wants to know it's protected. So we shouldn't be fighting about who's protecting, we should be making sure that someone is.

[Translation]

Mr. Bernard Bigras: You will also agree that ecosystems do not necessarily fall under provincial or federal jurisdiction. This is a much broader issue.

Ecosystems are not restricted to provinces and I agree with you. They're not restricted to federal lands either. This is a much broader issue.

[English]

Mr. Stewart Elgie: It's critical to provinces. You could have the best protection in the world in your province, but if a neighbouring province were doing nothing, your efforts would be in vain. So we just have to recognize that wildlife crosses borders. As Pierre Trudeau said, fish swim. So we need a law that crosses borders as well.

[Translation]

The Chair: Thank you, Mr. Bigras.

[English]

Mr. Mills, Madam Kraft Sloan, Madam Carroll, the chair.

Mr. Bob Mills: I guess there are two issues. If I look at this and what you've said about habitat, I think all of us would agree that's critical, if you're going to actually save or recover a species. But again, I see what that might mean from the landowner's, the land user's perspective. Because some of these species we're talking about have huge territories. If we're going to always err on the side of science, which I think we have to, the area, the effect, the economic effect, the implications of that seem so severe. Coming back to communication, we need to communicate that it isn't as major an issue as we hear it made out to be in the field.

The other related area is with the aboriginal people, their preservation and their cooperation, the need for them to recognize endangered species. A concern I'm aware of particularly in B.C. is where the neighbours are required to do something, but on first nations land they may not be doing the same thing. The potential that creates.... Because not only do they not know provincial borders, they don't know first nations borders either. I wonder how you deal with that situation.

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Mr. Stewart Elgie: You raise a really valid concern. What do we do in the instances when protecting an endangered critter has real implications for a landowner? I think it's important to put that in context. We read the sensationalized stories or of some situations in the U.S. where it has caused real hardship. I'm sure those have occurred, but there are a couple of things to remember.

The U.S. has over ten times as many species in the endangered category as we do. They have over 1,100 species listed as endangered. We have 107. The U.S.'s problem is not its act. It's the mere fact that it has a ton of species in the critical care ward of the hospital and they waited way too long to pass an endangered species act to deal with it.

The better analogy is in Canada. We've had four provinces, Manitoba, Ontario, New Brunswick, and P.E.I., who have had laws providing mandatory habitat protection for endangered species—going back as far as 27 years, in the case of Ontario. I can tell you as someone who lives there, it hasn't crippled Ontario's economy. It hasn't crippled the farming industry in Manitoba.

That doesn't mean there will not be instances, but it's important to put that in context. People do not have endangered species crawling all over their land. Most of us will go through our whole lives without ever seeing an endangered species, let alone having them enveloping our property.

In those rare instances when it does happen, we need to make sure the private owner isn't left with the burden. Let's not exaggerate how often that's going to happen. We have real-life examples in Canada.

Mr. Monte Hummel: I think with the real-life examples, this committee really needs those 1,000 farmers who are helping protect the burrowing owls to come through here and tell you it's not really all that onerous and big a problem. Maybe you need to hear from the people who are delighted to protect orchids and wild plants on their properties, and piping plovers. I could just go down the list.

I have worked with literally thousands of people who have come to the table and who are helping to conserve endangered species. I can't, off the top of my head, think of a single landowner who is out there, put out, and economically disadvantaged and embittered. Yet the examples cited are always of the landowner who's getting sideswiped and dealt with unfairly. The overwhelming burden of practical evidence in the country is of people who are very pleased to help out.

All three of our groups have indicated we support the idea of conservation agreements. I would say as a last resort, not as a first resort, by all means compensate landowners who are providing public benefits at private expense.

I'm not trying to ignore your question. It's a very real one. It's a real concern in the sense that it's a feeling people have. The overwhelming body of real evidence out there is one where things have worked.

The same is true of first nations. First nations in the far north have taken the initiative to set up sanctuaries to protect bowhead whales on north Baffin Island at Igalirtuuq and at Resolute to protect the Peary caribou. It was the Inuit in Resolute who took this initiative. The wood bison were reintroduced and have been brought along by first nations in the area of Wood Buffalo National Park, which spans Alberta and the NWT.

I guess it seems self-serving, but I can give you a long list of people who have come forward and helped out. There isn't a trail of bitterness out there from people who feel they've been run roughshod over by government.

A related issue is the issue of citizen suits and citizens' participation. It seems that citizen actions are always addressed in the context of this committee so negatively. What citizens bring to the table are complaints: we're going to keep the system honest and we're going to sue.

The fact of the matter is government people aren't really that well received coming down the farm lane, as you may know, sir. But there are all kinds of non-government organizations out there, groups such as Ducks Unlimited, the land trusts, and the National Nature Conservancy. Our own organization, the World Wildlife Fund, have field staff who deliver literally thousands of projects every year in the field working directly with the resource sector, private industry, and private landowners. And there isn't a government logo on the side of a truck when you come down.

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Agreements have been struck that have prevented species from becoming endangered in the first place, to which we've devoted no discussion whatsoever. We've put in place voluntary agreements, in some cases agreements that involve incentives and compensation, whereby species are being recovered on private lands. So by the time the government shows up there have been these non-government initiatives put in place and there's a whole bunch of things that have been done. A big portion of the job has been done.

The kinds of the resources we're talking about.... I don't know if you're aware, but Ducks Unlimited has committed $300 million to the North American waterfowl management plan. The United States is putting $1 billion into that. The Canadian governments are putting in about $200 million.

There's an awful lot of conservation and positive benefit being delivered by non-government organizations. So think a little bit about how we can be a delivery mechanism and not just whiners, complainers, and poeple who sue and that sort of thing. This isn't going to happen without the credibility and in many cases the financial resources of the non-government community.

The Chair: With that modest commercial, we'd better move on to Madam Kraft Sloan.

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

I think you should get your modest commercial out there a lot more. I think it's really important to note the kind of work that's being undertaken. In fact, people have asked us if this bill is really worth the effort, when you consider all the other work that's been going on, if we can't improve some of the problems in the bill. Those were questions that we asked witnesses before.

Mr. Elgie, one of the benefits of good safety net provisions within the legislation is it means that provinces are encouraged to have good legislation themselves. So if there were a federal listing process that was a scientific legal listing process, would it not encourage provinces that rely on merely a political listing process to improve their political listing process so that the safety net would not be invoked?

Mr. Stewart Elgie: Yes.

Mrs. Karen Kraft Sloan: Thank you.

I have another question. One of the things the witnesses from Environment Canada had suggested in their brief last week was that one of the essential elements of the legislation was public involvement at all levels, including the COSEWIC listing process. I too believe that it's incredibly important to have citizens and the public engaged and involved.

And on my side, as a legislator, I see a lot of problems that come through with our environmental legislation. It doesn't measure up to a lot of the work I've done on this committee. And I've seen a lot of these pieces of legislation. They just don't measure up. So I am more and more convinced that the public at large and not just stakeholders—because that seems to be a closed door process and there are problems, there are pros and cons—has to have opportunities to be engaged in very positive ways. They have to have opportunities and mechanisms to be engaged in ways that are very accessible.

So it may be that we don't have enough time to discuss this, but I'm wondering if you could either point out in your briefs where this information might be, or give us something in writing, very briefly, on how you feel public involvement is actually operationalized through this legislation. It is very important.

The Chair: Could we have a brief answer, please?

Mr. Monte Hummel: I think all of us are taking positions we think are faithful to our supporters and our membership. So we would argue that the improvements we're proposing to the bill have broad public support.

I think Mr. Herron has twice said that SARWG came in and set the bar higher, in many ways, than this bill is proposing. I would think that the public might set the bar even higher than SARWG, so I would re-pose my question. Whose interests do we think we are protecting or representing when we have as much discretion in this bill as we have? Who is it who wants all this discretion, and why? Industry doesn't seem to.

The Chair: Thank you.

Madame Carroll and Madame Redman.

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Ms. Aileen Carroll: We seem to be coming back to that great epistemological question, whether it's the members of the committee asking it or the witnesses asking it. It is one that we will grapple with during this process.

I think you have done what I wanted to do, Mr. Hummel, which was to say just for the record, Mr. Herron, that the 1996 Species at Risk Working Group was even a broader group and had in its umbrella even more. I think it's important for the record that this kind of collegiality and commonality is important.

For my final question, Mr. Elgie, I want to look at something I find dismal to look at, which is clause 8, when we look at this provincial listing of COSEWIC and look at those percentages of what endangered species have been listed. It's appalling, and it certainly makes the point that you want to make here at committee. To be a bit of a devil's advocate, though, and at the same time a very proud native daughter of Nova Scotia, I see that the one province with legislation that does automatically list COSEWIC species is Nova Scotia. They just have 18 in Nova Scotia. One could argue that it was easier for Nova Scotia to do that than for perhaps British Columbia or Ontario. What would you say if someone came up and said that to you?

Mr. Stewart Elgie: As a percentage of their land base or concentration, Nova Scotia actually is fairly high in endangered species if you consider the ratio of province size to number of endangered species. The southern end of Nova Scotia in particular has quite a number, as U.S. ecosystems come up.

I think what it was is Nova Scotia was able to look at what had happened in the other provinces. Nova Scotia's is the most recent endangered species bill. My sense, because I was asked to come and testify before their legislative committee on that bill too, is that they looked at what other provinces had done and said “We're part of COSEWIC. COSEWIC works well. A political listing process hadn't worked all that well in these other jurisdictions. We're going to try a different approach.” It certainly hasn't been one that seems problematic. I would encourage this committee to think that if Nova Scotia can do it, why can't the federal government follow that example?

Ms. Aileen Carroll: I think that's a great closing. I don't want to add to that.

Mr. Monte Hummel: May I just point out it's a province that has, I believe, 75% private land.

Ms. Aileen Carroll: Thank you for adding that, because it was an issue for me. It just shows great risk-taking and wisdom on the part of the Province of Nova Scotia.

The Chair: Thank you.

Madam Redman, please.

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

Last week, I believe it was, the U.S. Secretary of the Interior, Gale Norton, referred to the U.S. Endangered Species Act and she made the comment that it's not achieving our shared goal of recovering endangered species. She went on to say that since 1973, when the law was first enacted, only ten of the over 1,200 listed species in the U.S. had been recovered. She felt that the fault was actually with the legislation, that more and more landowners found themselves caught in a regulatory web of this legislation making adversaries of the very people with whom they should be working to preserve the species. When she made this statement she used the opportunity to announce that the U.S. will be turning to a more incentive-based program.

I haven't heard anybody here today talk about the fact that the bedrock of our legislation, the piece of legislation we're discussing, is exactly what you were referring to, Mr. Hummel, which is engaging the landowners. Clearly, we have endangered species existing in Canada because those landowners are practising habitat protection and good conservation. It seems to me that what we have before us, notwithstanding some of the refinements you're asking for, is the kind of legislative framework that will work on the ground, from the perspective that we are engaging the people who live there to be part of the solution. So in large part I would question whether we have not hit upon some of the very fundamental issues that you're advocating.

Mr. Stephen Hazell: I think all three of us agree with what you're saying. I think the question the committee should consider is how can we ensure as parliamentarians that landowners are getting the help they need to address concerns that may arise. It may not always be the case that World Wildlife Fund or Ducks Unlimited or Nature Conservancy are there to help them out, or that provincial governments are there to help them out, with the burrowing owls on their property. To what extent can we make this bill work better in that regard?

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I think there are some things that can be done that aren't here, short of compensation. I think there could be an outreach program by the Canadian Wildlife Service to provide advice to landowners who have an endangered species on their property but don't know what to do. Why not? They have the scientific expertise. Why not have something in here that says they'll do that for those landowners?

Mr. Stewart Elgie: First of all, the U.S. act is not perfect, and no one's advocating that we adopt it. They've actually recovered twelve species, not ten species, since the act was passed. Interestingly, Gale Norton made that statement on the occasion of announcing that the twelfth species had just been recovered. The Aleutian Canada goose has been taken off the endangered list as a result of the U.S. Endangered Species Act. That act is not perfect, though, and this bill does have some improvements.

One of the things we did on the task force was to try to figure out what the U.S. had done well, but also where they'd made mistakes. One of the big improvements of this act is dealing with species of special concern.

One of big problems the U.S. has is that they wait until the species is endangered or threatened before their act kicks in. One of the best things about our proposed act is that it deals with vulnerable species or special concern, which is the equivalent of preventative medicine in the health care system. The other thing we do well is having this stewardship fund. It's a really big improvement.

So I'm certainly a big supporter of doing all those things, but I think it's important to remember that cooperative efforts and voluntary efforts alone aren't enough. If they were, we wouldn't have 364 species on the list, we wouldn't have the list getting longer each year, and we wouldn't have far more species moving up in terms of degree of risk, rather than coming off the list in Canada.

A bill alone won't help, but it's a critical part of solving it. If you're going to pass an endangered species bill, make it a good one. Frankly, the federal government doesn't need a new bill to tell it that it has the discretion to protect endangered species within federal jurisdiction. It already has such a discretion. It has had it for decades. They don't need a bill to tell them they have the power to protect endangered fish, endangered animals. You don't need a new law to say that. What we need is a law saying we need to do a little bit more than we've been doing in the past, while recognizing that the law alone will only be part of that solution.

Mr. Monte Hummel: I agree we have the framework for a good act. The framework, in my view, is the accord—and again, Mr. Herron has referred to this—which is really a federal-provincial arrangement that outlines what the provinces are going to do under the national accord. The habitat stewardship program incentives, to which you've referred, are part of the framework. And the third piece of the puzzle is SARA, an effective species at risk act.

But you can't just have incentives. The idea of the spongy stick is that there's sponge on the end of the stick. Once the sponge is exhausted, then you hit the stick. There is a stick embedded in the sponge. The price that government pays for having the stick is that it has to show it has exhausted the sponge, that landowners have had a chance to come to the table, that you've taken reasonable measures before you've exercised the stick.

The price private interests pay for having all the sponge on the end of the stick is that there is a stick. At some point, all of the sponge gets compressed. And government does have the authority and the responsibility to sort out the remaining issues and to say that, because there hasn't been agreement on something, this is the way it's going to be. So you can't just have all sponge.

When I put this poetic concept forward in a meeting of about a hundred people—

A voice: [Inaudible—Editor].

Mr. Monte Hummel: That's right. I normally carry it around with me.

Anyway, who was it that wanted the stick in the sponge, after I outlined this notion? It was the forest industry from British Columbia that said it wanted the stick in there. It was the Canadian Federation of Agriculture that said it wanted the stick in there. They don't want all sponge. They want the stick in there, first of all, so that they know at what point the discretionary aspects of this go away and somebody's actually going to do something—that is, there's some clarity and certainty. Second of all, it's a way of weeding out the bad actors. For those who aren't for the minority of people who aren't prepared to come to the table or go all the way through, there's a stick, and government takes its responsibility.

I did try to support the good aspects of the act. I do think Minister Anderson has half of it right. But the stick is still too spongy, and you have to stiffen it up.

Mrs. Karen Redman: But clearly, lest people watching this on their televisions be misled, there is a backstop in the legislation.

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Mr. Monte Hummel: There may be. That's the problem. This may work on the ground, and you refer to this as something that will work on the ground. It may, depending on a whole lot of political discretion—and not only that, but depending on the political discretion of not only this government, but subsequent governments. You're going to have different discretion exercised by different governments, and I repeat for the fifth time, in whose interest is that? In whose interest is it to leave all this uncertainty? It's going to be exercised this way by this federal government, and it's going to be hell on wheels and exercise its discretion in the best interests of endangered species, but another government might take a different approach. You're going to get this very uneven—

Mrs. Karen Redman: But clearly in the legislation we have a five-year review, we have a round table two years into the legislation, we have the fact that many aspects of this are on the public register—the very public that we are depending on and who currently are looking at protecting species at risk in their habitat. There is transparency built into this piece of legislation.

Mr. Monte Hummel: Fine, so if you're saying there's transparency and the public's going to keep us honest, why not just be honest to start with? I don't find it offensive that non-government organizations deliver major resources and help to deliver programs in the field. I do find it really offensive that the federal government would be contemplating legislation on endangered species while telling us that, by the way, it isn't necessarily going to work unless we have a vigilant non-government community, that it's up to us to make it work because our federal legislators don't have the backbone to pass an act that's going to do the job in the first place.

The Chair: It could also be added that the presence of the stick removes uncertainty—

Mr. Monte Hummel: Yes.

The Chair: —doesn't it? That would put at rest many people who would want to know and who would then act accordingly. Everybody is then notified, and therefore there are no differences seen in the level of implementation. That applies to environmental protection in many fields—as was witnessed in the case of acid rain, for instance—when there is a firm, clear understanding as to what the rules of the game are.

The question that I would like to ask has to do with the provincial listing of COSEWIC—and again, Madame Carroll has the bad habit of asking questions I would like to ask.

Since Nova Scotia is scoring so well, followed by New Brunswick at 70%—that being the percentage of COSEWIC-listed species legally listed by the province—followed by Manitoba at 46%, the Yukon Territory at 33%, Saskatchewan at 31%, Quebec at 30%—I wish Mr. Bigras were here with us—Alberta at 29%, and then Ontario at an abysmally low 24%, would you see merit in the concept of mirror legislation whereby the Nova Scotia legislation would become the mirror legislation adopted by other jurisdictions?

Mr. Stewart Elgie: Nova Scotia's bill is only about four or five pages—well, maybe about six or seven—so you would have to excise a tremendous amount of text from the Species at Risk Act. Really, you could pass a good endangered species act that just had four sections that said “Identify species at risk on the basis of science. Don't kill them. Leave them a place to live. Help them recover.” That's all you need in the bill, really. Everything else is just details on that.

In Nova Scotia's bill, if you look at their grade, they haven't met all of their commitments under the national accord yet either. They've met...there are three or four of the requirements that aren't met in Nova Scotia's bill as well. I would urge the federal government to look across different provinces to see what the best parts of those bills are, what parts have worked well in Manitoba, which ones have worked well in Nova Scotia, or which have worked well in New Brunswick.

Essentially, the answer is that all you have to do is meet the commitments the federal government and the provinces made in the national accord.

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There are examples of good elements in different provinces' bills, and the federal government should try to set the bar high. The most important thing the federal government can do is say that in its jurisdiction it's taking a leadership role. It's setting the bar high, and now it's up to the provinces and landowners to meet the challenge that the federal government has set out in their own jurisdictions and on their lands. If that's the case, we'll never get into this safety net. Leading by example is the best thing the federal government can do in all areas of its own jurisdiction.

The Chair: Thank you.

Well, I think we could conclude today.

Madame Kraft Sloan.

Mrs. Karen Kraft Sloan: I just have a a few quick comments to follow up on what you said, Mr. Hummel, with regard to certainty or uncertainty.

I've talked to many industrial and business leaders across this country, and one of the things they have always pointed out to me is that they're looking for certainty, because they have to do planning. They have to do economic planning based on government regulations and what's going to happen not only today, but five years down the road.

The other thing is that I think it's important for government departments to understand certainty, because certainly the political side of government changes. There are a lot of civil servants who come before our committee, and when they look at me, I think they're saying “This too will pass, and I hope very soon.” That's fine, I respect that, because I'd probably say the same thing.

The issue here is that you have a great deal of discretion in this legislation. You can't begin to make plans for your resources. I understand that if the departments are not properly resourced to undertake mandatory provisions of the bill, then it's up to the political side to ensure they do have those resources, because that is what the public wants. It's in the public interest to do that.

Mr. Monte Hummel: I agree with you.

The Chair: Are there any further comments?

Mr. Hummel, you referred to the 300 acres that you have somewhere. It brings to mind the fact that when you buy a piece of land you buy it in the condition in which it has been transferred by previous owners, possibly bereft of some fine species of trees—white pines in the Ottawa Valley, for instance—or bereft of a number of species that existed, like the wolf, which no longer reaches as far south as it used to, and so on and so forth.

As landowners, we somehow have an obligation to recognize that we are where we are because of our own behaviour as humans, and that we therefore have to rebuild and rehabilitate—and I believe you used that term a few times today. In this rebuilding, there is a big ethical issue at stake in terms of what our obligation is to the future, having inherited something that is not as good as it should have been. Otherwise, we wouldn't be in this room trying to come to grips with a piece of legislation, as Mr. Elgie reminded us several times.

We will conclude by thanking you very much for this session this morning. It was very informative and very helpful.

The meeting stands adjourned.