---

Proceedings of the Standing Senate Committee on
Agriculture and Forestry

Issue 6 - Evidence, April 26, 2001

---

OTTAWA, Thursday, April 26, 2001

The Standing Senate Committee on Agriculture and Forestry met this day at 9:02 a.m. to examine international trade in agricultural and agri-food products, and short-term and long-term measures for the health of the agricultural and the agri-food industry in all regions of Canada.

Senator Leonard J. Gustafson (Chairman) in the Chair.

[English]

The Chairman: Honourable senators, I see a quorum. One bright spot to note today - the potatoes are rolling across the border.

We have had many witnesses appear before us, and we have covered a great deal of information concerning the issues. Are there other items that you would like to have on the agenda?

Senator Hubley: Have we established our travelling agenda?

The Chairman: There will be discussions on that.

Senator Hubley: Thank you.

Senator Chalifoux: There is a drought situation in Southern Saskatchewan and Alberta, right up into the Peace River country. We need rain soon. It is the second driest season since about 1885. We should examine that situation for possible solutions to a serious problem.

The Chairman: I was talking to the president of the Wheat Pool on Tuesday morning, when I flew in. He said that they were already seeding into the dust and just hoping for rain. We should look at that situation.

Senator Oliver: Are there no irrigation systems that can be used?

Senator Chalifoux: There are none in the northern areas, although there are some in Southern Alberta. However, there are no irrigation systems in the drought areas of Cyprus Hills and the eastern part of the province, between Saskatchewan and Alberta, around Hanna. They have been trying to establish a system to take water from the Red Deer River, but that river is overutilized now. Therefore, it is not a solution, because the river has its own problems. I have all the information, if you would like to look at it to understand what is happening there. It is a serious situation.

The Chairman: Is there anything further?

Senator Tunney: I have a query. This committee studies issues of agriculture and forestry. It seems that forestry does not receive much attention. It might be time for us, given the circumstances with softwood lumber, to devote more effort to forestry. We will not deal much with the softwood lumber issue directly, but perhaps we should deal with some eastern forestry issues, such as in the New Brunswick area. It has a large forestry industry, and I believe that there is much pulp produced in New Brunswick. That is a different commodity from that which is produced on the West Coast. Perhaps that concern could be added to our agenda.

The Chairman: That is a good point. It has been a concern of the committee, and that is why we indicated that we should have a subcommittee to deal with that issue. The subcommittee was underway, but we need to reinstate it. I understand that we can do that within the parameters of our committee. Perhaps we should have some discussion on that issue a little later.

Our first item on the agenda is rule 94. We had a joint discussion with Dr. Heather Lank on this, and the parameters are quite broad. There are some members of the committee, who are not here now, who believe that we should play for time and see what results. That seems to be what is happening with the clerks; we asked the clerk whether the lawyers would appear to explain it to us, and they are not getting involved, they tell us, in an explanation. I will ask the clerk of the committee, Daniel Charbonneau, to address this.

Mr. Daniel Charbonneau, Clerk of the Committee: There is not too much that I can add. The new rules for senators were passed in October 2000, and they involve the personal financial disclosure of each senator, relating to the order of reference for which the committee is studying. Basically, once the motion is passed, a senator has the option to file a declaration or not. It is up to his or her discretion. If the motion is passed, senators will be required to look at their individual financial situation, to consult their own personal attorney to obtain legal direction on this, and make a declaration. Once that declaration is submitted in writing, it is then filed with the clerk of the committee and is made available to the public upon request. Usually the senator will have 30 days to make that declaration. If any senator does not make a declaration, it will be assumed that there are no personal financial interests. However, additions can be made to the file. If a new consideration arises, a new declaration can be filed at any time. This will also be applicable to all new members of the committee or members who are substituted. I have included in the package, which was given out this morning, speeches in the House by Senator Austin when the rule came into effect.

My role in this is limited - it is to receive the information. I am not here to provide a legal opinion on the rule or a clarification of it. Also, a law clerk will not provide any advice because it is of a personal nature. Now, the committee will have to decide whether to invoke the rule.

Senator Oliver: Mr. Chairman, I believe that we should proceed slowly and carefully with this issue. As some of you know, I was the co-chairman of a special joint committee of the House of Commons and the Senate. My co-chair was Peter Milliken, who is now the Speaker of the House of Commons. For about two years, we studied the possibility of bringing in a code of ethics for parliamentarians in the Senate and the House of Commons. The code would deal with disclosures, et cetera. We prepared a report and tabled it in the House of Commons and the Senate. There was no indication that either House wanted to adopt it, and so it died on the Order Paper.

When the "Michael Kirby matter" came up, I wrote to the Chairman of the Rules Committee, Senator Austin, and I asked if I could appear as a witness to give evidence about the report that was prepared by Mr. Milliken, other parliamentarians, and me.

I was squeezed out and did not have an opportunity to appear. It was my opinion that you should not deal with the global issue of disclosure in the special case of one senator only, but rather you should do it broadly for all parliamentarians, so that we have some good general principles. That was not done.

This is setting a dangerous precedent. It has not been carefully thought out. It is not a good document, it is not all-embracing, and it should be part of an overall general code. We should leave it alone and tread carefully so that we do not find ourselves involved in various problems.

The Senate needs people who have experience in various areas to use their expertise to help develop good public policy. For instance, I would hope that many of our members have some agricultural experience in their background so that they can provide the expertise to the committee to help develop it.

Rule 94 can help to keep people out rather than encourage people to take part. My strong view is that, until we have more information, we should not accept it.

The Chairman: Is there further discussion?

Senator Tunney: Was there any talk about members having to use a blind trust?

Senator Oliver: No, there was not. We heard much evidence about blind trusts, and a number of people who appeared before the committee said that they do not work.

Senator Tunney: Did they not favour it?

Senator Oliver: We had the case of Sinclair Stephens, and then we had the Parker commission following that, wherein the whole issue of blind trusts was analyzed, and blind trusts are not blind.

Senator Tunney: Thank you.

Senator Fairbairn: Why will the clerk and the lawyer not appear?

The Chairman: They did not give us a full answer. It was Senator Stratton's suggestion that we ask the clerk or the lawyer to come and explain the rule and they said that they would not get involved. Other senators have raised the same question.

It is not compulsory. Any time that a senator might think that he or she has a conflict of interest, the declaration can be made. It would not be necessary to speak to the issue.

We are fielding questions and comments from members so that we can decide how to deal with this.

Senator Sparrow first brought it to my attention and suggested that perhaps we should take some time to reflect on the issue and leave it for a while. I have since discussed it with other senators from different committees, and there seems to be a general feeling about that. Senator Oliver and Senator Tunney have spoken to it and we can have further comments.

Senator Tunney: Mr. Chairman, further to that, we should have some guidance as to what subjects we need to consider in our personal affairs so that we can decide if we need to make a declaration and what it is that we need to declare.

The Chairman: I could speak to that. In the nine years that I was parliamentary secretary to then Prime Minister Mulroney, the rule was very simple. In an agricultural reference, if you received the same return that all other farmers received, that was fine; there was no conflict. However, if you had special dealings with the government relating to agriculture, then of course that would be a conflict. That was straightforward and that is the way it was dealt with for the nine years that I was a member of Parliament. It was the same way for the Minister of Agriculture.

Senator Stratton, you recommended yesterday that we ask the lawyer from the desk to explain the rule. We talked to Dr. Lank, who indicated to us that they would not become involved.

Senator Stratton: Will the legal counsel not be involved?

The Chairman: The legal counsel of the Senate will not explain this to us. We asked.

Senator Stratton: I do not want to presume to compare myself to Mark Audcent, but I will relate a brief history of how I ensured that I was on the straight and narrow. I had to do that because of my consulting business, which is specific to buildings. I design and build research labs in pharmaceutical plants. You have to be careful that there are no conflicts of interest.

As well, I have been asked to serve on various boards, both in the fullest sense of serving as a standing member of a board, as well as a member of an advisory board. The advice given to me was that, as a senator, I have the right to earn a living. Therefore, as long as the income that I earn from my field of work is not derived from public monies - and I have to be careful that the two are split - the companies that I consult with have the right to obtain government funding. However, any money that I receive as a fee has to be separate and distinct. That is one issue.

Being a member of a board is a different matter. If you are asked to sit on a board, the first question you need to ask is whether the board receives government funding. If the response is in the affirmative, then you cannot sit on that board. The board is responsible for the overall income and decisions of the company. If the company receives government monies, then you cannot serve on the board. It is the same for an advisory board member.

Now, the Chairman told us how it works if you are a farmer - you are treated as one of many, so that you do not have a conflict of interest. That is because you are not directly seeking and advocating for yourself individually as a farmer.

I am not giving you advice, but I simply wanted to provide my experience as an explanatory note. A minister is required to make a declaration of his or her assets and lay them out quite clearly so that there is no conflict.

I am not a lawyer, and I do not pretend to be one. I am merely passing along my experience. For your own sake, it is advisable that you call Mark Audcent if you have any questions about your interests, although he is a busy man and may not have the time for all of this. The last thing we want is a conflict.

A conflict could arise inadvertently. You may note that a group needs help and decide to help them. You could end up with a conflict a mile wide just simply by offering that help.

The Chairman: We were asked to not ask the Senate lawyer to appear before us - Dr. Heather Lank - because they had come to the conclusion that they were not going to get involved. Senator Oliver made a good point on the expertise in the Senate. I would ask you to reiterate that.

Senator Oliver: I have personally served on three special joint committees of code of conduct for Parliament since I came here in 1990. The last one I served on, I was the co-chair with Peter Milliken. It was a special joint committee to study a possible code of conduct for members of Parliament, including both the Senate and the House of Commons. We did our study. We did our report. We drafted a code, and I tabled it in the Senate and Peter Milliken tabled his in the House of Commons. The report died on the Order Paper and did not become law.

That report covered aspects of the Criminal Code, the Parliament of Canada Act, and other statutes. We were trying to come up with a comprehensive code to deal with everything that affects our lives and make sure that we discharge our duties as members of Parliament in a way that reflects the public interest.

My concern when the Michael Kirby matter arose was that it was only going to deal with one senator, with one issue, and we should be looking at a broader picture. I wrote to and got in touch with Jack Austin, the chairman of the committee, and I asked to speak as a chairman of a former joint committee and outline some of the issues that we had considered in that committee. I was squeezed out and did not have that opportunity. I am worried about dealing with only one small aspect of a major ethical and legal problem. That is my concern with this document. That is a quick summary.

[Translation]

Senator Gill: I am concerned about the application of this rule to senators and to all Senate committees. Other committees, like the Aboriginal Peoples Committee for example, adopted rule 94 by resolution. Will this rule apply in the same way to each committee? I am interested in the airline industry and I own some airline companies. When I was appointed to the Senate, I decided not to serve on the Standing Committee on Transport because of the possibility of having a conflict of interest.

This rule should be applied in a uniform way. I do not see the point of a rule of this nature if it is applied differently in each committee. How will this rule in fact be applied?

[English]

The Chairman: In reading the document and from speaking to Dr. Lank, I understand that it is not compulsory. You could make a decision as a committee whether you want to be a part of it or not. It seems to me that the desk is looking at it in the same way, allowing senators to make up their own minds about this situation.

Senator John Lynch-Staunton indicated the same thing in his speech. He noted that it was not compulsory. As a Chair, I am in your hands.

Senator Stratton: One point of clarification that Senator Tkachuk mentioned, when I am talking about receiving government monies as an individual doing business, it means federal government money. You may receive municipal or provincial money. I hope that you understand that.

Senator Oliver: That is covered by the Parliament of Canada Act.

Senator Stratton: Lawyers can act as, what are they called?

Senator Oliver: Legal agents? No.

Senator Stratton: No, lawyers can be members of a firm and still be in the Senate.

Senator Oliver: I could speak to that.

Senator Stratton: You may act as counsel for the...

Senator Oliver: I had to resign when I came, but I do not want to...

Senator Stratton: The legal profession has managed to define it, and it is appropriate. I think that the same thing follows for farmers. You do not receive money as an individual directly from the government.

I resigned simply on the basis that my company did business with the federal government; I received monies from the federal government.

Senator Oliver: I had to resign from several businesses. I have been a lawyer for 36 years, and I am not here giving legal advice. I am saying that I for one will vote against this because there is more to this issue than this little piece of paper says. We are potentially exposing ourselves to liability. The thing should be studied. This is no way to proceed in a Senate committee.

The Chairman: I would like to respond to Senator Gill's point. I think that Senator Gill should be on that committee, because I do not know anything about airplanes or the airline business. I think that he is someone who should be on that committee.

As I observed, people come to the Senate with great expertise in different fields. We should draw upon their knowledge in the committee in dealing with different areas of expertise. That is important.

Senator Fairbairn: I am sorry that I was late today, and was absent last week on public business. I should know the answer to the questions I am going to ask, but I do not, so I will ask them.

I am puzzled. I do not have a problem with any of this because I do not have any interest in anything that could conceivably cause me to be in a conflict. However, I am puzzled that we are talking about it in this way. Is my understanding correct that all committees are being asked to pass this? Is that right?

The Chairman: No, they are being asked to make a decision on whether to pass it or not.

Senator Fairbairn: Okay, whether they pass it or not. Is it not conceivably going to be rather odd if one committee decides it will pass it and another committee decides it will not?

We have rules for senators. A rule might be as simple as putting the onus and responsibility on each individual senator to declare whatever, as a general rule of the Senate. I am puzzled by the notion that, say, Aboriginal Affairs Committee may pass it and we may not. I do not understand how you do business that way. I am puzzled at the process.

As someone said, one of the great things about the Senate is that it is filled with people who come from the widest possible variety of backgrounds. If people do have interests for which there is a requirement, they declare them. Why would members on one committee be obliged to declare, and members on another committee not be so obliged because they do not agree with the policy?

It is a curious process. In the 17 years that I have been in the Senate, I do not think that I have encountered anything like it.

The Chairman: I was surprised when we received advice that we not ask the legal advisors because they had taken the decision that they would not come.

Senator Fairbairn: It seems peculiar to me anyhow. Perhaps I do not understand it properly. I understand what the motion is about, but it is a peculiar procedure.

It is even more peculiar when the persons who might be able to enlighten us on why it is peculiar feel that they are not in a position to come and explain it. I find it odd.

Senator Stratton: We should refer this back. It should go to Rules or Regulations, or some committee like that, to deal with on a general basis.

The Chairman: Are you not on that committee?

Senator Stratton: Yes.

Senator Oliver: He is the co-chairman.

Senator Stratton: If I may finish. Mark Audcent did not provide me with legal advice. He provided me with information. There are no rules here with respect to that. However, there is lots of information around.

We have never adopted anything formally, but there is information from the House side, for example, as to what you should or should not do. It is surprising how easily you could get into trouble.

I do not recommend that we proceed until someone deals with it properly. It came out of the blue. We should at least be able to obtain the documentation that is available from the House side, or our side, to put before you as individuals so you can make an appropriate decision as to whether or not you will sign.

Senator Tunney: Thank you very much, Mr. Chairman. I have a big problem with this, like Senator Fairbairn. I suppose that I would have a personal problem if this gets general approval, because as a farmer earning a living, I have duties, not just to myself, but to my industry. For the benefit of all dairy farmers, I will be making intercessions with the Department of Agriculture or the Department of Finance. I would probably benefit by my efforts. If I were not doing that kind of work, I probably would never even have been noticed as a candidate for the Senate.

You do not want someone on this committee who does not have some activities in the agriculture industry. Why would he be here if he were not involved and informed, especially informed?

This does not make any sense to me. At the same time, I would not be averse to making a declaration if I had to make one.

The Chairman: Further discussion?

Senator Fairbairn: I want to make clear that I think conflict of interest is an important issue for people in public life. I was interested in what Senator Oliver was saying about the work that he had done, along with Peter Milliken, on the issue and that there were recommendations that came from it. Those recommendations were put before the Senate and the House, and they fell off the table because of the election.

The matter that we have before us is difficult to understand. First of all, it is difficult to understand the process, pure and simple. I have already talked about that.

Senator Stratton said that it might perhaps be an appropriate matter to refer to the Rules Committee, Senator Austin's committee. If a joint committee has produced something on this that was set aside because of an election, is there no way that that can be resubmitted as the basis for a sensible discussion on what process, if any, should be adopted by the Senate?

I do not see the logic in this process. I have no problem personally with the substance. I do not see the logic of having different committees in the Senate conceivably coming up with different results. Where does that get you, and where does that get the Senate? There must be some consistency in how the Senate deals with it. I have never seen the Senate deal with anything on this kind of basis. Am I wrong?

Senator Gill: I would imagine that it is not urgent. Instead of voting for or against, I imagine that we have to have more information and check what we are discussing right now. If it applies to one committee, it should apply to all committees. We must be consistent.

Senator Sparrow: We are talking about rule 94?

The Chairman: Yes.

Senator Sparrow: I do not understand why the Senate would bring in such a broad-based proposal where a committee may make a decision about signing a declaration. In turn, the senator does not have to sign it. The senator makes that decision. The committee cannot force the individual senator to sign. Is that correct?

This rule has been passed by the Senate. It is in the rules. It has gone to Senator Austin's committee, and that was the rule they determined.

It appears to be a case of wanting it to look like something is being done when nothing is being done. That is exactly what I think it is.

I am opposed to signing this at any time.

We change members on committee often, so you sign it for one committee, and then you change it. You may change it for a day. You know what I am saying? Committee members just change so rapidly. Who keeps track of all this?

I have been here a long time, and I have never seen any conflict of interest on the Agriculture Committee. Senators, we all know that if we have an interest, we step aside. Good judgment says we step aside. We do not discuss that issue, and that is true in municipal governments or wherever we go. I think that the rule is there, but I think it is foolish for the committee to decide that we are going to do this and put someone in charge of making sure everyone signs, or at least encouraging them to sign.

You may ask me to sit on the committee for a day to replace someone, and I would sign at that particular time. Subsequently, when I leave the committee, must I sign again another time?

There are many issues here. I reviewed it yesterday, and at that time thought I would not sign it anyway. I certainly think that we should leave it alone.

It was mentioned that if one committee signs, all the committees should sign. I agree with that. However, there may be committees, such as the Standing Senate Committee on Banking, Trade and Commerce, where discussions about, for example, the Bank Act could give rise to concern about the individual members of that committee. That concern stems from the same rule that covers committee members who sit on boards of directors. Therefore, on that committee you may, for those hearings, decide to ensure that no senator has a particular interest in it, and have the senator make such a declaration at that point. To make a permanent declaration is a bunch of red tape.

The Chairman: The committee certainly has the power to decide not to invoke the rule.

Senator Tkachuk: As an example, on the Standing Senate Committee on Aboriginal Peoples, I threw my declaration in the garbage because I have no conflict of interest. What is the point?

Senator Gill: However, we signed it.

Senator Oliver: I move the matter be deferred.

The Chairman: Have we a seconder?

Senator Fairbairn: To what would we defer it?

Senator Sparrow: That is a negative. We do not have to do anything. We just leave it alone. I suppose the motion would be that we do not consider it at this time.

Senator Fairbairn: I would like to understand the rationale behind this rule that is being put before all the committees. Conceivably, some will agree to comply and others will not. I do not understand why we are unable to obtain an explanation. I have nothing against protecting the Senate and giving all senators the opportunity to protect themselves. Common sense would tell every one of us that we have to do that. However, it seems to me that there is some confusion, and at the very least, someone in control of this area ought to be able to explain to us why we might find ourselves in a patchwork of obligations - a conflict for certain senators on some committees and no conflict for certain senators on other committees.

Senator Sparrow: The speech given by Senator Austin in the house is clear. Perhaps you did not have a chance to read it, but it is clear in its explanation of the reasoning behind this. You could read it first, and then if it is still not clear, have someone explain it to us.

The Chairman: Senator Oliver made a suggestion. It is important to understand that this is much deeper than it appears at first to be. That first look is very important. We should postpone it until we hear further explanations. Are we agreed to that or are there more questions?

Senator Tunney: Did you not make a motion?

Senator Oliver: I moved to defer, but there was no seconder.

Mr. Charbonneau: That is not necessary in committee.

Senator Oliver: I withdraw the motion.

The Chairman: Are we agreed to wait until we learn more about the situation?

Hon. Senators: Agreed.

The Chairman: I will have the clerk speak to that.

The committee continued in camera.

---