Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 27 - Evidence
OTTAWA, Thursday, April 18, 2002
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 10, respecting the national marine conservation areas of Canada, met this day at 9:32 a.m. to give consideration to the bill.
Senator Nicholas W. Taylor (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, we are meeting this morning on Bill C-10 and will hear from Sarah Dover of the World Wildlife Fund Canada.
Ms Sarah Dover, Policy Advisor, World Wildlife Fund Canada: Mr. Chairman, thank you for inviting me to appear before you during your deliberations on Bill C-10. My function with World Wildlife Fund is to help to communicate the community activities and scientific efforts of World Wildlife Fund through to decision makers in Ottawa.
World Wildlife Fund Canada has approximately 70 staff members dispersed throughout the country and on all coasts. I am proud to be the only government relations person on staff, which reveals the bias of our organization toward being active on the ground, working with those people who are affected by what we advocate.
We sincerely appreciate the dedication of the Minister of Canadian Heritage, her staff and all parliamentarians in allowing this significant bill to reach this stage.
World Wildlife Fund Canada was founded in 1967. It is one of the nation's largest and most successful conservation organizations. We work domestically and abroad and currently enjoy the active support of more than 50,000 Canadians.
World Wildlife Fund Canada is part of a global organization with almost 5 million regular supporters, a network of 27 national organizations, 22 program offices and 5 associate organizations. World Wildlife Fund International is the world's largest independent organization dedicated to the conservation of nature.
The objective of realizing a system of representative marine protected areas by the year 2010 is a major priority for World Wildlife Fund Canada. Our work toward this goal has included the opening of Atlantic and Pacific regional offices in Halifax and Prince Rupert respectively.
We have also published an authoritative scientific work entitled, ``Planning for Representative Marine Protected Areas: A framework for Canada's Oceans.'' This classification system is made easy to understand through an accompanying map.
With the permission of the Chair, I will leave these materials with the clerk for the benefit of any interested senators, researchers and staff members.
World Wildlife Fund has been committed to the passage of this bill since its inception.
Again, with the permission of the Chair, I will leave with the clerk two documents that detail the WWF position on Bill C-10. The first is our submission to the House of Commons Standing Committee on Canadian Heritage and the second is a briefing note released following committee stage.
Please note that in the evolution of these documents, the committee chose to accept some amendments proposed by WWF, but certainly not all. While we were disappointed by some of these omissions, we feel that this is a good bill that will work ``on the water'' and at the community level. We strongly urge you to consider the important issues surrounding this bill and ultimately return it to the Senate without amendment.
In the 2001 Speech from the Throne, Governor General Adrienne Clarkson stated the following:
Canadians are the guardians of a significant percentage of the world's wilderness and wildlife. The Government will invest in the creation of new national parks and implement a plan to restore existing parks to ecological health. It will work with its partners toward more integrated, sustainable management of Canada's oceans. And it will re-introduce legislation for marine conservation areas and to protect species at risk.
The commitment to marine conservation was a reiteration of previous commitments by the government in earlier Speeches from the Throne and Red Books. Bill C-10 will allow the government, through a synchronized effort by Fisheries and Oceans Canada, Environment Canada and Parks Canada, to proceed toward an ambitious and necessary vision of a national system of marine protected areas.
The need for marine conservation has never been more urgent. Our rich marine resources are under increasing threats. Further, our international commitments to preserve our unique marine environment have far outpaced our domestic performance.
In June 1992, Canada signed and ratified the Convention on Biological Diversity, which includes a commitment to establish a system of protected areas. Canada is truly a maritime nation and the good fortune of our national heritage comes with a great responsibility to protect and manage it wisely.
Eleven of 13 provinces and territories have coastal components. We can boast the largest coastline and the second largest continental shelf in the world. We are home to a wide range of marine habitats, including rocky shores, sandy beaches, algal reefs, kelp forests, coral reefs, estuaries, seagrass beds, coastal marshes and mud flats.
Canada's marine heritage includes values analogous to underwater Banff and Jasper national parks, but they are unrecognized and unprotected.
Bill C-10 is a critical step toward enabling the government to proceed with effective marine conservation. Marine conservation areas, or MCAs, can address some of the most serious threats facing marine environments, including habitat destruction, overexploitation, overfishing and pollution.
The laudable goal of Bill C-10 is to establish a system of representative marine protected areas for the benefit, education and enjoyment of the people of Canada and the world.
A key strength of Bill C-10 is the interrelationship established between conservation and sustainable development. The most striking difference between the Canada National Parks Act and this bill is the omnipresence of sustainable development in the latter.
Bill C-10 rightly amends the Canada National Parks Act and moves the relevant responsibility into a separate bill that expressly considers the needs of the special marine environment and the coastal communities that are economically and culturally dependent on oceans.
In consideration of the special needs of the marine environment, Bill C-10 requires MCAs to be managed ``without compromising the structure and function of the ecosystems, including the submerged lands and water column, with which they are associated.'' This section of the bill, and others, relieves Parks Canada of the burden of attempting marine conservation with legislation that was drafted with a terrestrial context in mind.
In this same vein, Bill C-10 acknowledges the reality of the relationship between coastal communities and oceans.
Any MCA that lacks community support will fail in its conservation aims. Bill C-10 ensures that coastal communities will be empowered to determine if they want an MCA and integrates them into the establishment and management processes.
The bill requires community consultation as a precondition of the development of marine conservation area policy and the establishment and modification of specific sites. Communities must also be involved in the development of the local advisory committees. These legislative provisions, coupled with Parks Canada policy and guidelines, will ensure that coastal communities will be effectively involved.
The zoning provisions of Bill C-10 elucidate the marriage between conservation and sustainable development in Bill C-10. These provisions require the minister to designate specific areas of high protection and areas of sustainable development within each MCA. Another positive aspect of zoning is flexibility. The management planning process may identify more than two types of zones and therefore creatively considers the needs of communities and conservation.
The community investment in the management planning process is protected through the permitting provisions that require that all permits be consistent with the management and interim management plans. Cooperation is an underlying principle of the bill. Sections pertaining to consultation with communities also include consultation with other orders of government and relevant departments within the federal government. Further, the bill was modified through the House of Commons standing committee to ensure there is a clear course of action when clear title to the lands is not apparent.
Bill C-10 rightly does not abandon positive aspects of the Canada National Parks Act. Many of the framework elements for the establishment and management processes are similar. For example, many of the parliamentary review and reporting requirements will be familiar to this committee and to all parliamentarians. These processes have been honed through the terrestrial experience.
The inclusion of the precautionary principle in the preamble and the management planning sections of this bill is a positive feature. Bill C-10 sets ecosystem management and the precautionary principle as the primary considerations in the establishment of management plans. This will allow the management planning process to take preventive actions when there is evidence of harm but full scientific certainty cannot be achieved. The precautionary principle in this context recognizes the complexity and persistent unknowns associated with the science of the marine environment.
In closing, we once again urge you to pass Bill C-10 without amendments. The enactment of this bill will allow communities, First Nations, environmental groups, stakeholders, governments and others to move forward on the goal of establishing a system of representative marine protected areas in Canada.
The passage of this bill will allow for immediate progress on the establishment of two key sites: Western Lake Superior and Gwaii Haanas Marine Conservation Area Reserve. These two sites are overdue for designation and their speedy establishment would be a welcome signal of government intent to move forward.
I would be remiss if I did not also mention the issue of funding for marine conservation. The last federal budget, understandably preoccupied with issues of national security, neither funded Fisheries and Oceans Canada's oceans strategy nor Parks Canada's establishment of new areas. The lack of funding for coordination, vision building, establishment and maintenance of national parks, marine protected areas and marine conservation areas is of serious concern to World Wildlife Fund.
Thank you once again for including WWF in your deliberations on Bill C-10. I certainly welcome questions from the committee.
Senator Cochrane: In your brief, you mentioned two sites that you are looking at, Western Lake Superior and the Gwaii Haanas Marine Conservation Area Reserve. What is it specifically about these two areas?
Ms Dover: All the areas that are designated as potential sites for marine conservation areas have a number of key components. The most important is community support, which Western Lake Superior has, as does Gwaii Haanas, although certainly more discussion is needed on the north coast of B.C. in respect of that site.
The other consideration is that they are ecologically important, are of a sufficient size and have marine values associated with them.
Senator Cochrane: What types of marine values do they have?
Ms Dover: That is decided on a case-by-case basis. Sites established by Parks Canada would be large and representative of the ecosystem in which they are contained. Imagine if you will, forming a representative committee of a larger group within society. If you were to form a committee of engineers, who would need to be on that committee to make it representative of the whole? The approach to selecting key areas that will provide for lasting representation of those larger ecosystems is somewhat similar.
Senator Cochrane: How long would it take, from the time that you find a designated site, until it is up and running?
Ms Dover: I wish that we had more experience with this. However, much of that depends on the progress of consultations with the community. They are, by their very nature, slow discussions.
Senator Cochrane: I am assuming that the community and all the other groups are in agreement with this.
Ms Dover: We begin with an initial proposal as suggested by the best science available, and then proceed through a process of consultation to develop an interim management plan and to gauge support within the community.
Senator Cochrane: One question that has arisen regularly during the committee's discussion of Bill C-10 is the potentially negative impact on the livelihoods of those who work in industries. I am thinking here about the fishery. Could you tell the committee how, if at all, you foresee this proposed legislation impacting on that industry?
Ms Dover: Marine conservation areas are a unique type of protected area. They are not small, what we call ``NTZs,'' or no take zones, but areas of high protection that would not allow for fishing. Marine conservation areas are bold, so they are large. They may include within them zones where fishing would not be allowed. They are managed for sustainable development in consideration of community needs.
We know from our experience with marine protected areas in other parts of the world that in these types of conservation initiatives, fishing is the industry that tends to benefit most. That is because when we can protect those aspects of the ecosystem that the fish rely upon in order to maintain healthy populations, we ensure the survival of healthy fisheries.
Senator Comeau: It is always a pleasure to join the committee in discussion of subjects such as this. Ms Dover, I should like to thank you for appearing and giving us your ideas and for the enthusiasm with which you approach the subject. I share quite a few of the viewpoints that you have raised today on the subject of protecting our environment.
However, my understanding of this bill — and I have read it many times — is that it is not a marine or a habitat or fisheries protection bill. That is not the intent. The intent of the bill, if I understand it correctly, is to create representative areas for visitor enjoyment and education and to preserve them for future generations. Is my reading of it incorrect?
On page 4 of your presentation you refer to protecting habitat, including rocky shores, sandy beaches, mud flats, et cetera. You used the words ``unprotected'' and ``serious threats facing marine environments including habitat destruction, overexploitation and overfishing and pollution.'' Also, in some of your responses to Senator Cochrane, you referred to ``conservation initiatives.'' These are all goals and objectives that I entirely support. However, according to the minister, this is not the intent of the bill. Am I right?
Ms Dover: Perhaps we may be saying the same thing, but using slightly different language. Certainly it is not the intent of the bill to establish areas of unmitigated protection to preserve against all activities in the water. It certainly is the intent of the bill to strike what I would describe as, not a balance between sustainable development and environment, but rather a healthy coexistence.
Senator Comeau: The bill refers to using the management tools of sustainable development, to the goal of sustainable development and to the precautionary principle. However, getting back to the bottom line, if this bill has an objective other than the establishment of representative marine protected areas, I think we have been misled.
I raise this because, in your presentation, you frequently mention the concept of marine protected areas, which, as you know, fall under the Oceans Act. At the end of the day, that act is under the Department of Fisheries and Oceans. Unfortunately, the concept of marine protected areas is one of the tools that we have not used since 1997. Although the bill was not introduced by my party, we supported it fully. As it is, we are not protecting those areas. Are we now, through another means such as marine conservation areas, doing what we should have done through the marine protected areas initiative of the Oceans Act?
I return to the fact that you refer to ``marine protected areas,'' which is different. Could you comment on that? Am I wrong about that also?
Ms Dover: There are two important points that you raise. On the degree of protection, or the purpose of MCAs, it sounds like we are entirely on the same page. Please understand that we hire people who live in the communities where they work. It is absolutely fundamental that communities support a proposal for an MCA. We would not support a proposal that did not have the involvement of the respective community or of the First Nations. As part of that management planning process, the needs of the coastal community must be implemented.
The purpose of the bill is conservation. We achieve that by developing a marriage between sustainable development and conservation needs. If we were to spend a community's time and investment in establishing an area that did not effectively conserve the environment, then it would hardly be worth their time. It is important that we achieve conservation in a way that does not abuse the faith of coastal communities.
Senator Comeau: Could we stay on that question of coastal communities' involvement? I understand you have a small office in Halifax. Do you have one on the West Coast as well?
Ms Dover: Yes. Our Pacific regional office is in Prince Rupert.
Senator Comeau: How many people are in the Halifax office?
Ms Dover: I believe there are approximately five.
Senator Comeau: Do you know how much fishing there is out of Halifax?
Ms Dover: No.
Senator Comeau: There is very little, by the way. The fishing communities are not in Halifax. It reminds me of the time ministers flew to Halifax and returned saying how great it was to visit the Maritimes.
Senator Cochrane: Atlantic Canada.
Senator Comeau: That is right. For the coastal communities, consultation involves meeting with the people who are actually involved in the industry — the fisher people, although I still prefer the word ``fishermen'' — and who work in the plants. They have evolved a consultation process with the Department of Fisheries and Oceans over many years. It may not be the best of relationships, but at least they know one another. Sometimes in this business of dealing with government, it is the ``devil you know'' syndrome — at least you know what to expect.
Now we have a brand-new group arriving in those communities where people are busy trying to fish and earn a living. This proposed new group is a Parks Canada agency, which will consult with these people on creating marine conservation areas. The people will say, ``We have already had consultations on marine protected areas.'' To which someone from this new group will reply, ``That is different because this is to conserve; the other is to protect.'' Do you have any idea what kind of confusion this will create in those communities, where government should try to keep things simple and straightforward because these people are busy trying to earn a living? As I understand it, it is a new protective force.
A Parks Canada presence has been proposed in the bill to enable policing and enforcement in these conservation areas. The minister would appoint the agency. My fear is that it might in fact backfire in the efforts to create marine protected areas and marine conservation areas, because people will be fed up and they will say, ``No, we do not want to hear any more about this.'' Why was the issue not left under the Oceans Act rather than put in this new bill?
Ms Dover: I both agree and disagree with you.
Senator Comeau: I always like that.
Ms Dover: That is always the safe position to take.
There are approximately 19 departments that have various marine responsibilities. To say that one department should have jurisdiction over marine is as ambitious as saying one department should have jurisdiction over land.
Senator Comeau: There would be a lead ministry.
Ms Dover: Yes. Now, marine protected areas or marine conservation areas — and I am happy to make that distinction with you — are tools of conservation. We have similar types of tools implemented by different departments in a terrestrial context. Marine conservation and marine protected areas are fundamentally different. In marine protected areas — and Fisheries and Oceans will confirm this if you follow up with them — they have no intention of ever doing things like sustainable development within protected areas. They are different conservation tools. Marine protected areas as implemented by Fisheries and Oceans are small areas with high protection of key features such as spawning grounds.
Think of a marine conservation area as less of a national park and more an area of conscious management. They are different and complimentary tools.
Having said that, it is absolutely key that there be coordination, especially when dealing with coastal communities, between the various departments. This strikes to the very core of the final message that I left you with — we are desperate for funding for the Department of Fisheries and Oceans to allow them to be successful in their coordination efforts.
As long as the oceans strategy remains unfunded, there will not be a successful coordination effort among the three departments. That does not preclude success by the various departments on a site-by-site basis. However, a bold, ambitious vision for marine conservation and marine protected areas in Canada cannot occur without funding for an ocean strategy.
Senator Comeau: You indicated that the bill called for a full consultation process. Could you tell me which clause in the bill states that?
Ms Dover: Clause 10.
Senator Comeau:
The Minister shall provide opportunities for consultation with relevant federal and provincial ministers and agencies and affected coastal communities...
With whom do they consult? Do they go to Halifax and meet with the Halifax fisher people?
The Chairman: It says ``affected coastal communities.''
Ms Dover: If I may direct your attention to the definitions portion of the proposed legislation, there is a definition to clarify this very issue.
If I may take an apologist stance, legislation is a meek public relations tool. It is certainly the case with national parks, as well as marine conservation areas, that legislation complements extremely exhaustive guidelines for the establishment and management of the areas. One of the successes of the national parks system has been building a history of successful consultation.
The Chairman: The original bill said the minister shall provide opportunities for consultation with affected communities. Now it says the minister shall consult; that is different. What bothers me is that it seems to assume that the thoughts of all those in an affected community are one and the same. They may not be, particularly on the West Coast, where some people are thinking about oil development while others might be thinking of ground fishing or something like that.
Is there any indication in the bill of who is to be listened to? Will it be the person who wishes to do some placer mining, which is sifting the seabed, and really disturbs the fishery? This is done off Southwest Africa to get at gold and diamonds. There is also drilling of oil wells, which do very little damage to the sea floor. A coastal community may want to see some development because fishing has declined to the extent that it cannot sustain that community. How would you handle that?
Ms Dover: The relevant key issue for coastal communities and First Nations is how legislation ensures effective consultation.
In my opinion, part of that question cannot be, and should not be, overly specified within legislation. It is important that stringent articulation of the processes that a community would be involved in is incorporated into the legislation, in addition to an obligation to consult affected communities so they are also involved in the establishment of the local advisory committees.
The courts have helped us to a certain degree in understanding what consultation means. Courts have made it clear the federal government can no longer run an advertisement in the local newspapers or do a direct mail drop through rural communities and call that an effective consultation.
The courts have interpreted key elements associated with consultation as meaning integration into the processes, thanks to their redefinition of what ``consultation'' means in a First Nations context. Some of the assurances you are seeking for the communities should not be determined in legislation. That would inevitably preclude some aspects of those communities, or it would not be applicable to unique circumstances.
How do we describe in legislation a single consultation process that could encapsulate tricky community issues on the East Coast, the West Coast or in the North? The consultation processes need to be different and commensurate with the unique needs of the communities. Parks Canada has guidelines for consultations, and it may be that follow-up from them on those consultative processes will provide you with more comfort.
Senator Christensen: How successful do you think the consultation process is going to be on the West Coast? We have had much correspondence from people who have major concerns about this. Oil and mineral development seems to be a possibility, especially in the Queen Charlotte area, and is replacing the depleted fishing industry as people are looking for other forms of work. How successful do you think these consultation processes will be? Certainly I agree that the bill provides for that process, and unless there is full support from these communities, these areas will not be developed.
Ms Dover: In our Pacific regional office, we are experiencing the reality that we cannot talk about conservation without also talking about economic revitalization at the community level. We certainly understand that we are in something of a predicament as an organization with considerable expertise in the environment and conservation, but less in alternative economic development.
In developing our position on the offshore oil and gas moratorium, we have ensured that it is considerate of the community's needs, and we are supportive of the development of various industrial activities, including not only offshore oil, but activities such as aquaculture that consider conservation and the long-term needs of future generations.
We are helped in two of the five areas off the West Coast by the fact that consultation has been ongoing since 1988. One of those areas, the Hecate Strait, requires much more communication with the community on what the actual impact of this bill may be on the possibility of future offshore oil and gas activity.
Let me assure you that it is impossible, even given the best conniving minds and the most powerful lobbyists in Ottawa, to foreclose offshore oil and gas using this bill. If I were a lobbyist for offshore oil and gas, which I am not, I would advise those parties to be more concerned about the integration of those interests with the Environmental Assessment Act, or with the development of a federal-provincial accord on offshore oil and gas, than this particular bill. It may provide industry with what it needs to do business. Industry needs to know what is fair and what is not. Where do they go, and where do they not go. The establishment of an NMCA provides the opportunity to do charting and mapping to determine what is not for sale before there is a run on the store. That means we establish those conservation values as a society and then go about determining best efforts for the activities outside those values.
Senator Christensen: Your association is worldwide. What information can you give us about similar legislation being implemented in other countries?
Ms Dover: We are far behind other countries in marine conservation. The United States, Australia and New Zealand have had legislation, policies and/or funding in place in most circumstances since the mid-1970s. Their progress is relative, but they are outstripping us in their efforts.
Senator Christensen: Is there similar legislation that provides for an extensive consultation process with areas that are affected?
Ms Dover: Yes, very much so. Many of those consultative processes are commensurate with the type of area being established, whether it is an area of high protection or of sustainable development.
The United States has had relevant legislation since the mid-1970s, even at the state level.
Senator Adams: Can you tell me how many people you have worked with in some of the First Nations communities?
Ms Dover: On the marine side, I am most familiar with our relationship with the Haida. We have a staff person who lives on Haida G'waii. Her full-time job is to maintain a liaison with that community over a number of issues, and most certainly over the prospective site.
Senator Adams: What community is that?
Ms Dover: It is the Pacific north shore of B.C., the Haida. You may know it as the Queen Charlottes.
Senator Adams: I thought you were talking about the one in the east that is having problems with lobsters.
You talked about two communities in the North. Can you tell me about the problem with the marine parks in the North?
Ms Dover: I am not entirely familiar with developments towards the marine conservation area in the North. It is being negotiated through our Arctic program. The Canadian Wildlife Service will establish that site under their legislation. I would be happy to follow up with you on that, however.
Senator Adams: About which mammals were you talking? What types of mammals need marine protection? We have different types of mammals.
Ms Dover: Right. I would be happy to follow up with you on that.
Senator Adams: Last summer, DFO was concerned about some of the polar bears and belugas. I do not know if you are concerned about that or not, but I live in the community. There are 27 communities in Nunavut, and only Baker Lake is inland. The rest of the 26 communities are along marine areas.
I agree with Senator Comeau. I do not see anything in this bill to protect mammals from becoming extinct in the future. About 10 years ago, our committee's work had nothing to do with the protection of mammals. We were concerned with whalers and other people trying to establish a business in that area of the St. Lawrence. Operations were being set up so that people could take tours and see the wildlife, but it had nothing to do with protecting the animals.
I feel the same way as Senator Comeau. I do not think that you believe that as soon as this bill is passed, there should be parks for mammals all over the coast.
Often in the summer, I would go out on the land. I did not ask for a guide. I would go to the dump in Rankin to pick out stuff. One day I saw a guy. I did not ask him for which department he was working. He asked me, ``Mr. Adams, do you go out very often?'' I said, ``Yes.'' He said, ``I am looking for a certain type of bird with a long beak. It is dark in colour.''
I did not ask him what he was doing in the dump, because the only birds there are seagulls and ravens. He had a nice four-wheeler, and he could go anywhere, but he did not know how to go out on the land to look for that bird.
I can go out on the land at any time. I see all kinds of birds, but I do not know whether they are thought to be extinct. No one asked me. Sometimes people from Ottawa go up there and recommend things to the government on their concerns without consulting with the community.
Do you have any other concerns about any other kinds of mammals?
Ms Dover: I think that it would be prudent for me to say that I have concern for all mammals.
However, I wish to ask Dr. Peter Ewens, our director of park programs working directly on our key marine protected area in the North, to follow up with you. He has the expertise.
My inability to respond to your question speaks to my deficiency, as opposed to the organization not having a priority in the North. We have stuff in each one of the territories, including Nunavut. I know that Dr. Ewens has been up to your community on several occasions. I will ask him to follow up with you, as he can speak with some expertise on this.
Senator Adams: In which communities do you have an office?
Ms Dover: I will have to ask him to give you that specific information. Please forgive me for not being able to answer the questions.
One of the frustrating but also positive aspects is that once the establishment of an MCA is passed, nothing happens. It literally means that we have finished building the starting gun. We can then begin a process of consultation with the communities.
Having said that, these areas will be negotiated by Parks Canada. The Canadian Wildlife Service, through Environment Canada, is involved in the area that is being negotiated in your part of the world. They are negotiating through different legislation that does not have the same requirements for consultation as this bill. That is one of the things that make this piece of proposed legislation strong. Doctor Ewens will be able to speak about that.
Senator Cochrane: The WWF Canada has recommended that all permits refer to the goals of the management plan, noting that 19 different departments have some sort of management authority over the oceans.
How many departments would have authority to issue permits affecting a marine conservation area?
Ms Dover: My understanding is that there are two other departments that would be issuing permits in respect of shipping and fishing.
Senator Cochrane: Which departments are they?
Ms Dover: Transport, and Fisheries and Oceans Canada. I certainly would be willing to be corrected by Parks Canada on that front, but I can certainly guarantee you that it is not 19 departments issuing these permits.
However, I would even be willing to say that if that were the case, which it is not, it is still fundamental that the permits refer to the management planning process. Since the management planning process is guided by and facilitated by one department, the issuance of a permit affecting another department's activities must be done in such a way as to ensure coordination between those different departments.
While this is important in terms of ensuring the conservation of the area, it is one of the best ways for us to go about protecting the community interest. When MCAs are negotiated with the community, they are negotiated contingent upon their involvement through the management planning process. One can imagine that community trust could be broken if another department, not involved in that process, were to issue permits for activity negotiated or determined outside of that management planning process.
Senator Cochrane: Do you envision some body that would make an independent assessment of whether or not the permit was consistent with this plan?
Ms Dover: Once again, that points to the failings of legislation in general. It would be necessary to develop guidelines on how to interrelate the permit process with the management planning process.
This is not dissimilar, though, to other types of permitting processes that have been established through the Fisheries Act or will be necessary under the Species At Risk Act.
Senator Cochrane: Will these guidelines be in the plan?
Ms Dover: There would certainly be an opportunity for that. My sense is that Parks Canada would need to develop a generic guideline at an interdepartmental level to allow for some consistency and predictability in the issuance of those permits.
Senator Cochrane: Why do you think Parks Canada is the agency to do this, as opposed to DFO?
Ms Dover: The strongest argument is that DFO will not do this.
Senator Comeau: Did they say ``No''?
Ms Dover: They said ``No.'' They see large areas of specially managed sustainable development within the ocean as falling outside their purview. That was a powerful argument. A marine area protected by Fisheries and Oceans is a different kind of conservation tool.
Imagine, for example, the different kinds of tactics that we can use in protecting species at risk: implementing different kinds of prohibition, stewardship with landowners and captive breeding. There are different kinds of tools that can be used to achieve the aims of conservation. Protected areas and conservation areas are two examples.
In addition to DFO, the Canadian Wildlife Service and Parks Canada having complementary ways of protecting spaces in the marine context, Parks Canada is best positioned to be able to manage this type of activity. They have a legacy of successful establishment and management of protected areas through their terrestrial experience. They are renowned for their ability to integrate activities such as tourism and education and to interrelate community interests with science.
While you may not think of Parks Canada as a marine department, they are very experienced with the processes needed to protect spaces.
The Chairman: The chamber of commerce and the Canadian Association of Petroleum Producers brought up the precautionary approach versus the precautionary principle. Do you think the government should differentiate between the two? Should the government adopt the term ``precautionary approach,'' as defined under principle 15 of the Rio Declaration on Environment and Development? Do you have anything to say about that, or am I coming from too far out in left field?
Ms Dover: I was aware that the Canadian Chamber of Commerce had been here to speak to you on this issue, so I am happy to reply.
Inclusion of the precautionary principle in this bill is one of its most positive features. It allows us to ensure that there is a preventive approach to managing harm within our MCAs. Consider this as another important tactic for protecting key investments in the marine conservation area. It truly is the case that an ounce of prevention is worth a pound of cure, even in those circumstances where we could implement a cure.
It allows us to ensure that in those circumstances where we are uncertain as to the harm that would be caused and there is scientific uncertainty, certain measures would be prevented.
The Chairman: Is that the precautionary approach you are talking about?
Ms Dover: Let me offer a caveat in answering that question. The Privy Council Office has submitted two discussion papers on the precautionary principle/approach for broad consultation. This is a significant discussion involving major interests from all sectors of society. To open the discussion about changing the bill on this point is to open a massive can of worms.
There is no danger of establishing any kind of precedent in either direction in the way that the precautionary principle is included in this bill.
The precautionary principle is mentioned as one of two guiding principles in the establishment of management plans. The only other place that the precautionary principle appears in the bill is in the preamble.
The worry that this bill may establish a more advanced or evolved legal definition of the precautionary principle is completely unfounded because it does not appear in the interpretation section.
This means that however the government decides to proceed in the definition and application of the precautionary principle will apply universally, both to this bill and any other incarnation of the principle that exists in other pieces of legislation.
Having said that, I am pleased to give you a snapshot of the can of worms that is being opened in the discussion of the precautionary principle/approach.
The precautionary principle has been in existence in various incarnations since approximately the 1930s in Germany. It is based on a generic, household, community-level standard that attempts to ensure that precautionary measures are in place when families, communities, human health and the environment are affected. A logical approach is taken to ensure that levels of harm do not subject people to undue consequences, as well as overwhelming and costly remedies.
The Rio declaration is insufficient. There are a number of issues that one must consider when defining the precautionary principle. Understand that this entire debate is outside the context of Bill C-10. This is simply to give honourable senators a notion of the kind of chatter that is occurring over the precautionary principle.
The Rio declaration sets a level of concern over the types of harm that need to be determined in order to trigger the application of the precautionary principle that is too high.
This means, for example, that if something like the Rio declaration were implemented in respect of a marine conservation area, some sort of algal bloom that only caused a rash in your children may not be considered serious or irreversible. We only have a suspicion that pesticides may be linked to Parkinson's and no proof that the harm is serious or irrevocable to a scientific standard that would trigger implementation of the precautionary principle.
The Rio declaration is also insufficient in that it implies a cost/benefit analysis in the implementation of the precautionary principle. If there is scientific uncertainty, how are we supposed to do a logical cost/benefit analysis? That simply is the point. The third issue that you may wish to consider in the precautionary principle, again outside the context of Bill C-10, is how it is implemented.
It is important for you to know that the implementation of the principle is contextual. The context in which we would implement the precautionary principle in marine conservation areas is fundamentally different from how we would implement it, for example, in the management of toxic substances.
What we see now, even in the face of uncertainty over the definition of the precautionary principle, is a reasoned approach to the development of legislation, where we generally get a reference to the precautionary principle, its inclusion in a preamble or, more influentially, in an application or interpretation section. Then the precautionary principle will appear again in an operational section of the legislation.
Where it is referred to in the preamble in Bill C-10, it gives us no certainty or clarity as to how it will be defined, but its presence there gives us the ability to act in a precautionary way in operational terms.
With regard to a distinction between the principle and the approach, even though the Privy Council document refers to them interchangeably, they are not interchangeable. The legacy of our discussions and experience at the international level is that the precautionary principle is a broad guideline, whereas the precautionary approach includes implementation measures, such as a pollution prevention approach.
The Chairman: I am not sure I followed you all the way.
Ms Dover: In summary: Do not worry.
The Chairman: I will read the submission.
Senator Mahovlich: We are talking about Parks Canada. Does the World Wildlife Fund monitor any of the parks, such as Algonquin Park in Ontario? Does it monitor how well a park is doing? I have done well fishing there several times. I have driven through the park. I have successfully fished at other parks in Northern Quebec. Do you monitor any of these parks to see how well they are doing?
Ms Dover: We do not, in a direct way. We are developing a major report on monitoring and commenting on the status of biodiversity in Canada. There will be a protected areas component.
However, we do not monitor them at the level of practical, on-the-ground enforcement issues.
Senator Comeau: Since the can of worms on the precautionary principle has been opened, did I understand that the phrase ``precautionary principle'' only appears in the preamble?
Ms Dover: No, it appears in two places.
Senator Comeau: That is correct. I noticed it appeared in subclause 9(4).
This would be the first time that the precautionary principle is used without some kind of a conceptual explanation, unlike in the Canadian Environmental Protection Act. It does refer to some of the real conditions. This is the first indication that we will be applying the precautionary principle. Do I understand that correctly? This is the first piece of proposed legislation that I have seen where it is used in such a direct and blunt fashion.
Ms Dover: Canada has committed to and ratified a number of international treaties that contain various incarnations of the precautionary principle.
Senator Comeau: That is international. I am getting back to Canadian legislation, not international treaties. ``Precautionary principle'' refers to international circumstances, whereas ``precautionary approach'' refers to national ones?
Ms Dover: No, sir; that is incorrect.
Senator Comeau: Is it the other way around?
Ms Dover: No, there is no jurisdictional implication in the distinction between ``principle'' and ``approach.'' There are international treaties with different incarnations of the precautionary principle that will have a binding effect on Canada. One is the Stockholm Convention on Persistent Organic Pollutants.
Senator Comeau: I do not want to go that deeply into it. Is this the first time that the phrase ``precautionary principle'' appears in proposed legislation in Canada without a conceptual explanation?
Ms Dover: To be honest, I think the implication of your question is incorrect.
Senator Comeau: That is good enough. I will be doing some research. I have been advised that this is the first time the words ``precautionary principle'' appear without a definition.
Ms Dover: There is no definition of ``precautionary principle'' in CEPA, the Canadian Environmental Protection Act.
Senator Comeau: It does give a conceptual explanation.
Ms Dover: The section in which a precautionary principle appears in CEPA makes similar, if not identical, reference to ``real.'' However, please understand that those terms are as vague in the legislative sense as a stand-alone precautionary principle.
Senator Comeau: At least it gives a little more of an explanation. This is the first time, as I understand it, that the phrase ``precautionary principle'' appears in the document.
Ms Dover: Your implication is that that establishes some sort of important precedent, and it really does not.
Senator Comeau: I am not implying anything. I am asking a question. We are legislators and we try to find the meaning of things. If we pass legislation, we must try to understand its language. I bring up the point that this is the first time that that has happened.
You and the Chairman both referred to a document, ``A Canadian Perspective on the Precautionary Approach/ Principle,'' which was part of a consultation with people in industry, users and communities. The government sent out this document asking for advice or ideas on what the precautionary principle should be. My understanding is that the responses were to be in by March 31, 2002. Even the government pointed out in the document that there were concerns with the words ``precautionary principle.'' The possibility of misuse and abuse has been highlighted. For example, there are concerns that it could be applied to perceived risk for which there is no scientific data.
I am not saying that. The government says that in a consultation document. Yet here we are with a bill that uses the phrase ``precautionary principle'' when the government still has not completed its own consultations. It concerns me that we are saying, ``We want to consult you, Canadians; therefore, we are issuing these documents. Please respond by March 31. However, in the meantime, we are using this phrase in our legislation.''
Ms Dover: Let me address that point. The Canadian government has yet to resolve its treaty relations with the First Nations. This bill has a massive impact on that burgeoning legal issue. Legal issues are constantly in evolution and transition. The precautionary principle issue extends far beyond this particular bill. Reference to the precautionary principle is not excessively prescriptive and allows for the government to resolve the consultative process in such a way that Bill C-10 does not prescribe in advance what the conclusion of that process will be.
The Chairman: Thank you very much.
The committee adjourned.