Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 3 - Evidence of November 5, 2002
OTTAWA, Tuesday, November 5, 2002
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C- 5, respecting the protection of wildlife species at risk in Canada, met this day at 5:45 p.m. to give consideration to the bill.
Senator Tommy Banks (Chairman) in the Chair.
[English]
The Chairman: As I call the meeting to order, I point out that we are on the record but our proceedings today will not be televised or broadcast.
Before us are officials from the Environment Canada to discuss Bill C-5. They are Ms. Ruth Wherry, Director of the Species at Risk Act Office and Mr. Simon Nadeau, Scientific Adviser. Also with us is Mr. David Near, Senior Counsel, Department of Justice.
Before we begin hearing the testimony of our witnesses, with the agreement of members, Senator Watt will table a letter from the Minister of Justice and a letter in response from his group to the Minister of Justice. If it is agreed, he will now table those, and they will be duplicated and distributed later to members of the committee. Is it agreed?
Hon. Senators: Agreed.
The Chairman: Would you please do that, Senator Watt?
Senator Watt: Mr. Chairman, accompanying the letters is a draft of the proposed stand?alone legislation in regard to the non?derogation clause. I would now table those documents.
The Chairman: I would ask the clerk to duplicate those documents and distribute them to members of the committee and other interested senators.
I will now ask the witnesses to proceed with their opening statements.
Ms. Ruth Wherry, Director, SARA (Species at Risk Act) Office, Environment Canada: Does everyone have the deck in front of them?
The Chairman: We do.
Ms. Wherry: I will go through it quickly. The first three or four slides will give you an indication of the numbers of species at risk in Canada, as assessed by COSEWIC, as well as who manages wildlife and habitat in Canada.
All governments protect wildlife through legislation, policies and programs. The federal government is responsible for aquatic species, migratory birds and species on federal lands, and they fulfil that responsibility through various statutes, such as the Migratory Birds Convention Act, the Canada Wildlife Act, the Fisheries Act, the National Parks Act, et cetera. Managing habitat is also done through legislation, policies and programs at the federal, provincial and territorial levels. Protected areas cover 8 per cent of Canada. There are parks, and there are also joint ventures under the North American Wildlife Management Plan.
Slide No. 5 gives you the context of the fundamental principles required for cooperation and stewardship. The complex jurisdiction over wildlife, environment and resources requires cooperation among federal, provincial and territorial governments, as well as Aboriginal peoples. Habitat certainly requires cooperation with landowners, land users and resource users, et cetera.
There is a three-part federal strategy for protecting species at risk: the Accord for the Protection of Species at Risk, which is in conjunction with the provinces and the territories; the Complementary Stewardship Habitat Program, which encourages Canadians to take voluntary conservation actions to protect species in critical habitat; and the Species at Risk Act, which is the third element of the three-part strategy.
The development process for Bill C-5 has included more than 150 consultations held across the country. There was groundbreaking involvement of Aboriginal peoples. There were also, of course, the hearings by the House Standing Committee on Environment and Sustainable Development, as well as the many sessions that took place at the House of Commons.
In respect of the bill's purpose, it is obvious that with its passage, Canada will further implement the commitments it made by being the first industrialized country to sign the 1992 United Nations Convention on Biological Diversity. The bill aims to prevent wildlife at risk from becoming extinct or lost, with the ultimate objective of helping wildlife numbers to recover. The bill encompasses birds, plants, fish, mammals, insects, amphibians and reptiles. It provides protection to all wildlife species listed as being at risk, nationally, and their critical habitats wherever they occur.
Three ministers will have responsibility for Bill C-5: the Minister of the Environment is the lead minister and is accountable for the overall administration of the act; the Minister of Canadian Heritage is responsible for species managed by Parks Canada; and the Minister of Fisheries and Oceans is responsible for aquatic species.
The basic elements of Bill C-5 involve a science-based species assessment process. There is also legal listing, immediate species protection, recovery and management, stewardship measures, and effective enforcement. Perhaps a more simplified way of saying it is that, first, you have to find out which species are at risk — someone has to assess them — and we have a scientific body to do that. Once you know which species are at risk, then you provide some protection for them. You figure out where their homes are, and then you provide protection. That is a simplified version, but that is the basis of the bill.
For immediate species protection, there are automatic prohibitions against killing and the destruction of residences for endangered, threatened and extirpated species that are the so-called ``federal species'' — aquatic species, migratory birds and all species on federal lands. For the other species that are listed, provinces and territories are given the first opportunity to protect those species and their residences. If they are not protected under legislation, there is a safety- net approach in the bill to provide the authority to apply prohibitions against the destruction of species and residences that can be extended to any species not protected under existing legislation by the provinces and the territories. There is also an emergency authority to prohibit the destruction of critical habitat of a listed species facing imminent threats to its survival or recovery.
There is a requirement for mandatory recovery strategies to be developed. For endangered, threatened or extirpated species recovery strategies are due in specific timelines of one year and two years. Management plans for species of special concern are required within three years.
To the extent possible, recovery strategies and action plans must be prepared in cooperation with the provinces, territories, Aboriginal organizations, wildlife management boards and other directly affected parties. They are also subject to a public comment period.
Recovery strategies provide the baseline scientific information; identify threats to the survival of species; and describe a broad strategy, including timelines to address the threats. They identify the critical habitat that is needed for a species survival and recovery. Recovery strategies are implemented through action plans that include, if the critical habitat has not been identified through a recovery strategy, an action plan, the measures in action plans, and measures with timelines to implement the recovery strategies, including measures to protect critical habitat. It is also during the action planning stage that there is an evaluation of the socio-economic costs and benefits. There is ministerial reporting on implementation every five years.
A fundamental approach to this bill — the first approach to protecting critical habitat — is through stewardship action and through encouraging voluntary actions. The bill provides for conservation agreements to be formed with any government organization or person for measures to protect species at risk in their critical habitats, and to develop and implement recovery strategies, action plans and management plans. There are funding agreements to help cover the cost of conservation actions.
As I pointed out, critical habitat is provided for under Bill C-5 and stewardship is the preferred approach to protecting critical habitat. However, critical habitat is automatically protected in national parks, migratory bird sanctuaries and national wildlife areas, as soon as the critical habitat is identified in a recovery strategy or in an action plan. I believe it takes a short time for the process to work out, but it is automatic for critical habitat protection.
For other critical habitat on federal lands or for aquatic species, prohibitions against this destruction must be applied within 180 days, if it is not protected under another federal act or through stewardship agreements. In other words, if efforts to work out a stewardship agreement with people to protect the critical habitat do not succeed, then there is a legal backstop. Within 180 days, if that has not been done, then mandatory protection is provided for in the bill.
The bill further requires the minister to report in the public registry on steps taken to ensure the protection of critical habitat within 180 days after the habitat has been identified in a recovery strategy or action plan; and to continue to report every subsequent 180 days until that habitat is protected.
If we reach the point where it is necessary to bring in the critical habitat prohibitions because the voluntary approach has failed, then the bill does provide for compensation. Those provisions would kick in. I am referring to either the critical habitat prohibitions, where we would have to use them, or the emergency orders which would be brought in to protect critical habitat. In those situations, the compensation provisions would kick in.
Bill C-5 provides for fair and reasonable compensation. As you have heard from the minister, compensation for restrictions on the use of land is a complex issue, and we will need several years of experience in implementing the legislation. In particular, the stewardship, the recovery and dealing with the questions of compensation will take time before we reach the point where we will be able to develop any comprehensive, detailed regulations. To do so before we have that experience, we would run the risk of precluding one who, perhaps, should have gotten compensation. Moreover, the first and primary approach is stewardship. We would very much like the stewardship approach to work. As I say, we need some experience in implementing these provisions.
In the meantime, there will not be a vacuum on compensation. We are working on developing general regulations. They will be ready soon after the act is proclaimed. These general regulations will proscribe the procedures for somebody to go about making a claim for compensation. Under the critical habitat prohibitions, someone may be entitled to make a claim for compensation. The regulations will be there, and we can deal with these claims on a case- by-case basis.
The bill also provides for project review. Environmental assessments of projects required by an act of parliament will have to take into account the effects of the projects on the listed species and their critical habitats. Measures must be taken to avoid or lessen those effects and to monitor the results.
With passage of this bill, a consequential amendment will be required to the Canadian Environmental Assessment Act definition of environmental effect to make specific reference to a listed species and its critical habitat or its residence as defined in the Species at Risk Act.
There is also public involvement and citizen action, and we have listed some of them. This bill is very open and transparent. Almost all documents that the bill references to have to be included in the public registry.
There is a right for citizens to apply to have a species assessed by COSEWIC which would comment on proposed recovery strategies, action plans and management plans prior to their approval, and to apply for an investigation into an alleged offence under the act.
There are enforcement provisions. The approach on enforcement is along the same lines as other federal environmental legislation, which provides for strict liability offences with a due diligence defence. Enforcement will be done in close cooperation with other enforcement agencies in the country.
Senator Baker: As I understand it, the compensation is referred to in clauses 58, 60 and 61. Is that correct?
Ms. Wherry: Yes, 58, 60, 61 and the Emergency Authority.
Senator Baker: Clause 58 deals with compensation respecting listed endangered or threatened species on federal land, and outside federal land if the species is an aquatic species. What do you mean by that? I am referring to clause 58. In other words, would that cover fish species and the spawning grounds of fish in the ocean?
Ms. Wherry: We do have officials from Department of Fisheries and Oceans and Parks Canada who can be called up to the table should there be specific questions. I will take a stab at answering your question by saying that sometimes the critical habitat of aquatic or freshwater species is on private lands.
Mr. David Near, Senior Counsel, Department of Justice: Clause 58 refers to the definition of aquatic species. ``Aquatic species'' is a defined term in the legislation to mean that set out in the Fisheries Act. To the extent that the Fisheries Act covers it, the answer is, yes.
Senator Baker: In other words, clause 58 would create a prohibition against the destruction of the identified critical habitat of any species that is either endangered or threatened on federal land, which would include the ocean outside the three-mile zone or the ten-mile zone? Where would federal law apply in that case?
Mr. Near: I am not exactly sure as to what three?mile and ten?mile zones you are referring to.
With respect, it is my understanding that it would be to the extent of federal jurisdiction as set out in the Oceans Act, which defines the terms ``internal waters, territorial waters, the EEZ,'' and, as was mentioned last week, and there was some reference to the continental shelf as well.
Senator Baker: I do not think we would agree on the definition of ``beyond the EEZ,'' which is outside 200 miles.
Have you had an opportunity to look up material in reference to our last committee meeting regarding that unilateral declaration by the government under this legislation?
Mr. Near: I have, indeed. I did consult with the experts. They assure me that the legislation, section 4, the assertion of jurisdiction over the continental shelf with respect to sedentary species, some of which may be in the 200-mile zone, are areas to which we could apply the legislation.
Senator Baker: The former Premier of Nova Scotia will be interested in that.
Senator Buchanan: We own the continental shelf in Nova Scotia.
Senator Baker: Honourable senators, they passed a law in Nova Scotia that they owned the continental shelf and extensions thereof to the extent of exploitability, which was defined to the low?water mark in Africa.
Senator Buchanan: A great Premier passed that.
Senator Baker: A great Premier passed that. In fact, he did. It was quite a piece of legislation. I only wish that the federal government were as competent and creative.
Senator Buchanan: I am not sure how legal it is, but it was done.
Senator Baker: Honourable senators, getting back to this particular question, it is interesting because I believe this is the first time in legislation, if it does apply, that the federal government would be bound to provide compensation in the case of a species that would be either threatened or endangered that would come under the definition of ``on federal lands.''
Your reference was to sedentary species. Is that what you said?
Mr. Near: Yes.
Senator Baker: That is defined under the act as under the soil on the ocean floor, or it could be affixed to the ocean floor. Therefore, in effect, with this bill you are saying that everything on the continental shelf, even outside of 200 miles — and you specify this — will be covered by this bill. In other words, would you say, as one of the senior legal people in the department, that you could thereby control the destruction or displacement of soil on the ocean floor beyond 200 miles to include areas such as the Flemish Cap, the nose and tail of the Grand Banks or any other section of the ocean floor that extends beyond 200 miles?
Mr. Near: To the extent that a sedentary species, a listed species, as defined in the proposed legislation, is found in that particular area, assuming it is part of the continental shelf, which I do not pretend to know one way or the other, the proposed legislation would seek to protect that particular species.
Senator Baker: It is part of the continental shelf or extensions thereof.
The Canadian government has done tests to determine the makeup of the rock, and a Flemish captain discovered that it is in fact a broken portion of the continental shelf. In fact, that area of the continental shelf up North, around Nunavut and beyond the Northwest Territories, as well as off the East Coast and in northern British Columbia, forms an area equal in size to the three Prairie provinces put together.
It is quite an area of land over which you have now assumed jurisdiction, as far as the ocean floor is concerned and the sedentary species that occupy that floor. I presume that is your definition.
Do you believe that under this legislation you could control, if it were so determined, a destructive exercise conducted by the 17 foreign nations who now have fishing rights in those areas? Given that they all drag the ocean floor, if species of fish and shellfish that are either on or under the soil are at risk after this legislation is passed, do you believe that this bill would allow the federal government to actually stop those 17 foreign nations from fishing in that area if they are dragging the ocean floor and destroying a threatened species or endangered species, as you define them?
Mr. Near: It is my understanding that there is already a requirement for the Minister of Fisheries to issue permits to such persons who may carry out fishing activities on the continental shelf, even in those areas outside the 200-mile limit. If there were a listed endangered species when issuing those permits, the Minister of Fisheries would need to take that fact into account when deciding whether to issue the permits.
Senator Baker: I would like to make a correction here. It is not the Minister of Fisheries who issues fishing permits; it is an organization called the Northwest Atlantic Fisheries Organization. They do not issue actual fishing permits but they allow fishing days, as the Premier knows. It is quite a contentious issue out east that the federal government has absolutely no control, has only one vote of 17 nations, and that massive destruction of our fishing resources is taking place on our continental shelf outside the 200 mile zone. Inside the 200-mile zone, you are absolutely correct; we do control the fishing that is done there by foreign nations. We allow foreign nations to fish some six species of fish inside the 200-mile limit. Off the coast of Halifax, 80 miles is the zone.
The point is that, under this bill, if I understand it correctly, what you are telling the committee is that the federal government will now have control over any destruction of the ocean floor by dragging by these 17 foreign nations. If there is a threatened species or an endangered species thereon or thereunder, this bill will give the federal government control to do that outside the 200-mile limit. I am fairly certain no other nation in the world has done that unilaterally. They have all gone to the United Nations and gone through the process of ratifying the UN Law of the Sea Convention, which we have not yet ratified in legislation.
Mr. Near: The best answer I can give is that the legislation would allow the federal government to seek to protect a listed endangered or threatened species found on designated critical habitat as identified in a recovery strategy or action plan, part of which may be found on the continental shelf as defined in the legislation.
Senator Baker: A very good legal answer. Thank you.
Senator Buchanan: I did not want to contradict Senator Baker, but we did pass legislation. Constitutionally, we believe it to be correct legislation. Prior to Confederation, the colony of Nova Scotia was described as a land mass. Also included in the land mass was 40 leagues seaward of the continental shelf, including the great island of Sable. That could be a contentious point here. As far as the federal government is concerned, they have always said that they control Sable Island, but they really do not. Under the BNA Act, the federal government has authority over Sable Island as if it were a post office, a military base, or a lighthouse. The land mass has always been acknowledged as part of Nova Scotia because it was carried into the province of Nova Scotia under Confederation. It is right there, ``including the great island of Sable.'' Even the late Prime Minister Pierre Trudeau back in 1982 acknowledged in Fredericton, New Brunswick at the Council of Maritime Premiers that Sable Island was, in fact, part of Nova Scotia. He indicated at that time that, if I wanted to leave politics, he would appoint me the Governor General of Sable Island. I refused.
Senator Milne: I wonder why you refused.
Senator Buchanan: Well, I won another election right after that.
Seriously, it does include the continental shelf. You are absolutely right. In the Canada-Nova Scotia offshore agreement that was negotiated with the federal government, the federal government acknowledged that all of the oil and gas resources from the continental shelf up to 40 leagues seaward, including the great island of Sable, are to be within the jurisdiction of the Government of Nova Scotia.
Senator Baker: Mr. Chairman, he did not explain the extensions thereof that stretch to the coast of Africa.
Senator Buchanan: That is in there.
The Chairman: I think the best we will be able to do is come up with a halfway point between the great two continents.
Senators, because of the lateness of our start, I do not want to keep the witnesses too long. We have a very important order of business to deal with after this testimony, which we must address today and no later than today.
I would ask that we move briskly through this evidence, because we will have about three quarters of an hour of fairly hard work to do after out witnesses leave.
Senator Milne: You suggested today that you could not bring in regulations before gaining experience. That is fine, but you then went on to say that you were now working on general regulations. Will the general regulations be in place as soon as this bill passes?
Ms. Wherry: Soon after.
Senator Milne: Introducing general regulations is fine, but that is cold comfort for farmers, because it is mainly rural people who will be confronted with some of this.
What can you tell us about the nature of the proposed compensation to alleviate farmers' concerns that they will be the big losers in this? Is there any way in which this committee could have the opportunity to look at those regulations?
Ms. Wherry: It is important to remember that, if the stewardship tools work the way they are supposed to work, we may never get to compensation. In some ways, you could almost simplify it and say that, if we reached the point of compensation, then we have failed somewhat in the way we want to work together to protect species.
Senator Milne: That is quite true, but it will undoubtedly happen.
Ms. Wherry: In the event that it does happen, we will have general compensation regulations ready soon after proclamation so that we are prepared, and so that people will have the right to make a claim for compensation. The bill states that the minister may do this in accordance with the regulations, so there have to be some regulations. We will have regulations that will simply lay out the procedure for making a claim. They will be no more complicated than that.
The Chairman: As a supplementary question to that asked by to Senator Milne, if you had to posit a date by which you think the general regulations would be prepared, what would it be?
Ms. Wherry: It would be soon after the bill is passed.
The Chairman: That is somewhat uncertain. When do think the regulations might be ready for someone to look at them?
Ms. Wherry: I do not have a specific date in front of me or in mind. It is our intention to work with all affected parties to have the general compensation regulations ready to be proclaimed soon after proclamation of the act. We will actually be out talking to people about the contents of the bill before the act is proclaimed.
The Chairman: I am sorry to press the point, but we do not know when proclamation might be. If you were guessing, would you say it would be weeks, months or days after?
Ms. Wherry: Do you mean after proclamation?
The Chairman: No, from today. Passing the bill is not conditional on divining what the general regulations are going to be.
Senator Kenny: Are those already written?
The Chairman: Do they exist? How soon can we look at them, regardless of when the bill is promulgated?
Ms. Wherry: We do not have a draft general compensation regulation now. As I say, we are working on it. We can certainly get back to you with that further information.
The Chairman: Will you let us know when you think they might be ready?
Ms. Wherry: Yes.
Senator Milne: To continue the same line of questioning, you talk about fair and reasonable principles. What sort of principles are you talking about if someone is denied the use of a block of their property? Would the market value of the property be a consideration?
Ms. Wherry: I will turn this question over to Mr. Near. I would point out, however, in terms of whether or not you can define, in law, what is fair and reasonable or how a court would interpret those kinds of words, we are talking about restrictions on the use of land, we are not talking about expropriating somebody's land. If we were talking about expropriating somebody's land, then we would be using phrases like, ``fair market value.''
Senator Milne: If you were placing restrictions on the use of someone's land so that they would no longer use it at all, they would, therefore, be just the caretaker of that land, so perhaps, the fair market value is a good principle to start from.
Ms. Wherry: It is unlikely that it would involve all of the land held by a particular person. Most likely, we would be dealing with a small portion. You might suggest that a farmer have his cattle graze on a particular area for three months of the year. More than likely, that would be the kind of circumstances that we would be talking about.
I would point out that, if we ever did get to expropriation, the Expropriations Act would deal with that.
Senator Milne: I know that.
Ms. Wherry: I am not saying we would not use the fair market value if that were the relevant measure to use, given that specific circumstance.
Senator Milne: I believe that under the Expropriations Act, you would have to do that.
However, if you want that farmer to act as steward of the land, you would still have to pay him a fair and reasonable sum. I want to know what the definition is for ``fair and reasonable,'' given that he can no longer use that land for the purpose for which he has been accustomed to using it and making money off of it.
Ms. Wherry: I would just point out that, in terms of when the stewardship approach was first tried, yes, those efforts and that kind of offer that you were trying to work out to get the stewardship approach to work would have to be made to work it out at that stage, then, too.
Mr. Near: It is important to realize that critical habitat is determined after a process to determine what is the critical habitat in either a recovery strategy or an action plan, or in very rare circumstances, an emergency type of situation.
Then the process would be to directly contact the person that may be affected by such a designation of critical habitat and see if they can enter into a conservation agreement with that person, to compensate that person through a stewardship agreement without invoking the safety net or any of these other more, if you like, heavy-handed aspects of the bill.
If, as you say, that does not work, and there is no agreement with respect to compensation, to use your example, if a person had 2,000 acres, and we were asking that person to take 100 acres out of production, we are told that we could calculate based on a per-acreage take of the 2,000 acres and then calculate it as a percentage, and we could arrive at a figure that would be fair and reasonable under the circumstances.
Senator Milne: Am I to understand from what you said to begin with, though, that even if it was not taking land out of production, but if a person was going to be acting responsibly as a steward of that land, you would compensate them also for that? I believe that is what you said.
Mr. Near: No, there would have to be some indication of a loss that could be calculated in order to indicate compensation.
The Chairman: The bill states that there will be compensation in the case of, in effect, demonstrable loss, which is reasonable.
Senator Kenny: I did not see the words ``wildly generous'' anywhere in the bill.
You look like nice people, but you could scare some people by coming up with a bill like this. Someone must deal with the burden of demonstrating reasonable value in connection property. A farmer may have 100 acres, and you may only want to mess with 10 of those 100 acres, but if that area is eliminated, it may, in fact, constitute a lot more than 10 per cent of the acreage. I do not see a sense of generosity. In fact, we are frugal, we are thrifty, and we are going to protect the taxpayer's dollar, which are all important values. We might not be inclined to help somebody through a difficult period of time.
Someone who must demonstrate fair?market value is probably not going to spend a lot of money doing that, and will certainly lose a lot of sleep trying to figure out how to put forward arguments to protect their investment so that they can continue to live in a way that they might have expected, had you or other people not arrived on the scene and pointed out a problem. How would you address that situation
Ms. Wherry: I would like to add, again, that through the recovery efforts, the whole intent is to have all affected people at the table when we are working out the recovery, identifying the critical habitat, evaluating the various options, looking at the socio?economic, et cetera. It is at that stage where the cost of specific activities that would be detrimental to critical habitat would be worked out.
Senator Kenny: How much will these people be paid? How much will a farmer, who is losing his land, be paid to sit at the table to talk to you about this, or is he volunteering time that he might be working on the farm to do it? Are you expecting him to enter into these negotiations just as a freebie, or will you acknowledge that his time is valuable and that you are taking him away from his farm to talk about matters that are important to his life? Will you compensate him for that because he could be doing something else that would earn him money?
Ms. Wherry: The basis of this legislation is that it protects species at risk and the critical habitat. It is a public good, and we all work on the basis that we are doing this for a public good. That is not the answer. That is not the be-all and end-all, but just a little reminder that we are doing it for a public good.
As I said, we are working together at the recovery stage to try to identify socio-economic costs and what it would cost to the individuals involved, notwithstanding your good points about the person's time involved.
Senator Kenny: Could he send in a tax receipt for the time lost?
Ms. Wherry: The only other comment I would make is that we brought in three or four different experts throughout the last few years to try to help us on the compensation side of things. We consulted experts in land valuation, which is the basis of the kind of questions you are raising. All three experts we brought in told us that the procedures in place are all well worked out, whether it is fair market value or whatever it is, in terms of restrictions on land use at specific times of the year for specific activities. They assured us that there are established ways of doing this.
These kinds of land assessors and evaluators would assist at the recovery stage. It makes more sense to work it out at the recovery stage with the people affected and to try to get their cooperation with a voluntary approach, as opposed to bringing in the prohibition and then having to do it through the compensation route.
The Chairman: Does anyone have money in mind as an inducement to arrive at a negotiated agreement?
Ms. Wherry: We have the Habitat Stewardship Program, which currently has $45 million over five years.
Senator Kenny: In fairness, the officials who participate in this will be paid. Their expenses will be covered. None of you would go and do it for free, even though it is a public good, and you are public-spirited people.
Can you share with us the studies that the assessors gave you that show that there is a fair method that would leave the person who is impacted whole? We are talking about disrupting someone's life in a fundamental way. We are asking them to come and make a case, but are we taking care of them so that they can make the case?
Mr. Simon Nadeau, Scientific Adviser, Environment Canada: Maybe I can complement Ms. Wherry's answer. This bill requires recovery planning, of which critical habitat identification is a component, but this is not the beginning of recovery planning. We have about 12 years of experience in Canada in recovery planning, and we have involved different people who are not, as you said, paid to attend these meetings. We do not have a clear policy in terms of supporting people. However, we have done that from time to time when people have requested it, especially when we realize there is a substantial cost involved in participation, and that it is not their responsibility to perform recovery planning.
The act will require us to involve landowners and people who will possibly be affected down the road by recovery implementation, so we will have to look at this important question.
Senator Kenny: My concern is that there are many precedents where the government has funded groups so that they could become involved in a policy development process. The act, in the abstract, sounds fine, until you put yourself in the shoes of someone who is the affected by the act and is being asked to behave in a public-spirited way.
I have a fear that down the road there will be people who will feel jerked around — not because of these officials here — but simply because they happen to deal with an official who is enforcing an act that has a lot of power in it. We are in the process of setting the tone and setting the approach. Can we can set a tone and an approach that would lean in favour of generosity and assistance towards the people whose assistance we want in this stewardship, and not just say that it is their civic duty?
The Chairman: Could you undertake to get a few scenarios you think will be typical and respond through the clerk to us about what might happen in those circumstances? Examples might be the farmer or the woodlot operator who is finding that a portion of his land is being taken out of production, or the production from it will be somewhat reduced. How will this person get to wherever he has to go to negotiate with your folks?
Senator Christensen: There may be mining claims.
The Chairman: Yes, there could be mining claims and other provable losses incurred.
Senator Kenny: Could you indicate how many hours are involved and how much it costs to prove a loss? How do you prove a negative?
The Chairman: I can prove a loss from time to time.
Senator Kenny: If you have not incurred it, someone might disagree with you.
The Chairman: It is a process of negotiation. We are asking for a description of what might happen in a typical scenario with regard to that negotiation. It may lead us to further questions. It may also answer our questions.
Senator Kenny: However, one side negotiating has all of the resources of the federal government, and the other side has, perhaps, only his or her spouse.
The Chairman: That is exactly my question. Witnesses, you understand the nature of the question: Will we disadvantage someone to whom this act might apply to the extent of having them bear the costs of negotiations and proving potential losses, whatever they might be? We would like to hear from you on that. We may ask you to come back and talk to us about it. If you can send an answer to that question through the clerk, I would be grateful.
Senator Cochrane: Have you already had nationwide consultation with the provinces, the territories and the Aboriginal people?
Ms. Wherry: We did in developing the bill, yes.
Senator Cochrane: What was the reaction of the stakeholders? I am particularly interested in forestry, because my province has several paper mills. What reaction did you get from the forestry people, or the people who depend on those areas for their livelihood?
Ms. Wherry: The reaction throughout nine years has varied, depending on the version of the bill, but, by and large, one of the biggest things we heard from the forest companies, et cetera, was they were very much asking for the bill to have a stewardship-first approach to protect critical habitat, with a complementary habitat stewardship program and funding to encourage that involvement. They also wanted very much to be involved in the recovery process, which the bill requires. We heard those comments over and over.
Senator Cochrane: Was the industry receptive to having a stewardship approach?
Ms. Wherry: They very much wanted a stewardship approach first to protect critical habitat.
The Chairman: A carrot as opposed to a stick, to use the minister's words?
Ms Wherry: Yes, for the first approach.
Senator Watt: The issue that I will start off my questioning with is the groundbreaking involvement of the Aboriginal people. Are you starting to break through in terms of convincing them?
Ms Wherry: In terms of developing this bill, the involvement of the Aboriginal peoples, the participation in developing it, we consider it to be quite groundbreaking. The groups we have worked with consider it to be quite groundbreaking.
About four years ago a number of Aboriginal organizations came to one of our first workshops and, through that process, we developed an Aboriginal working group on species at risk. All the national Aboriginal organizations and some regional organizations participate in this Aboriginal working group. They meet about three times a year, and they have been involved in all stages of developing the bill. The lawyers for the Aboriginal organizations have reviewed the draft text. I do not believe that had ever been done before.
Mr. Near: You need the specific approval of cabinet in order to share draft legislation. The minister sought and obtained such authority, which is highly unusual except for legislation dealing with a particular land claim. Draft legislation was shared in this case with Aboriginal peoples and with the provinces before the bill was tabled. I can personally attest to a meeting where there must have been at least a dozen counsel for the various Aboriginal groups from across the country going through the draft bill line by line prior to it being tabled in the House.
Senator Watt: While I am asking you questions, keep in mind that I am from the North. I am not always informed about what participation the Aboriginal people have had, especially those who live in the Arctic. I am talking about Nunavut and Nunavik, including Labrador.
They have a problem with a matter that has been dealt with by Fisheries and Oceans. The people who have come to me have highlighted the fact that there is not enough scientific information to back up the decision to put certain species on the endangered species list. For example, the question of the beluga has been an ongoing issue for quite some time.
How do you satisfy yourselves when you are talking about scientific-based species assessment? I would imagine that satisfactory scientific information would have to be used in order to put certain species on the endangered species list.
Mr. Nadeau: The legislation depends on the work of the committee, and the Status of Endangered Wildlife in Canada, to provide that independent scientific advice as to whether or not the species it assesses are endangered, threatened or of special concern. In a case like the beluga, I believe that COSEWIC, based on the information it had access to at the time it reviewed the status of that species, came to the conclusion that it was at risk. Maybe we should turn to the DFO officials about that specific case, but that is the process on which SARA is based.
The Chairman: There is also, as we understand, Aboriginal consultation that goes on in this specifically identified group. Were they consulted with respect to the beluga?
Mr. Nadeau: I cannot answer that question.
Senator Watt: Mr. Chairman, I do believe that they have not only been consulted, but they have also been dealing with this for quite a number of years now, and they still have not gotten to the bottom of it because the Inuit in the Arctic are basically saying to Fisheries and Oceans that there is now scientific information to back you up and to go ahead and put it on the endangered species list.
Fisheries and Oceans has won the argument by saying that, even though there is insufficient scientific information to back up the argument, we could not do it anyway. The go ahead is partially sanctioned by the Inuit, but the question of compensation has arisen. That brings me to a question similar to that asked by Senator Milne about compensation. She asked, ``How do you deal with compensation?'' I will ask you a similar question, but related to an actual species and not the land.
Let us say a species is put on the endangered species list, and that species is still, today, a traditional part of the livelihood of the people. It is their bread and butter. When that is taken away, how would the stewardship concept you talked about, which is two parties agreeing to undertake to do certain things, be addressed in this proposed legislation so that there would definitely be compensation? You are not talking about something you can work out. Maybe you can analyze it in such a way that you can come up with harmony at the end of the day, but on this you are taking away something that is the bread and butter of the people.
As an example, Mr. Chairman, this practice already occurs. The government made available $50,000. That $50,000 was supposed to equip the hunters to go quite a distance away. The community authorities got together to decide what to do with the $50,000. It will not even allow them to get to where they are being asked to go. It is not enough money. They used that $50,000 to purchase the skin of the beluga from Rankin Inlet.
I think we had better be careful about this, because you are, in a sense, affecting the economy of certain people by helping others.
I want to make sure, Mr. Chairman, this is clearly addressed because the people in the North know that, regardless of what we say, this bill will be passed. The only recourse available to us is to ask how our needs will be satisfied. If something is taken away from us, will we be compensated, and will the compensation be enough to satisfy the people?
The Chairman: Do you anticipate that those questions will be answered in the regulations? Is that where the answer to that question will appear?
Mr. Near: If I might address one question with respect to the type of loss, we were careful in drafting the actual section on compensation to just refer to losses. It is not tied to anything in particular. It does not have to be land-based, or if there is an identifiable loss as a result of extraordinary impact of the critical habitat prohibitions, then a claim can be made and the minister could compensate.
I believe the senator referred to land-based. It is a loss. In one of the many consultations that I have attended on this there was a person who had experience with trying to calculate losses with respect to Aboriginal loss of harvest, for example. I am no expert in trying to calculate that loss, but the legislation does not restrict —
Senator Watt: If you are going to look at this in terms of calculating the loss, then that is one of the prime responsibilities that has been dealt with in our modern land claims agreements. In effect we do have a pro-management responsibility with the federal government, if it is under the federal jurisdiction. If it is under provincial jurisdiction we also have a co-management arrangement with the provincial government authorities. I am referring to the people living in Nunavik and Nunavut. Unfortunately, Labrador still does not have that. They have not wrapped up their land claims yet.
The Chairman: When you are developing those scenarios, would you add that question to the list? I should like to know the loss, not to habitat, which we were discussing before, but the actual loss of access to animals or other things that might be harvested, whether they are flora or fauna, by Aboriginal peoples and the way in which you anticipate the regulations might address those questions.
Senator Baker: Mr. Chairman, I wish to ensure that the witnesses understand what you are saying. Clause 64(2) in this bill covers the regulations that will define what areas will be covered and the various intricacies of compensation to be drawn up by the Governor in Council.
What the chairman asked was if we could see those regulations prior to passage of the bill. We know that you draw up regulations prior to the passage of a bill. Do you draw up the regulatory impact analysis statements prior to a bill being proclaimed? In other words, what the chairman has asked you to do is very important. If we could look at the proposed regulations, we would know what is in the bill. Right now, we do not know what is in the bill.
Senator Watt's asked if a person would be compensated if, say, blue backs were declared a species at risk. If one is not allowed to harvest blue backs up North because of a regulation, just like netting, people would lose income. Will that be covered, for certain, under the compensation provisions?
Ms Wherry: I am becoming confused. If you are asking for the detailed compensation regulations, we will not be developing them until we have several years of experience. That is what we mean by ``detailed compensation regulations.''
The Chairman: We understand that. However, there will be framework regulations setting out the process by which that regime will evolve. Is that not the case?
Mr. Near: I can only speak from experience. It is not always the case that regulations are ready when a bill is passed. In some instances, where regulations are required in order to implement the bill, obviously those regulations would need to be in place.
Honourable senators have made the distinction between general regulations as to process and how one goes about applying for compensation from the minister. Some initial work has been started on those regulations, however, it is certainly not my information that draft regulations are anywhere near completion.
The Chairman: Do those initial scratchings contemplate the loss of actual flora and fauna with respect to people who live partly by harvesting them, as opposed to compensation for loss of productivity of land in the agricultural or mining sectors?
Mr. Near: As I indicated earlier, the legislation is not restricted to the loss of land. Losses are writ large for someone to apply to the minister for possible compensation.
Ms Wherry: There may be some confusion here in terms of the question being asked. Compensation only comes into play when there is a prohibition on destruction of critical habitat or an emergency order to protect critical habitat. The question being asked is whether compensation would come into play if someone were prohibited from killing a specific species. If that is the question you were asking, then the answer would be, ``No, compensation is for protecting critical habitat.''
I believe what Mr. Near was trying to say is that, if the activity that could destroy the critical habitat is someone harvesting a specific species in the exact area where the critical habitat is, and therefore someone could not harvest a species where that critical habitat has been identified, then the critical habitat prohibition and compensation would be triggered. However, if we are speaking about the general clauses, 32 to 34, of the bill, which say that one is prohibited from killing a specific species, the compensation provisions do not apply to that.
Senator Watt: What do they call the habitat where the belugas go to change their skin? There are certain locations, including Ungava Bay and Hudson Bay, where those whales go. Today we are prohibited from taking any species of whale from certain areas where the belugas usually go. I am not sure whether they would call that the beluga habitat.
Mr. Nadeau: There are two aspects to the protection of critical habitat. First, the area that is necessary for the survival or recovery of the species must be identified. We must then identify those activities that are likely to destroy the critical habitat. That does not mean that because critical habitat covers a given area that all activities within that area will be prohibited. We must demonstrate or have a belief that these activities will lead to the destruction of critical habitat.
It could be that all activities that are currently taking place in that area may continue. It will be case and species specific. I do not know what the case would be for beluga.
Senator Baker: In regard to what Senator Watt has been saying, clause 64(1) defines compensation states:
The Minister may, in accordance with the regulations, provide fair and reasonable compensation to any person for losses suffered as a result of any extraordinary impact of the application of.
(a) section 58, 60 or 61...
Turning to clause 60, it states:
(1) If a wildlife species has been classified as an endangered species or a threatened species...
When a species is classified as an endangered species, pursuant to what will be section 60, what would prevent compensation being paid in accordance with the wording of clause 64(1)?
Mr. Near, do you see clause 64(1) in regard to compensation?
Mr. Near: I am familiar with clause 64(1). Clauses 58, 60 and 61 address the destruction of critical habitat.
Senator Baker: I am sorry, they do not, sir. Clause 60(1) reads as follows:
(1) If a wildlife species has been classified as an endangered species...
The ramification of that clause is seen in clause 64(1), which states:
The Minister may, in accordance with the regulations, provide fair and reasonable compensation to any person for losses suffered as a result of any extraordinary impact of the application... of... section...60.
The application of clause 60 is when there has been a declaration of an endangered or threatened species.
Mr. Near: Perhaps I could speak to clause 60. Clause 60 states:
If a wildlife species has been classified as an endangered species or a threatened species by a provincial or territorial minister, no person shall destroy any part of the habitat of that species that the provincial or territorial minister has identified as essential to the survival or recovery of the species....
That is the definition of ``critical habitat.''
Clause 60 allows the federal government, where it chooses to be so bound, to be bound by provincial legislation with respect to critical habitat. That requires an order of the Governor in Council. Otherwise, generally speaking, provincial legislation would not apply.
Therefore, clause 60 does deal with critical habitat that may be identified by a province to which the federal government may, by Order in Council, bind itself.
Senator Baker: You still have not answered the question. The question is: Clause 64(1) says that the minister may compensate any person for losses suffered as a result of any extraordinary impact of the application of section 60. Clause 60 says that if a wildlife species has been classified as an endangered species or a threatened species — and then you go on to the habitat. The point is that once the action is taken, clause (64)(1) kicks in, which says specifically ``any person for losses suffered as a result of any extraordinary impact of the application'' of clause 60.
I am sorry, Mr. Chairman, but that is the way we read this bill. We both said that that is compensation for people who are affected, because that is the way it is worded.
The purpose of clause 61 is as stated, that is, if a wildlife species has been classified as endangered, and so on. When you go back to the regulations at clause 64(2) it says that the Governor in Council shall determine the parameters, terms and conditions, who is eligible, and so on. Clause 64(2) would not prevent the Governor in Council from defining those people affected as those who were affected by the endangered species at risk. Surely that would not limit the Governor in Council from saying that that only applies to the destruction of habitat and not to a wildlife species that has been classified as an endangered species or a threatened species.
In your opinion, could the minister give compensation to persons affected, as it states here, not just because of the destruction of habitat but because it is being declared an endangered species?
Mr. Near: No. The provisions of clauses 58, 60 and 61 and the emergency order with respect to critical habitat all relate to the destruction of critical habitat.
Senator Baker: You say they relate to the destruction of critical habitat but the bill does not say that. Clause 64(1) covers clause 60, for all reasonable losses because of the impact of clause 60. Clause 60 is when a species is declared endangered, that is an action.
Mr. Near: Clause 60 is a prohibition against the destruction of critical habitat.
Senator Baker: Yes, but that flows from the declaration of the endangered species, as it says in the first sentence.
You do not agree?
Mr. Near: No.
Senator Baker: We have misread the bill then, Mr. Chairman.
The Chairman: We need to have confirmation. Rather than have a legal argument now, would you please write out your opinion, Mr. Near, and tell us why what the senator suggests is not the case. We are asking specifically about compensation for people who have been prohibited from harvesting something, regardless of whether that something happens to be on a habitat that is identified under the bill.
Senator Christensen: Thank you very much for being here. The government has earmarked $145 million over a five- year period for compensation. How did they arrive at that number? What projections were used to identify that number? Do you believe that will be enough? Over five years, $145 million is not a lot.
Ms. Wherry: It is actually $180 million over five years, and it is not only for compensation. Budget 2000 Canada committed $180 million over five years for the federal strategy and $45 million of that was committed to the habitat stewardship program.
As I say, we have had plenty of success. We have had plenty of years of experience working on species at risk and recovery since the 1980s. It is through the experience that we have had in implementing protection and recovery of species at risk that the government came up with its budget 2000 figures. Of course, as with any complex, developing program, we will learn more as years go by as to whether the resources are adequate. We will learn that as we implement the legislation.
Senator Christensen: It just seems like such a low figure.
Senator Gustafson: My question is with regard to clause 5 which states:
This act is binding on Her Majesty in right of Canada or a province.
In Saskatchewan, Ducks Unlimited moved into certain municipalities and offered certain monies, saying that people must quit draining their land, and then they expropriated. The cases went to court. The provinces stood behind the federal government because certain grants were involved, which they do not want to lose. This becomes a pretty powerful tool. With Kyoto on the mind of every farmer today, is there any way of controlling this?
Mr. Near: The purpose of clause 5 is specifically to serve notice to the federal government and the provincial governments that any of their activities must comply with the law. I have been involved in some of what we call ``R. v. R.'' prosecutions in which one part of the federal government is prosecuting another part of the federal government or the provincial Crown for things such as deposit of deleterious substances pursuant to the Fisheries Act, and we had one case under CEPA as well. It is just to serve notice that the governments themselves are not above the legislative requirements set out in the bill.
Senator Gustafson: This then takes the power from the legislature and gives it to the courts. We have had many examples of how this has been happening in Canada. I raise it because there is a lot of concern about that.
Senator Buchanan: I may have misunderstood what you were saying. You are saying that clause 5 does not bind a provincial government as far as lands owned by it. It binds a provincial government to the extent that it should not violate the act as far as federal lands are concerned.
Mr. Near: If someone in the Ministry of the Environment in Nova Scotia, for example, does something that kills an endangered species or destroys critical habitat, we could possibly prosecute.
The Chairman: Mr. Near, does it not mean that, if such a thing occurs, and if the province fails to act as it is obliged to under the act, the federal government may proceed in a certain way?
Mr. Near: Whenever you are talking about prosecuting someone, there is always an element of discretion, both with respect to the enforcement activity and with respect to the Attorney General as to whether it is in the public interest to prosecute. I can say that R. v. R. cases are particularly sensitive since one does not expect one part of the Crown to be fighting the other part of the Crown, but that happens from time to time.
The Chairman: I am sorry to interrupt Senator Buchanan. However, does the measure not contemplate that on lands which are not under the control or aegis in some way of the federal government, in particular provincial lands, which is what Senator Buchanan is getting at, that the first line of defence contemplated is the provincial government? The province will enforce. The capacity for the federal government to enforce is, in effect, to bring down the last hammer. That is the safety net, should the province fail to do what the legislation contemplates as its duty. Is that fair?
Mr. Near: That is a correct characterization. However, clause 5 does not address that issue. It is just to say that both aspects of the Crown, federal and provincial, are bound by the terms of this legislation.
Senator Buchanan: Perhaps I am not following what is going on here. I am looking at the chart you provided. Are you saying that, under this federal measure, you could prosecute on provincial Crown lands?
Mr. Near: I am not really talking so much about Crown land. Yes, we could prosecute the provincial Crown, if they violate an aspect of the federal legislation.
Senator Buchanan: If I were to shoot a deer on provincial Crown land and it were an endangered species, could you prosecute me?
Mr. Near: If you were an employee of the provincial government, that is a possibility.
Senator Buchanan: Say that I am not an employee of anybody; say that I am just Joe Blow and I want to shoot a deer on provincial land.
Mr. Near: Then clause 5 has no relevance to you. It is aimed at the Crown, the provincial and the federal Crowns.
Ms. Wherry: It may be that we are discussing two different things here. There is not only clause 5 to consider. From the questions I have heard, there is also the fact that this bill would provide the federal government with the authority to provide protection to all species on all land in Canada, the critical habitat. Under the criminal law power —
Senator Buchanan: Hold on just a minute.
Ms. Wherry: Might I finish the thought Senator Banks introduced? There is a safety net. If the federal government chooses to use the safety net and apply it to a critical habitat that is on provincial Crown land, then that is different from clause 5. That is what I am trying to say, and that is what you were raising.
To extend it to a so-called provincial species through the safety net provisions, then, yes, this measure would provide the federal government with the authority to do that.
Senator Buchanan: Perhaps I am way off base. I am trying to fathom this.
Where does the federal government get the constitutional authority to pass a law that gives them the legal and constitutional authority over species on property that is not owned by the federal government?
Mr. Near: The authority to invoke a general prohibition with respect to the killing of a species at risk as found, for example, in clause 32 of the bill, or the destruction of its residence in clause 33, or protection of an endangered species, which is found in clause 34, based on the criminal law power. That power is restricted to a direct prohibition against a particular act.
Senator Buchanan: Are you saying that this is part of the criminal law of Canada?
Mr. Near: No. I am saying there is a difference between what is in the Criminal Code and using federal jurisdiction based on the criminal law power.
Senator Baker:It is like saying that the Motor Vehicle Act applies to the airport property at the Halifax international airport.
The Chairman: There are other federal areas.
I will excuse you now, witnesses, because we have other business which we must address. We will likely want to hear from you again at some point. Thank you for being with us and for being so forthcoming with your answers.
The committee continued in camera.