Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 3 - Evidence of November 7, 2002
OTTAWA, Thursday, November 7, 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 8:35 a.m. to give consideration to the bill.
Senator Tommy Banks (Chairman) in the Chair.
[English]
The Chairman: This is a meeting of the Standing Senate Committee on Energy, the Environment and Natural Resources, which is, today, dealing with the question of Bill C-5, colloquially known as the Species at Risk Act.
With us today is Ontario Liberal Senator Isobel Finnerty; Senator Ione Christiansen from the Yukon, also a Liberal; Senator Charlie Watt, a Liberal from Quebec; Senator Colin Kenny, a Liberal from Ontario; my predecessor and chairman emeritus, Senator Nick Taylor from Alberta, a Liberal; Senator Lorna Milne, a Liberal senator from Ontario; and Senator Trevor Eyton, a Conservative senator from Ontario.
Our witnesses this morning are from the Species at Risk Working Group, SARWG, an unpronounceable acronym. I am always delighted to see an unpronounceable acronym, because it makes us say the whole title.
With us is Sandy Baumgartner, the Manager of Programs and Communication for the Canadian Wildlife Federation; Andrew de Vries, the Biodiversity Adviser from the Forest Products Association of Canada; Pierre Gratton, the Vice-President of Public Affairs and Communication of the Mining Association of Canada; and Elizabeth May, the Director of the Sierra Club of Canada.
Ms. Sandy Baumgartner, Manager of Programs and Communication, Canadian Wildlife Federation, Species at Risk Working Group: Thank you very much for hearing from our group this morning. We actually use ``SARWIG'' as the acronym. As Pierre pointed out to me, it sounds like ``earwig.''
Before I start, I would like to acknowledge another colleague who is with us this morning, Laura Telford from the Canadian Nature Federation. As you can tell from the makeup, we are a very interesting and diverse group.
I do not know that you would expect to hear from industry and environment groups collectively on an environmental issue, but that is the case with this group. We came together in April 1998 out of a sense of frustration over previous attempts to introduce species at risk legislation in Parliament. Industry and environment groups were very divided at that time. Elizabeth called us together and said, ``There has to be a better way. Is there a way we can work together to build a consensus?''
We started slowly and thought we would see how it went. The people may have changed, but the organizations have remained the same. The cordial nature of our work and the ability to reach consensus were truly remarkable. As we worked, we felt we would be together for a few months. It has now been four years, and we are not sure that we will ever part ways. The relationships have been healthy. The dialogue we had as we went through the various stages of our work was really quite interesting.
One of the documents that were circulated to you this morning was our first piece of work. It is just to set the tone for you as to what we did in the beginning. We did a think piece that we presented in the fall of 1998 to federal and provincial wildlife ministers. We developed that document not just through the five or six of us working in a room, but we actually went out and held our own consultations. We met with a variety of groups. We met with other industry groups. We met with community groups. We met with agriculture groups. We tried to get everyone's views on this issue. We met with government officials as well. We were really trying to build a consensus beyond the people who were represented in our group. We then presented that brief to ministers. From that, we presented twice to the parliamentary committee on sustainable development and environment on the various bills that were before the House at that time.
The other document that we presented to you this morning is a summary of some of the key recommendations. My colleagues will go through some of those in more detail.
Mr. Pierre Gratton, Vice President, Public Affairs and Communication, The Mining Association of Canada, Species at Risk Working Group: As Ms. Baumgartner mentioned, we spent over four years working together to develop and promote what we believe are the key ingredients for providing the most effective protection for species at risk. Our advice has always been grounded in three key themes: First, that efforts to protect species at risk by legislation, policies and programs should be developed in a manner that works for species as well as for people; second, that these efforts be designed to foster trust and cooperation between governments and among stakeholders; and third, that the solutions be pragmatic. They must make sense to people who work on the ground.
We believe that our collaborative efforts have helped to reduce polarization around the prospect of legislation to protect endangered species. Our work has certainly fostered collaboration amongst ourselves. Over the past few years, we have seen many of our ideas adopted, and we are pleased with much of the progress that has been made.
It has long been our view that real success in protecting species requires more than just legislative action. Policies and programs, adequately resourced and designed to assist Canadians in achieving the goals of legislation, are essential. We therefore applaud the government's recognition of the need to support voluntary stewardship by allocating resources in budget 2000 that continue to develop a Canadian way to creatively protect and recover species at risk and to protect other species from becoming at risk in the first place. We do believe that additional resources will be necessary going forward.
We fully support the cooperative spirit embedded in the Species at Risk Act. Its emphasis on stewardship and the enabling of conservation agreements is a constructive, pragmatic approach that will deliver results. This cooperative spirit is also reflected in the bill's efforts to promote the involvement of local stakeholders in recovery strategies, as well as in the provision enabling the payment of compensation. One of the rallying points that brought us together at the outset was opposition to citizen provisions found in earlier government legislation, and thankfully this kind of antagonistic approach has never made its way back into the bill.
Since SARA was first tabled, we have also seen a number of our specific recommendations adopted. We had significant concerns that the government's proposed listing process would not be sufficiently independent and transparent. Recent amendments to incorporate a kind of negative option, where the onus is on the government to explain why some species might not be listed, is an important improvement and one that we had advanced.
We had major concerns with the bill's consequential amendments to the Canadian Environmental Assessment Act and rallied the regulatory advisory committee to help convince the government to correct serious drafting errors in the bill. These have been addressed.
We sought greater certainty that critical habitat for species found on federal lands and in areas of federal jurisdiction would be protected. Amendments made in the House have certainly improved the bill in this respect — one of the key reasons why we believe the polarization around SARA has been greatly reduced and why we, SARWG, can collectively support the bill.
This is not to say, however, that we believe the proposed legislation is perfect and cannot be further improved. As we state in our brief, key improvements could make the bill more effective. It is clear that the government wants to see this bill pass as is so that we can get on with the business of protecting species at risk. We certainly agree that after eight years or more focused on legislation, it is time to get to the real work on the ground. However, the Senate is not the government. Therefore, if, in its wisdom, the Senate decides it wants to further improve the bill, we want to ensure that you have our best advice on how to do this. As Ms. May will describe in more detail, we continue to have some key misgivings regarding SARA.
The most basic legal protection that one would expect from species at risk legislation, namely, prohibitions against the killing of species and destruction of their residences, is not assured in SARA. Not only do we believe that this protection should apply everywhere in Canada upon listing, we think that doing so would buttress the constitutional foundation upon which SARA is based, about which we also have some concerns.
We believe that the use of due diligence as a defence under the act is inappropriate. We believe that a mens rea offence is preferable, given the nature of the proposed legislation. While we welcome the modest House of Commons amendments to clause 64 that oblige the government to develop regulations governing compensation, we remain concerned that the issue of eligibility, i.e., who will be permitted to apply for compensation, is not resolved. While a last resort, we believe that, in principle, all land users, including those operating on Crown land, should be eligible to apply. This is a view shared by Dr. Peter Pearce, a natural resource economist hired by Minister Anderson to review the issue. We must hope that the government will ultimately endorse this view when developing regulations.
Last, the government continues to hold a very narrow view of its jurisdiction with respect to the protection of migratory birds. It is a view not universally shared by legal experts in the courts. We think clarity and certainty on this issue would be beneficial.
Our brief outlines other areas where the bill could be improved. All our recommendations, I should emphasize, work best as a package.
Let me conclude by stating that the passage of species at risk legislation will be an important milestone for our country. It will respond to much more than the ideals of conservationists; it will respond equally and in a direct way to the business interests of Canada's resource sectors. Certainly Canada's mining and forestry sectors, which sell most of their products to foreign markets, must demonstrate responsible resource stewardship if we are to preserve our access to these markets. Species at risk legislation is a key element for supporting our claim to be responsible stewards of the land, and the more effective the legislation, the stronger our claim will be.
Ms. Elizabeth May, Executive Director, Sierra Club of Canada, Species at Risk Working Group: Mr. Chairman, my colleagues have asked me to go into some of the details of what you could do if you wished to improve the proposed legislation.
I would like to say, though, a couple of ``thank yous.'' It is exactly 10 years since I first appeared before a parliamentary committee to advance the need for species at risk legislation. I would like to start by saying that the privilege of working in a collaborative effort with my colleagues in the conservation movement and industry has been a very productive and positive one, and in the likelihood, although not the certainty, that this is our last time appearing together as the Species at Risk Working Group, I would like to pay special tribute to the Forest Products Association of Canada and the Mining Association of Canada for sticking it out and working with us when, at times, there was pressure for them to abandon the cause of protecting species in Canada with the likes of the rest of us. I am grateful to them.
I cannot start without saying what a privilege it has been to know Senator Nick Taylor around these tables and how much we will miss him. I am really grateful he is here for what will be perhaps the swan song of the Species at Risk Working Group.
Senator Taylor: I am going back to where a species is really endangered. They are called ``Liberals'' in Alberta.
Ms. May: Thank goodness you are getting back there in time.
It is with mixed feelings that we advance the need to improve the bill; however, there are some possibilities, and they are important.
Pierre has mentioned a few of them.
I will briefly highlight the ones in our brief at which we really hope you will have a look. I will just mention them in the order in which you find them in the brief.
The listing process: The Species at Risk Working Group is very pleased that the government put forward amendments last spring that increase the prominence of science in determining what species are at risk — what we have been calling ``negative option listing,'' whereby the species are listed by the Committee on the Status of Endangered Wildlife in Canada and remain on the list unless there is a cabinet decision with explanations as to why those species should not be listed.
There is one fly in the ointment here, though, and that is that schedule 1 to the bill will list the species at the time of its coming into force.
There are a 33 very important species that are currently under reassessment. All of those species should be added to schedule 1. Through an administrative error, some species may not be listed. The right whale was not listed because of a bookkeeping error. It is now under reassessment. We do not want the Perry caribou, beluga whale, right whale, bowhead or a number of other species to be left to face potential extinction because there was a mistake in not listing them now. They can be and should be added to schedule 1.
Then we go to a very critical issue that touches upon a number of other points, so I will deal with them as a group. This is a question of the bill's failure to protect every species in Canada from direct, deliberate killing. Related to that are the questions of the due diligence defence and the bill's scope.
We are concerned — and had advice from constitutional lawyers to this effect — that the approach the government has taken in the bill unnecessarily weakens its constitutionality.
The strength of the bill is in clauses 32 and 33, and what seems to be, if read in an isolated fashion, a complete prohibition on the killing of species at risk and the destruction of their residences.
However, following clauses remove that blanket application and suggest that it only applies on federal land ``unless,'' and then you fall into the safety net provisions. Our concern is that it certainly would be very much more straightforward and more consistent with the application of criminal law powers to just say, as many other provisions of federal law do, this is not permitted anywhere in Canada. It is prohibited to kill a species at risk.
Related to that, again, is the concern on the defence of due diligence. As a group, we have advocated that the killing of species at risk anywhere in the country should be an offence, regardless of what land it is on. Furthermore, we believe it would be an improvement in the bill if that killing were made a mens rea offence, in other words, a deliberate act. This would remove the fear of landowners that they would be inadvertently prosecuted for things that they had not intended at all. This is a sticking point for many landowners and resource users across Canada. The chances of prosecutions being brought inadvertently would be much reduced if it were a mens rea offence.
The other area in this category is the question of mandatory protection of critical habitat on federal lands. The bill has been improved in this regard through the amendments that came forward at the end of the last session of the House. However, there is confusion around the interpretation of Migratory Bird Convention Act habitat and what is protected under that definition.
The courts are taking a different view from the federal government, and uncertainty will not be in the interests of companies operating on the land. From the point of view of conservation groups, the overly narrow interpretation is not justified. Your committee could clarify that.
We are concerned that recovery takes place. The implementation of recovery plans is critical to the functioning of the entire bill.
The failure of the bill to include timelines for the completion of action plans for recovery is a weakness. There were amendments put forward by the House committee that would have ensured that action plans were completed within one year for endangered species, within two years for threatened and at-risk species. We think an amendment from this committee to ensure timelines for completion of action plans would strengthen it without doing the overall structure of the bill any damage.
In the exemption provisions, clauses 73, 74 and 83, the bill provides for some rather speedy, unilateral, discretionary exemptions available to various ministers without consultation with the ministers responsible under this bill.
This degree of latitude is in sharp contrast to requirements for multiple consultations prior to protecting a species, or the criminal penalties provided in the bill for citizens or organizations. We believe the government should be more closely bound by its own legislation. The latitude around exemptions could be re?examined by this committee.
There are a number of other points in our brief, but I think we would like to conclude by thanking you for allowing us to present. The Canadian Nature Federation is also here with us. We have worked together for the last four years to find ways in which this bill could be made more effective. It is now in your hands. You are the last chance for species in Canada, but even with its current weaknesses, overall it is an improvement for the status of wildlife in Canada to have some measure of legal protection. It is in your hands, and we welcome your questions.
The Chairman: Senator Ethel Cochrane and Senator John Buchanan, who are Conservative senators, have joined us.
Senators, just before we get to specific questions, I want to do two things: to remind you that we must be concluded with this part of the hearing with the next witness by 9:30, which is an unfortunate but necessary constraint. I also want to ask one general question that may be of interest to all senators. Ordinarily when the Senate amends bills, a vast majority in the Commons approves those amendments. In the last session of the last Parliament, the Senate made 79 amendments to bills, and 77 of them were approved.
In this case, however, as you know, this bill had a rough ride in the Commons, and there is some concern, expressed by many people, that it might be a dangerous thing if we in the Senate were to amend the bill and send it back, because those areas which we might amend could then be addressed again in the Commons, and the pendulum might swing in some other direction. Do you have a view on that?
Ms. May: As a group, I can tell you we have wrestled with how forcefully we should put forward to this committee the changes that in an ideal world we would like to see made. Given that this is the House of sober second thought, I am not prepared to say that we should abandon, in the interests of political reality, those concerns that are real. It is really for you as the Senate committee looking at this bill to make a determination on whether advancing changes would jeopardize the whole legislative package or whether there are further political miracles up the sleeve of SARA. No one would have thought some months ago that we would see the progress that has been made in the bill — thanks to the commitment of a number of very hard working, particularly Liberal, backbenchers, but with the collaboration and assistance of members on all sides of the House. It is something, perhaps, that other members of our group would also like to address.
We do not want to see this bill die and not be revisited. On the other hand, there are significant problems with it.
Senator Cochrane: The chairman has asked one of the questions I wanted to ask, and that is, would you prefer to see the bill passed as is, or would you prefer to see it amended and possibly not pass at all? Ms. May has answered that. You would prefer to see the bill go forward as is if it means other things would be at risk.
Ms. May: That is our answer. There is no question that the bill has areas that should be addressed. You can develop among yourselves, and working with government and the minister's office, some sense of where improvements are possible. I would hate to fail to put forward, in the interests of species, the concerns that we have. It is not for us to prejudge what will happen in the legislative process. The road this bill has taken was certainly not predictable and I would not pretend to know what its future is as we present the things that we think would improve it.
Mr. Gratton: I would add that the bill does include provisions for a review in five years, so our advice can certainly be taken within that context. We do believe that the bill is sufficiently strong now that we would still be pleased if we waited five years for that review. It is a tough call. You are all better political judges than we are of the best course from here.
Senator Cochrane: That is interesting to hear. However, I have a question for Mr. de Vries. Earlier this week we heard from officials from Environment Canada, who told us that most stakeholders who were consulted in the development of this bill were in favour of the ``stewardship'' approach. One said this was the case with many people they had heard from, including representatives from the forestry sector. That sector is very important to me and to my province because we have paper mills. I would like to hear your perspective. Do you favour the stewardship approach, and if so, why?
Mr. Andrew de Vries, Biodiversity Adviser, Forest Products Association of Canada, Species at Risk Working Group: Yes, we do favour the stewardship approach. That is why we have worked with our colleagues for the last four and a half years, and prior to that in a different forum. As Mr. Gratton mentioned, it is critical to our industry to be able to work on land bases that are managed appropriately. We believe the Species At Risk Act enables us to do that and to market our product, if you will, in an appropriate manner.
Senator Cochrane: How will you go about this?
Mr. de Vries: Our customers often ask us about various practices in Canada, including whether Canada does have a Species At Risk Act. If we were able to answer that question and provide details, that would be our first step. As you know, the forest products industry is very active in conservation. We are involved with species at risk across Canada, be it the marbled murrelet or the Newfoundland population of American marten. We are involved in inventory, research and management projects around those species, so I feel what we are doing with this group is consistent with what we have done in the past.
Senator Cochrane: How effective do you think this approach will be from a business perspective? The bottom line in business is profit. At the moment, I suppose, it is profit or loss. How effective do you think this approach will be?
Mr. de Vries: I think it will be effective. Part of the business paradigm these days involves including conservation in your business plans. I think the forestry industry and mining associations have been very proactive in those matters, and I think SARA is a good fit with that.
Ms. May: I think it is significant that industry associations are before you today, supporting the stewardship approach. All of us agree that cooperation is the best approach, but we also think that sometimes, in addition to the carrots, you also need some sticks. That is why we are also making the point that it is clearly a weakness that the bill does not provide for the protection of species from direct killing across the country. I think it is important to thank the industry associations for maintaining the consistent position that they would welcome that change as well.
The Chairman: I know how impossible this is, colleagues, but in order to accommodate all senators presently on the list we need to get our questions and answers out in less than five minutes each.
Senator Eyton: You may not know this, but I have had a very long association with both the mining industry and the forest products industry, so I am delighted to see this group of representatives working together with the Sierra Club and the Canadian Wildlife Federation. It is encouraging, to say the least. I think it represents a new way of doing things.
It appears to me that you are subtly telling us that you would like this bill to pass. You would like the committee to approve it and send it back for passage, perhaps extending this schedule to cover the 32 or 33 species at risk that apparently were left off. I expect that can be done, but essentially, you do not want significant amendments now because you want the bill to be passed. That is how I interpret it and it seems fair enough. What we can do, and what committees like this have done in the past, is approve the bill for speedy passage, with the small addition I mentioned, but also note that there are other changes that could be made in the future. Get the bill through and prepare for suitable amendments that will make it a better bill over time. It may be another year or two, but in the meantime you have the bill working.
I want to go on then to a practice I learned a long time ago, mostly in business, from a very notable and successful Canadian, who used to look at me just before concluding an arrangement or agreement and say, ``Now Trev, look at this package. What is the single best thing we are doing within that package, and what is the worst thing? Let us work to improve the best and eliminate the worst.'' I found that, in practice, that meant 20 or 25 per cent improvement overall, because if you eliminate the best and worst, suddenly you have a different median and approach. My question is, what is the best thing in the bill and how can it be improved, and what is the worst and how may it be eliminated? I want you to give us some sense of priority in this.
Ms. May: That is an excellent question. Should we take a stab at it, and you guys can stab me if I am wrong?
Mr. Gratton: With pleasure.
Ms. May: I think that the best thing about the bill is its existence, the awareness-raising that it creates, the increased sense of urgency in various sectors now awaiting species at risk legislation to get on with the job. A lot of what is best about it is not what it does in a legalistic sense, but what it does in a cultural and societal sense. The worst of it is how weak it is in legal terms. Frankly, I think we will be open to international ridicule if we have a species at risk bill in Canada in which it is still legal to pick up your gun and take aim at an endangered species as long as you are not on federal land. I think that is such a large weakness that that is the bottom I would eliminate. That is a tall order if you do not want to upset the apple cart down the road in the House of Commons. I recognize that, but that is my short answer.
Ms. Baumgartner: I would certainly agree that the best of it is what it does outside the legal context.
Our group is a perfect example of that. We have been working, and will continue to work, collectively on a number of initiatives, whether it is sharing information or a project on the ground with our members and members of the associations. The work on the ground will be to the benefit of wildlife and all of us in the future.
I am not sure that the worst part of the bill is that which Ms. May described. It depends on how it will be interpreted in the long run.
Mr. Gratton: I will return to the senator's earlier comments on stewardship. The way in which stewardship is embodied in the bill is also a major plus. It was the premise of our work at the outset that stewardship should be the driving force. I think someone called it a ``spongy stick.'' The sponge is extremely well made, but the stick could be a little stronger.
Senator Buchanan: I do not have much to add. I agree with much of what Senator Eyton said. Certainly, as Ms. May knows, if I were not in favour of this kind of bill, I would never be able to go home to my wife again. She is so much in favour of something like this. Not that I am afraid of my wife, do not get me wrong.
I do agree with Ms. May. I said the other night that there could be some problems in the future with this bill. Some lawyers will make much money from this. Who knows if that will transpire? That is the only concern I have with the bill.
Senator Milne: I swing back and forth between the ideal and pragmatic points. The witnesses are probably suggesting the ideal. The pragmatic view is that if we amend this bill at all, it quite probably will die in the House of Commons. Even a small amendment would threaten it. Bills have to be identical in wording in both places when passed.
A small amendment will not work. The committee could report the bill with recommendations and comments.
I would like to hear what you would like to see in those recommendations and comments. What would you like to see in the regulations? I would also like to see your list of an additional 33 species.
Mr. Gratton: I will touch on one point that I mentioned in my opening remarks that is relevant to what we would like to see in the regulations. The way in which the compensation system would work is an outstanding issue. That is to be developed later in regulations.
We do hold the same view as the government. This system should be discretionary. You should not automatically be entitled to compensation. We think that approach would run the risk of creating perverse effects.
At the same time, we have some significant concerns that are more with the minister than the government, because he has been quite vocal on this topic, including saying that those operating on Crown land under lease should not be eligible to apply. We are obviously concerned about that, since most of our members operate on Crown land.
We recognize that in many cases it will be perfectly within the legal terms of a lease or permit to expect companies to make certain changes to their practices. We think it would be inappropriate for companies to come forward and expect compensation every time they are asked to change practices.
However, it is not inconceivable that there will be times, and Dr. Pearce acknowledged this in his report, when what is being asked goes against the permits and the information upon which one has based a long-term investment. If that is the case, we think that person should be eligible, like anyone else, to apply for compensation. It is an investment climate issue.
That matter is to be settled later through the development of regulations. However, a signal from the Senate recognizing that, in principle, everyone should be eligible would certainly be welcome.
Ms. May: We said that we would accept your judgment on the practicalities of making any amendments, but Senator Milne, if the committee could find areas of improvement and obtain an agreement from government, perhaps it would make sense to look at some. The government might be happier in the end in having put things right before the bill comes into force.
We have serious proposals for amendments that go to the fundamentals of the structure of the bill. We have amendments that would tidy up the bill.
In an ideal world, you would take them all onboard and the bill would be passed exactly as SARWG wants it. We have been working towards that goal for some time now. However, I would hate to think that we would not see any improvements to the bill.
During the five-year review, the application of the safety net should be examined to determine whether it might not be more effective to prohibit killing across the country. That should be examined and discussed with the provinces over the next five years.
When Christine Stewart was the Minister of Environment, there was no active species at risk bill before the House. It had died before she became Minister of Environment, and the work she did was then brought to fruition by Minister Anderson.
However, when Minister Stewart was working on the bill, it was widely expected in provincial wildlife offices and in our group that the direct killing of species at risk would at least be prohibited by the bill. The issue was how far would the federal government go in protecting the habitat of species?
It was accepted that the federal government was on sound ground constitutionally in prohibiting the killing. Looking at that in the long term, if not in the short term, would certainly be helpful in keeping that issue before the government and the observers of the effectiveness of SARA.
Senator Milne: You are right that the federal government does have that constitutional ability to prohibit killing on provincial lands, as well as federal, under criminal law.
The Chairman: Could you tell us how many species you think will become extinct during the next five years prior to the review taking place?
Ms. May: It is a very difficult question because there are a number of species. The species at risk list that we have from the Committee on the Status of Endangered Wildlife in Canada, on which two of our member groups sit, is not complete. There are species under review. There are species are at risk that are not being scientifically evaluated.
The best example of that is from a researcher at Dalhousie University in Halifax, Dr. Ram Myers, who found in by- catch records a fish called the ``barn door skate.'' That skate showed up in by-catch at least 10 per cent of the time. Over about a 10-year period, not a single barn door skate was reported. The supposition is that something, perhaps by?catch activities, perhaps destruction of habitat, was causing that particular species to move towards extinction.
It still has not been evaluated, so we still do not know. One can estimate the number of species that might disappear from the list. However, we do not know the number of species disappearing from the real natural world. We have not had the significant capacity and the resources to do the evaluation; therefore, we do not know the full status of species.
Perhaps Ms Telford, who is sitting to the side, might offer a concrete number, but I would doubt it. The best we could say is that we do not want to lose any of the species that God put on this earth. That is the point of the bill. However, we are unlikely to succeed without significantly more resources.
Senator Baker: Is that Ransom Myers?
Ms. May: Yes, Ransom Myers, formerly of the DFO.
Senator Taylor: First, I find it difficult to follow the idea that you could kill species off federal land without being prosecuted. Is there an overlap here with something in the Migratory Birds Act or something like that, for instance? I do not think you can kill a whistling or trumpeter swan, no matter where it is. It is flying overhead and it is hard to figure which is federal jurisdiction and which is provincial, unless, as in Alberta, we claim everything. Could you enlighten me on that? I did not feel that the bill allowed me to kill endangered species if I met them in downtown Ottawa instead of out on federal land. That was one piece of information.
Ms. May: Basically, unless there is some other piece of legislation that protects a species, this bill does not create new permission to kill species that are otherwise protected. However, it does not provide any new prohibitions against killing a species that is not already protected unless you are on federal land or there has been a special action of cabinet through an Order in Council to protect that species under the safety net. For instance, for woodland caribou, grizzly bears, pine marten and a whole range of species, anything outside of provincial protection or an international treaty like the Migratory Birds Convention Act, there is nothing in this bill that prevents you from killing a species at risk unless it is on federal land. If that is the case, there is an automatic prohibition.
Senator Taylor: Do you not answer your own question when you say that the cabinet can enlarge it? Maybe we could ask about this. That way, it does not have to go back to the House of Commons.
Ms. May: That question of the effectiveness of the safety net is addressed in the brief. We comment on the fact that the trigger for action by federal cabinet to move into territory that, by nature of clause 34 they have suggested is provincial in its essence, is the conclusion that a province is not doing its job. Politically and in terms of the real world, I do not know how often that safety net will be used. It depends on whom you talk to. I have talked to bureaucrats within Environment Canada who anticipate it will be used practically every time a species is listed, and I have talked to advisers in the Prime Minister's Office who anticipate it will never be used.
Senator Taylor: I might make a note that when we make our recommendations, we should try to cover that.
Senator Buchanan: I have a supplementary question on that. Ms. May, the other night, as I understand it, some of the federal bureaucrats indicated that the application is country-wide and it does not matter about federal lands, because there would be a prosecution on any land. Am I right in that?
Ms. May: If they said that, they misspoke. The bill is very clear that the automatic prohibition on killing only applies on federal lands.
Senator Buchanan: That is what I thought.
Ms. May: You could find interesting discussions on these points in the Hansard from the House of Commons, particularly the exchange between Gar Knutson and Minister Anderson. There was quite a lively exchange. The bill is quite clear when you read it that, although the prohibition could extend across the country if the subsequent clause did not derogate from that authority, it clearly does, and it does not apply automatically anywhere except on federal lands or through a specific action by cabinet on a case-by-case basis.
The Chairman: It is true that the way in which it extends across the country is by virtue of what you refer to as the ``safety net,'' and we do have this Constitution.
Ms. May: That is correct.
Senator Taylor: Thank you for elaborating on it. You gave your concerns, Mr. Gratton and Ms. Baumgartner. Could most of your worries be covered in any way in the regulations?
Mr. Gratton: Compensation will be covered in regulation, so the answer there is yes. In terms of the other provisions, I do not know.
Ms. May: Concerning the listing, new species will be brought in on the legal list through regulation. It would certainly be a much larger comfort to us if the 33 species currently being re-evaluated were included in schedule 1 of the bill itself.
Senator Taylor: But it could be put in regulations?
Ms. May: It could be, but it certainly is best done in schedule 1, as the bill passes.
Senator Watt: Welcome. I will be focussing mainly on what I know best; that is to say, the caribou and the whales, which you mentioned. I will go back to the point that you raised, namely, killing. What is the definition of ``killing''? What do you mean by that? Are you talking about sports? Are you talking about harvesting? Are you talking about negligent killing? You referred to ``illegal killing.'' Are you talking about someone who is having fun by killing an animal? What are you talking about, or is it all three?
Ms. May: Regardless of the intention, it refers to the killing of an individual animal or plant covered under this bill.
Ms. Baumgartner: The species that would be included under this bill would not be eligible for legal harvesting because of their numbers. We are not talking about legal harvesting of species. By the time they make it to the species at risk list, all legal harvesting would have been eliminated, essentially, for the conservation of that species.
Senator Watt: So you are, in a sense, not so concerned about the harvesting aspects of it?
Ms. Baumgartner: No.
Mr. Gratton: To go back to what Ms. May said in her opening remarks, we have also recommended that the offence be made a mens rea offence. When we say ``prohibition against killing,'' we are talking about intentional killing, namely, the wilful act. That is to say, you know it is a species at risk and you kill it anyway. That is what we are talking about. That is the kind of prohibition that we think should apply everywhere across the country.
Senator Watt: Could you give me some comfort? In this piece of proposed legislation, where does it state that harvesting could be considered as a means for survival? I am talking more about the people living in the North, because they are depending upon those species that you are talking about. At the same time, you are talking about this piece of proposed legislation. If I understood correctly, from the discussions and what I am reading here, you are saying that it might be limited only to the federal lands. However, federal land is already experiencing many activities. You are putting a lot of pressure on the federal lands. In many areas, you are talking about reserves and things of that nature. They will be feeling the pressure. I am not saying that they kill just for the sake of killing. They kill for the purpose of survival and to eat, to bring the bread and butter to their families.
Ms. May: There are a couple of places where the government has attempted to take into account traditional knowledge and the fact that this could apply disproportionately, for the reasons you suggest, to First Nations communities, to Inuit and to northern communities. The inclusion of traditional scientific knowledge within COSEWIC is significant. There is also room for partnership agreements with wildlife management boards throughout the areas of First Nations self-government. There is recognition of the differences. Certainly, the bill is not intended in any way to apply to populations that maintain a sustainable, healthy harvesting of species for survival or for commercial purposes such as fur gathering. This is not a bill against killing animals; this is a bill against allowing species, for whatever reason, to become extinct.
Senator Watt: Do you have a problem if a specific amendment relating to that is made to this piece of proposed legislation?
There is nothing indicated in this bill that protects the harvester's rights. Do you have any problem with that?
Ms. May: I have not seen the language, but the purpose of the bill is to protect species on the verge of extinction.
Senator Watt: Maybe you can help us to define the proper words. Do you have any objection to that?
Ms. May: No.
Senator Watt: I am speaking from past experience and from what has happened to our people across the world after Greenpeace made their move on the seals. I do not want to see that happen again, because a lot of people have taken their own lives, there has been genocide and whatnot, right across the world from the Russian territory on to Alaska, Greenland, and even in Canada. I do not think we want to experience that again.
Ms. May: Another interesting point on this is that, while a lot of people think in terms of hunting and the threat that that is to species, the majority of species at risk in Canada are not at risk because of hunting and harvesting activities but because of loss of their habitat. It is largely a Southern Canadian issue.
When you look at the land base of British Columbia, for instance, only four per cent of it is federal land. British Columbia has no endangered species legislation provincially, has no intention of passing any, and has a large number of species at risk in the only true desert area known in Canada. There is a lack of legislative tools at the provincial level across Canada. The major threat to species is loss of habitat.
If honourable senators felt that they could come up with some language, we would certainly be happy to look at it to see if we could help at all.
Senator Watt: One area that we would like to see improvements in is in the provincial lands. I am from the province of Quebec. We will be facing another huge hydro development again in our area. If any federal statute could be used to protect the harvesting, wildlife and nature aspects, it would be very important, because that will be a massive development.
We are also confronted with the decision of the provincial government to allow the sports hunters, who are Americans, to hunt two caribou rather than one. We are not happy with that, because economically it does not make sense. The result is two payloads instead of one. I am talking about aircraft.
The argument of the provincial government over the years has been that there are too many caribou in the area, and therefore they have to be reduced down to a manageable number. I believe the manageable number has already been reached. We can see with our own eyes that for the past six years that number has been reached. Nothing is happening. I would like to see legislation empowering the federal government so we can take action on that issue. What I hear from you is that this bill may not have the necessary language.
I have one more point in regards to this issue.
The Chairman: Very briefly, senator.
Senator Watt: The issue of the beluga whale definitely falls under the federal jurisdiction, because it is in the water. The beluga whales have a tendency to migrate through the ice to the provincial land. They even enter into the small streams and rivers in order to change their skins.
You mentioned there was no need for possible compensation. I am not sure whether you were here on Tuesday, but I raised the issue of compensation. Apparently, that is not in the bill in regards to prohibiting you from harvesting the beluga, for example. That is one issue.
If your livelihood and economy is taken away, something has to be done. Are you in agreement with that?
Ms. May: Yes. We work very hard as a group against this. This is one last point to leave you with: We were told flat- out by the minister that there was no way that compensation would be included in this bill. It is in the bill now. We can get to the compensation issue through regulation. We need to follow up; however, the principle is enshrined in the proposed legislation.
If we had taken the same advice that we have given you today — that you should look at practical political realities — this bill would not include a lot of what it does now. Political realities obviously shift. You could probably discuss with colleagues on the House of Commons Committee on the Environment what they were told their latitude for improving the bill was and what they were ultimately able to achieve. Perhaps from those discussions, you can glean some idea as to what is possible before deciding that there is absolutely no point in trying to improve the bill.
Senator Watt: This point has nothing to do with this particular bill, but I want to express it. The next time you are intent on getting something going with good intentions and you do not finish the project, I want you to realize that there are spin-offs that have consequences for the people. I want you to realize that, from time to time, you will face that. The people that I represent do not get to be heard down here. I do not think you have a very good knowledge, in terms of seeing with your own eyes, the practicalities that these people are now facing.
Senator Baker: Honourable senators, on a point of order, Senator Watt asked an interesting question. He asked the same question in the last committee meeting with the officials, and that was: We would like to know, in the legal opinion of these witnesses, whether or not the clause under compensation would cover people.
I notice that people are nodding their heads. The department says absolutely not. The legal opinion they gave us was that it did not cover people who had lost their livelihood because of measures taken under the bill. They claimed it only covered habitat.
Senator Watt: That is it.
Senator Baker: Is that your interpretation of the compensation clause under the bill? I am sure you have had your lawyers look at it. I wonder if you could answer Senator Watt on that particular question.
Ms. May: I see what you are saying. You are saying that it is only if habitat protections impede on a person's livelihood and not their ability to hunt.
Senator Watt: That is correct.
Senator Baker: In other words, their interpretation was that the bill did not cover people who would lose income because of measures that were taken.
Is that your interpretation and your legal opinion, or do you have the same opinion that Senator Watt had after reading it?
Ms. May: Yes.
Senator Baker: His opinion was that this would cover the loss of income that people would encounter from a species being declared endangered.
Ms. May: I must say that I was unaware that the department was taking that view of the bill, that it would not apply to people whose livelihood was affected in any way by the operation of the bill.
Our efforts as a group, as Pierre said in the opening, are directed toward a bill that would work for species and work for people. If that is how they think that clause works, then it needs to be amended, because that would be an injustice.
Senator Baker: I notice that you are getting some legal opinion now. In your considered legal opinion, with the wording that is presently in the bill, does the compensation clause that was included on your recommendation and on recommendation of members of Parliament, cover persons whose income would be affected by a species being declared endangered?
Ms. May: We do not have fleets of lawyers to look at this.
Senator Baker: Well, you are pretty good.
Ms. May: Senator, thank you.
What I would suggest is that breaching prohibitions is not something that you compensate for, because that would be a violation of the act. An inability to pursue a livelihood because of the operations of the act, in our view should be — I believe I am on safe ground with my colleagues — something that theoretically could be compensated for if it fit the criteria, just as loss of opportunities around habitat could be compensated for.
The Chairman: I am sorry to interrupt, Senator Baker, but we are intruding on Dan Wilson's time. I am sure he will raise the same question.
Senator Baker: Chief Wilson wants to know the answer.
The Chairman: I suspect he will ask that question.
Would you undertake to give us your group's legal opinion on the question of compensation of individuals as it has been expressed by Senator Baker?
Ms. May: Yes, Mr. Chairman. I have made note of two things we have undertaken to do. Senator Milne would like the full, typed-up list of the 33 species that we want included in schedule 1. We will also provide our legal opinion on the question of whether the compensation clause, as drafted, applies in the circumstances raised by Senator Watt.
The Chairman: I thank the witnesses very much for their time and for being so forthcoming with answers.
Senator Milne: I would like to point out to the members of the committee that I have just had a very fast and informal legal opinion from a lawyer sitting in the room that the bill only covers habitat.
The Chairman: I believe that is the case. We will ask, as we have, for a similar opinion from the department. We will be able to compare the two.
I now welcome Mr. Dan Wilson, who represents the Okanagan Nation Alliance.
Mr. Wilson, am I correct that you are not the chief of the Okanagan Alliance because it is, by definition, an alliance?
Mr. Dan Wilson, Okanagan Nation Alliance: Yes. We call ourselves ``the alliance'' because we are a transboundary nation that extends into Washington State. The Colville Confederated Tribe in the state of Washington is part of our traditional territory as well.
The Chairman: Thank you. Just before you begin, I would like to point out that we have been joined by Senator George Baker, a Liberal senator from Newfoundland, and Senator Nick Sibbeston of the Northwest Territories.
Senator Baker: He is the former Premier of the Northwest Territories.
Mr. Wilson: I believe that everyone has a copy of my presentation. I will read it and then get into the more specific details.
The Okanagan Nation Alliance represents the seven Okanagan bands in the south Okanagan, north of the 49th parallel. The seven include the Upper Nicola Band near Merritt; the Upper Similkameen Band near Princeton and Hedley; the Lower Similkameen Band in the Keremeos-Cawston area; the Osoyoos Indian Band; the Penticton Indian Band; the West Bank First Nation; and the Okanagan Indian Band at the head of Okanagan Lake near Vernon. I am the chief of the Okanagan Band, which is the most populous of the seven.
The Okanagan Nation Alliance recognizes the overall need for Canada to conserve endangered species and to protect their critical habitats. This is a laudable goal. However, it is our concern that implementation of Bill C-5, respecting the protection of wildlife species at risk in Canada — commonly known as the Species at Risk Act, with the acronym SARA — as it now stands will place the burden of conservation disproportionately on First Nations. This is a burden that should be equitably shared among all Canadians in order to uphold the honour of the Crown.
I would like to speak on that point a little later.
I will turn to the issues. The species at risk bill as it stands will apply only to land under federal jurisdiction. In the Okanagan region of British Columbia, one of the most threatened habitats in the country, virtually all of the SARA implementation effort will fall on the Indian reserve lands of Okanagan Nation bands. This means that the combined conservation interests of the federal government departments, provincial environmental agencies and a host of non- governmental interest groups can only be met by infringing on the management of our Indian reserve land.
In its present form, the Okanagan Nation Alliance views SARA as an unjust infringement. The Indian reserve lands of the Okanagan Nation are, for the most part, commercially undeveloped, unlike most of the surrounding land, where natural habitats have already been extinguished or heavily modified for orchards, vineyards, settlements, forestry, mining, resorts, transport corridors and industry of the non-native communities.
The implementation of SARA in the Okanagan has great potential to limit the economic development efforts of Okanagan Nation bands by forestalling commercial development of reserve lands.
The unacceptable result would be to follow the historical compression of our people onto limited reserves by further expropriating the value of our small remaining land base. Economic development of our land-based assets is crucial for the future well-being of our people.
The implementation of Bill C-5 has to include the protection and recovery of salmon stocks in B.C. This has to occur in order to address the environment holistically. For example, in U.S.A. environmental studies, salmon have been identified as a linchpin species that other species depend upon for their own survival. Linchpin species have to be protected or entire ecosystems could collapse.
COSEWIC recognized this fact in its 2000 meeting held in Osoyoos, B.C. In that meeting, COSEWIC named three Okanagan river salmon stocks that could be potentially listed as endangered according to their scientific criteria. To date, there are approximately 10 endangered salmon stocks in B.C., and three of them reside in the Okanagan basin.
Bill C-5 should not be passed into law and implemented without developing policy mechanisms and funding that provide for the substantive engagement of First Nations in the planning and implementation of the proposed SARA legislation by Environment Canada.
In our case, this must take the form of formal working partnerships with Environment Canada and other identified responsible ministers, to be established by written bilateral agreements or arrangements prior to any implementation activity in the Okanagan region.
With regard to the application of 9.1 and 9.2 of Bill C-5 to the Okanagan-Similkameen region, the Minister of Environment must commit to establishing a committee to advise the minister on the administration of this act; that the Minister of Environment commit to applying clause 9.2 to establish a committee to advise the council on matters related to its role in regards to the Okanagan-Similkameen region; that the Minister of Environment support and assist the Okanagan Nation Alliance in seeking representation on the committees from all responsible ministers and their provincial counterparts.
There must be a collaborative scientific study on Okanagan Nation land; intensive study of Okanagan Nation Indian reserve lands conducted in full collaboration with the Okanagan Nation Alliance and its member bands to determine both the at-risk species that occur there and their habitat requirements in relation to similar species populations and habitats that lie on adjacent, non-reserve land.
Assessment of economic value: Intensive assessment of the long-term economic development potential of Okanagan Indian reserve lands in order to determine the realistic future value of reserve land where economically feasible development may be constrained by SARA requirements, and to set compensation amounts that recognize the true value of reserve land for the future economic well-being of our people. Indian reserve land is scarce in Canada and should be valued as such.
Extension onto traditional territory: The Okanagan Nation does not have an established treaty or any other effective settlement for impacts on Aboriginal title and rights over our territory as it exists today, and as it existed in 1846, when the Oregon Treaty was signed between Britain and the United States. For this reason, the application of SARA, or any provincial equivalent that may arise in the future, to non-reserve land also has a potential to impact our national interests and must be given full consideration. We have to be involved in the decisions that affect us. Our land is integral to our existence as distinct Aboriginal people protected under the Constitution Act of Canada, 1982, section 35 (1).
We request that the Senate take these matters into full consideration during its review of Bill C-5 and that the appropriate modifications be required of the federal government before any implementation activity that may arise from passage of Bill C-5 begins.
In a nutshell, we view this as a substantial infringement on the management of our reserve land base. If you look at the Indian Act and its history, going right back to Confederation, we have faced a number of unfair restrictions on our reserve lands. For example, it is still in the Indian Act today that we need permission from the Minister of Indian Affairs to sell our stock and produce from our reserves. In the past, we also had to have passes to leave our reserves.
We could not hire a lawyer between 1927 and 1951 in order to address our concerns and our grievances with the government. We have faced many unfair restrictions in the past, and those unfair restrictions have led to First Nations people who reside on reserves being in an impoverished state. You just have to take a look at the United Nations statistics, where Canada is ranked consistently number one in regards to standards of living, but when those same criteria are applied to residents on reserve, we rank anywhere between 49 and 69, somewhere in that range.
Much of this has to do with the fact that our reserve land has had unfair restrictions placed on it. Outside of the reserve, land development has been allowed. Our land, especially in the Okanagan, is a dry, arid region, and most of the critical habitat is located on our reserves now because of that development. We believe that mismanagement on behalf of the province of lands outside the reserve has destroyed critical habitat.
As we said, it is a part of our culture to manage the species. We have a long history of that in the Okanagan. For example, we have historically practiced controlled burns in order to replenish our berry sites. Within our governance system, we had specific people assigned to specific tasks. For example, we have salmon chiefs who oversee the stock to ensure that there was no overfishing, because it was a grave offence within our society to endanger the livelihood of the entire nation. Overfishing was definitely taboo. We had hunting chiefs who looked after over-hunting. We had hunting and gathering chiefs who oversaw the berries and the other edible plants in those sites.
We view the Species at Risk Act as it now stands as an impediment to future development on our reserve land. We view our reserve land as being a part of our relationship with the federal government, a long relationship in the Okanagan that goes back to 1846 when the Oregon Treaty was signed. According to the Delgamuukw decision, that is when Aboriginal title was crystallized into British law. We feel that that has to be respected as well.
Just to be clear here, I am talking about two different things. I am talking about reserve land, which is protected under the federal powers under section 91 (24) of the Constitution. That is where the Indian Act comes from. That is where the Minister of Indian Affairs gets his authority, and that is where the reserve land system was established. Since 1982, with the repatriation of the Constitution, section 35 (1) has protected our Aboriginal title and rights.
In the Okanagan, we have not come to any treaty or other arrangement with the Crown in regards to the settlement of that issue. The courts in B.C. now are really grappling with that problem.
There was a recent decision by the B.C. Supreme Court in the Haida and the Taku River cases that placed a great deal of emphasis not only on the provincial government, but also on corporations, to properly consult and accommodate our Aboriginal interests — and I stress the word ``accommodate.'' That is a term that is starting to receive more prominence and more recognition from the courts in B.C.
Just to further add to that, if you look at the history of B.C., especially the legal history, and the ruling in 1991 by Judge McEachern, he said that our rights were extinguished and we did not have a case at all. However, in 1993, that decision was overturned by the B.C. Court of Appeal, which said that our rights were not extinguished and our relationship with the Crown had to be recognized. That was further clarified in the Delgamuukw decision of 1997 that was handed down by the Supreme Court of Canada.
The Chairman: Would you be prepared to take some questions, Mr. Wilson?
Mr. Wilson: Yes, by all means.
Senator Sibbeston: I thank you, Mr. Wilson, for appearing before us.
I come from the Northwest Territories, and I do not know the situation in the Okanagan that you speak of. Apart from the fish that you mentioned in your presentation, are there other species that you consider are at risk in the area you live in and that you talk about?
Mr. Wilson: We are just aware of the list that is being developed by COSEWIC. We mentioned salmon because it is not clear whether aquatic species are included in this bill. We are trying to get salmon re-established in the Okanagan river system. As I mentioned earlier, it is a lynchpin species, so I wanted to bring attention to it here. If it is not already, we would like salmon to be included in the bill.
Senator Taylor: A point of order before you go on to the next question: I notice Senator Fitzpatrick sitting in the gallery. I believe that he should be allowed to sit at the table and to ask questions, although he cannot vote. He is also a native of the Okanagan and could be quite an information source.
The Chairman: Thank you, Senator Taylor.
Senator Fitzpatrick: I know Chief Wilson can handle himself very well, so I did not think it was necessary for me to be here. However, I would like to welcome him because he is from the Okanagan. He is from the Okanagan Nation Alliance and also chief of the Okanagan Band. I would also like to introduce Chief Clarence Louis, of the Osoyoos Band, who is here with Chief Dan Wilson. I wanted to say that a number of initiatives being carried out by the Okanagan Nation Alliance and the Osoyoos Indian Band are making an amazing and very positive contribution to our area. I welcome the chief. I am sorry I was late. We were in another meeting. I take it he was mentioning the salmon run in the Okanagan, which his band and the Okanagan Nation Alliance have been instrumental in attempting to restore. This is important not only to us in the Okanagan, but as one of only two sources of spawning for the Columbia River system. Thank you very much for asking me to join you. I am very pleased to be here in support of the chief.
The Chairman: Senator Fitzpatrick knows he is welcome any time and anywhere. Before we resume, Senator Kenny has a point of order.
Senator Kenny: I wanted to observe that since Senator Fitzpatrick has been here, the Senate has never heard so much about the Okanagan in its history. He continually reminds us of issues and matters of importance in the Okanagan, and we are grateful to him for that. I must say some other regions are starting to get jealous.
The Chairman: It is always a pleasure to have the most important politician in the Okanagan with us.
Senator Sibbeston: I know that you talked of the application of clauses 9(1) and 9(2) as a means whereby the federal government can engage you in dealing with species at risk in your area. I am also aware that there are provisions in the proposed legislation for a national Aboriginal council and for using Aboriginal traditional knowledge. What are your views on these provisions? You may have some experience and knowledge in terms of how the bill may apply to you. You talk of there having been a meeting in your area. Are clauses 9(1) and 9(2) some of the more important provisions through which you can engage the federal government?
Mr. Wilson: That is an excellent question. We will be so heavily impacted by this bill that we had no choice but to take the leadership role, especially within the Assembly of First Nations. Initially, we were discussing the impacts of this proposed legislation as far back as 1995. We met with Christine Stewart when she was the Minister of the Environment. Our delegation was led by Chief Stewart Phillip, who is the chief of the Penticton Indian Band and also the president of the Union of B.C. Indian Chiefs. The group included myself, Byron Lewis, who is a council member from the Okanagan Band as well as the chair of our Okanagan Nation Fisheries Commission, and also Councillor Chad Paul, as he was then, for the West Bank First Nation. We made our views known there, and also at the AFN level. When Phil Fontaine was the national chief, I was his official designate at a couple of meetings with current Environment Minister Anderson and put forth our concerns. Everything that I have said here today has been said to Mr. Anderson in these face-to-face meetings.
We have participated in the Aboriginal working group established by Environment Canada. I have attended a couple of those meetings on behalf of the AFN. Byron Lewis has also attended. With all due respect to the Aboriginal working group, it is made up of the Congress of Aboriginal Peoples, the Metis National Council and the Native Women's Association of Canada. I believe there are about five or six native or Aboriginal organizations making up part of this working group, but from our point of view, they are talking about our reserve lands. That is why we want to engage Environment Canada, through these mechanisms, through clauses 9(1) and 9(2), so we can be assured that we have these committees that work directly with the department. We want to have direct involvement in decisions that will affect us and affect future generations. We have been participating in this Aboriginal working group; however, most of them do not have land bases or reserve land bases, so we feel that in order to protect our interests, we must be at the table directly with Environment Canada and that these clauses provide for that. We would urge the Senate to urge the government to have the Minister of the Environment apply these clauses specifically to the Okanagan region, because the fact is the majority of endangered species reside on our reserves. That is why we have to be directly involved.
Senator Milne: Thank you, Chief Wilson. You have mentioned 9(1) and 9(2), which may need to be reinforced with the minister. Clause 3 of the bill specifically guarantees your treaty rights will not be violated, and your rights under section 31(1) of the Charter are also affirmed there. Do you feel this is sufficient? It seems to me that probably what you are really concerned with here is accommodation and methodology to ensure that you do get what you consider proper and fair compensation.
Mr. Wilson: That is true. We definitely have concerns about compensation, given our past history with Canada. Our reserve land is very limited and we consider it our last bastion, if you will, where we can be who we are and practice our lifestyles, but also have the opportunity to participate in mainstream Canadian society. Compensation is not just a monetary issue. Reserve land is very important to us, so if areas were taken from under our control, we would expect land of equal value in return. My band, in the north Okanagan, recently settled a specific land claim. In 1984, we settled another one for the Kalamalka Lake in Vernon. We settled for $4 million for the head of Kalamalka Lake. There was a reserve established there, but the fact is that when we got that money, we spent it immediately in the local municipalities. We did not really have anything to show for it. Anyone born after 1985 did not have his or her interests taken into consideration. This time around, we went for land. We were very successful in our negotiations, and received land directly in our watershed above our reserve that will be put back into reserve status. We lost some land on the Vernon side of the lake and the government compensated us by allowing us to add land on the west side of the lake above our reserve, which is very important to us because it is in our watershed. Land is definitely very important to us.
It has to be included in any type of compensation scheme. From our reading of the bill, we have not been assured that that will take place. We have only heard about monetary figures, but land is definitely important to us, especially in the Okanagan.
Senator Milne: That is very important to get on the record, Mr. Chair.
The group that appeared before us previously mentioned another 33 species that they felt should be on the endangered species list. You have mentioned that there are 10 species of salmon that are endangered in B.C. Fish are included, by the way, on the list from the previous witnesses. All I can see on that list under ``fish'' as an endangered species is salish sucker, which I suspect is not a salmon. Perhaps you could provide this committee with your own list of endangered species.
Mr. Wilson: We could do that. My information is from a presentation in Osoyoos. I believe the salmon were candidates that could potentially be listed. Thank you for pointing out that they are not listed.
This points out that we need to work collaboratively with Environment Canada to find out exactly what types of species are endangered. We need to know what the impacts will be. Currently, much of that information is really vague.
It concerns us to hear that the provisions will apply on federal land but not provincial land. I am hearing that the federal government does have the authority to apply the proposed legislation on provincial land as well. We are wondering why that has been done. Why has there not been an equitable sharing of this burden in protecting endangered species?
Senator Milne: You will provide us with your own list?
Mr. Wilson: Yes.
Senator Taylor: Thank you for appearing here today, Mr. Wilson.
I know of the problem that you are pointing out. In many areas of Canada, non-Aboriginal people have planted orchards and crops, and now, the only pristine land left is on the reserves. People are saying that you cannot start ripping up reserve territory.
I want to thank Chief Louis, who is here today. He showed me and some other people around his reserve, or his land. I was interested in more orchards and vineyards. As you know, there is desert, which they are trying to preserve, outside the reserve.
The offer is that since you cannot develop it, we will give you some compensation for preserving the land. However, you would not be creating jobs and industry that you need for your people.
In other words, compensation has to include equivalent land. If you identify 400 acres that you are not allowed to put into grapes, you should have 400 acres of grapes outside the area, on which your people can work. It is a case of jobs and industry, as well as protecting species.
I am afraid that the compensation applies only to money. You may be able to get compensation under the First Nations Act. Has anyone talked to DIAND about, whenever you take land out for preservation of species, the government will acquire other land, regardless of cost, necessary to supply the jobs and industry that you would have had? By doing so, we will not only preserve the endangered species, but will be rewarding the First Nations for having preserved the lands for us this long.
Mr. Wilson: Yes, we have been discussing this. With regard to getting additional lands under the Additions to Reserve Policy and through negotiations under the specific claims policy, we are getting mixed messages from the government.
On one hand, the Speech from the Throne said that government should start focussing on economic development initiatives within First Nations. Minister Nault has been moving in that direction and has had some very favourable results with the Osoyoos Indian Band. However, the Ministry of Environment side is bringing down species at risk legislation that will pull the economic rug out from under us.
From our point of view, there really is not a good balance there. We want the compensation to be clear in this bill. Thus far, it is not there, and we have not been reassured.
When we ask these questions of Environment Canada, we get vague answers. Many times, our lawyers have a hard time deciphering the answers. It may apply; it may not apply.
In regards to DIAND, the Minister of Indian Affairs, Robert Nault, has been very aggressive in pursuing economic opportunities, especially in the Okanagan. It is still unclear.
The compensation aspect is a two-sided coin. If you look at our reserve land in its natural state, it could be defined as critical habitat under this proposed legislation. However, the boundary of the reserve has vineyards and orchards. Any compensation scheme must look very closely at the use of the land. The land in its natural state might not look very valuable, but it is from a conservation point of view. It would cost millions of dollars to convert the vineyards and orchards to a natural state. It is important to consider the value of this critical habitat.
The Chairman: Mr. Wilson, in respect of that question, could you confirm for us in layman's terms which areas of development you see as being potentially constrained. Are you talking about not being able to build a shopping centre, or are you talking about not being able to operate a berry farm? Those are two quite different things. Which kinds of economic development do you see being curtailed?
Mr. Wilson: All of it. It includes not only the agricultural development, but also commercial development. All of that would be curtailed under the species at risk bill as it now stands. If it is identified as critical habitat, it cannot be touched.
The Chairman: That is correct. Which developments do you now have in mind, if any, that you see being potentially curtailed by this bill?
Mr. Wilson: We want to develop our land to its highest and best use, so that would be determined by feasibility studies and things of that nature. In regard to the business aspect, but also from our community aspect, it will affect things like the building of subdivisions for our band members and the laying of infrastructure such as water lines. If a plan for development includes land that is identified as critical habitat, we will not be able to touch it.
The Chairman: You are talking about the global thing. There is nothing facing you next Thursday afternoon that is of immediate concern?
Senator Milne: What you were really looking at, though, is an assessment of not just current economic value, but also of potential economic value?
Mr. Wilson: Socio-economic, the whole gamut.
Senator Fitzpatrick: I would just add to the chief's comments. It depends upon the location of the reserves. The Okanagan Nation is made up of a number of different reserves, and some of the reserve land would be suitable for agriculture.
Other parts of reserve land are key locations within a short distance — contiguous to — of municipalities. The value of that land would be substantial, so when Mr. Wilson says that it is the whole gamut, it is true. I would say that reserve land is among the most valuable land in the Okanagan valley. As Mr. Wilson mentioned, the value has been developed in all of the other areas, but the reserve land has been saved. Now, the concern of the bands is that there is the potential of being penalized for conserving that land. That is the key to the issue.
Senator Taylor: That covers it. The point is that non?Aboriginals have developed the hell out of the lands — the only good land remaining for the preservation of species is their land, and it is unfair to saddle them with that. Every acre or square foot that you remove under the bill should be compensated not with dollars, but with other lands where they could develop industry.
Senator Christensen: All of my questions have been asked and addressed. We should ask the Minister of Indian Affairs and Northern Development, Robert Nault, to appear before the committee to discuss this issue.
The Chairman: Senator Christensen has suggested we may want to hear from the minister in respect of this. I am not sure.
Senator Taylor: That is a good point, because there is a danger of this falling through a crack. There is more than one department involved, and I think that Aboriginal people deserve a fairer shake than to just be told that they fall in between departments.
The Chairman: Are there any further questions of Mr. Wilson, senators?
Senator Fitzpatrick: I want to thank the chief for being here.
The Chairman: Mr. Wilson, have you anything additional to say to the members of the committee?
Mr. Wilson: I have one further point.
The Chairman: I remind you that you told us earlier that you wanted to speak briefly to the question of honour of the Cown.
Mr. Wilson: Yes, that has to do with the fairness. However, before I get to that, I have one point. In respect of Minister Nault, we have gone on record with our request in writing to the Minister of Fisheries and Oceans, David Anderson, to have the Minister of Indian Affairs and Northern Development named as a responsible minister under this proposed legislation. There has been unwillingness to do that, which has not been clearly explained to us. We do not know why the Minister of Indian Affairs and Northern Development does not want to be named as a responsible minister. We believe that he should be, because our reserve land is so affected and that minister is responsible for our reserve lands. I was glad that question was asked becaut it was another item that we wanted to bring forwadrs.
In respect of the honour of the Crown, that goes right back to our fiduciary relationship. My elders always taught me about that. I was raised by my grandmother, Sophie Wilson, who also had a part in raising former Senator Marchand. She was a very influential woman and she taught us well. It is our understanding that, when the reserves were first established in the Okanagan, the representatives of the Crown attended.
There were many issues that created a dynamic situation at the time. First we were considered to be a military threat. The archives and records show that. It was important to keep us out of the American-Indian wars across the border. At the time of the signing of the Oregon Treaty of 1846, Chief N'Kwala was our national leader, and he chose to align us with the British. That is why we stayed out of the American-Indian wars. That is how our relationship with the British Crown began to develop. From 1846 to the 1870s, when the reserves were first established in the Okanagan, the reserve commissioners came and held meetings with our people, and through interpreters, it became our understanding that, if we kept the peace and resided on our reserves, the Queen would protect us — would keep us unmolested — and would also provide us with services.
At the time, there were epidemics going on throughout our territory. Some elders say that we lost over 90 per cent of our population to smallpox, influenza and venereal disease. Many different kinds of bugs were affecting us. We had to take that into consideration as well. Basically, we were placed on the reserves and we were promised that we would be provided with health care — access to the vaccines — and education. I believe the government stressed that one because it wanted us to become ``civilized" and a part of Canadian society. There were other benefits: housing; implements for farming, because they wanted us to give up our traditionoal lifesyle; and tax exemption. We were told that the Crown managing the resources within our traditional territory would provide all of that. That is how these services would be paid for.
That is how the fiduciary relationship began. Subsequently, we were labelled ``wards of the state,'' and over time, the Minister of Indian Affairs assumed more and more authority over us, until 1975, when we first started to conduct our own business. There was a sit-in in 1975 in Vernon and the offices of the department were closed down because were not satisfied with the service that we were receiving. Until 1975, the Indian agent, effectively, was our chief because he chaired all our meetings and made all the decisions.
Through the 1960s, there were many social movements that culminated in the 1970s in us taking greater control of our lives and our futures. That is when our band offices, after the closing of the office in Vernon in 1975, began to gain more prominence. We began taking more control over our lives and getting involved in the managing of our own businesses and things like that on our reserves. That all relates to the honour of the Crown.
A fiduciary relationship is a trust relationship, and that requires honour to carry it out. We feel that the honour of the Crown could be affected if we are unfairly treated by this proposed species at risk legislation because it will hinder our housing opportunities, et cetera. It will also affect our health, because the majority of young people on our reserves are under the age of 18. They need a future and the statistics show it. Look at the statistics from the United Nations and you will see that when youth do not have opportunities, they will be affected socially. Their self-esteem will be affected and they will be more prone to the use of drugs and alcohol.
We want to turn that around. Reserves have developed in Canada because they have high self-esteem — they feel good about themselves and do not act like victims. Chief Lewis says, in all his speeches, that we have to quit acting like victims; we have to get on with life; and we have to get to work and start participating.
The Chairman: Thank you, Mr. Wilson.
Senator Milne: It is not a question, but something that I want to bring up about the honour of the Crown. I would point out to the members of the committee; if you look on page 4, clause 2 (1) states the definition:
``critical habitat'' means the habitat that is necessary for the survival or recovery of a listed wildlife species and that is identified as the species' critical habitat in the recovery strategy or in an action plan for the species.
In other words, there is only compensation if there is a recovery strategy or an action plan for that land. Therefore the compensation is becoming more and more limited when you start reading the specifics of the bill.
Senator Baker: In regard to compensation, 64(1) states:
The minister may, in accordance with the regulations, provide fair and reasonable compensation to any person for losses suffered as a result of an extraordinary impact of the application of
(b) an emergency order...
When you go to the definition of ``emergency order,'' clause 80(1) states:
The Governor in Council may, on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed wildlife species.
When you read those two, I do not believe there is any doubt that the department has not given the correct definition, that in fact, if you are going to compensate people for losses suffered as a result of an extraordinary order then you are right, Chief Wilson, they must compensate either with land or in comparable way.
Would you not agreed with that?
M. Wilson: I would agree, yes.
The Chairman: That is an issue that I believe this committee will be pursuing with some assiduousness, since it has come up at every meeting and from every witness.
Mr. Wilson, we are grateful that you came to spend this time with us and have let us have your views.
The committee adjourned.