Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 4 - Evidence of November 19, 2002
OTTAWA, Tuesday, November 19, 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 5:07 p.m. to give consideration to the bill.
Senator Tommy Banks (Chairman) in the Chair.
[English]
I call the meeting to order, sadly in the absence of members of the opposition. They are otherwise detained.
Today we are considering and hearing evidence and representations from witnesses on Bill C-5, respecting the protection of wildlife species at risk in Canada.
With us today are Senator Christensen of the Yukon, Senator Lorna Milne of Ontario and Senator Charlie Watt of Quebec. My name is Tommy Banks, and I am the chairman of the committee and from Alberta. All of the senators here present are Liberals. We await our colleagues from across the floor, who will, I hope, arrive shortly.
Our first witnesses are Mr. Bob Woolham and Mr. David Pope, who are here representing respectively the Ontario Property and Environmental Rights Alliance and the Land Resource Partnership, which I think is also based in Ontario; am I right, Mr. Pope?
Mr. David Pope, Director, Land Resource Partnership: No, this is exclusively Alberta.
The Chairman: I am glad that you are here. You are appearing as a panel, so I presume you have commensurate interests. Mr. Pope, would you care to speak to us first?
Mr. Pope: I am a lawyer and a rancher in the High River area. I was instrumental in putting together the Land Resource Partnership, which is a coalition of oil and gas, mining, forestry and agricultural groups throughout the province. We speak for, we believe, a majority of the people and the companies that will be impacted the most by this negative piece of proposed legislation.
Thank you.
The Chairman: Would you tell us why you think it is a negative bill?
Mr. Pope: It does not address the fair and reasonable compensation for a public-interest regulatory taking of land.
The Chairman: Would you tell us where it talks about taking land, so we are sure what you mean?
Mr. Pope: The specific clause that I am concerned with, of course, deals with the federal government. How it impacts on federal line land is certainly within their jurisdiction, but clause 61, if you want to get into the details now, provides for impact of habitat species at risk on provincial land. Clause 64 provides for discretionary compensation — that is, the federal government may or may not pay fair and reasonable compensation for any negative impact on land habitat of these species at risk, or their residence.
The Chairman: In the parlance we have been using so far, we call that the ``safety net provision,'' just so you will know if a senator brings it up.
Mr. Pope: It is still the same thing as far as I am concerned, sir. The safety net is provided within the discretion of the federal government. In the event they think the individual provinces are not doing enough, whatever that might be, they have the jurisdiction, the power and the authority to regulate and take over both Crown provincial lands and private lands under clause 64, with no fair and reasonable compensation being provided specifically in that event, unlike what they do for a highway, power line, airport or what have you.
The Chairman: Everything that you have said, in the first place, is correct. It says, ``The minister may provide compensation.'' You are right in that it does not say, ``Shall provide compensation.''
The deputy chair of the committee, Senator Mira Spivak, has joined us.
Welcome, senator.
The Chairman: Mr. Pope, do you have anything specific to add to that?
Mr. Pope: No. That is all. You have my submission. I understand this is a question-and-answer session, and I will answer any questions that I can later. That was my introduction.
The Chairman: Mr. Woolham, do you wish to say any words to us?
Mr. Bob Woolham, President, Association of Rural Property Owners (member organization and Eastern Ontario representative of the OPERA coalition): I would like to reiterate to a large extent what David Pope has said so far about compensation. I represent the Ontario Property and Environmental Rights Alliance, which is based in Ontario. Its early origins stem in large measure from the taking of land, if you like, through provincial pieces of legislation, specifically the Planning Act and, under it, provincial policies that impact things like wetland, significant habitat and so on. As you know, in Ontario there already is species at risk legislation, which has given us a good deal of experience in how these things are developed.
The concerns of the people in the alliance firstly deal with the business of what is meant by ``compensation'' or ``safety nets'' in the context of property that is impacted by the legislation and the regulations. We have not been very successful in bringing this to the government's attention so that they will deal with that up front before it is turned into law.
Aside from the compensation, the other concern we have is the business of the risk of liability and the way it is written. It is under the Criminal Code, and it is extremely tightly bound in that context. It goes well beyond the requirements and gives us cause for concern about using a particular species that has been listed as endangered, for example, if it appears on one's property, at the instigation of a recovery or advocacy group. As you know, one of the species is the loggerhead shrike, which gets a great deal of publicity. There are pairs that have been used out of McGill. The government has provided over $1 million to a recovery program for the shrike. It is primarily based in Ontario, although there are some in Quebec. Last August, they were busy releasing banded birds around Perth. What happens to property owners, because they have people from the Ottawa naturalist club looking for banded shrikes, when shrikes are found on their property? It is almost like planting evidence under the Criminal Code.
One of the key concerns of most landowners is what will happen. ``Species'' covers a multitude of living things. It is not the Bambis of the world, the alligators or the things that we know and love. It covers mosses, algae, fish and so on. Anyone with the kind of tools that are available today can certainly come to my land, my farm, and find, I am sure, an endangered species or a species at risk. What happens under the current bill almost turns me into a criminal.
That is the kind of clarification that we would like to see put on the table, and, if possible, we would like to see some amendments brought forward that would give us that kind of protection.
The Chairman: Can you tell us what amendments you would see as being useful?
Mr. Woolham: One amendment would be to take out this business of liability. If a person accidentally does something, unwittingly or unknowingly, that should be a legitimate excuse or defence in court, rather than being considered guilty until proven innocent. That is a pretty serious piece of proposed legislation, particularly when it is in the context of the Criminal Code. I do not see any way in which this bill could be removed from the Criminal Code under the existing provincial-federal government arrangement in terms of mandate, responsibilities and so on. That is certainly one area.
A second area that we would like to see considered is some kind of exemption for people who are in some way certified as credible in a certain fashion. One of my problems is that I really do not want anyone to come onto my land for any purpose anymore. I do not want to see hunters or trappers, because I cannot trust what they are there for and what they are doing. I think this is a travesty, because there are lots of people out there that I would like to welcome and show them what I have.
Paul Catling from Agriculture and Agri-Food Canada came to my property to examine something I could not identify. Then he came back with his son and spent a day in some sand dunes I have there looking for tiger beetles. He promised, even though he took samples away, he would not record exactly where they came from.
There may be some way in which it would be possible to protect landowners who have capacities without their being subjected to the rigours of a very competitive, highly marketable product called ``wildlife'' these days. It is something that is very attractive in the sense of raising tremendous amounts of money. It is that power and control that gives us additional cause for concern.
I am long-winded, sir. Forgive me.
The Chairman: It shows you have thought a great deal about what you have to say.
Mr. Pope, before honourable senators start asking questions, do you have anything further to add along the lines of what Mr. Woolham said with respect to specific amendments?
Mr. Pope: The other big concern we have is these tremendous fines for crimes against land, ranging from $50,000 and/or one year in jail to $1 million and/or five years in jail for each incident. The word ``corporation'' is used for the million-dollar fine, but many farms and ranches in Alberta, and throughout the country, are incorporated, so the new crimes being created are just outrageous.
The Chairman: The crimes or the penalties for committing them?
Mr. Pope: They are creating new crimes. The new crimes concern damaging a portion of the habitat of a listed species at risk. I am speaking for oil and gas, mining, forestry and agriculture, but to me as a grazer of cattle, that could mean that if I am clearing brush to build a new fence or to repair an existing one, and that brush happens to be the habitat of a species at risk, a bird or whatever, and I am not aware of that, under the strict liability provisions of clauses 97 and 98 — with these horrendous fines and incarceration — I have to prove that I did not do it, and it is a heavy burden.
There are things, like clearing land for fixing or building a new fence, that have been normal activities as a part of raising cattle. I could also mention clearing a site for drilling a well or logging trees on private property. These are the new crimes about which I am speaking.
The Chairman: We have been joined by Senator Kenny, who is the third member of our steering committee.
Senator Spivak: I think if I had been drafting this bill, I would not have picked out the landowners for compensation or liability. In my experience, particularly when I was at Waterton, the ranchers are very much aware of preserving the environment and maintaining their lifestyle. I think this onerous burden of liability and compensation is perhaps a diversion that might have been avoided.
Canada has signed a Biodiversity Convention and it is, of course, very important to maintain biodiversity. I am wondering what your thoughts are as to how we could follow those particular undertakings. How would it be possible for landowners to become cooperatively engaged in this kind of enterprise without what you consider to be a very onerous burden?
Mr. Pope: We have addressed this issue within the Land Resource Partnership, as well as among some of the grazers. The way we would approach it would be for government, scientists and landowners to get together. The scientists would define the species at risk.
Senator Spivak: That is true.
Mr. Pope: They would then also define the habitat of the critters. After that, the next step would be a cooperative agreement between the parties concerned and, as the chairman mentioned, it is a safety net. I think the first line would be in the provinces, to sit down over the kitchen table, as they do with farmers and ranchers who are negotiating a deal with an oil company to drill a well. You cannot keep them out, but you can negotiate a deal, sit down and point out specifically what the species are as well as where their habitat is. Then, in Alberta, as in most provinces, there is a surface rights act that defines certain heads of damages.
If you want to get into them, there are six and I can provide them to you later, if you like. In any event, after defining the habitat, it usually means that to protect it, you have to cut back on grazing cattle or alter your production cycle in some way. For us, it would probably mean fencing off some property. Define the terms in the contract, what the species are, get the scientific input on how long it would take before the number of breeding pairs is at an acceptable threshold, and make it reviewable. I am on the Alberta ESA committee and, in my mind, 20 to 25 years would be a likely term, but with a review every four to five years to see how you are doing. It would be a cooperative thing, where compensation would be paid under existing legislation, and it would be totally voluntary.
It would work because you are involving the people who own the land. They are not being threatened with having the land taken away, with no compensation and not really knowing what the habitat is, and you would get a lot of cooperation. I know you would from people in southern Alberta.
Senator Spivak: This is the third incarnation of this bill. I presume you presented these ideas previously, but they were not taken up.
Mr. Pope: Yes, ma'am, I have been involved for the last seven years.
Mr. Woolham: I would just like to add to Mr. Pope's comments. I think transparency is essential for the landowner or the person that may be affected, and to be involved. I do not think I have ever been asked as a landowner, ``What kind of land do you have here?'' I probably know more about it than most people that might come onto it.
We talk about ecosystems and ecology and the relationship between these species that are living there. We talk about habitat as if it were only land, but habitat includes food. It also includes sex and propagation of those species, so it needs a whole set of dimensions. That food comes from other species. That really is the purpose of life, as far as I can see, is to provide food for other species. It goes around and around.
I have beavers in my swamp. The beavers flood the land and I cannot take out the cedar trees that I like to use for my posts. I can trap the beavers. In the process, I catch turtles. I catch the stinkpot, the yellow-spotted turtle, the snapper and some painted turtles. All those turtles are species at risk, or at least the stinkpot and the yellow-spotted are. Someone will come along and say that if you trap them, you might kill them; however, trapping does not kill them. They just get stuck in the trap and you can let them out. The problem is to which part of your ecology are you going to give a higher priority? This is also where I think there has to be more transparency. As landowners, we have to be alerted in advance before things start to happen.
In the past, the tendency has been to sneak people onto your property and sneak them out. With the technology today, of GPS and BlackBerry, you can send information to your computer and by the time you are home you have a map of everything you saw there. It is dangerous.
Senator Spivak: I think what I am saying about landowners probably would not apply to mining and forestry companies. That is a different story, and it is on Crown land. I do not know how you feel about that, but they have already transformed and degraded the landscape to some extent.
In the brief from the Ontario Property and Environmental Rights Alliance, you say that you do not like the Ecological Gifts Program. You do not want non-governmental organizations to receive bequests of land. I am wondering why, given the track record of the Nature Conservancy in our country. Of course, they are mostly not receiving bequests, but rather buying land. It seems to me that bequests of land are a way in which we can maintain some endangered habitat or endangered species. I am wondering why you say that here.
Mr. Woolham: The reason for that gets into the business of wildlife as a commodity and the concepts of these different groups. We have what I call the ``X and Y bureaucracies.'' One is government and the other are advocates like the Nature Conservancy and the World Wildlife Fund. There are many, and most of them are charities. They collect funds with very clever posters and then they go after their particular focus, which may be, for example, the land trusts of the Nature Conservancy.
One of the difficulties is that if these gifts go forward, we have to be cautious and see that they do so with full transparency. What tends to happen is that they see a piece of habitat they like, and they want to either purchase it or make a deal. If you are not a farmer but just a landowner, they can offer you tax credits, property returns, rebates and so on. However, if you decide you do not wish to do this, then chapter 5 of the manual on how to acquire a land trust in Ontario will tell you how you go about using the Planning Act and endangered species that are found on the land. You then take that to your local municipal councils and get the planning changed to show that there is significant wildlife or other features on the land. Then you go back and say, ``Too bad, your property is not worth what it used to be because it has now been circled by the official plan.''
Senator Spivak: You are saying that there is abuse of this system, not necessarily that you are opposed to the system.
Mr. Woolham: That is right. If it is above-board and transparent, I am not opposed to it.
Some of these organizations certainly make deals. I am also talking primarily about private landowners, not the corporate giants like Domtar that trade 500 acres of hardwood for a huge tax credit. That is fine. Most of those corporations are not complaining. They know how to operate.
I am talking more about smaller landowners who are not capable of reading the act or regulations and have no idea that anything might happen to them. They might have thought that they would build a dog kennel or something else, and suddenly, they find out that they cannot. Their world has changed.
I do not know that there is a clear answer to all of these issues, other than transparency and starting the process early. Start first with what you are trying to do.
There are, as you know, biospheres. One has been recently developed in the Thousand Islands and another at Niagara. These are part of biodiversity.
Senator Spivak: I hope that other senators will pursue the liability defence.
The Chairman: As do I.
Senator Milne: First, Bob Woolham and I went to university together. We are ``aggies'' in our distant past. I have a certain interest in agricultural land, ownership of land and some of the problems that may face landowners because of species at risk legislation.
Mr. Pope, I have been skimming through your brief. You write about a number of clauses and the things about which you are concerned, but I do not see any specific recommendations here for a cure.
Mr. Pope: I will reiterate. The cure is simply for the government, the scientists and the landowners — usually the landowner knows the most about his land; I know the most about my ranch — to sit down and set criteria for identifying species at risk, their habitat and the specific number of acres or hectares that will be impacted by altering the management of the land for their protection. Then specific activities upon which all agree should be developed. In my case, it might be activities that I will alter in running beef cattle. That is to say, how will I change what I do to protect the habitat and the species at risk?
I would then think about that for a while and determine that it will cost me X number of dollars. That would fall under the Surface Rights Act in Alberta.
I can talk about the six damage heads about which we are concerned for an oil and gas well that is being drilled, which is only about three or four acres. It could be a few acres. However, to use the example of the burrowing owl in eastern Alberta, it might be a section or more.
We would be concerned, in the compensation realm, with area granted — that is, how much land would be involved — the general disturbance to the property, the loss of use of land, incidental damages, injurious affection and adverse affect. That does not necessarily apply to all species at risk, but it could. This is jurisprudence that we have had in Alberta for well over 40 years, and it has worked well.
If you sit down with a landowner and talk about specifics, as I have outlined, there will be minimal opposition to protecting the habitat of species at risk. However, the outcome will be different if you cannot deal with the particular landowner.
Let us say that the Alberta government did not quite manage to invoke the safety net, and the federal government became involved because a deal could not be made with the landowner. If the scientists and the government determine that the last two burrowing owl pairs on the planet are on a certain section, there should be a right to expropriate that land because it is in the public interest.
Within such an act of expropriation, there should be legal mechanisms that allow for reasonable and fair compensation to be paid. Since people are selling against their will, the lawyer that the landowner has to hire to put the arguments forward should be paid by the government, as is done in the case of an airport, sewage line, railroad or highway.
If there are built-in legal mechanisms, it will work. The public interest would be served, and the landowner's property rights would be preserved.
Senator Milne: You were talking about land being denied for use to generate income?
Mr. Pope: Yes.
Senator Milne: If that is the case, the land should be expropriated with adequate compensation.
Mr. Pope: As I mentioned earlier, the agreement entered into would be long term.
Senator Milne: It is a stewardship type of program.
Mr. Pope: I want to keep stewardship separate. Stewardship is fine. You can give someone a plaque or something. Rewarding good stewardship of the land is important, and we have stewardship programs within our cattle organizations, both provincially and country-wide. However, I am concerned with how the protection of the habitat — that is, my land — for this particular critter on the endangered species list will negatively impact me.
I took exception to something earlier. Things have changed in the last 20 years in the forestry and the mining business. Sometimes, they do a good job.
However, compensation should be addressed in a hard-core document. There should be an agreement on the terms and conditions of a recovery program. Definitions of where things are and what will be paid are very important.
Senator Milne: Basically, we are coming back to a method of recompense for the land.
Mr. Pope: Of course. If it will shut me down or cut my use by 30 per cent.
Senator Milne: Mr. Pope, you mention the risk of liability in your brief. Under point 3 on page 2, you list a number of clauses that define strict liability, the offences and the penalties.
Looking at this practically, from the point of view of this committee, you have come to us with a shopping list of problems but offer no specific solutions. We will not pull these solutions out of thin air.
Mr. Pope: I have just given you some solutions based on a voluntary approach, a contractual arrangement with the landowner touching upon the things that I have mentioned.
I have also given you an out if you were to encounter the two per cent or three per cent of landowners with whom you cannot deal. You could expropriate their land.
Our ranch has been in our family since 1894. My wife has been there longer than I have. The worst thing that could happen would be to have our land taken against our will.
I have given you an example of a situation where, if you need to take property, it is in the public interest to take it under the Expropriations Act. This is a lever that has been around in the common law for 200 or 300 years. You do that and stay away from throwing me in jail or fighting me out of existence or making me to go to court and pay my own lawyers in order to take my land or force me to enter into something that is unacceptable. I think I have given you some pretty good options.
Senator Milne: You spoke earlier of farms that were incorporated. Do you have any idea what percentage of ranches or farms in Alberta would be incorporated or limited companies?
Mr. Pope: I do not have statistics on that. I would guess at least 50 per cent. We have people who run cattle in our province. We have around 36,000 people who graze cattle for a living in Alberta.
Senator Milne: Mr. Woolham, in Ontario, it seems to me that most family farms over 100 acres are incorporated. Do you have an idea what the percentage is?
Mr. Woolham: I would not say that. I think the rationale for incorporating a farm depends on the policies and legislation put out by Revenue Canada. It is governed by your tax liability as much as anything. It is also a way of providing for certain protections against family breakdowns on the one hand, and on the other, the business of bequeathing the shares and maintaining that kind of unit.
Yes, the larger farms are incorporated, but it is the old 20/80 per cent rule. Twenty per cent produce 80 per cent of the product. One hundred acres is very small.
The other reason for incorporation is that to a certain extent, you are able, if it is done properly, to perhaps limit liability in some ways. There are certain things that are excluded from that incorporation, such as your personal residence, and so on. If you are not incorporated and something does happen, you could lose that, too.
Senator Milne: I have been asking everyone about loss of income and loss of use of land and how to repay the people who are being placed in a position of stewardship through this proposed legislation. It seems to me, Mr. Pope, from reading through your brief and from what you have said, that you think we should forget about legislation and go back to negotiating ad hoc agreements with each individual landowner if the province is not doing the job, and then use the Expropriations Act when all else fails, rather than a unified approach?
Mr. Pope: I can only speak for Alberta. We have had great conservation programs before. I started with Bill C-65, with operation burrowing owl in the eastern part of the province, where you had farmers cooperating with the Department of the Environment and Department of Agriculture in Edmonton. The burrowing owl is a complex peripheral. It is common in the United States and Mexico. There are not many in Canada, but people were taking an interest in looking after them.
In Cochran, an English lady took an interest in the swift fox that had been extirpated in the 1930s. She started raising these little foxes on her place, working with Alberta Environment and releasing them on ranches in the Manyberries and Three Hills areas in southeastern and central Alberta. She was starting to bring them back.
We do not have enough time to get into all the voluntary programs that have worked well in Alberta. In eastern Canada, the wood duck was just about gone.
Also, in Alberta, the blue bird.
There are a lot of good, solid conservation programs that have done quite well.
There is something to be said for voluntary conservation. For the few people that you cannot deal with, and when you have to do something, I think existing legislation would cover that quite well.
There are a lot of people in Alberta, rural and urban, who know the ramifications of this kind of proposed legislation, and I feel queasy about how well this will actually work on the ground, for not only the people, but also the species that are at risk. This is making these species into liabilities, and they should not be liabilities. I have never treated them as liabilities.
It has happened in the United States. You used the words. I do not like to use the words, but you speak of ``liabilities'' when it is going to ruin your whole operation. In the U.S., I know of cases, from a 50 by 100 foot residential lot to a 1200-square-mile ranch, that this has impacted. When it comes to survival, people sometimes do irrational things.
The Chairman: That is an interesting point. This bill is seen by its proponents, of whom there are many, as being a much more reasonable approach than the American one, which is litigious almost by definition and constantly in the courts. Until you said the words ``Existing legislation covers it,'' and until you said the word ``expropriation'' in your answer to Senator Milne's previous question, you pretty well described the first three-quarters of this bill, which does deal with stewardship, not in terms of putting a plaque on your wall, but in terms of avoiding expropriation or jail or any of those things to achieve that.
Mr. Woolham, the Ontario Environmental Protection Act already contains strict liability provisions. Do you know of any specific instances in which it has been abused by the government? Also, the Fisheries Act, the Canadian Environmental Protection Act, the Transportation of Dangerous Goods Act, the Canada Wildlife Act, the Migratory Birds Act and the Wild Animal and Plant Regulations Act all contain this same strict liability provision. Do you know of any instances in which it has been abused by either order of government?
Mr. Woolham: I must confess I was not aware that they use that in the same context. I understood that strict liability in the context of the federal legislation had to do with the Criminal Code, and that it had different implications from it would have in Ontario under legal jurisprudence. I am not a lawyer so I am not sure of my ground on this.
The Chairman: Nor am I.
Mr. Woolham: To that extent, yes, there have been charges laid and fines levied, but not on the scale contemplated in the federal bill.
Ontario already has a great deal of legislation, including on significant wildlife habitat. I made a presentation to Dr. Pearce, and he had not heard about that particular piece of legislation or the guidelines, so I gave him my copy.
In this kind of process, one goal is to avoid, in the Criminal Code, the strict liability.
Somehow, there must be some kind of compromise on the process. The fear is that if people see something, the first thing they will do is get rid of it. That is a problem in terms of trust, education and a few other things. Perhaps that is where stewardship and leadership come into this process.
We have had several cases about the taking of land, for different reasons. A recent one was a quarry operation east of Barrie. Somehow, someone discovered that that land might be a habitat for loggerhead shrikes, and in fact I believe someone found a couple where they had not been seen before. That stopped that quarry operation until the matter went to court, and recently, the decision came out in favour of the quarry operator. I have not read the decision yet, but I will soon. However, this is the other side of the way things happen.
We talked about biodiversity in the context of looking at species at risk, because biodiversity implies the richness of different living species — not in harmony, because animals do not live harmoniously together. Then there are other groups that will use the knowledge and technology they have garnered to try to stop someone from doing something, or at least get a couple of hands into the pockets down the road. One of these groups is called ``bioblitz.'' They are popular in the States and they are now in Canada. There was a ``bioblitz'' on the old Highway 16 not long ago. Someone spotted some surveying being done and assumed there would be a bridge built. The next weekend, all the specialists came out, and they found every kind of species all around that land, because they know when they go to court, they will try to stop its construction. However, it turned out the survey stakes were for the Rideau Valley Conservation Authority. They had just received the property and were putting in a walkway to keep people from going into the grass and the scenery there.
There was another bioblitz in Richmond recently in connection with a golf course; this is how these things are used sometimes. To my way of thinking, there is something wrong with that. There should be ways in which some kind of compromise can be established.
In Ontario — and this gets back to the legislation — the private property owners who go to court for any reason right now do not stand a chance unless they have a lot of money. The ministries will send down their best lawyers, and they have lots. When property owners are confronted with three or four lawyers, with their expert witnesses, they cannot afford to conclude the legal process. I have firsthand experience of that. I spent two years with the City of Ottawa at the OMB over wetlands. I am quite sure it cost the City of Ottawa and the Ministry of Municipal Affairs at least a quarter of a million dollars. It cost us a lot of money, but we had a lawyer who donated most of his services, so $5,000 covered his fee. Certainly we spent an incredible amount of time on that and we did not get much out of it, frankly. We were backed into a corner.
The Chairman: Did you win?
Mr. Woolham: No.
Senator Milne: I wanted to return to what you were saying, Mr. Woolham, about the compromises within the bill. It seems to me that the compromise they have tried to build into this bill regarding strict liability is the due diligence defence. As long as the landowner says that he has attempted to educate himself and has, to the best of his knowledge, exhibited due diligence, that is an absolute defence.
Senator Spivak: I wish to add something about due diligence. The House of Commons would not go along with the minister notifying all directly affected landowners. That is out of the bill. If you do not even know about it, how will you do due diligence?
Mr. Woolham: The due diligence usually involves securing a professional for services that you may not need.
Senator Spivak: That was under the listing provisions.
Mr. Woolham: There have been changes to the bill that we support. I will not mention those today; it is not necessary. However, there have been changes that have had a positive impact, and we would like to see more.
Senator Milne: If it came down to this bill with no changes, or no bill at all, what would be your choice? I know Mr. Pope's choice.
Mr. Woolham: That very first day we got a lecture from the padre, who said to us, ``Now, kids, avoid downtown entanglements,'' whatever that meant, and the other thing he said was, ``Never let your schooling interfere with your education,'' and we did not.
The business of whether or not the bill should go ahead is a bit of a trick question.
Senator Spivak: It is.
Mr. Woolham: One of the big difficulties with the bill in the present form — and it is like Ontario's nutrient management plan — is we do not know what the regulations are going to bring on. The way government operates now is to give a framework in an act and then let the bureaucrats, with the advice of the minister, or vice versa, make regulations. By the time you catch up with the regulations, it is too late.
Quite frankly, yes, there could be another species at risk bill that, from our perspective, could be much worse than the present one. I do not think, given the political nature of the needs under all sorts of things, that we expect the bill to be cancelled. It will just keep coming. After the millions of dollars that have been spent on getting the bill this far, to start all over again and redo it would be another ball game in someone else's field.
Mr. Pope: I should like to address due diligence. Due diligence is something that usually is applied to a prospectus when you are coming out with a share issue and you want the company to come clean on everything that has been done, the finances and so forth. Due diligence in this respect, however, on a farm or a ranch — and this is what I live day in and day out, but you can apply it to oil and gas, forestry, mining — means you have done everything you reasonably can to prevent the bad stuff that is in this Bill C-5. I would have to go out and hire a biologist, probably at the Ph.D. level. Being a lawyer, I could probably find out what the critters were. He would have to tell me if I had the critters on the place. Then he would have to identify their habitat. I would then probably have to hire an agricultural- management consulting firm to tell me how I will have to change my operation to mitigate the impact on the habitat of these species at risk.
I would have to do that to start with, to arm myself with some evidence when I went to court after they accuse me, and then I have to defend myself with due diligence. I would parade these expert witnesses and say, ``This is what I have done; I have cut my cattle operations by X number and fenced off this portion,'' and so on. However, we are dealing here with constant change. Burrowing owls in eastern Alberta come and go on almost a yearly basis. Therefore, to really be prepared for the court challenge, which could come from any 18-year-old who decides to gather evidence, I might have to do this once a year.
I have told my people at home to prepare for this kind of litigation; a proper due diligence would cost thousands of dollars a year.
It is outside of what we usually do. Why should we have to do this when there is, as I have outlined a couple of times, a better way to do it, with a voluntary approach? Why should we have to do that? After we get to court, the question will always be whether we have done enough, as it always is under due diligence. The other side's lawyers will ask, ``Mr. Pope, have you done this and this?'' The question will be whether I have done enough. I will only know after the judge makes his or her decision, following a prohibitively expensive litigation process. I would expect this kind of litigation at the trial division to cost $200,000.
Senator Milne: I hope the next panel of witnesses are in the room and will be prepared to answer some of these questions.
The Chairman: That concludes our time, gentlemen. I hope you will stay with us to hear the following panel.
Mr. Pope: I have a presentation to make in High River tomorrow and I must catch an airplane.
The Chairman: Mr. Woolham and Mr. Pope, I appreciate you being clear about what you think.
Our next witness is Mr. David Near. Mr. Near is a senior counsel from Justice Canada.
Mr. Near, I thank you for coming to see us again, and welcome back. We should like to hear you in regard to turning around the presumption of innocence, which is said by some to exist in Bill C-5.
Mr. David Near, Senior Counsel, Justice Canada: Honourable senators, it is a pleasure to be back. I certainly would not characterize the discussion as relating to turning around the presumption of innocence. I was told the discussion would be with respect to the difference between mens rea offences and those referred to as ``strict liability offences.'' Sometimes these are also called ``public welfare offences'' or ``regulatory offences.'' Basically, they are the types of offences you will find in either provincial or federal legislation, as opposed to the Criminal Code specifically.
The Chairman: However, the penalties that obtain are not the same as for, for example, a speeding ticket. You used the right term, ``strict liability,'' which requires, as I understand it, the person who has been charged to demonstrate that he is not guilty.
Mr. Near: Perhaps I will go through the two types offences by way of introduction and to make the distinction between the two. Classically, pure criminal-type offences, or those that require mens rea, require the Crown to prove what is called the actus reus, which is the facts of the offence that constitute the prohibited activity, in other words, the thing that was done. The Crown must prove that beyond a reasonable doubt.
In addition, in a classic criminal offence that requires mens rea, the Crown would have to prove beyond a reasonable doubt that the person intended or was wilfully blind, knowingly — or other terms are often used in that context — that they intended to commit this offence beyond a reasonable doubt. That is the classic definition of a mens rea, pure criminal offence.
Until the late 1970s, those were for the most part the basic types of offences in statutes that had serious penalties, for example. Not to be confusing, but in the old days, there used to be something called the ``absolute liability offence,'' where the Crown had to prove that an accused person committed the act and there was no mental element at all.
The Supreme Court struck that down in Regina v. Sault Ste. Marie in the late 1970s and introduced a sort of middle ground, which is called a ``strict liability offence.'' In such an offence, the Crown has to prove beyond a reasonable doubt the actus reus, the facts that constitute the prohibited activity. In other words, we still have to prove you did something that is a contravention of the act.
In a strict liability context, the onus then shifts to the accused, to the defendant, to prove that they did everything a reasonable person would do under the circumstances to avoid the commission of the offence. That constitutes the defence of due diligence, which has been around now for about 30 years. Virtually all statutes, both federal and provincial, for that matter, are strict liability offences.
In a nutshell, that is the distinction between the two.
The Chairman: For example, if I am a rancher and I unknowingly disrupt the habitat of the burrowing owl on a quarter section of my land by removing some brush and cultivating hay, thereby perhaps even destroying the habitat, there would be no doubt of the Crown's capability to prove that I did the act. After all, the brush would be gone, the bulldozer having done its job, and the habitat would no longer exist. What will obtain in that situation under this bill?
Mr. Near: As an example, I will pick a particular offence. Let us say your action destroyed the residence of a listed wildlife species. In this case, a nest of a migratory bird is destroyed by a farming activity. Usually, the fact of the destruction is self-evident. Therefore, you are correct. The Crown usually does not have difficulty proving this thing has occurred.
In the normal course of events, one would expect that the first person to exercise some element of discretion would be the enforcement officer. One would expect the enforcement officer to exercise some judgment in terms of the activity that actually took place. In fact, one of the requirements of the conservation officer is to gather some evidence with respect to whether or not due diligence was exercised in this activity.
After that, if the enforcement officer decided to proceed with the case, he would refer the facts to the Crown attorney, and then the federal prosecutor, in this instance, would also exercise some judgment with respect to whether or not it was in the public interest to pursue that type of case.
The Chairman: In other words, can he get a conviction?
Mr. Near: There is not just that to consider. One consideration, for example, is whether or not it is in the public interest to expend limited public funds to pursue this type of prosecution.
There are, if you like, certain safeguards. However, in the exercise of both the enforcement officer's and the prosecutor's discretion, a large part would probably depend on the actual facts of the particular case; that is, how serious might the transgression be, and whether or not there was any evidence that the person knew there might be something there and chose not to do anything about it.
The Chairman: Is that the question upon which the thing would turn in the example? I know that examples are problematic, but we are trying to understand this. In the example I gave you, I was a rancher in southern Alberta. I cleared brush off a corner of my land and, in so doing, drained a marshy area that was not productive. I checked and found no wildlife of any particular distinction. I had a look and made reasonable inquiries and did not know that, in fact, that was the habitat of a burrowing owl, a species on the list.
It seems to me that the onus is on me to prove that I went far enough in trying to find out whether there was any likelihood of there being a burrowing owl on that land. The onus is on me to show that I went to whatever lengths were required, as we heard Mr. Pope say, to reasonably assure myself that I was not messing up some creature's habitat when I performed that action on my land. Am I correct?
Mr. Near: The strict liability offences basically introduce a negligence level of liability. When the onus shifts to the defendant or the accused, they would then have to prove, on a balance of probabilities as opposed to beyond a reasonable doubt, that they had taken some care to avoid the offence. Each case would be dependent on the individual facts.
The Chairman: Is the balance of probabilities test one that is usually applied to civil law?
Mr. Near: That is correct.
The Chairman: However, some of the penalties in this measure are indictable and would be subject to penalties that exist under criminal law. Is it still the case that a balance of probabilities is the test?
Mr. Near: I think it is important not to confuse the Criminal Code with what are public welfare offences. As you indicated before, Mr. Chairman, the Fisheries Act, the Migratory Birds Convention Act — in fact, almost all federal and provincial statutes — are strict liability offences. The fact that the penalties can be serious does not make them criminal offences, at least according to the law, and I am not saying that the penalties are not serious. With respect to the Fisheries Act and the other statutes I have cited, legislators have decided that the penalties will be significant for the types of transgressions outlined in the legislation.
It is important to recognize that just because the penalties are high, that does not make them the classic criminal type of offence that would attach mens rea proof as a requirement.
Senator Kenny: I wanted to continue law 101, if I may, Mr. Chairman. The balance of probabilities test is a pretty low test, is it not?
Mr. Near: It is considerably lower than proof beyond a reasonable doubt.
Senator Kenny: In this case, it is weighted in favour of the government; is that right?
Mr. Near: In actual fact, when the onus shifts to the accused, it was purposely designed to be a lower threshold for the accused person to prove that they acted reasonably.
Senator Kenny: I had it backwards, then?
Mr. Near: Yes.
Senator Kenny: Going back to the case of the burrowing owl, is it reasonable to expect a property owner to know that a burrowing owl is something to worry about?
Mr. Near: I can give you the classic lawyer's answer and say it depends on the facts. However, let me give you an example. Let us consider an offence with respect to critical habitat. Given the process one has to go through to establish what critical habitat is, either in a recovery strategy or an action plan, where there is a requirement to consult with people directly affected, one would expect that we would catch most of those people with, if you like, actual notice that they have something of importance with respect to critical habitat in regard to a listed species on their property. Thus, five years later, when we actually designate it as critical habitat, they should be aware that something is going on.
Senator Spivak: That is not in this bill.
Mr. Near: With all due respect, with respect to critical habitat, the preparation of a recovery strategy or an action plan requires consultation and cooperation with those groups that may be affected.
Senator Spivak: In the House of Commons a clause was put forward which stated that, to the extent known, the minister shall notify all directly affected landowners when a listing takes place. That clause was removed from the bill.
The Chairman: Mr. Near's point was not that the notification takes place; it was that the process by which a recovery plan will be put into place will not be a secret to anyone who is anywhere near it.
Senator Spivak: Yes it will, because when you list an endangered species, there will not be people running around with infrared positioning and night goggles pointing out every single place. However, if you notify all the landowners, they might twig to it, but that was taken out.
Senator Kenny: Was it taken out or not?
Senator Spivak: It was deleted at report stage.
Senator Kenny: Mr. Near?
Mr. Near: I can speak to that, because I was there. I spent eight or ten lively weeks before the House committee. That particular issue was debated at some length. It was not in the original bill. A motion was brought forward to include it in the bill. It is my recollection that it was passed by the House committee, and it was taken out at report stage.
Senator Kenny: So it was taken out. You could have saved a lot of time if you had just said it was taken out.
Mr. Near: I was just explaining the background.
Senator Spivak: He wanted us to know that it was not in the original bill.
The Chairman: I want to ensure that I understand this. The provision in the bill that once existed, which required the minister to notify all available landowners when an animal is put on the list, would, I suppose, require the minister to notify every landowner in Canada. The point Mr. Near is making, if I understand it correctly, is that no action can take place under this bill by way of a penalty until there is a recovery plan, which will result in a whole lot of consultation with the landowner who is affected by it.
Senator Spivak: By that time, there are fields of hay growing there. Who will know?
Senator Milne: There is no provision in this bill for repayment to a landowner until there is an action plan for the land. Does that apply to the penalties as well? I am not aware that it does.
Mr. Near: It depends on which prohibition you are talking about. I used the critical habitat prohibition as an example to illustrate the process. We would be very surprised if we found that people who had critical habitat on their land were unaware of that, should we eventually decide to bring a prosecution.
That is different from listing. In some respects, they would have not as much notice, in that COSEWIC would have to publish in the public registry the species they are considering for listing. There is then a consultation requirement for COSEWIC in doing the work they do. They refer their recommendation to the minister and the minister recommends to the GIC to put a species on a list. That is published in the Canada Gazette, which is the official way the Government of Canada publicizes these types of things.
Senator Milne: We know all that.
Mr. Near: That is the background to getting something on the list.
Senator Milne: That is listing species and then developing an action plan, but what about the reverse — prosecuting someone?
Mr. Near: Once something is a listed wildlife species, then the prohibition in clause 32, for example, kicks in and says, ``Thou shalt not kill that particular species.'' At that time, a prosecution is possible if someone is killing an endangered or threatened species.
Senator Milne: In other words, it leads to the ``shoot, shovel and shut up'' syndrome.
Senator Kenny: Could you clarify what that means for our audience, who may not have heard of it before?
Senator Milne: It means shoot the endangered animal, bury it and be quiet about it.
Senator Kenny: We are not counselling that.
Senator Milne: No, we are not.
Senator Kenny: I accept that if the process is gone through with the original owners, they might have some understanding that there is something they must watch out for on their property. However, as time goes by, is there a covenant on the deed that one watches for, sort of like asbestos in a house? How does the next owner or someone who leases the land come to understand that? What protections are there with the passage of time?
Mr. Near: To answer your first question, there is no contemplation of a registry system, which would probably have to be part of the provincial land registry system. The current owner would have to advise the next owner that they should be aware of something, which is not an unnatural expectation.
Senator Kenny: That is a double negative, so I am not sure what you are saying. You are saying that it is a natural expectation?
Mr. Near: Yes, that the previous landowner would tell the current landowner.
Senator Kenny: Is it normal for a person selling land to say to the potential buyer, ``I want you to buy this property from me, but you cannot use this part of it because it is protected and that will limit the economic value''?
Mr. Near: They would if they wanted to avoid a lawsuit for deliberate misrepresentation of the property they are selling.
Senator Kenny: Are you saying that if someone did not do that they would be open to being sued because they were selling it in a fraudulent fashion?
Mr. Near: Yes, I would expect that in certain circumstances, that might arise. Again, it really depends on how much money we are talking about, whether it is worth the effort, and all of the other things that go into a decision on litigation.
Senator Kenny: I follow your reasoning. It fits in a legal world and I guess it fits in a government world. I am not sure it fits in the real world, in terms of how people function. I foresee a lot of people feeling blindsided at some point by this process. That is not to take anything away from the logic you have laid out. The logic works. I am just not sure whether this is people-friendly.
Mr. Near: That is a fair comment. The logic works. The program will work if people exercise judgment, and that is what will be required.
Senator Kenny: It is really scary when you say that we have a good law and it will be fine as long as people exercise judgment. If there is one thing we know for sure —
Senator Spivak: It is that they will not.
Senator Kenny: I do not even have to finish my sentence. We are such a terrific tag team.
Starting out with that assumption makes me profoundly uncomfortable.
Mr. Near: It is not an assumption made with particular respect to this law.
Senator Kenny: I understand that, but just because it happens generally does not mean it is a good thing, does it?
Mr. Near: That is the way the system is designed. A senator asked a previous witness whether he knew of a particular instance in which a strict liability offence process had been abused.
In my experience of almost 14 years at Environment Canada, I do not recall anything that would approach leaning too much on the pro-prosecution side. In fact, generally when we go before committees, we are criticized from the other side of the fence.
Senator Kenny: It is nice to have balance.
Senator Eyton: When I read the proposed legislation, I am troubled by the way it is framed. If I kill a person, I am presumed innocent and there is a burden of proof. However, if I kill a certain rodent, I am presumed guilty and I am forced to approach my defence the other way. On the other hand, you have assured us that much legislation, dealing with similar subjects, is loaded this way, and that if we were to strike a blow in this particular bill, it would be an exception to much legislation that deals with this kind of offence. Is that correct? If so, and if we were to try to change the onus of proof — the presumption — it would be a massive task that would include not only this bill but also 300 or 400 other bills.
Mr. Near: With respect to your first question, I cannot think of any environmental legislation in Canada that is not strict liability. In the Canadian Environmental Protection Act, CEPA, there is one offence that requires a mental element. Generally speaking, all environmental legislation is strict liability in Canada. That is not to say that it is necessarily a good thing, but that is the way it is.
If you wanted to change all of that legislation, from a purely mechanical point of view you would not have to do it collectively, but rather you could do them one at a time. However, that is a question of process, and it would be a dramatic shift. The minister made an important policy statement, when he appeared before you, by asking why would we make it more difficult to prosecute charges with respect to endangered species than with respect to species that are abundant, such as in the Migratory Birds Convention Act — and the Fisheries Act, for that matter. It is not, strictly speaking, a question of law. You could make the offences mens rea or strict liability. It is not just a strict question of the law in making your choice.
Senator Eyton: I am troubled by it, but I am not sure that there is much we can do about it, given the practice and precedents.
Senator Spivak: Following on that, what is the case law on it? In other words, is there a huge body of case law in which people have been prosecuted for strict liability offences under all of these acts: the Fisheries Act, the Canadian Environmental Protection Act — which is hardly ever used — and the Transportation of Dangerous Goods Act, maybe?
Senator Kenny: To be fair, we can take comfort in the fact that there will be little funding for inspectors and for people to actually enforce this proposed legislation.
Senator Spivak: Exactly. I quite agree with that point of view, but I am asking about past history in respect of other acts.
Mr. Near: I can speak most intelligently about CEPA, the Migratory Birds Convention Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act, WAPPRIITA, the legislation that I have been actively instructing counsel on. For the most part, under the Migratory Birds Convention Act, most of the offences are things like taking too many birds or hunting out of season. The vast majority of offenders offer guilty pleas. In my recollection, I have seen no major litigated case where a hunter has argued due diligence.
In respect of CEPA, I could not say for sure. I do know that we do not have a large number of prosecutions. I would say that we are quite selective about the ones that proceed. Generally, they are incidents of major pollution involving a ``large'' defendant on the other side.
The Chairman: This is ``angels on pins,'' again, but we have heard from people who are opposed to the nature of the penalties in this bill. Sometimes those hunters who plead guilty do so because they feel that they are looking at a train coming down the track at 90 miles per hour and that it will cost $25,000, or whatever it is, to defend against this charge. Hence, they will just give up, plead guilty and pay the fine. Is there any resonance to that argument?
Mr. Near: In my personal experience, no, most of them plead guilty because they are quite happy to avoid the court process and they have too many birds and they want to go home. That is the usual case with respect to migratory birds and hunting. It is not just migratory birds, but you will also find, at the provincial levels, situations where hunters have been caught doing something and they simply wish to expedite the process, if you like. That is why I said that I have not seen a due diligence defence in a migratory birds case in the 13 years that I have been involved.
The Chairman: Are there further questions?
I wish to thank Mr. Near for appearing before the committee to answer our questions.
Senator Buchanan: One week ago today, I spent 1.5 hours with 60 to 70 students at Dalhousie University in the environmental and resource department. Those 1.5 hours were spent on this bill. One of the associate professors is a member of COSEWIC. Quite frankly, I learned a great deal about this bill from those students. I was surprised at the level of knowledge they possessed.
I wanted to pass this information on to members of the committee. Although the bill may be a bit flawed, all of the students were anxious to see it pass in the Senate.
The Chairman: ``Flawed'' seems to be the buzzword today.
The committee continued in camera.