Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 5 - Evidence of November 28, 2002
OTTAWA, Thursday, November 28, 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 8:30 a.m. to give consideration to the bill.
Senator Tommy Banks (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, our first witness today is the Honourable David Anderson, Minister of the Environment, whose bill this is. He is accompanied by Karen Brown, the Assistant Deputy Minister of Environmental Conservation Services. John Sims, the Associate Deputy Minister of Justice, is here as well.
I am assuming, Mr. Anderson, that you have something that you could begin to tell us this morning?
The Honourable David Anderson, P.C., M.P., Minister of the Environment: Yes, I have a few words of introduction. I certainly appreciate the opportunity to again discuss with honourable senators Bill C-5, the Species at Risk Act.
May I first thank honourable senators for the hard work that is being applied towards this piece of legislation since I last appeared before this committee? It is much appreciated. I do recognize that this is complex legislation and takes a great deal of time. The time has been needed because it is a difficult bill; it is not the simplest bill. The views of the members of this committee are particularly important to me, as honourable senators will be giving the final approval or otherwise to this important legislation. Therefore, I believe the work that has been done, the knowledge that honourable senators have of the bill, the commitment to conservation and sensitivity to the issues are enormously important to the overall process of this legislation.
I will discuss some of the issues that have come up before you. I trust that my words will allay or reduce the concerns that honourable senators may have.
First, with respect to the non-derogation clause, a great deal of time has been devoted over the last few months to examination of this important issue. I have had discussions with my colleague Mr. Cauchon, Minister of Justice, who has committed himself to moving forward, as promised, on reviewing the use of such clauses in all federal legislation. I had the opportunity to discuss this particular issue with him and with other cabinet colleagues as recently as yesterday. Shortly after those discussions, he sent a letter to honourable senators, of which I believe you have a copy. It is addressed to the Chair of this committee. I draw the fourth paragraph to the attention of honourable senators. It says:
I am now prepared...to recommend to the government that we adopt your proposal of introducing stand-alone legislation to remove non-derogation clauses from all existing legislation —
— as you indicated would likely be supported by Senator Watt and other Aboriginal senators.
I will correspondingly recommend, as a matter of government policy, that we not include such clauses in proposed legislation in the future.
In other words, to not have them come forward in the future and to make sure, collectively, that they are taken out of past legislation. That is his commitment outlined in paragraph 4, which parallels paragraph 3 of my letter to you dated November 27.
Paragraph 3 states, in part:
I entirely agree with this approach and will be advocating this to my fellow Cabinet colleagues as we work together towards a resolution.
Again, working backwards, the original letter dated November 21 was from honourable senators to me where you mentioned, in the third paragraph, removal of the non-derogation clause.
The Chairman: Could I ask, since they are just now being distributed, that we take just a minute to allow members to read both of the letters to which you have referred? I did not have them distributed before the fact.
Senator Milne: It is my suggestion that these letters be read into the record. The letter from Minister Cauchon should be on the written record of this meeting.
The Chairman: I will happily do that. I will read both letters into the record, both of which are addressed to me. The first is the letter from Minister Anderson, and it says:
Thank you for your letter of November 21, and enclosure, concerning the non-derogation clause in Bill C-5.
I appreciate the importance that the Committee places on this issue. As you know, my colleague Minister Cauchon is moving forward as promised on reviewing the use of non-derogation clauses in all federal legislation. I fully support his efforts and would like to see a resolution very soon.
In your letter to me you suggest ``the Government commit in writing to introducing `stand-alone' legislation that would remove the non-derogation clause from all existing legislation....''. I entirely agree with this approach and will be advocating this to my fellow Cabinet colleagues as we work towards a resolution.
Such an approach would allow the non-derogation clauses in existing and proposed legislation currently before Parliament to be dealt with collectively under omnibus legislation as soon as possible. This would avoid the continued ad hoc alteration of individual pieces of legislation, create consistency between federal statutes and provide a lasting solution.
In the meantime, I look forward to appearing before the Committee on Thursday to discuss this and other issues related to the proposed Species at Risk Act.
The Committee's views on this legislation are important to me. Please be assured that I will take them very seriously. If I can further assist the committee in its work, do not hesitate to contact me.
The second letter is from Minister Cauchon, and reads:
Thank you for your letter of November 21 regarding the question of non-derogation clauses in federal legislation and the protection provided to Aboriginal and treaty rights by s. 35 of the Constitution.
This is an important matter that my officials have been working on extensively within government in an effort to develop possible approaches. In fact, discussions have been completed very recently at the senior levels within Justice as well as interdepartmentally. Both the legal and policy implications have been considered in the course of this review.
This week, I have had the opportunity to discuss the issue with my Cabinet colleagues. In doing so, it was very helpful to have the benefit of the options you put forward in your letter.
I am now prepared, as is my colleague Minister Anderson, to recommend to the government that we adopt your proposal of introducing stand-alone legislation to remove non-derogation clauses from all existing legislation. I will correspondingly recommend, as a matter of government policy, that we not include such clauses in proposed legislation in the future.
Like you, we have been looking for a comprehensive and lasting solution to issues that have arisen over the use of non-derogation clauses, one that clearly maintains the existing protection provided to Aboriginal rights by s. 35 of the Constitution. I believe that this proposal achieves that goal.
Yours sincerely,
Martin Cauchon
Those are the two letters.
Senator Watt: I want to respond to the letter here. We need some clarification, because five Aboriginal senators have written a letter to the minister, and I am not sure whether this is the response. I have to ask, senator: did you also write a letter on our behalf?
The Chairman: I wrote a letter on my own behalf and on behalf of the committee.
Senator Watt: It may not be a major issue but, as far as I am concerned, our letter has not yet been answered. This letter did not go to the Aboriginal senators.
The Chairman: I do not know what correspondence the ministers have had.
Senator Watt: I do not appreciate the fact that they ignored the letter we put forward.
The Chairman: Senators, I think we will finish hearing from the minister. I am sure that the minister and the other witnesses are waiting to speak, and they will be happy to accept questions when that has happened.
Mr. Anderson: I would only point out that in the correspondence you gave me, you made it very clear it was your view and not one developed after consultation with the committee. I would like to make sure that is clear. The two letters, from Mr. Cauchon and myself, are put forward to the committee, but we appreciated the advice that you gave us as an individual.
The Chairman: Thank you.
Mr. Anderson: It was clearly taken as a personal view. In fact, I think you used the words ``in my view''. I would also add that the on the 27th, my colleague Martin Cauchon, the Minister of Justice, sent a letter to the Honourable Willie Adams and co-signatories. I presume that is in reference to previous correspondence. It is short, and is simply a covering letter of the two letters that you read into the record. That was sent on the 27th.
The Chairman: Thank you, Mr. minister.
Mr. Anderson: In any event, the two commitments are clear in the letter of Mr. Cauchon. He will move to introduce stand-alone legislation to remove non-derogation clauses from existing legislation and recommend, as a matter of government policy, that they not be included in proposed legislation in the future. Those are the two commitments he has made, which he believes will deal with what we recognize as a very difficult issue for more than just Aboriginal senators. We have been looking for a lasting solution to this issue and John Sims, the Associate Deputy Minister of Justice, who is with me here today, can comment further on the legal and constitutional elements. I will certainly turn to him later in my presentation.
I also wish to raise the issue of compensation. Honourable senators have already questioned witnesses about the possible economic losses that could result from critical habitat prohibitions. Again, this is a legitimate concern. We have been listening throughout the process on this, and have tried to respond to the issue. We have been trying to create a compensation regime that is fair, objective and supports stewardship as a first approach to protecting critical habitat. I would specifically draw the attention of honourable senators to a witness, Mr. Stewart Elgie, who came before you on Tuesday. At that time, he said:
This bill goes further than any other environmental statute in Canada to provide for fair and reasonable compensation for people who are significantly affected by environmental legislation.
He goes on to say:
I would urge senators to look at the real experience of what has happened in Canada. In almost all cases, with careful planning in advance and with minor adjustments, one can manage lands in a way that is consistent with the survival of a species and avoid imposing hardship on people.
I think that is very significant. Mr. Elgie has been a fairly consistent critic of the bill. He has been very active before the House committee and obviously before your committee as well. However, he also recognizes that to start with a compensation regime from a standing start is extremely difficult, and in his presentation to you, he indicated the difficulty of creating entitlements. He also indicated the difficulty this poses for provincial governments, which, of course, have innumerable pieces of legislation affecting land because that is their jurisdiction, and who are leery of the issue of compensation.
A great number of zoning regulations, for example, are undertaken by municipal councils without providing compensation to individuals who otherwise might have had obtained greater value for their land had there not been restrictions on the height or the footprint of a particular property. A legitimate concern has been that we are embarking on something on which we should be very careful to know where we might wind up.
A final point on this is that we fully intend to have compensation available in clear cases of hardship where, as a result of taking over a person's land or expropriating, if that is the case, there should be some protection for them. On the other hand, we do not want to create a situation where an individual says, ``Unless you compensate me, I will use this land in a manner detrimental to wildlife'', or otherwise inconsistent with normal concepts of zoning. We do not want to get into a position where we are held to ransom for large amounts of money. Given the importance of working with provinces and territories, we do not want to put them in a position where their normal regulations dealing with forestry, agriculture and other areas of land use would be subject to a major charge on the provincial or territorial Crown.
These are the concerns that Mr. Elgie raised, and we can come back to them. I do want to stress that we do not expect to have a situation arise where compensation is likely. Stewardship is the practice we wish to encourage. We feel direct compensation for loss caused by actions taken by the government to prohibit the destruction of critical habitat would be rare and, as Mr. Elgie pointed out, he had no knowledge of cases where the situation might arise.
I do not know how often it might occur, but if it occurred a couple of times a year, I would be surprised. For that reason it should be a discretionary right, rather than a right embedded in the legislation and regulations.
The next point I wish to discuss briefly, Mr. Chairman, is Aboriginal involvement. From the very first, Aboriginal people have been, and will continue to be, critical to the success of this legislation. We have had a good partnership with Aboriginal people that has resulted in several key improvements to the bill. For example, integrating Aboriginal traditional knowledge into the assessment of species at risk is quite a novel concept for many in the scientific community, and yet a very important one. There is a mandatory National Aboriginal Council on species at risk. I am committed to convening a first meeting for the national council within three months of the proclamation of the legislation.
Certainly, the legislation in no way takes away from the existing Aboriginal or treaty rights as protected by section 35 of the Constitution Act 1982. I defer to the associate deputy minister of Justice, but I believe it is impossible for legislation to derogate from the Constitution in that way. If an aboriginal group is entitled to harvest an endangered species or a threatened species today, the act cannot change that right. In the extremely unlikely event that the species at risk act would prevent Aboriginal people from harvesting a species due to protecting critical habitat of these species and create significant economic hardship as a result, that person would be eligible for compensation.
Where there is a clear right under the Constitution section 35, Aboriginals have it. Where there is not such a right, but nevertheless they are affected by activity to protect the species, they would be eligible for compensation.
These points are important. The comfort level provided by the protection in the act, which has been gone over many times with Aboriginal witnesses and Aboriginal organizations, will be effective.
We did draft the provisions in clause 64 carefully to include the words ``provide compensation'' instead of ``pay compensation'' so as to enable alternatives to money to be considered for compensation. For example, it could be a switching of lands or something like that instead of actual payment of money.
The bill does not enable compensation to be provided to Aboriginal people for being unable to harvest an endangered or threatened species, nor to anyone else who is prohibited from killing a listed species. Species are only listed as endangered or threatened if there is strong evidence that they are in eminent danger of becoming extincnt.
Aboriginal people who rely on harvesting of wild species will be advantaged by legislation that protects the species and are designed to make those species less rare and more abundant. Overall, the act will have a beneficial effect for hunters and those who live off country food in Canada.
Stewardship is a critical component of the legislation, as I am sure senators are well aware. It is a cornerstone of the bill. I spoke at my last meeting with you of the importance that I attach to having landowners and others who work on the land take voluntary conservation measures and, by so doing, protecting habitat. We are already in the third year of the Habitat Stewardship Program. We have invested some $10 million this year in 160 local projects. Those projects are providing support and protection to some 208 species at risk. In addition, there are some provincially listed species, 80 provincially listed species, that are also benefiting from the stewardship programs.
We have a good leverage with the habitat money. It is about $1 federal money and 70 cents from other sources.
Landowners are critical to making this bill a success. Many landowners have already done great work in improving wildlife habitat. We want to be supportive of that and continue that working partnership. Many industry associations support the stewardship approach, and many individual companies are supporting the stewardship approach as well and taking action to protect species at risk.
Let me again stress how much I believe that cooperative spirit has to be the keystone of this piece of legislation. Only if we have the willing support of landowners and people who work on the land will this legislation work effectively. No amount of money and no amount of federal or provincial legislation can succeed in the face of uncooperative landowners or people who work on the land. We formalize in Bill C-5 the participation of a range of people in recovery planning, including landowners.
I wish to acknowledge the hard work and dedication that honourable senators have demonstrated on the review of the bill. I must say that your concern for conservation in this country is clear, impressive and appreciated.
The responsibilities for the protection of species at risk are also quite clear in my mind. There are challenges ahead for us, but I am convinced that the legislation you have carefully considered over the last month is an essential component to the overall strategy of the government. It is important after these many years of study to get this piece of legislation working on the ground where it can make a real difference.
The Chairman: Ms. Brown do you have anything to add to that.
Ms. Karen Brown, Assistant Deputy Minister, Environmental Conservation Service: No.
The Chairman: Mr. Sims would you like to say anything to us specifically?
Mr. John Sims, Associate Deputy Minister, Justice Canada: Thank you, Mr. Chairman. I would be prepared to answer any questions that honourable senators might have, but the letter of Minister Cauchon that was read into the record states the position of the Minister of Justice with respect to non-derogation clause and the position the government would like to take to help resolve this matter.
Senator Christensen: We have seen that there is certainly a wide degree of concerns from landowners, cattle breeders and environmental associations. They have strong views on changes that should be made. These views are not necessarily compatible.
Clause 64 says that the minister ``may'' rather than the minister ``shall.'' Would you comment on that?
There was a feeling from a couple of our witnesses that a change was made, but it was made in the wrong sub-clause. It should have been made in subclause 1 and not in 2. Would you comment on that?
We just received a paper on the issue of killing or harming an animal knowingly or with intent. This is a mens rea. I have not read the paper yet. I believe that Justice should be would to comment on that issue.
Also, we have heard evidence or witnesses discussing the lack of protection for the habitat of migratory birds. If you could expand on that issue, as well as the criticism that the transboundary species issue has not been addressed fully enough.
I would also like your comments on the five-year review. In five years, the application of the bill will just be getting under way, and it would be very difficult to do a full assessment of its effectiveness. You would have some base line information, but you would not have enough information to evaluate the bill and whether it were meeting the needs and its objectives.
As well, there should be ongoing reviews to update the legislation to ensure that it meets the objectives of the bill.
Mr. Anderson: Senator Christensen has certainly done a good job in briefly commenting on some of the most important points.
On the issue of compensation in clause 64, again the issue here is that this is very new legislation in this regard. The Crown provincially, virtually from one end of the country to another — and Mr. Sims will comment on this — have had high reservations about this legislation because so much of the regulation that they do affects the ``rights'' or the ``opportunities'' of landowners or land occupiers.
For instance, we in British Columbia did not pay the forest companies when we took away the hundred-metre strip along each river for salmon purposes. Yet the companies, not without reasons, said, ``Well, that is the most valuable timber in the valley, the timber closest to the river where it stands tallest and straightest.'' However, they were denied, and told that this was necessary and, therefore, it happened.
Similarly for zoning in a city, zoning decisions are constantly made by City Council that have dramatic impact upon the value of land. Land can multiply manyfold in value simply because there is a change of regulation that changes the height of a building from six stories to 20. Obviously this has a dramatic impact.
It can also work in reverse. There are many examples of great difficulty if compensation is offered. We have tried to be very cautious. We have tried not to offend the provinces. We have tried, also, to ensure that we do not fall into a situation where compensation becomes an expected right; where good behaviour, normal behaviour becomes something that people have to be paid to do. We do not want to create a perverse incentive to damage the environment and then have people turn to us and say, ``We will change our views if you give us money.''
I will turn to my fellow witnesses to perhaps add to that, if they wish, and I will leave the issue of ``knowingly and with intent'' to Mr. Sims.
Concerning the lack of habitat for migratory birds, one of the dilemmas with migratory birds is you do not know where they will come back to. They drift north or south as the case may be, and they do not always go to the same refuge every time. It is one of the great difficulties that we have.
Many enthusiastic and well-meaning people have suggested, therefore, that the Migratory Birds Convention Act, which is legislation based on an imperial treaty, gives us the right to march in and do things in any province where a migratory bird may touch down, in which case we are federalizing agriculture throughout much of Saskatchewan and Alberta, and the relationship we have with respect to the provinces would be dramatically altered.
We do not think there should be that kind of distinction between migratory animals and non-migratory animals. We feel that we would be creating a major constitutional crisis, which would be the case if we attempted to extend that legislation. It would undoubtedly also be struck down by the courts.
Concerning transboundary species, this issue may be in relation to an American concern. I am being hypothetical here. If a grizzly bear goes south of the 49th parallel, ambles through Montana and then hops back into British Columbia or Alberta, somehow because in the States it was protected, it therefore should continue to be protected thereafter in Canada. This simply is illogical. The fact is that it is one of these U.S.A.-centric views that whatever they do is obviously what everyone else must do. Not so.
The fact is that if the animal, bird, fish, et cetera, is in need of protection in Canada because of endangerment due to a lack of numbers, then let us do that. However, if it happens to go to the southern boundary of its range into the United States where it is endangered, that is fine for them. They are trying to protect that population within their own jurisdiction. We should be able to decide upon endangerment issues ourselves based upon our own knowledge of what is happening on our territory. It is a difficult issue.
It would be totally illogical for a bear that goes south, assuming the bear is endangered for argument purposes, ambles through the United States for a couple of hundred metres and pops back into Canada, to suddenly acquire special protection, compared to the bear that ambled along parallel to the 49th parallel but 50 metres north of the border. This would be a totally illogical situation. I do not want to be hard on bears, but a bear is a bear is a bear, and if they are endangered in British Columbia, that is fine, we will make that decision. However, if they are not, we should not say that bear spent six weeks last winter in Montana, and he is now getting special treatment because it is an American-protected bear. It does not make sense to treat these animals in that way. The same logic applies to other species as well.
I appreciate the enthusiasm of the Americans for protecting endangered species. However, I have been more than unimpressed with the belief that somehow all issues relating to the endangerment of species should be viewed through that American lens, and that if species are deemed to be endangered in the United States, we must go the extra mile as well. Surely we should go the extra mile because they are endangered, not because they visited the United States.
The northern tier of the United States is the southernmost area of their range. Using grizzly bears as an example, in Canada they have good population levels. Then they hop down to the States, and that is the bottom of their range. In the United States, grizzly bears have been eliminated from 99 per cent of their former habitat. The flag of California has a grizzly bear on it. The California grizzly was the largest grizzly in North America, and the last one was shot in the 1920s. The only place you will find one is on a flag. We have a different situation in the Yukon. We should not allow the California rules to apply in the Yukon. It does not make sense.
Conversely, for certain species, the northernmost part of their range is in Canada, just across the border. If we take special protection for the burrowing owl or some of the desert animals in the southern Okanogan, we do that for that purpose, not because they are abundant in Nevada. We have to maintain the clarity of the process and not get too carried away by the argument of some American environmental organizations.
I spent too long on that point. I apologize.
Concerning the five-year review, there is a practical matter to be considered here. We will review the legislation after five years. That does not mean to say it will not be reviewed again in the future. We have all seen legislation that has come up far too often over a decade, for those of us who have been around for a decade. However, if we have every piece of legislation that the Government of Canada has on the books reviewed every five years, that means 20 per cent of our legislation has to come through the Senate and House of Commons every year. We would be so swamped with work that we would never get to deal with real issues. That is a frightening thought.
In the normal process presently, we have certain reviews. However, to make them every five years does not make as much sense as having that review once after five years in order to see how it is working, and then to leave it to the normal process of fixing it when it clearly needs fixing. Perhaps we should have legislation reviewed more frequently, but if we do, we will have very different rules of procedure in the House of Commons. I certainly will not comment on the Senate, but it is impossible for the House of Commons to review 20 per cent of the legislation of the Government of Canada every year.
We are picking the high points. There is legislation which is in clear need of review. However, setting up automatic five-year reviews creates a workload that may not be appropriate in the future. Again, nothing stops this act from being examined after five years and examined again five years later, depending on the need. I do not think that setting up a rule that this act must be reviewed every five years is a realistic approach unless you are looking to having legislation taken off the books after a certain period of time.
Senator Spivak: I have a supplementary.
The Chairman: Is it a supplementary to the five-year review question?
Senator Spivak: No, it is to the question that Senator Christensen raised earlier with regard to the migratory birds convention.
The Chairman: Before we pursue the supplementary, we have an issue regarding mens rea, which Mr. Sims could now address with respect to Senator Christensen's question.
Mr. Sims: I will ask my colleague David Near from the Department of Justice, who has been working on this legislation, to answer that question for the senator.
Mr. David Near, Senior Counsel, Justice Canada: Thank you. Mr. Chairman. You will recall that I appeared before the Senate, I believe it was early last week, to discuss this particular issue.
The Chairman: We are delighted to see you again.
Mr. Near: I am delighted to be here, as always.
I am not sure if you want me to go back into what Senator Kenny referred to as ``Law 101.'' With respect to mens rea and the difference between mens rea and strict liability offences. As I indicated at that time, virtually all environmental offences in Canada are what we call strict liability offences, where the Crown needs to prove the actual prohibited act. The onus then shifts to a balance of probabilities to the accused to show that they took reasonable steps to avoid the commission of the offence. This is unlike mens rea, where you have to prove both the actus reus, the actual prohibited offence, and then you have to prove that the person intentionally committed the offence, which is quite difficult from a policy perspective.
It was decided very early on that, when you are dealing with endangered species, you would not make it more difficult to prosecute those types of offences. This is in contrast with statutes such as the Migratory Birds Convention Act or the Fisheries Act, where species are relatively abundant.
The Chairman: I want to make sure that we clearly understand the answer to the question that has been raised by several witnesses before us. Some felt that they could, in effect, be blindsided and that there was an unreasonable expectation that a landowner or land user would have to go to great lengths in advance in order to ensure that he was able later to prove that he had taken reasonable precautions to ensure that he was not about to contravene the act. We have heard other arguments to the effect that, given the provisions which are in this bill with respect to recovery programs, it would be virtually impossible for a landowner or a land user to be unaware of the fact that there is something on the land in question that requires protection, and that he would have, therefore, in every case under this bill, considerable notice. Which of those is true?
Mr. Near: As we discussed last week with respect to the prohibitions in regard to critical habitat, it would be almost impossible for someone not to have received some direct notice that there would be a critical habitat prohibition in place in relation to their lands. I believe Senator Spivak raised the listing and the killing prohibition. The notice would be that it would be on the list published in the Canada Gazette that there is an endangered species. If someone were to go out and kill it, the prohibition would then come into place.
As I discussed last week, there is an element of good judgment on the part of both the enforcement officer and the prosecutor in the Department of Justice who would be charged with deciding whether or not to go forward with that particular charge.
Senator Spivak: I am rather puzzled, minister, by your statement that there could be a constitutional brouhaha if the migratory birds convention extended federal authority. This was addressed in Justice Gerard LaForest's judgment some time ago, which judgment addressed the constitutional jurisdiction of the Parliament of Canada to legislate for the protection of migratory birds. He stated that Parliament's jurisdiction is extensive, and that the provisions of the migratory birds convention, which provide broad powers to protect migratory birds' habitat, fall within federal authority. That has never been seriously questioned. This is a practice that has gone on for some time. I am wondering why, in this particular bill, you chose to limit that provision, which has been in practice for a very long time and has the jurisdiction of the court. It has already been tested and it is approved.
Mr. Anderson: Senator, that is a very good question. It is true that there are judicial decisions, and I will ask Mr. Sims to comment, perhaps, on those as well, that support the federal government's power with respect to habitat. There is, however, a line beyond which the courts will not support federal intrusion: on the clear provincial jurisdiction over land and, indeed, even in the joint area of agriculture.
Where that line may be will depend very much on the facts of an individual case. We recognize that there is a limit out there somewhere. It is not just that if we can give some coloration of protection of an endangered species, then the federal government will automatically take over from any provincial constitutional position.
I should also add that we have the safety net approach. If a province fails to act as expected under an accord we have with that province, then we would be able to step in with that safety net approach. We would undoubtedly be relying on the very cases that you have brought to my attention.
I do not think there is any retreating from existing practice, but perhaps in my response to Senator Christensen's question I was thinking too much of those witnesses before the House committee who seemed to have a very expansive view of what we could do to overrule any provincial legislation for the sake of protecting an endangered species. Let me turn it over quickly to Mr. Sims for the legal aspects of this. He may be able to add more to this than I can.
Senator Spivak: Perhaps I could just expand my question. This is a Supreme Court decision, from which there is no appeal. In that decision, Justice LaForest does state that the provinces within which such species are present for part of the year also have the authority to legislate for their protection, provided such laws do not conflict with federal regulation.
What is the import of this decision in our practice now? Does this legislation trump that decision? That is what I want to know.
Mr. Anderson: Thank you very much, senator. I will turn it over to David Near.
Mr. Near: There has been ongoing debate for at least a decade as to the extent of federal jurisdiction with respect to migratory bird habitat. In a nutshell, federal legislation is based on what is called an empire treaty, and it sets out the parameters of federal legislation.
The debate of this migratory birds convention, which I believe was first entered into in 1917 or 1918 with the United States, and which was most recently amended by a protocol in 1995, has dealt with matters of migratory bird habitat.
It is fair to say that not all lawyers agree on the extent shown in the migratory bird convention with respect to federal jurisdiction. With respect to retired Supreme Court Justice LaForest, I believe you are referring to an opinion he wrote in conjunction with the Sierra Defence League.
Senator Spivak: This was in 1999.
Mr. Near: Yes, it was an opinion as opposed to a judgement of the Supreme Court. He was retired at that time, and expressed a relatively expansive view of what the federal jurisdiction contained, as contained in the migratory bird convention. We actually conducted a teleconference between the retired Supreme Court Justice and our associate deputy minister at the time to debate these particular issues. It is fair to say that our view of the jurisdiction with respect to migratory birds is reflected in the bill that is before you.
It is not a given that what Mr. Justice LaForest says in his opinion has been adopted by the Supreme Court at all. In fact, this issue has never been directly dealt with by the Supreme Court.
Senator Spivak: That answers my question. In other words, this latest piece of legislation reflects the current status of the Migratory Birds Convention Act, and that law is the last word, until it is litigated.
Mr. Anderson: We suspect that there may be litigation, and it may be that that litigation will have the Department of Justice relying heavily on Mr. Justice LaForest's views. However, where you have doubt in the legal opinion that you receive, you try to avoid litigation because you could lose, and then you have uncertainty.
I have been reading Mr. Justice LaForest's judgments as well as opinions for some 25 years. I have great respect for them, but as a person involved in environmental issues, I do remember occasionally discovering that there were some contradictory opinions expressed by other judges. Sometimes I had the misfortune of quoting minority opinions on issues while I was quoting Mr. Justice LaForest.
That is not to say he is not right. That I do not know, because it depends on the Supreme Court of Canada's decision for any particular case. That is not to say that we regard his views of no great value, but as a prudent approach on legislation we should not go too far out on what may be thin ice. Therefore, we do not want to create a major constitutional battle with the provinces in the theoretical aspect of this issue. We would prefer to have a working, cooperative arrangement where it is unnecessary to test this particular issue. If we are wrong, we have then lost, and we have to retreat.
If we can maintain a cooperative approach with the provinces, perhaps there can be a win-win situation.
Senator Watt: I will start with a letter that we have received. Mr. Chairman, I, for one, have looked for something much stronger than what is in this letter. Here, they are basically saying that they will make recommendations to the government. That is far from being committed to doing something, because it is only a recommendation to the government. We do not know what happens after that. For that reason, I cannot accept that as satisfactory.
After all, those rights are already part of the Constitution. We have stated in the past that we do not want section 25 of the British North America Act, which is meant to be the shield of section 35 of the Constitution, to be given a different interpretation.
For that reason, I feel that I am standing on solid ground in terms of the constitutional position. Therefore, that is the basis of our demand for a more adequate reply from the minister. I would go so far as to suggest that we should stop studying this bill and wait until we get a proper letter — if they will produce a proper letter.
The Chairman: Do you want to ask a supplementary before the reply?
Senator Eyton: How common, to our collective knowledge, are these kinds of assurances? What has been their history?
Mr. Anderson: Senator Watt, I would agree with you to the extent that this is a written commitment to the Minister of Justice with a written commitment to the Minister of the Environment. It does not absolutely bind the federal government hand and foot.
It would, however, be extremely unusual if the Minister of Justice, on an issue such as this, were ignored. I will add, of course, that there is a third relevant minister whose views are not here and have not been canvassed, the Minister of Indian Affairs and Northern Development, who might be an important player in this. There are always differing views among Aboriginal groups, as there are with any segment of society.
That said, this seems to me to be a fairly important written commitment. If we would have to proceed on this as you suggest to get the legislation to eliminate past non-derogation clauses, that is a possibility. Perhaps you want to put forward some suggestion as to whether it is possible to set a time for a compromise. However, this certainly is the very best we can do at the present time because we have to get the agreement of our colleagues. We have to go through cabinet.
Yes, the procedure could be altered, but I am not altogether sure that the chances of success would be increased by delaying this piece of legislation.
Senator Kenny: I will comment in response to Senator Eyton's question about how frequently these things happen. I have been on this committee for 18 years. It happens often, Senator Eyton.
Honourable senators, this committee has received letters from ministers of the environment in which the minister has absolutely committed herself to doing something. During my time as deputy chair, I have taken a letter from a former minister to the next minister. It was a comfort letter very much like this, not committing the government but essentially saying we will exercise our best efforts. The next minister, same government, said, ``That was then, this is now.''
What do you say to that, Mr. Anderson?
Mr. Anderson: Again, Senator Kenny, the advantage of being a senator at a young age such as you, you do see a lot of ministers come and go. The disadvantage of being a minister is that I feel like one of those migratory birds that Senator Spivak was talking about: shot at from all sides and likely to die imminently.
There is no question that you have right on your side. There are issues like that. All new ministers, as you are well aware, enthusiastic about all sorts of personal initiatives, soon discover that their hands and feet are tied. Indeed, they are as Gulliver, and tied down by a thousand strands of previous letters and commitments that prevent action or force action in certain ways.
I would agree, in particular, that the Minister of the Environment seems to rotate extremely quickly, a practice with which I completely disagree. I think that I should stay a very long time in office. In one month I believe I will become the longest serving Minister of the Environment that Canada has ever had.
Senator Kenny: When you are Prime Minister, will you change this practice?
Mr. Anderson: I hope I will be here to implement whatever commitment I give.
Joking apart, I do appreciate the comment made, and I agree it is an issue. Senator Watt has every reason to be concerned about it. I did suggest to Senator Watt that if there were a time line we might like to put on this. I could promise you that I would undertake for my colleague the minister of Justice to come next week and discuss this with you in person, if that were an agreeable measure.
I agree that Senator Watt has a good point, as does Senators Kenny. As well, Senator Eyton made a good point as well as provided a history.
Perhaps we can squeeze this into some sort of time frame that is acceptable, and if my colleague appeared before you and discussed that very point: How can we make some sort of process that would give committee members a comfort level that this will be taken seriously and we will not wind up with the situation Senator Kenny described?
Senator Kenny: That is a very generous offer that the minister has made. In order to expedite the visit of the Minister of Justice, if he came with a letter with wording in the fifth paragraph saying that he was bringing a commitment of the Government of Canada to make this happen, I am sure he would satisfy this committee and the issue would be dealt with rapidly.
Senator Milne: I would have preferred to hear you say, Mr. Anderson, that next week you would be taking this to cabinet.
The Chairman: Minister, do you wish to respond to Senator Milne's observations?
Mr. Anderson: I would only add to Senator Milne's comment, which is a good one, that we took it to cabinet yesterday. On the basis of that, the letter was written. I cannot reveal cabinet confidences, of course, but there is some reason for me, as a member of that cabinet, to think that the process is in place. I fully appreciate the concerns of Senators Watt, Kenny and Eyton.
If it is possible for my colleague Mr. Cauchon to make more solid, helpful and careful comments that indicate a time line approach and direction that would give a comfort level to honourable senators, I would understand your desire for that, and I would certainly understand that my colleague Mr. Cauchon would be able to do more that I have been able to do. He is the lead minister on this matter and, again, the Minister of Indian Affairs and Northern Development might have more to say that I have not heard on this issue of the non-derogation of clauses.
Senator Watt: Minister, I appreciate your efforts. I am not deliberately trying to knock down what you have brought forward. Depending on the atmosphere of the day in cabinet, that could have much to do with the outcome of what came out. The Minister of Indian Affairs and Northern Development will have a great deal of difficulty if matters are left alone in regard to the non-derogation clause. The governance matters are coming up soon and we are not finished with non-derogation. This is where the problems will lie.
As Senator Kenny and you have mentioned, even if the minister goes to cabinet and produces a letter to commit the government to this, even that is only going half way; but even that process has not occurred. We need definite cabinet input, not only from one or two ministers. The Minister of Indian Affairs may add some credibility to this process.
We are calling on the Prime Minister to intervene. He was the Minister of Indian Affairs and should have a clear understanding of the situation of the Aboriginal people. He was also instrumental in putting in what we have in the Constitution today.
I would strongly suggest that this matter must be taken seriously so that we will not have to revisit this issue every time a piece of legislation comes before us. We cannot screen every piece of legislation. Ever since I got here, and I have spent practically 95 per cent of my time defending the little that we got, let alone the areas on which I should be concentrating my attention to move forward and to benefit the people that I represent. I have not been able to get to that point for 18 years.
Minister, please help me in this area to get the message across. We want a clear response from the cabinet.
Mr. Anderson: I would certainly agree with Senator Watt. This is something we must take extremely seriously. Again, I point out that we did have a cabinet committee discussion on this issue yesterday. There is a need to confirm this matter through the process. The senator is right on that. We want an end to the process, not the midway point that we see at the present time.
We can achieve an understanding on a process with a discussion with the ministers involved. Again, I cannot obviously comment on what way the former Minister of Indian Affairs, now the Prime Minister, might go, of course. However, we will get the opinion of the Minister of Indian Affairs. It is important to do that. If we can have a future meeting of this committee relatively soon, my colleague Mr. Cauchon could bring you up to date. He may have better ideas.
I know that Minister Cauchon has committed himself, as he said in the letter, to recommending to colleagues to remove the non-derogation clauses and not to put them into any future legislation. I believe that is in line with the objectives of honourable senators.
Senator Watt: It would not hurt to give the minister a reminder.
Mr. Anderson: We are not that far apart. We are talking about process. I will carry back the concerns of honourable senators, and please be assured that this committee is an influential committee when it comes to these discussions. This legislation is important for the government. Other pieces of legislation are very important as well, but this bill was promised many times in speeches and we want this to go ahead. On the other hand, we do not want to get into a situation where it appears that the proposed legislation is being held up on other grounds; we want to ensure that the bill is judged on its merit.
If we can separate the two issues and have this issue dealt with in a generic way, no one would be happier than myself, though certain senators may dispute that.
Senator Watt: I wish to return to the point you raised in respect of the compensation issue, minister. I do appreciate the fact that traditional knowledge will be a part of the process in terms of deciding in regard to the management of species, species at risk and whatnot.
Minister, I understand what you were saying: that, in regard to compensation related to the land, if the habitat is being looked at, you say that there is no need for compensation, and that stewardship concepts may be more of a solution. However, I am concerned about people losing their livelihood, never mind their land. Let me give you an example. For three years we have been having a disagreement between traditional knowledge and the scientific community regarding the beluga whale. What do we do with the beluga?
The beluga is about to be put on the endangered species list after the scientific community, without proper scientific information, exerted pressure. There was a clash between traditional knowledge and the so-called scientific community in the area where I come from with regard to the beluga.
Minister, do you not think that, when there is a lack of scientific information or when the scientific community is uncertain as to whether a species is about to become extinct or endangered, when there is this disagreement, you are allowing the scientific information to overpower traditional knowledge? That is what is happening.
As a matter of fact, your department has paid $50,000 for hunters to go elsewhere, from the tip of the Hudson's Strait to the bottom of James Bay. How far can you go with that $50,000? That is the problem. You have set a precedent in giving that $50,000 to those people to go elsewhere because a certain geographical area is being prohibited from being used to harvest the beluga. The people who possess the traditional knowledge are saying you do not have the scientific information to support your argument. The scientific community is saying you are right. The thing is, they might be. We are operating on the basis of what might be.
This is our economy. As you know, the cost of living and transportation in the North is significant. Nunavik is the biggest taxpayer in all of Canada. We pay a higher rate of tax than anyone else. With this kind of initiative, you are eliminating some of the northern economy. Do you not think that should be acknowledged, if their livelihood is being disturbed and their economy is affected and impacted? There should be some recognition of that fact through compensation, not for a long period of time but until the scientific community is able to prove that they have sufficient scientific information on which to base their decision. Do you follow what it is that I am saying?
Mr. Anderson: Yes.
Senator Watt: To me, this is very important. We live with that almost on a daily basis in Nunavik at this time.
Mr. Anderson: This legislation should provide a fairly substantial comfort level to such people. For the first time, we are introducing the principle of compensation in this process. Secondly, we have allocated substantial amounts of money for stewardship activities prior to reaching a point where land might be taken away from use.
Senator Watt: It has nothing to do with the land. It has nothing to do with the effect on the habitat. I am talking about them losing their livelihood.
Mr. Anderson: In the example you gave, it was moving from one section of land to another. I was using it in that sense.
Senator Watt: Water.
Mr. Anderson: Very good. I will give you an example of the beluga and traditional knowledge in a moment, if I am permitted to relate a little anecdote.
However, I would point out COSEWIC and the legal listing. This is why we reserved the right to legal listing to the government. There are other considerations, not just the straight scientific consideration. That is why we have had such a battle with environmentalists who wanted the automatic listing regardless of the impact upon societies or communities. That is why we have retained that right for the cabinet. Those concerns that you described, which are essentially socio-economic concerns that are appropriate to be considered at the political level, will be taken into account.
Certainly, with respect to the scientific knowledge, you are absolutely right regarding the beluga: There is not an enormous amount of scientific knowledge. It was only recently, for example, that they attached radio packs on to the backs of some of the beluga and discovered that some Canadian beluga went as far as Siberia. In addition, some ``Canadian beluga'' went off to Greenland; that was discovered only recently, in the last few years. Only then did we discover that this was not a resident, shallow-water population, but we also discovered that they dove down to 1,000 metres, a fact which was not known before.
I will give you an example of what scientists are saying. I was with an Aboriginal person at one time and we listened to the scientist explain that nobody had known this before, that the beluga dove so deep.
Senator Watt: We have known that.
Mr. Anderson: That is what the person with me said. It was a different dive. Sometimes they dive down and they feed, and sometimes they dive down and come straight up again. The scientists could not understand why they went straight down and up again.
After we left the meeting, the gentleman who was with me — and he has a family licence to take three or four beluga, I forget how many, but quite a substantial number — said, ``You know, scientists just do not understand that it is constipation. The whales dive down to where the pressure is greater, and that does it. Then they come up again.'' It was an interesting example of traditional knowledge from this gentleman who had been dealing with belugas all his life. The scientist had no idea. I asked him why he had not spoken with the scientist. He said ``He did not ask me.'' This was an interesting example of the scientist not taking advantage of traditional knowledge, assuming, of course, that the traditional knowledge was accurate in this case, upon which I have no idea.
Senator Watt: Minister, I believe the scientific community has a long way to go in terms of bridging the gap between traditional knowledge and the so-called scientific community. They have a tendency to put things in a picture frame and work within that picture frame. Sometimes they do not recognize the transboundary nature of the species.
For example, if the belugas are migrating through the Hudson's Bay in the Richmond Gulf area at a certain time of the year, that does not mean the beluga stays there. It goes all the way up to Churchill, Manitoba, Rankin Inlet, and all the way up to the Greenland waters. We have known that. We have been trying to tell the scientific community that for some time. It is like talking to a deaf ear, let me put it that way. If you have no knowledge of something, and if you do not see it with your own eyes, you will never believe it, and I believe that that is what the whole issue is about.
The Chairman: Minister, we are hopeful that you might be able to bring influence to bear upon COSEWIC to pay more attention to people who know what is going on.
Mr. Anderson: Absolutely, Mr. Chairman. That is why I am proud of this legislation that, for the first time, incorporates Aboriginal traditional knowledge. While I gave an example that was somewhat lighthearted, nevertheless this is a bit of a breakthrough. I believe that no good scientist would ignore traditional knowledge. There are plenty of examples of excellent scientists having ignored it, so perhaps I am wrong.
Now, we have an institutional mechanism for traditional knowledge to be worked into the scientific process. I am proud of that. I believe that Senator Watt and others will agree that this is an important step in the right direction.
Senator Watt: We should also be very conscious of the fact that at the time that the scientific communities do their studies, when they know they have to submit their report to the government, they are not always submitting the complete report because they have to get more money from the government.
The Chairman: Senator, I am going to have to move on in order that other senators can ask questions.
Senator Sibbeston: Mr. Chairman, I appreciate what was said. I appreciate what the minister has said with respect to doing something about the non-derogation clause. However, I am a bit concerned about the Minister of Justice's letter. I have read it carefully. The minister is stating that he agrees with the proposal of introducing stand-alone legislation to remove non-derogation clauses. However, what will replace that is not stated. Will it just be legislation that takes away the non-derogation clauses?
I have to say that proper non-derogation clauses are helpful. They make the courts conscious of the fact that they must recognize Aboriginal rights. It reminds them that this legislation does not take away from the Aboriginal rights of people. It is useful as a reminder to the courts. I think the letter from Mr. Cauchon is incomplete in that it does not state what will replace it.
We must remember that we have been dealing with this matter since last spring when we were dealing with the Ground Water Act and Marine Conservation Act, and we had written to the minister at that time. Unfortunately, it has taken this legislation to bring things to a head.
In our letters to the minister, we provided an example — we have an Aboriginal bill of rights which we believe is a positive statement that legislation be read in a positive light to recognize Aboriginal rights. We are concerned that the non-derogation clauses presently in the legislation could be interpreted as sort of a ``Welcome, help yourself to Aboriginal rights; do what you want.'' We believe the present wording in the legislation is open to interpretation and takes away from Aboriginal rights. We are concerned about that.
This bill needs to be left for the time being until we have more precise information as to what the government is prepared to do. All we have at the moment are letters making recommendations. It is a bit vague and uncertain in terms of exactly what the Minister of Justice has in mind with respect to this issue. I suggest to the committee that we defer further discussion regarding this bill until we have information and an opportunity to meet with the minister next week.
The Chairman: Just before the witnesses reply, Senator Sibbeston, I must say that I do not think it is up to this committee to deal with questions of an Aboriginal bill of rights, which would be an umbrella that would apply to many more things than this. My letter expressing my views to both ministers was in reaction to the fact that we have dealt with this issue not only on this bill but also on the Ground Water Act, the Marine Conservation Act and the National Parks Act. I have not dealt with any issue as consistently as the fact that, as we have heard from Aboriginal representatives, their legal representatives and other legal representatives, the present, new non-derogation clause in some way detracts from the protection that was provided for Aboriginal rights in the Constitution, and that we wished not to have that reduction of those rights in any of these bills. That was the purpose. The question of an Aboriginal bill of rights would be more widely encompassing than its effect on this bill.
Senator Kenny: Mr. Chairman, are you suggesting that a member cannot move that the study of a bill be suspended?
The Chairman: No. I was talking about Senator Sibbeston's reference to an Aboriginal bill of rights having an effect on this legislation. Any member of the committee can suggest or move anything they want.
Senator Milne: Mr. Chairman, I would remind you that your letter to the minister did suggest two alternative reactions: one that would remove the non-derogation clause from all existing legislation, or revert to the wording presently used in the Constitution.
The Chairman: Exactly.
Mr. Anderson: My response will be brief, because we are well into the area of the Minister of Justice, not my area. However, having promised my colleague his attendance at this committee, perhaps a wider area discussed by the senator and commented on by you, Mr. Chairman, might well be the subject of another meeting of Aboriginal senators or others and the minister himself. If you can arrange a lunch with him next week prior to the meeting that he has before the committee, some of the wider issues could be put into context. I am willing to have Environment Canada pay for the lunch, if that would be helpful.
The Chairman: Your mention of other senators is important, because the interest in this question is by no means limited to the Aboriginal members of this committee or to the Senate.
Mr. Sims, do you wish to comment on what Senator Sibbeston has said?
Mr. Sims: Honourable senators, it is quite understandable that some might want to have a reminder in legislation of the importance of Aboriginal treaty rights as guaranteed by section 35 of the Constitution. It makes sense to be concerned and to ensure that those rights are respected and protected.
The danger, of course, is that if one looks at it strictly as a lawyer might, it is unnecessary to remind anybody that those rights are there. As Mr. Anderson said at the very outset, section 35 is in the Constitution. It does not get any stronger and better than that. We almost never put mere reminders in other legislation of rights that are already in the Constitution. We do not put, for example, reminders that section 15 of the Charter guarantees equality when we are enacting a piece of legislation that deals with a benefit program. It is there, it is understood, and the courts know that.
The other precept at the beginning of this story is that there is a presumption that Parliament will not say unnecessary things, since they would be redundant. If words that are not necessary appear in legislation, the risk is that the court will try to figure out what they must mean. They cannot mean what they seem to mean because they are redundant, so what is the meaning that Parliament must have intended?
If section 35 already guarantees Aboriginal rights, therefore, we do not technically need non-derogation clauses to remind anyone that section 35 is there; it is just there. We might intend it to be a reminder, but the courts would be confused about that. They will say, ``They did not need it, so why did they put it in? What other meaning is there?'' That is the risk that I believe Senator Banks was referring to at the outset.
It leads to the possibility that the court, confused by the unnecessary words of non-derogation clause, will try to find a meaning that we cannot imagine here today. They cannot curtail the rights because the rights are guaranteed, but maybe they can enhance them, so in that way maybe they will create new rights that actually go beyond section 35 of the Charter now. Unnecessary and potentially confusing: that is the risk that has been of concern to everyone, and that is what has given rise to all the various versions of the non-derogation clauses that have been drafted over the years, in trying to ensure that there is no such confusion despite the risk.
The Chairman: Mr. Sims, are there more that two?
Mr. Sims: More than two versions?
The Chairman: Yes.
Mr. Sims: I believe I have seen three, and possibly four.
Senator Milne: Does that not then give rise to what Mr. Sims is talking, the courts attempting to interpret what Parliament meant?
The Chairman: I believe that is Mr. Sims' point.
Senator Milne: Thus you have put another one in this bill?
Mr. Sims: That is why I believe Mr. Cauchon responded favourably to Senator Banks' suggestion that the wisest and safest course may be to remove non-derogation clauses; do not include any ``in-the-future'' clauses, and remove the non-derogation clauses that are there now. That gets us back to section 35 of the Constitution, which provides those guarantees of Aboriginal rights. It eliminates the risk of confusion and difficulty.
Senator Kenny: In paragraph 5 in the minister's letter, I believe what will do the trick is to remove the words ``to recommend'' and say ``government is committed to,'' and then we are in business.
Mr. Sims: Mr. Anderson made the point a few moments ago, and I believe it is partly a question of process. Minister Cauchon has consulted with colleagues. We know he wrote yesterday's letter after attending a cabinet meeting. However, it is a question of how to move this through the process of government policy-making. It is a sincere, solemn commitment that he makes. He believes it will solve the problem. He has every reason to make this recommendation because he believes that Senator Banks was right, and that it will fix the problem.
The Chairman: I cannot help but note, and I think I speak for all members of the committee, that we are painfully aware that it is a matter of process. It is a matter of process that, to my personal and direct knowledge, has been going on for two and a half years, and probably much longer than that.
Senator Sibbeston, will you prevent one more intervention from Senator Watt?
Senator Sibbeston: I just have a comment. The matter of Aboriginal rights is so significant. It is not in the same category as other rights that are contained in the Bill of Rights or the Charter of Rights and Freedoms. In the story of Aboriginal people in our country, there have been various periods where is it has not been so good. I have to say that in the last 20, 30 or 40 years in our country, the plight of native peoples has improved. Aboriginal rights are recognized in the Constitution and I feel that there has been some positive progress in the plight of Aboriginal peoples in our country. The courts have been helpful in interpreting and ensuring that Aboriginal rights are recognized in our country.
What has brought about this issue is that the non-derogation clause that was taken from section 25 of the charter was in simple and straightforward wording. It was the Department of Justice, I believe, that began changing that language after 1996, and there have been several versions since. We are saying put back the original straightforward, simple wording and we will be happy. I think it is useful in legislation for the courts to be reminded that they are not to derogate or abrogate from Aboriginal rights. A reminder is good.
It is just that it has been changed, so obviously the courts will be interested. It creates confusion. I believe the Department of Justice is responsible. You are the ones who have created this problem, because you have jiggered with the words, and now the courts are beginning to wonder why.
Aboriginal rights are not absolute. Courts have said that, where certain circumstances exist, particularly in conservation matters, Aboriginal rights are not absolute. Conservation matters are to be recognized. I think that the Department of Justice has tried to amend the wording of the non-derogation clause to reflect this. In our view it is leading to a possible court interpretation of the new wording as basically, ``help yourself.''
As Aboriginal people, we are concerned that Parliament could be giving the message to courts to help themselves to Aboriginal rights, and that those rights are no longer as significant as they once were. That is why we are concerned about the non-derogation clause. The drafters in the Department of Justice, I believe, are the ones who changed the words and have created this problem. It is now subject to different interpretations by courts. We feel it is taking away from Aboriginal rights. That is why we have focused on this issue.
We need some help to assure Aboriginal peoples of our country that their rights are still intact and that it is still very hard to take away those rights. We just want assurance, either by using the original wording of the non-derogation clause or by some act that firmly recognizes Aboriginal rights and says that Aboriginal rights are not to be abrogated or taken away unless that is explicitly stated by Parliament in its legislation.
These are the reasons why we are focusing on this issue, and I hope that we can satisfactorily resolve it.
The Chairman: I am sorry to use such a sharp knife but I think that you have made the importance of that very clear to all of us, which is why we are seized of the issue.
We are already intruding on the minister's immovable time by a considerable amount. I will ask Senator Milne, do you have a ten-second question?
Senator Milne: I usually have ten-second questions. I think we have dealt as best we can with the Aboriginal rights now and the non-derogation clause.
I have a question that really concerns me about the five-year review. I really do not think that, five years after the passing into law of this bill, we would have any clue as to what the results were. I think there would need to be at least one more five-year review after that before we could begin to see what the results were, and if it was doing anything.
The Chairman: I will be rude and treat that as an observation rather than a question because it has been answered before. I am sure the minister has heard your observation.
Senator Spivak, please go ahead with a ten-second question.
Senator Spivak: I have two questions for the minister, the first of which is how we will deal with the species assessed in May and last month that are not in the bill.
The other question has to do with the confusing definition of residences. It is quite clear that there are all kinds of animals that do not have residences in the way it is defined here in clause 2(1). Do you understand what I am talking about?
Mr. Anderson: We will, as the senator has correctly pointed out, accept all the 233 listed species up to the time that the bill came forward. Those in the gap will be treated in the standard way. We will look at them and, given the record of accepting 233 out of 233, I do not know of any that are not likely to be accepted.
That said, for reasons I gave in response to a question from the other side of the table, we will be looking at these individual species one by one, in case there are social or economic factors that create major concern. It will not be a totally automatic process. We will be looking at them in the normal course, and looking at the advice from COSEWIC and judging it, as we will in the future with other species that come forward in the bill.
Could you please repeat the second question, senator?
Senator Spivak: My concern is with clause 2(1), about residence. Half of a motion that my colleague made was lost, and therefore it is quite obvious that there are animals such as caribou to which this bill does not apply.
Mr. Anderson: That is quite right. There are many species to which it does not apply. There are certain species to which it does.
An animal that has a burrow has clearly got a residence, or a nest or that type of thing. It was extremely difficult to find suitably generic wording that would not cause further problems elsewhere. I would ask Ms. Brown to comment on this point further. It is not the most elegant wording, because the idea of a residence is something more human- oriented.
That said, we did struggle with many other possible definitions, all of which appeared worse, and we have substituted a certain lack of precision and a certain lack of elegance for something that at least appears workable, although we do recognize that it does not cover every single species.
Ms. Brown: I might just add, in those circumstances where there is not a definable residence, as is the case for caribou, we tried to identify the critical habitat during the recovery planning process. It is a much broader definition when you pick it up in habitat. For certain species, we can define a residence, which clearly is an important part of that critical habitat. For others, we cannot.
Senator Spivak: Are you suggesting that, even though this is a somewhat contradictory definition, it will be picked up later? The definition does not really make sense. The committee in the other place attempted to be fix it, but unfortunately, somehow, the manner of fixing it got lost, as I understand it. Therefore, we are stuck with this definition that is meaningless. The bill mentions ``residence'' then goes into ``staging,'' ``wintering'' and ``feeding.''
Mr. Anderson: It is certainly true that it does not cover every animal. That is the dilemma of dealing with lizards in the deserts of the south Okanogan near Osoyoos, and dealing with the caribou in the far North in Nunavut. It is very difficult when you have generic legislation.
People forget that Canada stretches more north-south than it does east-west. The centre of Canada is Iqaluit. Ottawa is pretty far south. We are almost in New York.
It is enormously difficult to get those kinds of generic descriptions. I agree, as I said earlier, that this language is inelegant and to a certain degree clumsy. However, it was the best we could do. There was an effort to fix it, which created more problems than it solved.
Senator Spivak: It is a bit confusing because it refers to a similar place, and there is no similar place for many of these animals. How will you deal with that in terms of critical habitat? You are suggesting to me that it will be dealt with in the recovery plan, even though it does not state it in the definition? Is that how you will clean it up?
Ms. Brown: That is right.
The Chairman: I thank the witnesses very kindly for appearing here today.
Senator Milne: Mr. Chair, perhaps some of the witnesses other than the minister could stay, because I have a question for at least one of them.
The Chairman: Could the other witnesses remain?
Mr. Sims: Yes.
The Chairman: Mr. Minister, you are now late for a meeting. Thank you for going beyond the time allotted. We will resume the meeting, and I promise you, Mr. Minister, we will get back to you very quickly.
Mr. Anderson: Thank you, Mr. Chair. In terms of my commitments, I will be speaking to my colleague and tell him that he is committed to coming to a meeting of this committee, as well as committed to a meal with Aboriginal and other senators to discuss wider issues raised by senators.
The Chairman: We will work out the timing for that in due course.
Senator Milne: I am sorry to keep people here but I have quick question for Mr. Near, because he was speaking about listing the endangered species in the Canada Gazette. How many farmers and fishermen read the Canada Gazette?
Mr. Near: That question was raised in the House as well. I believe it was Mr. Mills who asked me the same question.
Senator Milne: I do not care who else asked you the question. I want the answer.
Mr. Near: I do not know how many people read the Canada Gazette. However, that is the official manner in which the government publicizes its regulations.
The Chairman: Further to that question, I understood, Mr. Near, from others from whom we have heard, that if I were a farmer operating either on my land or operating a farming operation on someone else's land, quite aside from the unlikelihood of my reading a notice in the Canada Gazette, some kind of representation would be made to the people in my area by some sort of community means. It would be extremely unlikely that I would be unaware that there is an endangered species habitat that forms part of my land. It is not reasonable to say, on the one hand, that it would be extremely unlikely that a landowner or operator of an enterprise would be unaware of that fact, and to say, on the other hand, that the means by which he would be made aware of that fact is publication in the Canada Gazette. That does not compute.
Is there some other communication or action by which a rural landowner might reasonably be expected to be made aware of the fact that there is endangered species habitat on his or her land?
Senator Spivak: Could I just intervene? There was an amendment that was turned down in the House that said that when there is a listing, all the affected landowners should be notified. That was not approved in the House of Commons.
Senator Kenny: The witness' answer is absolutely correct but it is also totally deficient. The government spends millions of dollars advertising all sorts of things all the time. We watched the Grey Cup, and we saw the government advertising Canada all over the field. Surely it is not unreasonable to find some way to communicate in the popular media or by direct letter to those affected that this is happening? We all understand that publication in the Canada Gazette is how the government makes regulations known. We do not think that is a very good way. Are there better ways?
Ms. Brown: Perhaps I should be answering this question. It has more to do with a matter of practice, and how we intend to implement the legislation. It is more than just a strict definition of what goes into the Canada Gazette, Part 1.
We are currently discussing this matter with landowners. We fully intend to continue to engage all the landowners in discussions around the species at risk that are on their property. There are two parts to that discussion. First, there is the mere presence of those species. We have many recovery teams working now, and that have been working for many years. I am thinking of Operation Burrowing Owl and others in which we are engaging landowners very much in active recovery strategies, working with private sector partners and local environmental groups. That will continue. In fact, it will be accelerated.
We do intend to make the listings very widely known. We do currently use community newspapers, town hall meetings and general engagement with those landowners. We take that responsibility seriously, and we will continue to do so.
The recovery planning process that is contemplated in this legislation does actively require us, as we want, to engage landowners and all other interested participants in that recovery planning process.
Once we get to the stage of defining critical habitat, it will have to be specific. It may very well be farm X in quadrant Y of concession whatever. However, we will be actively engaged with all of the local people in and around that community. Our communications strategy and our outreach and extension services will be very active in that regard.
The Chairman: Would it be virtually impossible, once a recovery plan is put in place, that I, as a landowner or operator of a business on a piece of land, would be unaware of that fact?
Ms. Brown: Virtually impossible.
Senator Milne: I will follow through on that, although it has nothing to do with the deliberations of this committee or the results. I understand that there has been money set aside already to expand the sort of program about which you are talking, and if this bill is not passed in a timely fashion, those monies will be lost.
Ms. Brown: Budget 2000 allocated funding for species at risk programming in advance of this legislation having been tabled, which was unprecedented for the Minister of Finance of the day. Certainly, Minister Anderson has expressed concern on several occasions that it would be difficult to argue to maintain that financial commitment, which is for a period of five years only, in the absence of the legislation being passed.
We have one more year of funding in that five-year period. However, the funding is much related to the habitat stewardship program and the extension outreach as well as recovery efforts that have been well under way for the last several years.
Senator Milne: How much is the funding?
Ms. Brown: There is $45 million per year, and there is a five-year running total.
The Chairman: Senators, we have a considerable amount of business to do after the witnesses are finished.
Thank you very much, Mr. Near, Mr. Sims and Ms. Brown. We are very grateful for your appearance before this committee.
Honourable senators, we will continue the meeting in camera.
The meeting continued in camera.