Proceedings of the Standing Senate Committee on
Foreign Affairs
Issue 21 - Evidence - November 22 meeting
OTTAWA, Tuesday, November 22, 2005
The Standing Senate Committee on Foreign Affairs, to which was referred Bill C-25, governing the operation of remote sensing space systems, met this day at 6:04 p.m. to give consideration to the bill.
Senator Peter A. Stollery (Chairman) in the chair.
[English]
The Chairman: Honourable senators, I call the meeting to order. We are here to deal with Bill C-25, an Act governing the operation of remote sensing space systems. The Honourable Dan McTeague, parliamentary secretary to the Minister of Foreign Affairs, is appearing before us; and as witnesses from the Department of Foreign Affairs and International Trade, Paul Chapin, Phillip Baines and Bruce Mann. Without taking any more time, I call on the Honourable Dan McTeague to please proceed.
Hon. Dan McTeague, P.C., M.P., Parliamentary Secretary to the Minister of Foreign Affairs: Honourable senators, thank you for inviting me to appear before you as a Foreign Affairs witness for Bill C-25, the Remote Sensing Space Systems Act. Subject to the will of Parliament, this bill will establish a regulatory regime through remote sensing satellites and systems to protect Canadian security, defence and international relations interests that would naturally arise from the operation of such systems.
Bill C-25 will also help to ensure the development of an internationally competitive space industry for the Canadian space sector and to maintain global leadership in remote sensing technology and services. The bill reflects, too, Canada's long-held commitment to the peaceful uses of outer space.
When Canadians look at a map of Canada, they cannot help but notice that our country spans the width of an entire continent. It is not surprising, then, that we Canadians would be among the first nationalities to have exploited outer space in order to maintain lines of communications across our expanse that spans four and a half time zones.
In 1962, Canada became the third nation in space with Alouette 1, a science satellite launched to study the ionosphere. Canada was also the first country in the world to operate a domestic communication satellite system from a geostationary orbit with the launch of Anik A1 in 1972.
The Anik series of satellites have connected sparsely populated Canadians together from coast to coast to coast without interruption ever since the launch of that first Anik A1 satellite. Canada has thus established itself as a world leader in the exploitation of outer space for telecommunications.
We have been, and will continue to be, successful in bringing this expertise to foreign markets. We now hope to do the same for remote sensing satellite applications.
[Translation]
When your country is bigger in area than some continents, it is no wonder that Canadians have recently turned their ingenuity to mastering remote sensing satellites in order to better command sovereignty over Canada and its exclusive economic zone.
In 1995, Canada launched RADARSAT-1 to survey our natural resource riches, to effectively manage our land use and to monitor Canada's environment. RADARSAT-1 was also launched to stand on guard for unauthorized activity in our arctic territories and in our coastal waters. RADARSAT-1 provides Canada and the world with an operational radar satellite capable of timely delivery of large amounts of data.
Equipped with a powerful synthetic aperture radar instrument, RADARSAT-1 acquires images of the earth regardless of the totality of day or night conditions, or the extent of cloud, smoke or fog conditions mustered by Canada's climate and topography. This premier satellite has just celebrated 10 years of excellence in global environmental monitoring and protection. It has made Canada a world leader in the processing of satellite remote sensing data.
The future holds the promise of even greater accomplishments for Canadians when both private and public sectors seize the opportunities that are available to them today through home-grown ingenuity, bold risk-taking and innovative financing.
[English]
Just as Canada's communications satellites were first developed under government ownership and control, so too was Canada's first remote sensing satellite, RADARSAT-1. Just as Canada's telecommunication satellites eventually moved to private sector ownership and control, so too has Canada's second generation remote sensing satellite, RADARSAT-2.
Building on the successes of RADARSAT-1, the industrial benefits in the space and earth observation sectors resulting from RADARSAT-2 are estimated at $2 billion. The RADARSAT-2 program is also expected to generate nearly 3,500 person-years of employment, or approximately $1.2 billion in export sales, and spur the growth of small and medium-sized businesses as the Canadian infrastructure and services industry in the sector continues to grow.
The Government of Canada has pre-purchased sufficient radar data to meet its continuing needs from a private- sector enterprise that had won a contract pursuant to an open competitive process. In return for a sizable initial investment and a commitment to operate the spacecraft over its seven-year design life, the private sector entity in this undertaking gained the ability to sell the excess capability of RADARSAT-2 to domestic and foreign customers around the world. The performance of RADARSAT-2 will be superior to that of RADARSAT-1, given innovations enabled by the private sector investments in strategic research and development activities.
RADARSAT-2 will possess an ability to resolve objects as small as three metres in length, more than twice as fine as RADARSAT-1. It will be able to discern artificial objects by collecting four times as much information as RADARSAT-1 in multiple polarizations. RADARSAT-2 clients will also be able to look at any desired region on the earth at least twice as fast as RADARSAT-1 could do. In short, RADARSAT-2 will possess significant capabilities that could well serve both military and civilian users.
[Translation]
While the Government of Canada promotes the private sector development of systems as sophisticated as RADARSAT-2, the actualization of these systems generates the responsibility, from a security perspective, to regulate the operation of such sensitive systems.
This is what Bill C-25 does. C-25 establishes a regulatory regime for RADARSAT-2, and all future remote sensing satellites that are to follow, to ensure that Canada's national security, defense and conduct of international relations would not be harmed by the operation of high performance systems that are also capable of military reconnaissance.
[English]
Bill C-25 protects these federal government interests by establishing an operating licence regime. All licences will be subject to two extraordinary powers: shutter control and priority access for innovation in response to possible future major security crises. Bill C-25 is not unlike other licensing regimes in Canada, including those for radio and telecommunications, In that vein, Bill C-25 establishes a single decision-maker for all licensing actions. It embraces the natural justice right of representation for decisions taken by the responsible minister on his or her own motion and the appeal prospects of judicial reviews of ministerial decisions to ensure the fairness of its application.
With the passage of Bill C-25 into law, Canada will also have fulfilled its international and bilateral obligations to regulate the remote sensing space activities of its nationals as required of Canada pursuant to the 1967 Outer Space Treaty and pursuant to the 2000 Canada-U.S. Intergovernmental Agreement concerning the operation of commercial remote sensing satellite systems. Bill C-25 also requires the minister responsible to cause an independent review of the provisions and operation of the act to be held from time to time to assess, in particular, its impact on technological development and on the implementation of international agreements. Reports of these reviews are to be laid before each House of Parliament within five years of the act's coming into force, and every five years thereafter.
[Translation]
Canada's RADARSAT-2 is now set to launch in December 2006, a little over one year from now. Canada's RADARSAT-1 has already operated for more than twice its original design life. We hope it will continue to serve Canadians until its replacement, RADRSAT-2, enters into service.
[English]
Government officials will have much work to do as soon as Bill C-25 is enacted. Regulations must be completed and brought into force. Officials must also set up the administrative structure for the Act using existing financial resources within Foreign Affairs Canada, the Department of National Defence, Public Safety and Emergency Preparedness Canada and the Canadian Space Agency. RADARSAT-2 must then be licensed under the Act.
[Translation]
Thank you, Mr. Chairman. We are at your disposal to answer any questions the Honourable Senators might wish to ask of us.
The Chairman: Thank you very much, Mr. McTeague.
[English]
Senator Carney: First, I would like to share with you that this subject is close to my heart. Long before I went into politics, I was one of the original 26 managers who worked on the original innovative experiments on Communications Technology Satellite, CTS, also called Hermes, the world's first interactive communications geostationary satellite, which was the forerunner of the marvellous satellite channels that we have today.
When I was Minister of Energy, Mines and Resources, under a Conservative government, RADARSAT was a gleam in the eye of a group of highly innovative scientists at EMR. I have been following the progress of RADARSAT and its predecessors for many years and so I am interested in the progress of Bill C-25.
When RADARSAT-1 was first conceived, it was Canadian and thus benign. We thought of ice reconnaissance, crop-watching, forest-fire monitoring and Arctic sovereignty patrols. The idea that we would ever need this kind of regulatory regime for such things as public security or national defence by our little innovative world-class remote sensing weather satellite was beyond expectations then. I am glad that you have the five-year review clause in this bill because who knows what it will be used for in five years' time.
I have some concerns. First, parts of the bill and the briefing notes are draconian in the way that they are written. For example, while it is a private sector enterprise by MacDonald, Dettwiler and Associates Ltd., which has much experience in this field, you have explained that the government has provided some up-front money to launch this. The notes and the language of the proposed legislation suggest that the government can second or expropriate the use of RADARSAT-2 without compensation to the private sector. That is hardly consistent with priority ownership. I spoke to some officials before the meeting this evening. Mr. McTeague, could you clarify this? Priority access for the government to second the satellite without compensation is the same as expropriation. How do you explain that?
Mr. McTeague: Senator Carney, I would ask one of my officials to provide you with a more precise answer than I would be able to give.
Bruce Mann, Senior Counsel, Justice Legal Services Division, Foreign Affairs and International Trade: Senator, you are referring to clause 22 of the bill.
Senator Carney: I refer to clause 15 as well.
Mr. Mann: Clauses 13, 14 and 15 give several ministers the capacity to impose shutter control orders of priority access or to direct the satellite operator to do certain things in emergency situations. The no-liability portion is in clause 22 and states, not that the government is not allowed to pay compensation for losses that satellite operators may suffer, but that no one is entitled to financial compensation. This non-entitlement provision is not unknown for governments in matters involving national security and national defence or where the government, in protecting the environment, must intervene in private sector operations to protect those interests.
All the clauses referred to in clause 22, the no-liability clause, which are clauses 9, 10, 11, 12, 13, 14 and 15, are powers that the government or the minister has, and can exercise, for reasons of national security, national defence, international relations, protection of the environment and public safety.
Traditionally, these are the kinds of government actions for which governments are not to be held liable in a court of law. That being said, there is a government policy — Treasury Board policy — for ex gratia payments. The wording of the policy is that if someone suffers a loss they believe is caused by the government, they can apply to the Treasury Board for ex gratia compensation. This wording means that the government can compensate for such losses on a voluntary basis. That avenue is not excluded by the no-liability part of clause 22.
The second part of clause 22 states that the minister may pay a licensee an amount for services obtained under clause 15, which is the priority-access clause. That clause is intended to distinguish between cases where the government has had to take some kind of intervening measure that may have resulted in a financial loss to a satellite operator or a customer and to distinguish that kind of loss from a situation where the government requests satellite services, a provision of data that should be paid for.
Subclause 22(2) states that the minister may pay for services that are provided pursuant to one of these priority- access orders. It is certainly the intention of the government to pay for services that are obtained on that basis. In clause 20 of the bill, subparagraph (1)(j), there is a provision allowing the government to make regulations.
We have started regulations in this respect. Those regulations are found in the briefing book at tab 10, page 7 and 9. They are clauses 12 and 14 of the draft regulations. The clauses state that there is a formula, that the amount that the government will pay, or may pay, for priority-access services will not exceed either an agreed upon amount or —
Senator Carney: We have many things to explore in this bill. I want to draw to the attention of the chair that we may want to say in an observation or something, make some reference to the fact that clause 22 says:
No person is entitled to financial compensation from Her Majesty in right of Canada for any financial losses resulting from any of the following actions taken in good faith:
To me, this measure is draconian. I do not think that referring to regulations, Treasury Board policy or other things is an effective backstop to the fact that this clause asks a private operator to provide priority-access services for which they will not be compensated. That bothers me in the bill.
The second item I wish to clarify, and I raised with you, Parliamentary Secretary, is that under the Canada-U.S. agreement, which is referred to here, parties agree to ensure that such commercial remote sensing satellite systems will be controlled by each party in a comparable manner to protect and serve shared national security and foreign policy interests.
This suggests that the U.S. would have a say under this agreement with the operation of our benign environmental ice reconnaissance, forest fire and commercial uses: that the U.S. would have a say in the operation of the satellite.
Do we have reciprocity with the U.S.? They have satellites going over our system all the time, many more than Canada has. Do we have reciprocity in the operations of those satellites? Do we have the same reciprocal rights of access to those satellites that are specifically provided for in this legislation?
Mr. McTeague: I will pass this over to Mr. Baines. I do want to respond to the first point that Senator Carney made. I realize that Mr. Mann had taken a number of the points. However, it is important to understand that if there is a question of national emergency or a right exercised where Canada's international obligations might be affected, one can readily understand why there might be the need for shutter control or priority access without which there would not be effective compensation, even as Mr. Mann has suggested, except in circumstances that are designated by Treasury Board.
With regard to the second point, unless the United States military or government is a client of RADARSAT, I do not see the question of reciprocity or how the U.S. would access our information unless they were specific clients. Mr. Baines may be able to respond more fulsomely.
Phillip Baines, Senior Policy Advisor, Science and Technology, Non-Proliferation and Disarmament Chemical, Biological and Conventional Weapons Division, Foreign Affairs and International Trade: Honourable senators, when we look at this agreement between Canada and the United States, the primary purpose of this agreement is for Canada and the United States to agree to control things that would be in private sector hands on a comparable basis. This agreement is needed so that the national security interests and the foreign policy interests of Canada and the United States would not be put in jeopardy by those high performance resolution capable satellites, capable of much better resolution than RADARSAT-1.
The agreement says that we want to promote the commercialization of these things as well. Can Canada order on a commercial basis imagery from U.S. satellites that are licensed by the U.S. authorities? The answer is yes. Can the U.S. order imagery on a commercial basis from Canadian satellites licensed under our authority? The answer is yes.
Senator Carney: Other senators may wish to explore some of these areas. I wish to return to clause 4. The Senate committees, as you know, do not like loosey-goosey framework legislation that provides for unlimited exemptions or unregulated regulations — if that is not an oxymoron.
Why, under the application part of clause 4, is there such a wide exemption clause?
The minister may, by order, exempt any person or remote sensing space system — or any class of person, system or data — from the application of any provisions of this Act or the regulations.... The exemption order may be limited in scope or be made subject to conditions.
They then lay down the conditions. Why is there a need, having brought in a complex bill that licences and sets out conditions, to have such a broad exemption clause that would permit the Governor-in-Council to dispense with the bill before us under certain conditions?
Mr. Baines: Specifically, with regard to subclause 4(3), why does the minister have this ability to exempt any person, system or class of person, system or data from the bill? When we look at our obligations under the Outer Space Treaty of 1967, we need to be able, as a country, to regulate the space activities of our nationals, no matter where they reside: whether they reside and carry on their operations within Canada or in another jurisdiction.
Let us say that Canadians are carrying on their operation in another jurisdiction. That jurisdiction says, ``I have my own law which governs how remote sensing satellites operate for people within my physical boundaries.''
Then, this power given to the minister would enable the minister to look at our legislation, their legislation and agree, provided that the factors the minister must consider here are observed. The minister can say, ``Yes, your jurisdiction can licence that because it is taking place from your territory. We do not have to licence it because of our national obligations under the Outer Space Treaty and because they are Canadians.
Senator Carney: It is on our satellite.
Mr. Baines: It is on a satellite operated by Canadians in another jurisdiction. The bill gives us the power to licence those Canadians in a foreign jurisdiction, unless the minister is convinced that this other jurisdiction can do the job equally well.
Senator Downe: What use would this satellite be for the Royal Canadian Mounted Police, the Canadian Security Intelligence Service and the Department of National Defence?
Mr. McTeague: Plenty: There are a number of applications for which one could envisage its use by the Royal Canadian Mounted Police or the Department of National Defence. For instance, there is the circumstance of our troops in Afghanistan, or perhaps in Haiti, where we would want to ensure there are proper conditions. We would have a better idea of what lies ahead. I will leave it to you gentlemen as well, if you want to comment further.
Senator Stollery: Which of the officials would like to comment on that question?
Mr. Baines: With respect to CSIS or the RCMP, the bill is focussed on national security events. In the case of the RCMP, it is not for any enforcement of the Criminal Code other than what is outlined in the bill. That is for national security.
One scenario is that we are worried about the discharge of a weapon of mass destruction on Canadian soil. The RCMP needs to find out the extent of the area affected and establish the cordon-off of a region. The RCMP would have the ability, then, to use priority access to get imagery of the region and then set up their operations.
When it comes to the Department of National Defence, we have a representative here from the Department of National Defence who could talk about the benefits of shutter control and priority access for defence purposes.
Senator Stollery: Would the gentlemen from the Department of National Defence come to the table and introduce yourself and contribute to the answer to Senator Downe's question? Give us your name, so we know who it is.
Lieutenant-Colonel Scott Johnson, Directorate of Space Development, National Defence: In answer to your question, I can tell you what we use it for and what we plan to use it for as an example. We could talk about RADARSAT-1. If you think back to the Red River flooding during the mid-nineties, we had to grab RADARSAT-1 and, although we did not have the clause, we invoked priority access so we could map the flood areas. That was for the troops in Manitoba.
For RADARSAT-2, we had plans to use it for wider surveillance of the approaches to North America. It is important for us to be able to detect ships early, far out into the ocean, out to 1,000 kilometres. RADARSAT-2 is ideally optimized to do that. We also intend to use it for Arctic surveillance. The satellite goes over the Arctic Archipelago every 90 minutes. For that particular part of the world, it is ideally suited to pick up activity.
During that surveillance, if we pick up a suspect vessel or somebody doing something where they should not be and their activities look suspicious — if the activity is serious enough and there is no other way of picking up the information — then we might invoke priority access to track that vessel or use it. Again, that would be an extraordinary circumstance because we have other assets available. However, if that was the key asset in that case, then that is when we would use it.
In the case of shutter control, were Canadian Forces deployed somewhere in a theatre of war and it came to our intelligence that an adversary was getting on the Internet with a credit card and using a Canadian satellite to target our own troops, in that case we might invoke shutter control. This bill is not just about RADARSAT-2; it is about all sensors we might licence in the future. Again, that would be an extraordinary circumstance. There would have to be something potentially happening to Canadian troops. That would be an instance.
Senator Downe: That is informative. Is the Parliamentary Secretary concerned about the oversight? Section 15 of the act talks about what the various ministers — the defence department, the Solicitor General Canada, and others — can do. In clause 21, a lot of that authority is delegated. For example, the Solicitor General may delegate the authority to the people who would be most interested in obtaining information, but without any oversight of the minister. Are you concerned about that at all, Mr. Parliamentary Secretary?
Mr. Mann: There are 12 provisions in the legislation that give powers to the Minister of Foreign Affairs or other ministers. In all cases, the oversight mechanism is a judicial review by the Federal Court. Section 18 of the Federal Court Act provides extensive powers for anyone who is materially affected by something that the minister has done, to request judicial review, and to demand to know what authority the minister had to act. There may be an allegation that a ministerial decision was taken without proper foundation, and so on. That form of oversight exists throughout the legislation.
On your point about the delegation of ministerial powers, all the powers in the 12 provisions I referred to in the act allow for a delegation of authority, except two: the shutter control, where the Minister cannot delegate authority at all; and priority access, where a minister can delegate the authority but only to a deputy head level.
Mr. McTeague: One cannot lose sight of the overall importance of parliamentary review oversight. The minister is accountable to Parliament, to the House of Commons.
Senator Downe: That delegation concerns me. The Solicitor General of Canada, as we all know, is an important position, just to pick one of the ministers involved.
Clause 15(3) states:
The Solicitor General of Canada may make an order requiring a licensee to provide any service through the licensed system
(a) to the Royal Canadian Mounted Police that that minister believes on reasonable grounds is desirable for the fulfillment of its members' responsibilities under subsection 6(1) of the Security Offences Act;
In clause 21, the Solicitor General can delegate that authority and power to the Commissioner of the RCMP. On assuming office, if the Solicitor General signs three delegation letters to the Commissioner of the RCMP, to the director of CSIS, and to the Deputy Solicitor General, who can have all the powers under paragraph 15(3)(c), then there is no ministerial oversight. I am sure most solicitors general would not do that, but I am concerned that somebody might. We then have the Commissioner of the RCMP, the head of CSIS and the Deputy Solicitor General, who is a deputy minister, making these decisions. Is that the intention of the act?
Mr. Mann: The answer is yes. Decisions taken by delegated officials — that is, people with deputy head status in the case of clause 15 — are not decisions that are without oversight. As I mentioned, the Federal Court has judicial review powers over any of these decisions.
Senator Downe: Oversight is after the fact. The government's concern should be at the time rather than after the fact. In this case, although it may never happen, the act allows for these powers to be delegated, which I think is wrong.
Senator Stollery: I remind everyone that there is a five-year review provision.
Senator Andreychuk: You continue to refer to judicial review, but we are going to review regardless of whether the minister or the delegated authority follows the rules. It is not like an appeal; it is not going to the merits. It will only review whether the administrative compliances were followed.
Is that correct?
Mr. Mann: Yes, that is correct.
Senator Andreychuk: When we say ``judicial,'' it is not the full judicial review that we contemplate in other areas.
Under the Public Safety Act, the minister could delegate powers to a deputy minister. At the time the act was passed, we were told that delegation was unusual and done for reasons of national safety, and that it would be used rarely, if ever. The reason for delegating to a deputy was that if the minister was not available, another minister might not know the content as well as a deputy minister. I did not buy that, but the majority did.
Here, the minister can delegate authority for matters that the minister believes, on reasonable grounds, is desirable for the conduct of international relations or the performance of Canada's international obligations. This delegation does not speak of serious, critical, immediate issues. We are giving the minister the power to delegate to someone who does not have ministerial responsibility and is not accountable to Parliament. This delegation would give them broad and sweeping powers to intervene, without having defined ``conduct of international relations'' or ``performance of international obligations'' when the minister believes, on reasonable grounds, that it is desirable.
If the minister has an honest belief, he can move on it. He delegates that power to the deputy minister, who can act if he has an honest belief. That reason is not helpful for those who may be impacted.
Is there a trend to delegate traditional ministerial powers to deputy ministers? That is a violation of our Constitution and our system of accountability.
Senator Stollery: Senator Andreychuk, before someone answers that more completely, I would like to remind you of subclauses 45.1(1) and 45.1(2) which say, ``The minister shall cause an independent review of the provisions... from time to time'' and ``The minister shall cause the report on a review conducted'' to be laid before each House of Parliament within five years after the coming into force of the act.
Senator Andreychuk: I have no doubt of that, but my question is supplementary to Senator Downe's point. The review is after the fact. The ministers empanel reviews on their own department and themselves. We were told that the Public Safety Act was unusual, and now we see it broadened to conduct of international relations and performance of Canada's international obligations, which are not defined, of course.
Mr. Baines: Priority access, like shutter control, is to be a rare event. Priority access, however, needs to be one level lower, for the reason you have given. There is an urgency here. If we had an international obligation, there would be a need to invoke a priority access. In international relations, no ally likes to see another ally come to harm by one's own action or inactions, so we may wish to move rather urgently for that reason.
You cited the reason of the minister being unavailable to invoke these powers when time is of the essence. They work as well when we are protecting our troops deployed overseas in different time zones and such. The first matter is the urgency of the need.
The second matter is that this invocation is to be rare. The reason for that rare invocation is that priority access only puts our orders for these important reasons first in the tasking queue of the satellite. The next priority is for the commercial operator in any event to meet emergency-type orders, which the operator will do of their own right because it is a good market to be in.
For all these orders, be it the RCMP, CSIS, the Department of Foreign Affairs or DND, the natural course of action will be to buy this on a commercial basis. This power is left to de-conflict commercial orders with orders that are of great importance to the country.
Senator Stollery: I know that this bill has aroused a certain amount of interest. What is the footprint of RADARSAT-2?
Mr. Baines: First, RADARSAT-2 is a satellite in the low earth orbit domain. This satellite moves relative to the earth all the time. It does not sit stationary at a location from where it can see one third of the globe. We can select different beam modes to illuminate certain parts of the earth as small as a long strip 20 kilometres wide.
Senator Stollery: What latitudes are you talking about?
Mr. Baines: The latitudes go all the way from zero — the equator — almost to the poles.
Senator Stollery: Thank you.
Senator Di Nino: This bill has reminded me of how far we have come toward the ``Big Brother'' that was predicted many years ago. This is ``High-tech Big Brother.'' Some serious concerns have been expressed by my colleagues about overseeing the powers and effects of these kinds of systems. I, too, am concerned, particularly about the absolute ministerial powers that are granted under this bill as well as about what appears to be a lack of controls in the accountability system.
I find it disturbingly interesting that all this is in the hands of the private sector. We will buy these services from the private sector. We call this system ``remote sensing space activities.'' That is another word for spying, potentially, and those activities are in the hands of the private sector. I am concerned about that.
Mr. McTeague, would you like to respond to that?
Mr. McTeague: Thank you, Senator Di Nino. This issue has been brought before the privacy commissioner and she has raised no specific concerns. It is clear that the Canadian Charter of Rights and Freedoms and legislation, as it relates to privacy applies to this particular legislation and to this particular type of technology.
I want to make one point about delegation. If we are talking about ministerial delegation to deputy ministers, I think that delegation is contained not only in this bill; I think we have to look at the entire plenum of our legislation, in which that power is present in most circumstances.
The irony here is that this legislation, in particular, puts a contour, or a measure of discipline, on the power of delegation in that it is specific as to who it is delegated to. The issues of usage and the tradition in other areas — and we may want to look at that more broadly in other legislation if you are concerned about this Big Brother-Orwellian approach — are issues of privacy. This issue was also raised on the House side and it was dealt with. In my view, there are enough provisions to protect the privacies of individuals. At the same time, it is an important fusion between the private sector and the public sector, bringing both technologies and synergies together to keep Canada in a position where it can maintain its leadership in years to come.
I do not want to bring back the issues of other types of satellites; that might be seen as more intrusive. This satellite is not one of them. This satellite takes images and has the ability to penetrate through fog and certain types of impediments. It can determine, for instance, soil qualities or soil erosions, as was suggested earlier through Senator Downe, or changes in Arctic wildlife on the shelf. These important factors will have important and necessary opportunities for us down the road.
Paul Chapin, Director General, International Security Bureau, Foreign Affairs and International Trade: Let me add something to the Honourable Dan McTeague's comments. Senator, this instrument is powerful. There is no doubt about that. That is why, in some respects, we are only now getting around to putting the legislative and regulatory framework in place. As the technology has evolved, as it has gone from public to private hands, there is a requirement in the national interest to make sure that this instrument is used for legitimate purposes. It has potential for good and it has potential for ill.
We are trying to do three things here. First, we want to make sure that the satellite is available to us, to the government and to the people of Canada for the protection of our troops abroad: we want to be able to monitor activity in areas that are difficult to get to, on behalf of our allies, NATO or the UN — the U.N. might ask us for help to understand what is going on in some part of the world. That is the first purpose.
The second purpose is to make sure that we prevent its misuse by others. That is the purpose of shutter control. As Mr. Baines said, it is important to have that power but it is not expected at this stage, based on our record, to be used often. For instance, the United States has had similar legislation since 1992 and it has never invoked the power to control the shutter. I do not know what the U.K. experience is. The U.K. has something similar in the works and I doubt that they have have had to invoke that power often, if at all.
Third, we have an international obligation to control this activity, so we are making sure that the Outer Space Treaty that requires us to control Canadians' activities in this area and our bilateral relations with the United States are protected. We are trying to find a balance and put a regime in place that absolutely protects the national interest without, at the same time, compromising the enormous commercial benefits that this growing technology has for Canada and Canadians. That is the intent of the act, and this is the direction which we hope to be able to go.
Senator Di Nino: I am concerned about your comment of trying to find a balance. That is precisely my question. You say that shutter control would be rare. That could well be after a tragedy. You said it could be used for good or bad. I understand and I see the benefits. I have so stated when I spoke on this in the senate.
I am still not convinced that the answers that have been provided give — at least for myself — any real sense of comfort. There is no question that there is no malice meant and that we are all going to try to do our best. I am still deeply concerned about the abuse and misuse, particularly in the hands of a private corporation, when profit may have more of a motive than a public entity. Therefore, Mr. McTeague, I am not happy with the answers.
Let me see if I can deal with it in a little different way as well. There is a provision that, from time to time, there will be a review, yet the provision states that Parliament will only receive reports every five years. Why not provide Parliament with time-to-time reviews so Parliament can take a look at the impact of this new technology on a more timely basis?
I will put these two questions together. Being framework legislation — something I think we should try to avoid as much as possible, but it is being used more often — would you or the minister give us a written assurance that the regulations would be presented to Parliament for their consideration before they are enacted and not after they are enacted?
Mr. McTeague: Senator Di Nino, are you suggesting that Parliament review this more frequently than the five years that has been suggested, and that it be done more periodically?
Senator Di Nino: I think it would be a step in the right direction.
Mr. McTeague: On the surface I do not see a problem with that. That seems to be the norm for a lot of other legislation, but I appreciate the specificity of the case. I know that things are a little more stable on your side than they are in our House of Commons these days.
Senator Di Nino: Do not be too sure of that.
Mr. McTeague: Considering the amount of work, for instance, in our foreign affairs committee and in the House, with the number of motions and issues around the world, it is often difficult to get parliamentarians to come back to an issue within a five-year period. That could create some difficulties. Mr. Chapin may have some comments on this as well.
Mr. Chapin: Let me add one point. The annual accountability cycle for the Government of Canada requires departments and agencies of the government to submit to Parliament annual reports on their plans and priorities for the future year and annual reports on the performance. Depending upon how diligent people are in developing those materials, Parliament typically has good insight into what is happening in every department and agency almost all time. I do not see why senators or members of Parliament, at times when departmental estimates are being looked at and so on, could not probe more deeply into the sections of these reports that deal with this kind of activity.
Senator Di Nino: Mr. Chairman, let me just deal with that specific issue. I referred to the bill itself where it provides for a review — and I think the words are ``from time to time.'' It then goes on to say a report will be tabled every five years.
If that review is done, if that review is prepared, why do I have to probe and waste time and energy looking for a needle in a haystack? If the review is there, why not make it available to Parliament, on such a critical issue at this time of the development of this technology?
The Chairman: I know that Senator Carney wants to clarify something.
Senator Di Nino: Could I get an answer?
The Chairman: Certainly. Senator Corbin and then Senator Carney.
Senator Carney: It would be quicker to do me next.
The Chairman: Senator Corbin is next on my list, Senator Carney. I was pretty reasonable with you at the beginning.
Mr. Chapin: I think what is implied in the language related to periodic review, reviews every five years, is a thorough exploration of what has happened over the last four and a half years so the review is ready after five years. That usually involves hearings, witnesses and those sorts of things. I think Mr. McTeague was saying that it might be intimidating if it was done more often than five years. Other than that, parliamentary scrutiny is available at any time. I do not think senators or members of Parliament would be expected to do personal exploration of these things. Public officials are under the obligation to answer questions when asked.
The Chairman: They are obligated to answer questions when the department's estimates come before the committees.
Senator Corbin: I have a few technical questions, I suppose you could call them. What is the resolution or definition capacity of a satellite lens these days? What is the smallest object they can identify?
Mr. Baines: RADARSAT-2 will have a resolution of three metres. That is the baseline performance for RADARSAT-2. When we look at satellites other than commercial radar satellites, in the United States they licence satellites at resolutions as small as 50 or 60 centimetres. Typically, the ones that are up there right now are at one metre resolution. At these resolutions, people on a golf course green appear as a shadow: they do not show up as individual people. If people do appear in the imagery, they appear in crowds. You can detect crowds; you cannot detect the individuals at these resolutions.
Senator Corbin: It is possible to use them for personal surveillance, individual surveillance; is that correct?
Mr. Baines: You will not see an individual. At most, you will see a blur, a shadow, a spot in the image that is on a nice football field, a grass field or something like that. You can see people bathing in the Ganges River as a big crowd during a ceremony, for example, but you cannot see individuals, and you certainly cannot recognize people from outer space.
Senator Corbin: Mr. McTeague may have answered this question when I was out of the room for some minutes. Can the industry live with this bill and the regulations?
Mr. McTeague: In the House, the standing committee had heard from several witnesses. Industry did not seem to be concerned about this. In fact, they embraced it and encouraged it. That encouragement is building on the decision to provide a public-private initiative that comes out of legislation that was passed as early as 1999. The industry is very much in favour of this and its application, provided the applications are for very specific reasons.
Senator Corbin: What would the RCMP do in terms of its responsibilities under the Security Offences Act if it came across incidental information of any nature but, more specifically, drug activities or things of that nature?
Mr. McTeague: If, senator, it is dealing with contraband on the high seas or perhaps movement of containers, I suspect that is one area where there could be a question of shutter control or priority given if there is an issue of national security. I suspect that its purposes are also intended to, as was explained by LCol. Johnson, protect Canadian personnel in other circumstances. Specific to the RCMP or prosecution of law, I will leave that to Mr. Mann or Mr. Baines.
Mr. Mann: One thing I should add is that the RCMP are not restricted to obtaining data by shutter control orders. They can purchase data like anyone else anytime they want.
Senator Carney: I have a question of clarification that follows from the question the chairman asked about the operation of RADARSAT-2. Mr. Baines, you told us that when RADARSAT-2 is launched into orbit, it will have a coverage or a footprint that extends simultaneously to the North Pole and the South Pole. That is what I understood from your answer: It will be in orbit at the equator, when it is launched into orbit.
Mr. Baines: Let me clarify this. One thing you must look at when you are dealing with low earth orbit satellites is that there are two types of coverage. First, there is the instantaneous coverage that comes from your beam. That is a small region. It could range in width anywhere from 20 kilometres wide to 500 kilometres wide at various resolutions. It is a long strip. As the satellite goes over the earth, it creates this long strip that is that wide, depending on which beam you select. Instantaneously, that is the type of area that you see.
The other type of coverage that you need to think about in terms of remote sensing satellites is what region of access you can have over the globe. Because it is in a low earth orbit satellite, because it is a sun-synchronous satellite, so it is not in exactly an polar orbit, you can see almost the entire globe except for the very region near the poles. It will depend upon whether you want your sensor to look at the left or the right of its track.
There are two types of coverage. The first is the beam, and that is small. Second, there is the access, the ability to see most of the world.
Senator Carney: I wanted to clarify that, because I understood you to say both poles. Given what you have described, I thought it was necessary to clarify what you actually envisaged.
Senator Corbin: I have one question of a more general nature. I was going over the notes of the parliamentary secretary. In his last paragraph, he said:
[Translation]
Officials must also set up the administrative structure for the Act using existing financial resources [...].
Am I to understand from that statement that no additional funds will be made available to implement the act and that these various regulations will be brought into force using existing financial resources?
Mr. McTeague: We hope that is not the case, but the financial resources that have already been allocated will go toward the construction of this satellite. Of course, we are planning different measures in the event of changes or additional investments from the private sector.
[English]
Senator Corbin: You expect compensation, as a result of government orders or otherwise, to the owners of the satellites and other parties possibly affected by shutter closures or things of that nature. Would that also apply to university researchers, firms involved in topographic surveys, et cetera?
Mr. McTeague: That kind of information can be made available at a cost to universities and other organizations. There has been some discussion over the role of provinces, but those have been done in the past. Clearly, it is done on a cost-recovery basis. The use of priority control is limited, and shutter control to a specific set of circumstances.
Senator Corbin: You do not anticipate bad effects on these groups?
Mr. McTeague: I would not think so but I am in the hands of my colleagues here. They may have other things that they can think of. I could not possibly conceive of that.
Senator Corbin: I will take that as fact.
The Chairman: Senator Mahovlich has a question; and then, with the agreement of the committee, we might want to go through clause by clause of the bill.
Senator Mahovlich: I see we have an agreement with the United States. Do we have agreements with other countries?
Mr. McTeague: Not that I am familiar with, Senator Mahovlich.
Senator Mahovlich: Yet, we are using their space — we are going over Russia, correct?
Mr. McTeague: We would go over many other regions around the world. It is not only Canada and the United States. The scope of this is —
Senator Mahovlich: Space to me is like the ocean. It covers the world. We do not have a world fisheries organization, which I believe we should, but I think we ought to do that with space, too, because we will cover the world.
Mr. McTeague: Senator, it is not a stationary satellite. It does move, as the earth moves as well. It has the ability, depending on clients' needs and circumstances where there may be governmental needs; it is very much operated on the basis of how we operate RADARSAT-1.
Mr. Chapin: There is a general agreement out there called the 1967 Outer Space Treaty.
Senator Mahovlich: Is that Sweden?
Mr. Chapin: The Outer Space Treaty.
The Chairman: It is a treaty, Senator Mahovlich.
Mr. Chapin: I do not know how many members of the UN have signed that, but I would expect most of them.
The Chairman: Thank you very much. It seems that we have exhausted this. Is it agreed that the committee move to clause-by-clause consideration of Bill C-25?
Hon. Senators: Agreed.
Senator Di Nino: Do we need the witnesses here, Mr. Chairman?
The Chairman: Yes, we need them in case there are questions.
The Chairman: Shall the title and clause 1 be postponed?
Hon. Senators: Agreed.
The Chairman: I always like to go clause by clause because then we have done it right.
Senator Carney: I am seeking direction from my leader.
Senator Di Nino: We have agreed that we will report this tomorrow.
In general terms, I think both Senator Downe and I expressed some concern as did Senator Carney that may need to be addressed with some commentary.
The Chairman: I have no particular objection.
Hon. Senators: Agreed.
Senator Di Nino: It may not give us a great deal of real authority, but there is some moral value to that.
The Chairman: I have no objection at all, Senator Di Nino. We can do that.
Senator Downe: Depending on the level of interest, we can either submit a report or we can move amendments.
The Chairman: If we move amendments, then the bill is basically —
Senator Downe: It would be referred back to the House of Commons.
The Chairman: Which will be gone in a couple of days.
Senator Carney: Is that true? Listen to what he is telling us; we will be gone in a couple of days. Thank you.
Senator Corbin: What if we agree to report the bill, but with comments?
The Chairman: I thought we should report the bill with comments.
Senator Corbin: That is the less mischievous way of doing things.
The Chairman: Yes.
Senator Downe: I do not want to delay the meeting, but I have concerns that I expressed already. In this day and age, ministerial accountability and responsibility should be highlighted. I have concerns about the delegation authority in this.
I heard the comments of the panel. They were good, but they have not changed my opinion. I believe that ministers or the Solicitor General, who is also a minister, are available and reachable at all times. The urgency of reaching people — the assumption in that argument is that the deputies are available but the ministers may not be or the deputies may not be. Then what do you do? I think we should keep it with the ministers and those that are responsible should be responsible.
I believe clause 21 delegates too much of that authority to heads of agencies that have a vested interest in gathering information. I do not refer here to the current Solicitor General or the current commissioner of the RCMP. I want that to be clear. However, it could be in the future. We could have people in those positions who may gather that information, and in five years may well be gone from the position when Parliament does an overview under the current bill. I think it is a weakness of the bill. This committee should address it. I am prepared to move an amendment if there is an interest.
Senator Carney: I will second that if you move the amendment. I wish to point out there are three ministers involved here. If all three ministers are unavailable, I would suggest that waiting for the deputy Solicitor General is not good enough. If you wish to move that, I will second it.
The Chairman: What I suggest, as it is now 7:20 p.m., is that we think about this until tomorrow and we can meet then.
Senator Prud'homme: No, just a minute.
The Chairman: We can do that.
Senator Prud'homme: I think Senator Carney was clear. She would lend her support to the good point raised by Senator Downe.
The Chairman: Well —
Senator Prud'homme: Just a minute. I think it would be in order for Senator Downe to suggest strongly, because if we wait until tomorrow — there is a slip of the tongue there — I am of the opinion that the House will be dissolved Friday night, not Monday night.
They have made a good point. Senator Carney has added a strong point. I do not see why we should not consider this point tonight. The bill could still pass, but if they are not satisfied — two people have spoken. I also have doubts, and you know I have doubts; I did not want to participate.
I am influenced by the judgment of Senator Downe. I know he did good work on this subject. If Senator Downe wants to make a suggestion — to ask, as much as possible, for you to get in touch — if we wait until tomorrow, then it is Thursday. You could be asked tonight to get in touch with these people that may or should be here — they are in town anyway. Maybe it would help you out in your reflection if Senator Downe was to phrase his suggestion, which could be supported by Senator Carney, in a way that would be helpful to you to make your representation early tomorrow morning in your own caucus. The ministers are here and we could, at a moment's notice, sit and pass the bill clause by clause, without amendment.
Senator Corbin: I may disagree with what is being said but that is my privilege. We could well proceed with Senator Downe's amendment, supported by Senator Carney, but a majority of the committee may wish to defeat the amendment. That is an event that could happen, let us be realistic.
I have no problem with the concerns raised by Senator Downe. I have sat, in the past, on a number of committees dealing with security matters that involved the RCMP, the Department of National Defence, CSIS and others under the leadership of then Senator Kelly. These same issues arose. As a result, I feel comfortable with the provisions of this bill with respect to these delegations. I do not see this as a matter for any concern.
Senator Carney: I have suggested wording to amend clause 21.
Senator Corbin: Others might disagree.
Senator Carney: I have suggested wording for an amendment. May I present it to you? I suggest that clause 21 be amended to restrict the delegation of statutory powers to the three ministers named in the act or any other privy councillor provided for under the act.
Senator Downe: My only concern about the last section is that parliamentary secretaries are now privy councillors. Did you mean a minister?
Senator Carney: The act provides for a privy councillor and it does not restrict it to ministers. Clause 3 states:
The Governor in Council may designate a member of the Queen's Privy Council for Canada to be the Minister for the purposes of this Act.
That is in the act so you might wish to consider an amendment that says that clause 21 be amended to restrict delegation of statutory power to the three ministers: of National Defence, of Foreign Affairs and the Solicitor General, or any other privy councillor provided for under the act because clause 3 does provide that a privy councillor be designated by the Governor in Council. You would have the delegation of power to those named in the act.
The Chairman: Honourable senators, I am inclined to adjourn the meeting to tomorrow.
The committee adjourned.