Proceedings of the Standing Senate Committee on
National Finance
Issue 23 - Evidence - June 19, 2012
OTTAWA, Tuesday, June 19, 2012
The Standing Senate Committee on National Finance met this day at 9:30 a.m. to study the subject-matter of all of Bill C-38, an Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, introduced in the House of Commons on April 26, 2012.
Senator Joseph A. Day (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on National Finance. This morning, we are continuing our study of the subject-matter of Bill C-38, an Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures.
[English]
Honourable senators will know that there were five other committees, as well as the Finance Committee, reviewing Bill C-38.
We will be required, once Bill C-38 arrives at this committee, to do a clause-by-clause consideration of the entire bill. For that reason, we felt it prudent to understand those portions of the bill that we did not study ourselves and that were studied by other committees. We spoke to our colleagues and asked if representatives of the other committees who studied portions of the bill could, in an informal manner, come before us and tell us generally what was in the portion that they studied so that when we do the clause-by-clause consideration we will have an understanding of that.
We are very pleased to welcome the chair and the deputy chair of the Standing Senate Committee on Transport and Communications, Senator Dawson and Senator Greene. We will be dealing with — and honourable senators may wish to go to page 365 — Division 41 of Part 4 of this bill, under the heading Telecommunications Act. It is clause 595 and following.
Before I ask our honourable colleagues to give us a bit of an overview so that we can then have a formal discussion, I have had a request from Senator Ringuette for the floor. I now give her the floor.
Senator Ringuette: Thank you, Mr. Chair. Today is the fourth time that I am requesting the appearance before the committee of Kevin Page, Parliamentary Budget Officer. I hope that it will not be denied, especially in view of the letter that was sent by Mr. Page to Wayne Wouters, Clerk of the Privy Council. I do believe that the Parliament of Canada Act has not been complied with in regard to supplying information to the Parliamentary Budget Officer. You will all recall that it was this committee that instituted that position, and it was the Harper government that put this person in place, under the Parliament of Canada Act, so that the information would be supplied in due course.
Notwithstanding that, I have been asking the same series of questions to a slate of departments, starting on May with the Treasury Board. As of yet — we are now at June 19 — I have not received an answer from any of them with regard to those questions. It seems that a reply from the Parliamentary Budget Officer is being controlled by Wayne Wouters, Clerk of the Privy Council. When parliamentarians ask questions, they should receive a reply in a decent time frame.
I am looking at the first series of questions I asked of Treasury Board, dated May 1. There is still no answer. Fisheries, May 2. Justice, May 8. Finance, May 9. Revenue, May 9. Environment, May 9. Foreign Affairs, May 9. PPP, May 10. Treasury Board again, May 10, and it goes on and on and on. There is certainly an issue of not receiving answers from the different departments to my questions or from Kevin Page, Parliamentary Budget Officer. That is a darn shame, an additional shame with regard to C-38.
The Chair: We have two issues. One is having the Parliamentary Budget Officer as the witness, and the other is the questions you asked that have not been answered.
Dealing with the latter first, Jody Turner, as our clerk, can you tell us? We have received some answers.
Jodi Turner, Clerk of the Committee: Yes, we have, and we followed up, this past week, with everyone who has outstanding questions. They all say that answers are forthcoming. All we can do is continue to follow up with them from my end, which I will do.
Senator Callbeck: How many outstanding questions are there?
Ms. Turner: I do not know the number off the top of my head, but I can find out.
The Chair: Could we follow up on that this afternoon and indicate that the bill has arrived in the Senate, that we anticipate that it will be referred here and that there is an honourable senator indicating that she is not able to do the job expected of her without having those answers? We will have to deal with that beforehand. We will continue to follow up on that. Thank you for reminding us of that matter.
As to Kevin Page, this has been dealt with more than once. Three times we have told you that the steering committee has considered Kevin Page as a potential witness but decided not to invite him.
Is there any other comment that anyone would like to make in relation to that matter? The steering committee is really just acting on the delegation of authority from this committee.
Senator Callbeck: I am wondering why the steering committee continues to turn down this request. I think it is essential that the Parliamentary Budget Officer appear before this committee. I am trying to figure out why not.
The Chair: We felt that all of the issues were canvassed by other government officials and that we did not need his testimony to deal with the issues in this particular bill. To bring Kevin Page before the committee on another occasion is a completely different issue, and most of us would agree that that should occur at some time. However, we are dealing with what is in this particular bill, Bill C-38, at this time.
Any other comment?
Senator Ringuette: A big issue of great concern to Canadians in Bill C-38 is the change to Old Age Security and the Guaranteed Income Supplement. Parliamentary Budget Officer Kevin Page has done extensive work on this. Therefore, I would like to move:
That this committee proceed and request that the Parliamentary Budget Officer appear before the committee in respect of the proposed changes to OAS in Bill C-38 as soon as possible before the committee does any clause-by-clause consideration of Bill C-38.
The Chair: It is not necessary to have a seconder on a motion. Is there further discussion on the motion before I call for yeas and nays?
Senator Callbeck: Certainly, I would like to see him appear because, as Senator Ringuette said, OAS is one of the big issues. The government has said that the system as it is now is not sustainable; but we have never seen any figures, although the committee has asked for them time and again. Mr. Page says that the program is sustainable, so it is extremely important that Mr. Page appear before this committee so we can have an opportunity to question him. We do not have any figures from the government that show it is not sustainable.
Senator Ringuette: I would like a recorded vote, please.
The Chair: We will go directly to a recorded vote. I am sorry but some colleagues will not be able to vote. I will ask the clerk of the committee to call the vote. The chair will not vote on this matter. I ask the clerk to call out the names of those here who are entitled to vote.
Senator Buth: We had discussed in the past that the report from the Parliamentary Budget Officer is on the record. It is a matter of public record and we know where to find it. Therefore, I am not in support of having another witness come in when we already know the information that they have.
The Chair: Any further comment? Nothing further, so I will ask the clerk to call out names, and senators will say "yea'' or "nay'' in response.
We are voting on the motion of Senator Ringuette to request that Parliamentary Budget Officer Kevin Page appear before this committee to deal with Old Age Security issues, and that that appearance take place before we proceed with clause-by-clause consideration of the bill. Please proceed.
Ms. Turner: The Honourable Senator Buth.
Senator Buth: No.
Ms. Turner: The Honourable Senator Callbeck.
Senator Callbeck: Yes.
Ms. Turner: The Honourable Senator Eaton.
Senator Eaton: No.
Ms. Turner: The Honourable Senator Gerstein.
Senator Gerstein: No.
Ms. Turner: The Honourable Senator Nancy Ruth.
Senator Nancy Ruth: No.
Ms. Turner: The Honourable Senator Peterson.
Senator Peterson: Yes.
Ms. Turner: The Honourable Senator Ringuette.
Senator Ringuette: Yes.
Ms. Turner: The Honourable Senator Runciman.
Senator Runciman: No.
Ms. Turner: The Honourable Senator Smith (Saurel).
Senator L. Smith: No.
Ms. Turner: The Honourable Senator Wallace.
Senator Wallace: No.
The Chair: The count is 3 in favour of the motion and 7 against the motion. The motion fails. Are there any further motions?
Senator Peterson: Is there a deputy parliamentary budget officer?
The Chair: No.
Senator Ringuette: I honestly believe that it is a shame that this committee instigated not having the Parliamentary Budget Officer appear as a witness on the OAS issue in Bill C-38.
The Chair: Thank you. We will move to page 365 of Bill C-38. Senator Dawson, please proceed.
Hon. Dennis Dawson, Chair, Standing Senate Committee on Transport and Communications, as an individual: Now I know how witnesses feel when there is debate that is not their concern.
[Translation]
I would like to point out that the notice of meeting says we are appearing as individuals, but we are actually here as the chair and the deputy chair of the Standing Senate Committee on Transport and Communications.
Would my comments on the bill be different if I were appearing as an individual? Perhaps, but I am making my comments as the committee chair.
[English]
The comments are short because it was a non-controversial part of our studies this year.
[Translation]
I will read you a passage about Division 41 of Part 4 of the bill. It says the following:
Part 4 Division 41 amends the Telecommunications Act to modify the ownership and control restrictions for those telecommunications carriers whose revenues account for less than 10 per cent of total annual revenues derived from the provision of telecommunications services in Canada, as determined by the Canadian Radio-television and Telecommunications Commission (CRTC). This provision also amends the Telecommunications Act to permit the CRTC to recover from telemarketers the cost associated with the administration and enforcement of the Do Not Call List.
[English]
We had a few meetings in May and June related on these dispositions: foreign ownership and the Do Not Call List. The Honourable Christian Paradis appeared on May 29 with respect to both issues without much controversy. We have the links if you want. Mr. Chair, the Clerk of the Transport Committee will email the links to the testimony to the Clerk of the Finance Committee. We do not want to go through all of the testimony today, so we will send it to you for your consideration.
We heard from the CRTC on the foreign ownership issue as well as the Do Not Call List. Questions were asked by committee members and answered to their satisfaction.
[Translation]
On June 5, Professor Michael Geist, a law professor at the University of Ottawa, was invited to appear before the committee. In his presentation, Professor Geist mostly talked about the foreign ownership changes to the Telecommunications Act, although he also discussed the national Do Not Call List during questioning.
On June 12, representatives from Telus and MTS Allstream formed a panel of witnesses before our committee. The witnesses focused exclusively on the proposed foreign ownership changes.
Although Bell Canada did not appear as a witness, it did send our committee a written brief — dated June 5, 2012 — which we can make available to you.
[English]
Senator Greene, do you want to add anything?
Hon. Stephen Greene, Deputy Chair, Standing Senate Committee on Transport and Communications, as an individual: No, Senator Dawson captured the essence of what we did. There were no controversial issues. The testimony stuck to the two main parts of the bill that are proposed to change: foreign ownership provisions and the Do Not Call List.
While once upon a time in a previous decade, perhaps, the foreign ownership provisions would have been controversial, they were not controversial whatsoever on this occasion. Everything was very smooth.
The Chair: You heard from the private sector, CRTC and government officials.
Senator Greene: We heard from the minister, government officials and the private sector.
Senator Callbeck: Senator Dawson, you mentioned that the minister appeared on May 29. I understand that he noted there will be competition and better choices at lower prices for consumers in both rural and urban areas as a result of a spectrum auction and changes proposed in this bill. Did your committee hear evidence to back that up?
Senator Dawson: We did not hear any evidence to the contrary. Basically, the industry representatives that appeared before the committee and Bell's communication to the committee indicated that in the coverage and the application of the bill. There were no contradictions whatsoever to his testimony or to the objectives that the government has fixed as what they want to obtain from this process.
Senator Callbeck: I understand that the government has been putting $3 million per year into the Do Not Call List, and that that will stop and the cost will be picked up by the companies. It will become cost-neutral. Do you think that will work out?
Senator Dawson: The Standing Senate Committee on Transport and Communications studied this issue five years ago. One of the debates at that time, on what was then a new system, was about who would manage it. The government funded the list and someone from the outside manage it. They are saying now that the companies that do these types of operations should be funding the program, not people who are not concerned with the issue.
Senator Callbeck: Has there been enough funding? I read here that there have been 500,000 complaints. That is a lot of complaints. Has there been enough funding to manage it properly?
Senator Dawson: I would like to respond, but it goes way beyond my mandate as chair of the committee to be able to tell you if there were enough funds.
Senator Callbeck: Senator Greene, can you comment on that?
Senator Greene: No. There have been a lot of complaints, and many complaints have been investigated. One witnesses said that people had to take steps to make sure they were on the Do Not Call List, and once they were, there should not be a problem. There was always a time lag between when they put their name on and when it became effective, which was part of the reason for the number of complaints.
Senator Callbeck: You did not hear complaints about the level of resources?
Senator Greene: No, we did not, not from anyone.
Senator Dawson: As you know, with junk mail, companies had the responsibility of getting your permission before sending you something.
[Translation]
However, with the Do Not Call List, the onus is on those who ask to be removed from the list. In other words, it is a matter of two systems that should normally perhaps be operated in the same way, but are not.
[English]
Senator Callbeck: You did not mention the Community Access Program this morning, but I notice that the committee discussed it briefly. I come from a rural area, and that program provided computers and the Internet to rural people. The program is going to be cancelled. Did you hear concerns about this in your committee?
Senator Dawson: The new provisions are talking about better coverage in the next process. In the last process they did not force people to cover rural regions. In this process they will force the implementation of broadband across the country, where feasible, obviously.
Senator Callbeck: However, that is with regard to the previous question. I am asking about the Community Access Program.
Senator Dawson: The Community Access Program was funded by money made available to local communities that cover their region. The next program will be doing it automatically. The companies will be obliged to cover communities.
Senator Callbeck: Will the companies have to pay to provide facilities for the Community Access Program?
Senator Dawson: I do not want to go too far into details, because others are more capable of doing that. The objective is to provide more coverage.
Senator Greene: That is the objective.
Senator Callbeck: That would be terrific, but I cannot see how that will happen because these places are closing in my province. Rural people who used these Community Access Program Centres will not have them.
Senator Dawson: We did not hear any testimony to the contrary.
Senator Callbeck: Thank you.
The Chair: Having no other names on my list, on behalf of our committee, Senator Dawson and Senator Greene, thank you very much for being here.
Senator Dawson: We are ready to make a presentation on the airlines.
The Chair: The study you are doing on airports and the fee discrepancy between Canada and the U.S. fits in nicely with the study we are doing on price discrepancy. We are not covering that in our report, so we will just read theirs.
Thank you very much.
We will hear next from Senators Ogilvie and Seidman on behalf of the Standing Senate Committee on Social Affairs, Science and Technology. We will be looking at Part 4 of the bill, Division 54, page 401, on the Immigration and Refugee Protection Act.
We have received a written report that gives us a general background on the work the committee did. We want to give the chair and a member of the steering committee of that committee an opportunity to discuss some of the issues they heard about, having in mind that we are looking for information that will help us in our clause-by-clause analysis of this bill, which we expect to be doing in the fairly near future.
Hon. Kelvin Kenneth Ogilvie, Chair, Standing Senate Committee on Social Affairs, Science and Technology, as an individual: Thank you, chair and members of the committee. We submitted to you a response to your request for an outline of what the committee did. You have in your files a list of the witnesses we heard from, but it is not a formal report.
The Chair: We appreciate having received that. It gives us a bit of a view of the work you did.
Senator Ogilvie: Thank you, chair. I will set out the principal elements of the section we dealt with and then leave in your hands the degree to which you would like me to flesh out additional information.
As you said in your introduction, chair, our committee dealt with Division 54 of Bill C-38. That part deals with federal skilled workers programs and essentially immigration within permanent resident categories within that sector. It is very important for committee members to understand that the issues being dealt with in Division 54 relate entirely to issues under skilled workers programs and do not represent the entire range of categories under which immigrants come to Canada. It is limited to that section.
I will speak to you about three things that the committee discussed in some detail. One is the permission under Division 54 that opens the opportunity for new categories of permanent resident acceptance within our immigration programs on a trial basis. In each category, there would be a maximum of 2,750 persons invited. The length of time the program runs in order to be evaluated is five years.
These programs are intended to identify individuals who have skills that are important to the Canadian economy where it has been identified that we have a considerable shortage of skills in those areas. In the majority part, it is anticipated that individuals will already have a job offer before they come to Canada or will fit into a category where there are a significant number of jobs going vacant. That is the intention that we heard as the basis for the program.
I can give you more comments later in regard to Canada's experience in these areas that we heard from witnesses, but initially I will stick to the three categories that had the most discussion by the committee.
These are called new economic classes within the context of the bill. An issue that arose that caused a fair amount of discussion and questions from committee members relates to applicants already in the Federal Skilled Worker Program application list for permanent residency in Canada — some 100,000 files — representing just under 300,000 persons. Each file is an applicant, but there may be family members who would come with that individual.
One of the issues that got confused throughout our meeting was what the actual number is. The actual number in the backlog in the Federal Skilled Worker Program within the immigration category is 100,000 representing just under 300,000 persons. These applications will all be cancelled effective the introduction and implementation of this bill.
Again, there are issues around that, and I can explain as we go forward if you wish, but that obviously was a matter of discussion before the committee.
The final issue that received some clear discussion and commentary from our witnesses and questions from the committee was about the Temporary Foreign Worker Program. Even though it is not fully within this new economic class category of Division 54, employers will now be allowed to pay a wage to temporary foreign workers up to 15 per cent below the average wage being paid for that category of employment within Canada.
I think it is really important for me to flesh that out a bit because it was of some confusion for committee members, or it appeared to me as chair that some committee members had difficulty understanding what was implied here. It was explained to us that the ability to pay up to 15 per cent below the average wage being paid for the category of employment means that employers can pay up to 15 per cent below the average going wage in the area where these workers are being brought in, so long as there are Canadians being paid up to 15 per cent below the average wage.
Let us suppose that no Canadian is paid more than 5 per cent below the average wage for that category in the region; the maximum below the average that a Canadian firm can pay a foreign worker would be 5 per cent. Therefore, they can only pay up to 15 per cent if there are Canadians earning 15 per cent or less below the average in that area.
I can tell by the looks around the table that you can see why our committee members had to ask a lot of questions to be sure of what that actually meant.
Mr. Chair, these are the three most important aspects of the bill and of course the number of questions around them. I will stop there, turn it back to your hands and then be prepared to follow up with more information.
The Chair: Okay.
Hon. Judith Seidman, Member of Steering Committee, Standing Senate Committee on Social Affairs, Science and Technology, as an individual: Thank you. The chair has covered it for now.
Senator Nancy Ruth: How is the average wage determined from which the 15 per cent is deducted?
Senator Ogilvie: We understand there are categories of employment identified within the world in which we operate, but let us take the situation where you might have persons who are brought in to deal with harvesting crops, for example. The average wage being paid for those categories is established by employers. Within a province, for example, there might be a range of wages being paid to Canadians to harvest crops within that province. These are monitored regularly by the various economic development groups — provincial and federal groups — who deal with business in these areas. These are quite well-known. They are certainly known within the industries, and those figures are provided. The departments of government that deal with employment in provinces and across the country have a pretty good idea of what the range of salaries is in a given area.
If you went into slightly higher-skilled areas there would be private sector employers and union contracts as well, and all of those would form a basis for information in this area.
Senator Nancy Ruth: When discounted, can the average wage ever be below the provincial minimum wage?
Senator Ogilvie: We heard no evidence that an employer can pay below the minimum wage, no.
Senator Nancy Ruth: Thank you.
The Chair: You mentioned coming into force, and I notice at page 405, section 87.4 the provision for cancelling the backlog came into effect on or before March 29, 2012. However, I cannot see any other coming-into-force clause, so I assume this would come into force when the budget implementation act provisions come into force generally. Did you get into discussions on that issue?
Senator Ogilvie: No, we did not go into that in detail. The discussion was more around whether it was appropriate to do that or not, as opposed to the date at which it comes into effect.
The Chair: Assuming I am reading it right, March 29, 2012, is the cut-off date. Therefore, all the individuals on the list as of that date who have not been established according to the criteria outlined would have been informed — even though this bill has not been passed — that they are no longer on a list because the list has been cancelled?
Senator Ogilvie: I am not sure of the absolute answer to that because we were not asked that technical question. It was our understanding that the authority to return the fees comes within the context of this bill. It may well be that was a date established beyond which there would not be further applications within this category, but I cannot help you there.
The Chair: The other technical question that I have is that on page 406, clause 709 that says section 120 of the Budget Implementation Act of 2008 is repealed. Can you tell us, did you find out what was being repealed?
Senator Ogilvie: We did, and I cannot put my finger on that immediately. Perhaps one of my colleagues can.
The Chair: I will go on to other senators and if Senator Seidman can find an answer to that, it would be helpful.
Senator Ogilvie: You have two members from our committee on your committee as well. You have four people from the committee.
The Chair: You have lots of help in answering that question. You are awfully close to it though. Senator Wallace is getting closer to you all the time.
Senator Ringuette: Senators, when the minister appeared in front of your committee, did he indicate what kind of additional legislative and regulatory power this bill would be providing to him?
Senator Ogilvie: The committee did not question the minister extensively on the additional regulatory powers other than to note the authority the minister is given within this section to apply regulations as defined within that section. They are fairly straightforward with regard to establishing timelines, the issue of qualifications and things of that nature.
Senator Ringuette: Did he give any indication as to when the regulation would be ready and made public?
Senator Ogilvie: The question was not put regarding what date these will come into effect. We understand it takes time to develop the regulations once the bill is approved, and these have to go through a thorough vetting in terms of being compliant with the existing laws of Canada. This is in the normal way of any bill.
Senator Ringuette: Did the minister indicate to you the amount of fees that would have to be reimbursed to applicants and the time frame necessary to refund those fees?
Senator Ogilvie: Yes. This was an issue that came up, as I indicated; that aspect was questioned fairly extensively by committee members. The minister indicated that. I think the amount is in this document and is in the order of $15 million in total fees. These would begin to go out immediately, and the minister has authority to make that happen.
Senator Ringuette: Did the minister also indicate to your committee that there were 900 of these applicants who had filed a law suit to the Federal Court in regard to the obligation to process in a timely way these applications?
Senator Ogilvie: The issue of the length of time that it has taken to deal with the applicants already in the queue — the 100,000 that I referred to — was discussed at the committee fairly extensively. I can give you parameters on that. We understand the oldest file in that collection dates to 2003.
The length of time it has taken to deal with a number of these areas of applications for immigration to Canada is one of the issues that Canada is really concerned about. The minister made it very clear that this is one of the objectives of the changes that are occurring. It is unfair both to the applicants and to the Canadian economy to take such a long time to make determinations with regard to those who could make a real contribution to Canada.
I think that it might be useful at this point to indicate that the committee heard evidence as to the difficulties that immigrants have been having since roughly 1980 in entering fully into the Canadian economy. We heard two principal reasons for their difficulty. One was the inability to use either of our official languages. That is a major factor preventing new immigrants from entering fully into Canadian society. The second was not having skills that are recognized in Canada to be able to enter into employment.
This new section of the act will change that so that skills are actually determined and evaluated to be those for which there is a need within the Canadian economy. The minister made it very clear that the intention was to give immigrants a much greater opportunity to able to find employment within Canada and that Canada would have a much greater opportunity to welcome immigrants who can make a contribution to the economy.
We were informed that the current cost of those immigrants who have had difficulty is roughly $20 billion to the Canadian economy on an annual basis.
Senator Ringuette: The bottom line is that the minister did not advise the committee when he appeared before you that there was a lawsuit of 900 applicants in regards to this.
I remember that, in 2008, Parliament authorized quite a few million dollars — if my memory is right, over $100 million, roughly — to the department especially to deal with that, with a minimum of 10,000 applicants a year. It was not to increase the backlog, but the backlog is still there after four years. I am sad that the minister did not see that it had a lawsuit like this. It is unheard of in Canadian history.
My other question is in relation to the Federal Skilled Worker Program. There is a requirement to have a labour market evaluation and certificate. I think that labour market used to be like 12 or 15 weeks over which the employer had to publicly post a job offering, and only after that period of time, if there were no Canadian applicants, HRSDC would give a certificate that would allow the employer to bring in a foreign worker. My understanding is that, in this bill, both ministers — the minister responsible for immigration and the minister responsible for HRSDC — will be granted the power to change those rules.
What is the opinion of the committee in regard to those changes to considerably reducing the advertising time for Canadians to apply for these jobs?
Senator Ogilvie: I have read through the full transcript on that issue and, to my recollection and to my rereading of the transcripts, that issue did not come up specifically. To answer your question in terms of the issue of the numbers, the minister made it very clear that, first, these are essentially test programs aimed at dealing with a number of the issues that have plagued the immigration situation in the Federal Skilled Worker Program, and they are limited; I think it is important to remember they are limited to 2,750 per year in any single class that is created, and for a maximum of five years. We are not talking about a huge number of people.
Second, the minister indicated that the department will be informing all those who are in the queue at the moment of these new regulations. The minister did indicate that any persons in that queue who can identify a job offer in Canada will, I think the words were, "go directly to the front of the line and be considered.''
These were the general issues that were discussed. You can question my other colleagues subsequently, but I do not recall the specific question you asked being considered by the committee.
Senator Ringuette: Okay.
Senator L. Smith: Senator Ogilvie, what type of feedback did you get from the witnesses in terms of their reception of the changes in the legislation?
Senator Ogilvie: The witnesses overall dealt primarily with the three issues I outlined for you: the categories themselves; the issue of terminating all applicants currently in the specific pool that I referred to; and the question around the 15 per cent below the average wage, to ensure that everyone fully understood what that meant. It was clear there was some confusion in the minds of some of the witnesses and certainly in the minds of our committee members. I hope in the end all committee members understood what it meant, which is that, in the temporary worker category, it was 15 per cent below the average in the region and that it can only be paid down to that amount if there were Canadians earning that amount or less.
Senator L. Smith: It is too early to have a sense of positive feedback? Is this a case where trial and error will have to take place in terms of the experience of seeing how the system works before you can get supportive feedback?
Senator Ogilvie: The one area all witnesses were consistent in was the recognition of need for change in this category, in this area of immigration to Canada.
Even those who supported immigration groups that would normally be very sympathetic to immigrants for all sorts of reasons recognized there have to be improvements in the way we bring skilled workers into the country and that they have a greater opportunity to participate in the Canadian economy.
I may have lost the theme of your question. Could you refocus me with regard to a specific aspect you are looking at?
Senator L. Smith: I am trying to understand whether the witnesses viewed the changes, and you mentioned three areas, as being positive or not, or was it too early to tell what their perception of the legislation was.
Senator Ogilvie: I have already indicated that some witnesses did not like the idea of terminating all applicants in the pool and returning their money. One immigration consultant identified two provinces that clearly state in provincial legislation that immigrants are advised that Canada and the provinces can make changes in their requirements for immigration at any time and they need to be aware of that.
It is important also to remember that this change does not affect the provincial immigration categories. This is a federal regulation. Witnesses with regard to this issue argued for better capability of evaluating credentials outside. There was discussion that Canada's way of giving points has to change, that just because you have a degree does not mean that it fits an issue. Mr. Chair, I would remind the committee that we are dealing with specific numbers within new economic classes within the immigration program, limited to 2,750 per year. In those categories, the job qualifications, certification, scholarly credentials will be tied directly to the categories of employment for which we will be recruiting persons in this area.
It is fair to say that all witnesses were supportive of a more effective, efficient, faster way of evaluating applicants for permanent residency in Canada, and certainly within these categories. The largest amount of discussion centred around the issue of cancelling the applicants currently in the queue and moving forward.
Senator L. Smith: Thank you, sir.
Senator Peterson: Did you hear any witnesses say that this legislation should not be in a budget bill?
Senator Ogilvie: I cannot recall that a witness said that, but certainly members of the committee pointed that out to witnesses.
Senator Runciman: Senator Ogilvie, in the 15 per cent figure you were referencing with regard to temporary workers, was there ever an example given? It seems to me at first blush it is a little difficult to understand the implications. Did anyone say, for example, in 2011 in Ontario this is what the number would have meant, rather than inferring that it might be below minimum wage and that sort of thing? Were any real examples provided?
Senator Ogilvie: There were a couple of real examples. One example had numbers. I cannot remember the specific category of employment where the average wage in that category would be — I am trying to remember the number — $20,000 per year. The lowest salary in that region for that category was $18,000 and the highest was something like $24,000. You would simply work out the average of $20,000, and 15 per cent below that would be the maximum below which you could go.
Senator Runciman: The other figure you mentioned, and it kind of surprised me, was with respect to the cost related to bringing in folks who do not have the ability to function in one of the official languages and do not have the skills that we require. Was it an annual cost of $20 billion?
Senator Ogilvie: That was a number put before the committee.
Senator Runciman: Was there any elaboration on that with respect to how that breaks down? That is a staggering number in terms of impact.
Senator Ogilvie: No, the witness simply included that in a presentation.
Senator Runciman: Was that a government official? Would the bulk of that rest with provinces?
Senator Ogilvie: It was stated that that was the cost to the Canadian economy, and I believe that might well have been a government witness who put that forward, but it is in the transcript.
Senator Runciman: It would be interesting to know how that breaks down.
Senator Ogilvie: It was not broken down for us. It was simply a number, and I think the committee took that at face value simply indicating a large number. I do not believe it was an issue for the committee specifically.
Senator Callbeck: Welcome to the members of the Social Affairs Committee. I am a member of that committee too.
A court case was heard last Thursday where 900 of that 100,000 that you talk about in the backlog took it to court. The Federal Court ruled that the Conservative government is obligated to process these applications in a timely way and has failed to follow through on the pledge.
I understand the people in that backlog, the 100,000, are getting a letter with their money back and they have to start the process all over again. In view of what the judge said, do you think there will be any change in the minister's approach to this? It says here:
Thursday's decision by Federal Court Justice Donald Rennie said that while the minister has the power to determine which applications are ineligible, he has a responsibility to ensure those that are eligible are indeed properly handled.
My understanding is some of them have been on there since 2003. Will they receive a letter saying they have to start all over again?
Senator Ogilvie: Thank you, Senator Callbeck. This relates to Senator Ringuette's question. I believe we already heard in 2008 when the issue was raised extensively that there was considerable effort put in to reduce the backlog. At that time, we were given two different figures, but it was somewhere between 600,000 and 800,000 persons, which would be a total of probably somewhere around 250,000 applications, and we were told that had been reduced down to 100,000 since, but everyone recognized that is not satisfactory in the long run.
I can refer to the minister's testimony directly with regard to your question on how the minister will handle it, and I am quoting from the transcript where Mr. Kenny replied to your question, Senator Callbeck.
Yes. It is our intention to apply the new criteria, which we intend to develop this year, to those who are in the backlog in the inventory. For example, I intend to pre-publish this June a new points grid for the Federal Skilled Worker Program that would then come into effect later in the year, and it would be our intention to assess applicants who remain in the backlog against those new criteria that we think are more pertinent, which better assess the likelihood of people succeeding in the Canadian economy.
The minister went on with regard to your questions. You asked specifically if they would be fast-tracked, and the minister replied:
No, with a qualifier. If any of them can obtain an offer of employment with a Canadian employer, they can go to the front of the line right now, and they can in the new system as well.
Senator Callbeck: Do you think the decision by the Federal Court will have any effect in the way the minister is dealing with this?
Senator Ogilvie: That would be pure speculation on my part. I am here to talk about what we actually heard in committee. I would rather not get into personal speculation.
Senator Eaton: Senator, you talked about official languages being one of the great stumbling blocks and something we want to fix. Will we test people? How will we determine that someone is bilingual or has good working skill in both languages? In Holland, you have to take a test after five years before being given residency. What are we going to do?
Senator Ogilvie: This is a real challenge. During the course of our discussion, I used the example of universities that recruit foreign students who come to Canada as an example of how difficult it is to get a good handle on the language capabilities of people in other countries. Having been the president of a university, I know this example well.
Indeed, most universities contract with agencies who are supposed to be experts in developing and measuring language skills. Yet I can tell you from personal experience that some students coming from Asian countries, in particular, have all kinds of evidence on paper showing that they meet basic language capability in one or both of our official languages, but it is often difficult for us to perceive that as the case once they arrive here.
It is extremely difficult for any government or other organization to be absolutely capable in this area. I understood that there will be an attempt to identify people in other countries who have the skills, including language, to become successful in Canada, and that our government officials will evaluate those as well as possible before the individuals come here within this specific category.
I could go further, but it would be more general commentary.
Senator Eaton: Was there any discussion of going back to the old system of interviewing people personally as opposed to doing it on paper?
Senator Ogilvie: We did not hear evidence that that will be the case, but we did hear indications. Perhaps more accurately, I personally interpreted some of the comments to mean that there will be a much more careful evaluation of the skills of people applying within these new economic classes than there has been before.
It is not anticipated, by the minister, at least, that there will be a whole batch of these new classes initially. There will be one at least and possibly two in the near term. They will use the experience here to help advise them on how to move forward in dealing with these issues. The immigration consultants who appeared before us indicated this is a real challenge.
Senator Eaton: I think we heard from your committee some years ago that very few immigrants took up free language classes. I think as few as 5 or 6 per cent of immigrants coming to this country went to either French or English classes. Has that been considered? Will there be more encouragement? Will these classes become mandatory?
Senator Ogilvie: I know the witness testimony you are referring to. I was there at the time, and indeed that was an issue for immigrants who actually arrive here. It was indicated as one of the real problems we face in that regard.
I will remind the committee again that we are dealing with a new economic class of immigrant for a very limited number of people per year. My understanding is that the intention is to much more fully evaluate the individuals and those capabilities before they come here. Language being one of the requirements, one would expect that that information would be given to those candidates and that they would pursue language development before coming here.
Senator Eaton: Do you think that the limited number in this new economic class will avoid a backlog from building up again because it will be very specific, tailored and narrowed?
Senator Ogilvie: I have no expertise on what potential immigrants will do in terms of applying to each country, and that is not an issue we discussed in the committee.
I come back to the intent. The intent is to develop a model around which immigrants are much more successful when they come to Canada and to use the experience from these categories to apply more broadly. We clearly need to improve our ability to evaluate potential immigrants to Canada in these critical areas and to provide them with the support they need to meet our requirements. That is one of the clear intentions of these new limited categories of immigration.
The Chair: I wish to comment on the minister's instructions at page 402. On page 402 and 403 regulation is referred to. Typically in the past, various categories have been created by regulation. The Standing Joint Committee for the Scrutiny of Regulations provides us with the opportunity to scrutinize these the same way as we are scrutinizing this bill before it becomes law. We do not have an established means of doing the same with respect to this new category of generating directions called a minister's instructions. This is not the first time we have seen this, but it is fairly recent and is fairly infrequently used.
Did you have an opportunity to discuss why this part of a new class, rather than being established by regulation, is being established by this category of minister's instruction?
Senator Ogilvie: The aspect of that which was dealt with in the committee related to the purpose of using ministerial instruction with regard to certain issues such as fees and so on to allow for much speedier processing of the application. For example, the minister can issue an instruction and is exempted under Canada's bill with regard to fees and other applications.
The information I received when looking into that background was that it can take up to four years just to establish fees in some of these categories, which is obviously a horrendous deterrent to immigrants coming here under an economic package. It was inferred from the limited amount of discussion, senator, that the ministerial instruction is intended to deal with speeding up the aspects of evaluating and bringing in immigrants under these categories. It is my understanding that they all have to be published in the Canada Gazette or some other document that is referred to in this language.
Senator Ringuette: Was there any mention about health services for refugees?
Senator Ogilvie: There is nothing on that in the transcripts, and I do not recall any discussion of that aspect as part of the issues before us.
The Chair: Senator Ogilvie and Senator Seidman, thank you very much for being here. This was very helpful. It elaborated and expanded on the points that you made in your written submission to us. It will help us do our job when we get the bill for clause-by-clause consideration.
Senator Ogilvie: You have our best wishes.
The Chair: Thank you.
We will now ask Senators Gerstein and Hervieux-Payette to help us out with Banking, Trade and Commerce. That committee dealt with Divisions 2, 10, 11, 22, 28 and 36. You were kept quite busy. The first one I have is at page 190, and it deals with life annuity-like products.
Senator Gerstein and Senator Hervieux-Payette are both members of our Finance Committee, so this should help things flow along nicely.
Hon. Irving Gerstein, Chair, Standing Senate Committee on Banking, Trade and Commerce, as an individual: Thank you, Mr. Chairman. It is a pleasure to appear before the committee today.
The Banking Committee, as you mentioned, was referred portions of Part 4 of the budget, Divisions 2, 10, 11, 22, 28 and 36. If I might have the privilege of digressing for a moment, I did want to make a quick comment on Division 16, Part 4, which deals with the act to amend the Currency Act, the calling in and redemption of coins. I certainly could not let this opportunity go by without complimenting the chair on his leadership of the study. It seems quite clear that, through Budget 2012, the government has appreciated hearing our two cents on the matter.
Let me now refer back to the divisions we had under study. In total, the Banking Committee held six meetings. We heard from the Minister of Finance, who appeared along with officials from the departments of Finance, Human Resources and Skills Development Canada, and Industry. The committee also heard from representatives of both CMHC and OSFI, as well as seven other groups and individuals. What I would like to do is take each division at a time, give you the key essence of what it seeks to do, and then highlight some of the testimony we heard.
Starting with Division 2, the life annuity-like products, this prohibits banks from issuing annuity-like products. The committee heard from the Canadian Life and Health Insurance Association of Canada, the Canadian Bankers Association, as well as Finn Poschmann, from the C.D. Howe Institute. Both the life insurers and the bankers were in agreement that this was in keeping with government policy to separate the two industries, but the bankers and Mr. Poschmann felt that the separation limited options for consumers.
Moving on to Division 10, the public sector investment pools, this allows for limited public sector investment pools' investment in financial institutions. According to officials, this follows on international norms and interest from the sector. Again, the committee heard from both the Canadian Bankers Association and Mr. Poschmann. Mr. Poschmann certainly lives up to being a member of C.D. Howe. He was known as "the minister of all things,'' and he has an opinion — a very learned one, I must say — on many items as well. Both were supportive of the division, saying it would increase foreign interest and capital in the financial sector.
We then move to Division 11, the CMHC supervision and covered bonds section. This mandates OSFI's supervision of CMHC and removes the ability to use government-insured mortgages as collateral for covered bonds. The committee heard from both OSFI and CMHC, as well as Professors Ian Lee of Carleton University, and Jane Londerville from the University of Guelph, and both the Canadian Bankers Association and Mr. Poschmann again. CMHC felt that the governance requirement was unnecessary, since they already follow existing OSFI guidelines for private insurers, and on covered bonds they felt there should be a direct benefit to consumers because of lower costs to institutions issuing such bonds. However, OSFI did testify that additional resources would be needed to have the oversight of CMHC, but those costs would be recovered from CMHC through levies.
Professor Lee and Mr. Poschmann concluded that not only is CMHC the only mortgage insurance company not currently regulated but that it has a competitive advantage and any growth should be limited. Professor Londerville further noted that membership of CMHC's board by both the Deputy Minister of Finance and the Deputy Minister of Human Resources and Skills Development is critical for oversight.
The Canadian Bankers Association felt that the new bond program would provide greater clarity for investors but may not be considered as safe as before because of the lack of insured mortgages being used.
Division 22, the collective agreements and insured long-term disability plans, requires federally regulated employers to have fully insured long-term disability plans, and when concluding collective bargaining agreements, to file those agreements with the Minister of Labour to ensure the plan is insured. The committee heard from Ms. Diane Urquhart, as an individual, and the Canadian Life and Health Insurance Association, and both were very supportive, noting that federally regulated employees would be protected. Ms. Urquhart additionally indicated that she felt that the penalties for compliance were too lenient.
Moving on to Division 28, the Investment Canada Act, this allows the Minister of Industry to disclose more publicly about foreign investment reviews, as well as to promote investor compliance by allowing investors to put up security to back up investments. The committee heard only from Mr. Poschmann on this division, who was supportive of the proposal, as it would enhance the credibility of commitments, but he cautioned that the overuse of fines could have a cooling effect on foreign investment.
Finally, Division 36. The Bank Act preamble affirms the federal jurisdiction over banking and expresses the intent of Parliament in cases of potential conflict between federal and provincial legislation. The Banking Committee heard both from the Canadian Bankers Association and Mouvement d'éducation et défense des actionnaires, MEDAC. The bankers reaffirmed federal jurisdiction pursuant to the Constitution Act and credited Canada's resilience and strength to national prudential and consumer protection standards. MEDAC questioned the constitutionality of the use of federal "exclusivity'' and the impact upon provincial consumer protection legislation.
With that, I would like to turn it over to my colleague, the deputy chair of the committee, Senator Hervieux-Payette, who may wish to add something more.
[Translation]
Hon. Céline Hervieux-Payette, P.C., Deputy Chair, Standing Senate Committee on Banking, Trade and Commerce, as an individual: I will submit to the clerk a very good summary, prepared by the Library of Parliament, that was used to produce the report. However, it is available only in English. I do not intend to read an English document.
I have a few comments to make, specifically about the letter from Quebec's Minister of Justice and Attorney General, Jean-Marc Fournier, who shared his concerns with the Minister of Finance regarding the last section — more specifically the clause that, for all practical purposes, would take away all consumer protection powers from provinces. I will just read the text to you because I think it is self-explanatory. The minister says the following:
[...] we wish to inform you of our concerns with respect to your proposal. The federal Parliament cannot decide in a peremptory manner that provincial laws do not apply to a given sector. Quebec is committed to protecting consumers and will maintain a consistent legislative framework in various consumer activity sectors without consumers having to face disparities arising from the lone nature of the economic players with whom they intend to enter into a contract.
Therefore, the whole constitutional issue has been discussed. Of course, banks have a provision in the Constitution that gives them fairly limited powers. However, it should be pointed out that, since 1867, services provided by banks have been much broader than what had been planned in 1867. In addition, provinces have consumer protection laws that are applied in that banking system.
Bank representatives have openly told us that they had lobbied for that, so it was not a secret. We have not heard from any consumer protection associations, except for MEDAC. Given the limited amount of time we had, some groups with smaller budgets could not come share their concerns with us. It should nevertheless be pointed out that banks in Canada are extremely important players in the financial sector and that the influence of a consumer compared with that of a bank is minimal. That is why protection must be adjusted accordingly.
My colleagues must know that this provision has constitutional implications. The minister said he would go as far as initiating court proceedings to obtain a clear interpretation of the new provision. In other words, the new provision affects provincial jurisdictions directly, and no preliminary consultations have been held. As a senator representing Quebec, I had an obligation to tell you about that.
As for section 28, which concerns Investment Canada, we have not held any in-depth discussions, except on the point raised by my colleagues regarding penalties that will be applied if people do not follow the rules. I think the committee has no doubt that this measure was definitely not an impediment.
In that case, I think most members of the committee — including the Liberals —were not worried. They are worried about Investment Canada, but not when it comes to that sector.
As for other divisions, such as the Canada Mortgage and Housing Corporation, since the only shareholder of the Canada Mortgage and Housing Corporation is the federal government, to say that this was a poorly managed company would be to deny that the Auditor General had a say. It would also mean that he has never assessed the CMHC's financial statements.
The fact that the corporation is subject to the same requirements as the few private companies and that it reports to the Financial Institutions' Inspector will certainly not improve the proficiency of the people on the ground. This is a new way to operate. Public servants are added. Of course, the budget should result in more public servants and not fewer. Therefore, when it comes to the CMHC, I think the minister's intention was certainly not to indicate that this corporation was not well-managed. As for us at the national finance committee — of which I am also a member — we have never had the impression that this corporation was poorly managed and was not serving Canadians well.
Actually, that corporation helped Canadians, and especially Canadian banks, cope with the economic crisis by allowing banks to sell back their mortgage portfolio to the corporation in order to acquire cash assets and continue with normal operations — and we are talking about billions of dollars. It cannot be said that the Canada Mortgage and Housing Corporation did not play a key role in the economic and financial crisis. It was thanks to this corporation that Canadians were able to weather the crisis and business people were able to obtain credit.
Senator Ringuette: Ms. Hervieux-Payette, could you tell us when Mr. Fournier's letter you quoted was dated?
Senator Hervieux-Payette: The letter is dated April 19, 2012.
Senator Ringuette: Has the committee received any information indicating that the Minister of Finance has responded to Quebec's Minister Fournier?
Senator Hervieux-Payette: As far as I know, although the question about whether the minister has responded was asked — the clerk had taken note of that — we have not received any copies from the Department of Finance.
Senator Ringuette: I think that people certainly know about my position with regard to certain financial products, especially when it comes to the whole credit card issue. I believe that all Canadians across the country are affected by the lack of guidelines and protection for Canadian consumers.
Are you saying that, in Quebec, the provincial government does have protection measures and that, if Bill C-38 were implemented, Quebec would not be able to protect its consumers in terms of banking products and services?
Senator Hervieux-Payette: Currently, I can assure you that Quebec's legislation on consumer protection goes much further and protects the consumer more completely. The minister wants to continue protecting consumers through the Quebec legislation. Banks may object, but the issue will have to be resolved before the courts, as Quebec intends to continue exercising its jurisdiction.
There are two aspects to this issue. There is the contract aspect. Contracts are part of the Civil Code — Quebec's Civil Code that predates the Confederation — which originated in the French system. It applies in this case and, obviously, credit card holders have to sign a contract.
There is also the consumer protection aspect, which consists in determining whether the information provided is understandable. Even the Banking Committee attempted to make contracts and conditions more clear and understandable when credit cards are issued. It is very difficult. I can tell you that the Quebec legislator is certainly biased toward consumers when it comes to consumer protection.
[English]
Senator Ringuette: Chair, may I ask Senator Gerstein, with regard to the IMF —
The Chair: The International Monetary Fund?
Senator Ringuette: Yes, the International Monetary Fund. There are provisions in this bill for Minister Flaherty to increase Canada's contribution to the IMF from $6 billion to $11 billion. However, appearing before the committee, the officials from the department that deals specifically with the IMF indicated that Canada's real commitment to the IMF was $24 billion. We go from $6 billion to $24 billion.
Have the department and the minister cleared that issue? He did not answer the question when I asked it, and I was wondering if, since then, the chair and the clerk of the committee had received clarification from Minister Flaherty.
Senator Gerstein: Thank you for that question, Senator Ringuette. My recollection is that you did ask that question but not at the Banking Committee; that question was asked at the National Finance Committee. As you recall, the Minister of Finance appeared before both the Finance Committee and the Banking Committee, and I do not recall any discussion with regard to the IMF before the Banking Committee, which is what we are here to deal with.
Senator Ringuette: Chair, it was at this Finance Committee? I sit on both. Can I ask if the clerk can follow up with Minister Flaherty's office to clarify the IMF contribution going from $6 billion to $11 billion to $24 billion?
The Chair: We will look for that exchange. Thank you for your recollection on that, Senator Gerstein.
Senator Callbeck: Thank you for being here today to answer our questions.
About clauses 205 to 208 — preventing banks from offering financial products that function like life annuities — is the committee satisfied that those clauses cover that?
Senator Gerstein: I do not recall that subject coming up at the meeting. We are basically here, Senator Callbeck, to talk about testimony, not to interpret what some people may or may not have said. I am not aware of them having made any comment on that. Perhaps Senator Hervieux-Payette is.
Senator Hervieux-Payette: No, I do not remember that, either.
Senator Callbeck: That need was expressed by the government back in December, and I thought that it was supposed to be covered in this piece of legislation. That is why I am asking.
As to the role of the Superintendent of Financial Institutions, that role has been increased. I understand that under clauses found in Division 11 the superintendent will deduct assessments on CMHC's commercial activities.
Who will have access to those assessments? Will they be public?
Senator Hervieux-Payette: It will not increase the responsibility but will apply the responsibility that OSFI already has. OFSI is already doing that with the private sector mortgage insurance industry. OFSI will continue under the same rule but will need more staff because, if my memory serves me well, CMHC has about 80 per cent of the market and the private sector has about 20 per cent. Therefore, with the addition of CMHC to their review activities, they will need more staff.
The scope is the same. Will it be done for better protection? As far as I am concerned we did not hear the intention of the minister as to why he is proposing this. The only place where we had some reservation was the fact that two deputy ministers will sit on the board. It is difficult to have the deputy minister, to whom the OSFI superintendent is accountable, sitting as a regular board member of the corporation. This was the discrepancy that some witnesses outlined to the committee. They said that if they are to be treated like other private sector companies, there should not be a deputy minister on the board necessarily. Some of the witnesses had reservations about that.
Senator Callbeck: I understand. Once the assessments are done, who has access to them?
Senator Hervieux-Payette: The assessments indicate whether there is compliance. They come back to the corporation to let them know in what way they are not complying with the regulations. In this case, it is very detailed. First, they have the law; and second, they have the regulations and the directives. The book of directives is quite thick. For every action they take, they have some kind of directive on how to apply the regulation. The assessment will let them know whether they comply. I do not see CMHC having to pay penalties; and it is the same for the private sector. Once they are inspected, they receive an assessment, with which they have to comply. Of course, it is back and forth; but the assessment is not available to the general public.
Senator Callbeck: That is what I wanted to know.
I have one other question on the proposals contained in Division 28 regarding the Investment Canada Act. They do not include a formal requirement for the minister to disclose publicly the reasons for rejecting an investment proposal. Were any concerns expressed about that?
Senator Gerstein: I do not recall anyone raising that issue in our testimony.
Senator Hervieux-Payette: This is such a narrow change, and the minister has been promising to review the whole act and apply new criteria. The bill proposes a tiny change with the imposition of a penalty on some foreign corporations investing in Canada for non-compliance. Such companies sign a contract and have an engagement; and if they do not respect it, they might be fined. They will have to make a deposit on the fine, but these are small amounts of money. Usually major takeovers in Canada involve billions of dollars, where the penalties would involve thousands of dollars. Perhaps the C.D. Howe Institute has some reservations about it, but for major corporations, this is small. Certainly, it will not impede multinational corporations buying a Canadian-owned company.
The Chair: I have one short question on the Bank Act at page 340. Typically, we do not see preambles this way. Sometimes we see preambles in contracts and that kind of legal document. In bills and statutes, the operative portion is usually what we would see in the bill. Do you have any indication as to why it was felt that we should go back to the Bank Act and add a preamble to the front that does not have legal effect? Why is that necessary at this stage?
Senator Hervieux-Payette: It was thought that normally the preamble is part of the bill and is the way you interpret the bill.
[Translation]
A panel of Quebec witnesses said that was a constitutional problem, and reference was made to Supreme Court cases and to their potential interpretation. This will be an extremely complex case because banks now own brokerage firms; therefore, this has to do with brokerage firms. We should also consider all the potential conflicts between consumers who have invested for their pension fund into a stock saving plan and for whom the stock saving plan was invested into. There are several categories — depending on what people want as far as the level of investment goes — ranging from very low risk to very high risk.
In addition, if the bank, through its brokerage house, fails to meet the conditions originally agreed upon in the contract, who should be alerted? The consumer will have protection recourse, and that is where the whole issue lies because brokerage — no one needs to tell you this — comes under provincial jurisdiction. Therefore, we will have fairly significant problems if this provision is not agreed on with the provinces.
The Chair: Thank you very much. That is a distinction between common law and civil law.
Senator Hervieux-Payette: Exactly.
[English]
Senator Peterson: Was there any discussion about bank mergers?
Senator Gerstein: I can confirm that there was none.
The Chair: Senator Gerstein and Senator Hervieux-Payette, it is good to see you sitting together. We thank you very much for helping us. We want you to stay with us because we will need you when we do clause-by-clause consideration of those sections that you have handled for us.
We will move to Division 12, at page 272, and hear from the National Defence Committee. We will call on Senator Peterson as well to help with this one as needed. We are pleased to welcome the chair, Senator Wallin, and deputy chair, Senator Dallaire, to help us with Division 12 and the Integrated Cross-border Law Enforcement Operations Act.
Hon. Pamela Wallin, Chair, Standing Senate Committee on National Security and Defence, as an individual: We appreciate this opportunity to share some of our views. For the benefit of committee members here, I would like to point out that this is the third time that the Senate has studied a variation of this proposed legislation, so it is something we know intimately: the 2009 framework agreement; the November 2009 introduction of Bill C-60, which did not get beyond first reading; the October 26, 2010, introduction of Bill S-13, which passed the Senate but died when Parliament was dissolved for an election; and now Bill C-38, Division 12 of Part 4, the latest incarnation.
There were three Integrated Cross-Border Maritime Law Enforcement pilot projects known as Shiprider: one carried out in 2005, two in 2007, as well as the use of the Shiprider concept in a joint operation for integrated marine security. We used that during the Super Bowl in 2006, throughout the Winter Olympic Games and at the G20 meeting in 2010.
The pilot projects authorized were designated Canadian and American law enforcement officers, duly trained and certified in the other country's law and law enforcement procedures, to work together aboard vessels on either side of the maritime boundary with full law enforcement powers and authority while in the other country's maritime jurisdiction. They are fully trained in laws, rights and all of those things and can operate depending on where the ship is in the middle of the body of water.
One thing that has changed since we last considered this legislation is that Canada and the U.S. have published the Perimeter Security and Economic Competitiveness Action Plan, which included the intention to deploy regularized Shiprider teams. That has changed.
In general, and I will just refer to this, integrated cross-border maritime law enforcement is a worthy and proven concept. The legislation provides adequate safeguards with respect to national sovereignty and individual rights, including a public complaints mechanism. It is a force multiplier for Canada in the sense that we have not that much equipment available to use on our maritime waterways, and this gives us access to much more.
There are some concerns about a full integration of local and provincial police forces. I just want to note that we heard from a variety of Aboriginal communities the last time around. We again asked for submissions from them this time. They declined because they are now being integrated into this process. They are being trained for participation in Shiprider, so their concerns were there.
We forwarded at one point the summary statement at the close of our Shiprider study to committee members. I do not know if that was received by all. I can read the three paragraphs into the record, if you wish.
Referring to Shiprider here:
The concept was well tested by means of pilot projects which, according to much of the testimony that we heard, have been very successful. They enabled searches, seizures and arrests that would not have been possible if Canadian and American law enforcement officers had been restricted to their own national waters.
Division 12 of Part 4 of Bill C-38 would implement a framework agreement between Canada and the United States, signed in 2009, that would permit ongoing Shiprider operations, that is, integrated cross-border maritime law enforcement operations. No longer would criminals be able to move across the water border into the other jurisdiction in order to escape. Instead boats jointly crewed by cross-deputized Canadian and American law enforcement officers would be able to chase and apprehend them.
As we have heard from witnesses, the legislation and framework agreement ensure that the sovereignty of each nation is to be respected. When in Canada, the crews will be under Canadian command; when in the United States, the crews will be under American command. All crews will be trained and certified in the laws and law enforcement procedures of the other country. In other words, this joint law enforcement will be carried out according to the rule of law. The rights of all persons in both countries affected by these operations will be respected and there is a public complaints mechanism.
That is what we concluded at committee. I will ask the deputy if he would like to add comments.
[Translation]
Hon. Roméo Antonius Dallaire, Deputy Chair, Standing Senate Committee on National Security and Defence as an individual: That commitment enables us to share information with threat assessment information services in a way that is much more transparent and integrated than before, thus allowing for a better view of what may happen in our waters.
In addition, the rules of engagement regarding the use of force are those of the country where the arrest is made. Therefore, if Americans are on our territory, Canadian rules of engagement on the use of force will be applied and vice versa.
[English]
The Chair: Can we assume that the United States has passed similar legislation, or will be passing similar legislation?
Senator Wallin: They did it before we did.
[Translation]
Senator Ringuette: I have two points to clarify. Does this legislation apply only to maritime territories and not to land territories?
[English]
Senator Wallin: Yes, it is Shiprider.
Senator Ringuette: Just ships. Does it only include the borders between Canada and the U.S.?
Senator Wallin: Yes.
Senator Ringuette: It does not include any other body of water that is only Canadian, does it?
Senator Wallin: This is joint operations in waters that fundamentally form our border, roughly along the forty-ninth parallel. Most of it is land, but every once in a while you hit water, so this is the way to deal with that. It applies in very specific areas in British Columbia, here in Ontario, and I think there is a point in the New Brunswick border, if I am not mistaken.
Senator Ringuette: New Brunswick?
Senator Wallin: Yes.
[Translation]
Senator Ringuette: So no other areas will be affected?
Senator Dallaire: No, the exercise is done to protect our borders against threats — be it by weapons, illegal immigration or drugs. It applies only to that aspect. There is one part on the use of helicopters in that context, but helicopters are not armed, they are just part of the operation.
Senator Ringuette: As for helicopters, my home is on the border between New Brunswick and Maine. For several years now, a helicopter has been patrolling the border at various intervals — which I find wise. I do not know whether the helicopter is Canadian or American. Can you confirm that the information they find will be shared between the two countries?
Senator Dallaire: Yes.
[English]
Senator Wallin: Helicopters for use as part of the Shiprider program are for surveillance only.
Senator Ringuette: Yes.
Senator Eaton: I suppose this is not really very new, because Canadian and American forces have worked in NATO and Afghanistan together under each other's command. Is that not right? This is not a big, new initiative?
Senator Dallaire: The interesting dimension that we raised was the fact that on our side we have the CBSA, but in this case it is the RCMP and whatever local police are in the area, and with the U.S. Coast Guard. The U.S. Coast Guard is one of the five services in the United States, but it has two divisions, one which is para-military, which is not the case here, and the other is security, coastal water border patrol type of division, and that is the gang that is working with us.
Senator Eaton: I do not think we have settled with the U.S. where our Arctic borders start and stop, have we?
Senator Wallin: No. We raised that issue too, but it is just not applicable to this piece of legislation. This is specifically for the —
Senator Eaton: For the forty-ninth parallel?
Senator Wallin: Yes.
[Translation]
Senator Hervieux-Payette: I would like to clarify two things. If we take, for instance, the case of the State of New York and Champlain Lake in Quebec, where boats can move around the holiday resort, I know that there are officers who take care of customs. Are we talking about specific bodies of water or are all bodies of water covered by this legislation?
[English]
Senator Wallin: It is where there are specific projects that have been agreed to. For example, on Akwesasne, where there is a problem with people smuggling and gun running, they have integrated the local native police forces into this operation. When there was a specific project, a specific mission, they would integrate all those people, mount it and it would be operated there. They do not really go out just patrolling and looking for bad stuff that might be going on. They usually have intelligence that something is awry, and therefore a Shiprider mission would be mounted at that point to respond.
[Translation]
Senator Dallaire: About 200 people are qualified to do that and will be deployed based on the threat. Threat integration will determine the need to set up permanently at a location for a given period of time. We will have to be ready to operate on both sides. Lake Champlain could certainly be one of the locations we keep if a potential threat is anticipated, since when it comes to a location not on water, all information exchange aspects are included and may be applied in a much more integrated way by our people who are working with them and vice versa.
Senator Hervieux-Payette: Have I understood correctly that local police authorities, such as Aboriginal forces, are integrated in this system? The system is headed by the RCMP, but the police officers could also come from provincial forces?
Senator Dallaire: Yes, as well as Aboriginal forces.
[English]
Senator Wallin: That is true in each location.
Senator Peterson: This is another budget bill. Why is this item here?
Senator Dallaire: I am not going to answer that.
Senator Wallin: It will obviously involve the expenditure of money. At this point, internally, the RCMP has embraced the costs inside. There is no separate stand-alone budget for Shiprider operations because it has been a pilot project. With the passage of this, it would go into a more regular part of the law enforcement system. Then the RCMP would have to make that case — this is what they said to us in committee — as to whether or not they incorporate that out of their ongoing policing operations or go back to government at that point and say, "Look, this has now become so large that we need another allocation for it.'' That is an internal matter for the RCMP to decide once this becomes operative on something other than just a pilot project basis.
Senator Dallaire: At this point, they assessed it as fundable within their baseline funding. If the threat changes then the requirements will change, bringing a different set of circumstances.
The Chair: This committee is accustomed to having various government departments come before it in regard to requests for funding in this kind of thing through the Main Estimates, supplementary estimates and appropriations.
Senator L. Smith: Senator Wallin, you mentioned this is the third time you folks have studied this area of legislation. Were any new issues or concerns brought up by the witnesses?
Senator Wallin: No. We have seen the development of the legislation based on experience and practice because they actually carried out the pilot projects. They then started to deal with some of the issues that had been raised, for example deciding whose law is in place and whose law everyone is then subject to. They realized everyone had to be trained in the laws on both sides because they differ. They understood they had to integrate special police forces — like the Aboriginal forces — into this if the operations were going to be successful.
The last time around there was a concern about that complaint process. That will now be melded and married with the RCMP complaints process because they are the lead law enforcement on this side of the country. If you have concerns about your rights being infringed on, that is the way to deal with it.
The sovereignty issue has been resolved because domestic law on each side is applied, and we take the lead on an operation if we are designated to do so. What was happening, quite literally, is that a boat filled with drug runners would be here and a Canadian boat would go out to try and apprehend them. They would make sure they were a kilometre into American waters and say, "You cannot get me.'' That was happening all the time. Now we have eliminated that particular process, but with our respective laws in place.
As the deputy chair pointed out, they really have figured this out, particularly through the Olympics and the G20 where we operate together anyway. However, they worked some stuff out on this one which is now reflected here; this is intelligence-driven and based on threat assessment. As I mentioned earlier, it is not about letting us go out today to try and figure out if there are any bad guys out there. This is really targeted to specific operations.
Senator L. Smith: The public is often sensitive to working with the United States in terms of jurisdiction and whether we are losing control. What are your comments after having studied this three times and getting to the point where you suggested there are amendments, changes in moving forward? Is this a good piece of legislation?
Senator Wallin: I think that is what most of our witnesses concluded, and what we came to is that sovereignty is preserved. It is important. There has been recognition of that on both sides. We are not the only ones with sovereignty concerns; the Americans feel as strongly on those issues. We have worked that out. As I mentioned earlier, the real benefit to us as a country — while keeping our sovereignty and our laws intact — is this force multiplier effect. They have a lot of equipment which we now have access to, and we might be in command and control of an American ship or boat in our waters. We might be in command of that operation with them simply providing the equipment.
On the serious issues of laws and the differentiation, we have looked at that and resolved it. On the other issues of throwing everything we have into one bundle for us all to use, we are the winners on that one.
The Chair: It has been pointed out that this is the third time now. The other two times were separate stand-alone pieces of legislation; this time that same stand-alone legislation is incorporated into Division 12.
Senator Wallin: Yes.
The Chair: Senators Wallin and Dallaire, thank you for helping us. We anticipate this bill will be sent to us and we will have to deal with this portion of it in the very near future. That will be helpful.
Senator Wallin: Thank you very much.
The Chair: Next is the Standing Senate Committee on Energy, the Environment and Natural Resources.
Senator Angus is the chair and Senator Mitchell is the deputy chair of the committee. You have studied Part 3, which is a huge piece of Bill C-38. We appreciate your coming and helping us. We would much rather you did the clause by clause on this, but we suspect we will be doing it. If you could help us with any items we should keep an eye out for, that would be appreciated.
Hon. W. David Angus, Chair, Standing Senate Committee on Energy, the Environment and Natural Resources, as an individual: Thank you and good morning. Let me start by congratulating you all for the great work you are doing. I have been around this place for nearly 20 years and I have to tell you that the work you are doing is not easy. The public does not really know the extent to which senators are going the extra mile to give a review of this complicated corpus of legislation.
I only have a few brief comments, as does Senator Mitchell, but we will be delighted to answer any questions you have. I think you are aware we held seven extensive meetings of our committee on our pre-study of Part 3 of the bill. We heard 33 witnesses and had 11 written submissions, some of which are still coming in as recently as about an hour ago. There is an interest in it.
We tried to structure our hearings into a fashion that would be a balanced representation of the stakeholders. In other words, we had witnesses from business and industry on the one hand and environmentalists to give the ecological and environmental issues on the other hand. We had representatives of the Aboriginal communities who have a great and abiding interest in this subject matter.
At your request and following your communication of June 12 from Senator Day and Senator L. Smith, we put together a summary. We were sorry we could not do it on one page, as Senator L. Smith indicated to me would be best. However, we did boil it down to this document, which is a letter on our committee letterhead dated June 14. I should say that the letter fairly sums up the main points that should be highlighted.
I should point out that two of your members sitting around the table were present at our hearings: Senators Wallace and Peterson. My dad told me at an early age not to try to preach to the converted, so this is just by way of response to your exhortations to come before you this morning.
If I may make a general comment, there was a generally favourable response to the streamlining of the regulatory assessment process for major projects. We heard from the three ministers at the outset, plus bureaucrats from three departments and two agencies, the Canadian Environmental Assessment Agency and the National Energy Board.
It was very obvious to us that this was not something that was just dreamed up on budget night; there had been a study going on for three to five years to try to find a way to avoid duplication and to streamline environmental and other assessment projects that were going to, needless to say, interfere with the terrain and with cultural comings and goings and the like. We were quite comfortable that a lot of advanced work was done on these main provisions, which are designed to make it easier.
We heard horror stories about how it took nine years to get any kind of response about the Mackenzie Valley pipeline project. We heard other stories that, if all the old rules were followed, it might take up to 25 years to have a major new hydroelectric project.
This would appear to be well done away with, and we understand the provinces bought into it. We did some research, and the provinces and the territories referred us to the unanimous communiqué they issued after the Kananaskis meeting of the provincial energy and environment ministers in the summer of 2010. I checked that out. I spoke with former Premier Stelmach from Alberta. At one stage he was going to come as a witness. Regardless, he confirmed that there had been long and profound pre-studies about them trying to find a way. In other words, there was an initiative outside — it was not just from industry, but from provincial as well as local governments across the country.
We also had as a witness, in person, the former Premier of Yukon Territory. He summed it up beautifully. He gave a complete, soup-to-nuts presentation of the issue. He is situated in a territory that is rich in environmental issues as well as natural resources. I think we all felt on the committee that his presentation put it into good perspective.
There were three issues that I think are well described in our letter of June 14. First, let there be no misunderstanding: The members of our committee abhor omnibus bills the way everyone seems to these days. I remember constitutional experts on both the Liberal and Conservative sides of the Senate during my period here. It started with former Senator John Stewart, the great constitutional lawyer from Atlantic Canada, lecturing us on how unproductive these bills are. We certainly heard it across the board, and I know we are all hearing it in our comings and goings. It is a cumbersome way to do business, and we are not sweeping that under the rug in any fashion.
The second issue was the Aboriginals who, as you know, tend to have a fairly stock presentation they make to the Senate and other parliamentary committees about the constitutional right to be consulted. I have heard the spiel many times, but we did have requests from the Mi'kmaq group, particularly in Atlantic Canada — from Cape Breton — who had some specific issues on fishing. We also had very excellent representation from the Assembly of First Nations, and they delegated one of their chiefs from Saskatchewan, who came with colleagues, lawyers and the usual entourage. They were well prepared and very articulate in their presentation. They complained bitterly about the lack of consultation, without giving what consultation they were referring to. That is the general criticism.
The third and probably the most important issue that we would direct your attention to is that regarding the fishery issue. The questioning of Minister Ashfield when he was before us was instructive, if one were to look at those transcripts. We understand you have seen those transcripts. We have also tried to summarize in our letter what the issue is around sections 35 and 36 of the Fisheries Act, so I will not go into those.
We are blessed to have on our committee that brilliant wannabe-lawyer, Senator George Baker, who also knows a lot about fisheries. He told us chapter and verse about how this is dangerous in terms of the way the wording is set forth.
My purpose in saying these things to you is simply that there is an issue. Is it a real issue? Will things work out the way that Bill C-38 is drafted? I think they will. However, do we want to direct the officials and the Department of Fisheries and Oceans to the possible ambiguities that raise the question of what a time-tested definition of an Aboriginal fishery is as distinguished from a commercial fishery? Will there be confusion? It is important this be clarified at the very least with an observation or a direction that our very competent officials will not just let this pass on.
The word "subsistence'' is used in the Bill C-38 definition of Aboriginal fishing, and it is suggested that maybe it should be "sustenance.'' You have heard these words. We do not have a recommendation for an amendment. In fact, you asked us not to suggest an amendment, but we are highlighting it.
Those are the three main issues.
By and large, we were ready for arduous hearings and opposition. Even those opposed praised the way forward and the initiatives. There are overriding economic issues of developing our resources in an efficient and productive way, with a view to future prosperity. That shone through as an overriding aspect of Part 3.
Those would be my comments, senators. Thank you for listening.
The Chair: Thank you, Senator Angus. Senator Mitchell, do you have anything to add or modify?
Hon. Grant Mitchell, Deputy Chair, Standing Senate Committee on Energy, the Environment and Natural Resources, as an individual: As usual, Senator Angus has done an excellent job. It has been a pleasure working with him as chair, and I know the senators on our committee would vouch for that, as well.
I would like to emphasize a few things. The fisheries emerged as one of the core issues, as Senator Angus emphasized. He talked about the question of "subsistence'' versus "moderate livelihood.'' The moderate livelihood issue was clearly defined in a Supreme Court ruling from 1999. That has been excluded, which could be a huge problem from the Aboriginal people's perspective. I mention that because while many of the provisions in this bill that affect the issues of the environment are directed at streamlining, there appears to be a good deal of chance that this kind of gap — for example, the moderate livelihood issue — could become the basis for protracted legal action, which could actually delay the process in another way. That was emphasized by Aboriginal presenters.
The mining association made the point that while section 35 applied to many industries, the streamlining provisions do not apply to the mining industry, which is either an oversight or a gap of some kind that needs an answer or perhaps to be considered in the future.
Finally, a big part of this bill will allow the federal government to make decisions about essentially delegating, and there are two means for doing that. One is substitution where you delegate the process and the decision making to the provinces, for example. The other one is equivalency where the words mean what they mean; you would just delegate the decision. There is some question about who will do the assessment or whether it has been done in the jurisdictions to which this is delegated and to the same level of standards and so on. That would be an important issue.
Finally, I think people would say there were those who argued that too much discretion is now in this bill, given to the minister to make decisions to overrule the board, actually to fire someone or take someone off the NEB panel and put another person on in the middle of a hearing and reduce it to one person if they so chose.
In closing, one of the highlights of the testimony was the public servants from the CEA and the NEB. There was a panel, and they were outstanding, really good. They know their staff stuff, very dedicated, passionate about it and very reassuring with the way they presented.
Senator Angus: We would commend Ms. Helen Cutts. She was articulate and very much in command of her dossier.
The Chair: Thank you. I was looking at the note you sent to us dated June 14, 2012, and I am reading the fish amendments. You indicate it shifts the focus from protecting fish habitat to protecting fish that support commercial and Aboriginal and recreational fisheries, and — this is the portion I am wondering about — the harmful alteration or disruption of fish habitat will no longer be prevented. Down on the bottom line you say one of the tests remains the same, which is defined as death of the fish or the permanent alteration or destruction of the fish habitat.
What is the difference between "harmful alteration or disruption of fish habitat'' and "the permanent alteration or destruction of fish habitat''? That sounds like the same test to me. This is on page 3, under Fisheries Act amendments. It sounds like the fish habitat destruction or alteration test is still there.
Senator Mitchell: No. Serious disruption of fish habitat or harmful disruption of fish habitat will no longer be prevented specifically. That is one shift. In the past, if habitat was going to be disrupted, period, it could not be. Now, it simply is not the test, as I understand it.
It has implications also for the way those fish that will be protected will be considered. Now under this act, the fish that will be protected essentially will only be those that have commercial, recreational or Aboriginal significance. If they have no other significance, there is nothing in this act that would particularly protect them. That is a key core criticism of this act.
Senator Angus: In the past, if a little brook runs through a farmer's fields that is dried up and when it rains there is a bit of water and there might be a minnow in there, you could delay a project for two years because of all the regulation. That has been excluded now completely. Whereas there might be a nice stream in a farmer's field that does have fish, that habitat, as I understand it, will not be protected under these changes.
The Chair: Could you read that last line of that portion there under Fisheries Act amendment, "or the permanent alteration or destruction of the fish habitat.'' Is that not the same test that you were applying previously? Maybe the emphasis is on "permanent,'' is it? Is that what must be approved now?
Senator Mitchell: There is a qualitative difference between the way it was and "permanent.'' Now it has to be permanent. Previously, it did not have to be permanent. It could be destructive, harmful or harmful for a brief period of time. Now it must be permanent. Questions were raised about what is permanent, how long is permanent. There were some very interesting examples of how something that did not appear to be a particularly permanent destruction of habitat really was. There was a bay in New Brunswick where, because a pollutant went into the system from an industrial process, shellfish, a certain kind of lobster, left. Eventually they came back, so it was not permanent, but it was pretty disruptive for that period of time. There are serious questions about whether that would be covered under this act.
The Chair: Thank you. That clarifies it.
Senator Callbeck: Thank you both for coming today. You mentioned the Fisheries Act, and as I recall, there were former ministers of fisheries that came out and had some criticisms or concerns. Are their concerns addressed in this paragraph that you have in the letter, or are there any other concerns they expressed?
Senator Angus: We did not call them and we do not know what their concerns were because we do not go by what we read in the newspaper.
Senator Callbeck: They did not ask to appear?
Senator Mitchell: No. I would say from what I know of what they were saying that essentially their concerns were raised, technical concerns in our report certainly, the habitat issue, the commercial, Aboriginal, recreational definition of fish that would be protected, begging the question of what if you are not that kind of fish or sea life and so on. We covered most of that in the testimony.
Senator Callbeck: The committee did not feel that any of these concerns should be addressed by amendments?
Senator Angus: Correct.
Senator Callbeck: Clause 123 on page 141 extends the maximum allowable term of temporary members of the Canadian Nuclear Safety Commission from six months to three years. Do you know why that change was made? Did you hear any evidence about that?
Senator Angus: No, we did not hear any evidence about it, I have to admit. No.
The Chair: These are temporary.
Senator Callbeck: Yes. Thank you.
Senator Peterson: Thank you, gentlemen, for appearing here this morning.
My question is regarding the National Energy Board Act. Under the present legislation, if the National Energy Board denies an application, the Governor-in-Council cannot overrule it. With this legislation, they will be able to. The NEB is a quasi-judicial board. Under those circumstances, should that definition be changed?
Senator Mitchell: Yes. We do not have a consensus about that, but that is an issue. That is a heartland issue, the question of ministerial responsibility and prerogative in this now. It is a controversial issue, and it would be one of the major concerns amongst members.
Senator Angus: I think the majority of the committee — and you were there, senator — is comfortable with the legislation, comfortable with the explanations that were given, not only by the ministers but by the bureaucrats from the NEB who came to the hearing. Did we dwell on it in any great detail? There were sweeping statements made by colleagues about giving power to the Governor-in-Council to overrule things, but there are practical reasons for doing that. Certainly I think the majority of the committee did not feel they were going to be abused in the context in which these amendments are there.
Senator Peterson: Could that be changed? I suppose it could be.
Senator Angus: Sure it could.
Senator Peterson: If felt necessary.
Senator Angus: Yes.
Senator Ringuette: You talked about the farmer's field and the culvert that had to be changed. Does that not fall under provincial environmental legislation? How does this act change the requirement of provincial legislation to change a culvert in a farmer's field?
Senator Angus: That is a good question. Do you have an answer for that, Senator Mitchell?
There are elements of major projects that are under federal jurisdiction. I thought these amendments were more about sharing, delegating and working together. It could be under municipal jurisdiction, for that matter.
The amendment falls under the fishery, which is under federal jurisdiction.
Senator Mitchell: That illustration of the farmer's field is used to make a point. Your point is very good, because unless that stream crosses a provincial boundary, this does not matter.
Senator Ringuette: Exactly.
Senator Mitchell: We learned from the testimony of an Aboriginal person that this will bite in a wild river that is not fished. You can wreck that habitat, and that question is not addressed in this bill. In fact, this bill would allow that to occur, some would argue. We had testimony to that effect.
That is a very powerful point that you make. It is not really about farmers' fields; it is about big rivers that cross boundaries that can be affected in ways that previously they probably could not have been.
Senator Ringuette: Maybe the minister should stop using that needlessly.
Senator Buth: Coming from a background of agriculture and having dealt with quite a few different farmers' issues, I can tell you that that is a serious issue that crops up regularly in terms of drainage off farmers' fields. Sometimes it is because it is considered to drain into a navigable waterway, which is then under federal control. Sometimes if there has ever been a fish seen in it, the Fisheries Department has indicated it has jurisdiction over it.
I have been involved in several projects where the Fisheries Act delayed farmers' ability to store surplus water for irrigation later in the year, and the delays were quite substantial. Therefore, there is good reason for using this example.
The Chair: Thank you very much. That is helpful.
[Translation]
Senator Hervieux-Payette: I would like to get some further explanations regarding the National Energy Board and the quasi-judicial powers vested in it. Are there many quasi-judicial organizations in Canada? Has this issue been raised, regarding the fact that, generally, decisions are final and must be applied and that the government is subject to the same rules that apply? Even if we are talking about national interest, this should be defined. Senator Angus is a lawyer and could tell us whether, normally, a judicial commission can have its decisions questioned by a department. I think that is very uncommon.
Senator Angus: It is possible, but the issue has not been raised. We have not discussed it at all. I cannot comment.
Senator Hervieux-Payette: And none of the witnesses have raised that issue?
Senator Angus: No.
Senator Hervieux-Payette: We have the same thing in Quebec — the Régie de l'énergie, the province's energy board. When a decision by the Régie de l'énergie applies to Hydro-Québec, the government cannot get involved and say that it will not apply the board's decision in the interest of Quebecers. In this case, it seems that the minister could question the board's decision. That is fairly important, and I think it should be pointed out.
[English]
The Chair: I agree. I think it is important to put these issues on the table.
Thank you, Senator Angus and Senator Mitchell, for the fine work you did on a huge part of this bill. It runs from page 31 to page 184. We understand the challenge you had, because we had a similar challenge in dealing with much of the rest of this bill. We will be better equipped now to deal with clause-by-clause consideration when the time comes because of the work you have done and the report you have given us. We thank you for that and thank you for being here.
Senator Angus, this may be one of the last times that you will appear before this committee, so allow me, on behalf of the committee, to thank you sincerely for all the fine work that you have done, not only with this committee and other committees but also with the Senate generally over the years that you have been here.
Senator Angus: Thank you, Mr. Chair. When I come into this room, I almost feel at home. I will be a sad camper when I leave here.
[Translation]
The Chair: You are always welcome.
Senator Angus: Thank you very much.
[English]
The Chair: Honourable senators, that concludes this experiment, which I think has worked nicely in informing us on the sections we did not have a chance to look into.
We will work on Senator Ringuette's motion to get those various undertakings answered as quickly as possible.
You read out a list, Senator Ringuette, and it will be in the transcript. The ones that you absolutely need in order to do clause-by-clause consideration are the ones we need to know about, having in mind that we will continue to see Treasury Board throughout the year. We can pursue them at any time on any of these matters, but the ones you need for Bill C-38 are the ones we will work on.
Colleagues, hopefully we will meet in the next day or so to deal with clause-by-clause consideration of Bill C-38. This meeting is now concluded.
(The committee adjourned.)