Proceedings of the Standing Senate Committee on
Fisheries and Oceans
Issue No. 18 - Evidence - June 8, 2017
OTTAWA, Thursday, June 8, 2017
The Standing Senate Committee on Fisheries and Oceans, to which was referred Bill S-203, An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins), met this day at 8:30 a.m. to give consideration to the bill.
[English]
Mireille LaForge, Acting Clerk of the Committee: As acting clerk of your committee, it is my duty to inform you of the unavoidable absence of the chair and deputy chair, and to preside over the election of an acting chair.
I'm ready to receive a motion to that effect. I see that Senator Enverga is nominating Senator McInnis.
Senator Enverga: That's right, yes.
Ms. LaForge: Are there any other nominations?
It is moved by the Honourable Senator Enverga that the Honourable Senator McInnis do take the chair of this committee.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Ms. LaForge: I declare the motion carried. I invite Honourable Senator McInnis to take the chair.
Senator Thomas J. McInnis (Acting Chair) in the chair.
The Acting Chair: The chair is not available today and in fact it is important as to where he is. Today being World Oceans Day, he is at a conference on the oceans and we will be interested in hearing his report following that.
I was listening this morning to the news. I don't have the hookup for you, but it's interesting that they have a submersible going down at least a kilometre in the ocean between Nova Scotia and Maine. You actually go in and see that particular part of the ocean. They are showing the corals and all that type of thing.
He is putting some time in there, and I think that's a very good thing to do.
The meeting has been called to order, but I will bring it to order. I want, first of all, to invite the senators to introduce themselves, starting on my left.
Senator Gold: Marc Gold from Quebec.
[Translation]
Senator Forest: Éric Forest, from the Gulf region of Quebec.
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Senator Enverga: Tobias Enverga from Ontario.
Senator Plett: Don Plett, Manitoba.
Senator Watt: Charlie Watt from Nunavik.
The Acting Chair: As mentioned, my name is Tom McInnis. The committee is continuing its examination of Bill S- 203, An Act to amend the Criminal Code and other Acts (ending the captivity of whales and dolphins).
This morning, we are pleased to have with us some guests from three different departments of the federal government. We have Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice; Adam Burns, A/Director General, Fisheries Resource Management, Fisheries and Oceans Canada; and Basile van Havre, Director General, Domestic and International Biodiversity Policy, Canadian Wildlife Service, Environment and Climate Change Canada.
On behalf of all of the members of the committee I thank you for being here. I understand you do not have written remarks because you have been here before. You have absolutely nothing to say, but you will in a moment when the senators have at you.
The floor is open. I normally go to the critic of the bill, and we're going to go to Senator Plett.
Senator Plett: Thank you, chair. I was obviously caught off guard a bit. I was hoping I would hear comments that I could ask questions about.
Let me do this: We've had testimony here that this particular piece of legislation could have a very significant impact on the Inuit and indigenous communities, up to the tune of $400,000 to a half a million dollars a year because of the harvesting of different parts of animals in the sea. Also we've heard that there has not been any consultation with them in as far as what impact that could have on them.
That is my first question. I'll leave it at that, chair. I'll have one more question after that. I don't know who wants to handle that question.
Adam Burns, A/Director General, Fisheries Resource Management, Fisheries and Oceans Canada: It is in terms of confirming that we have not consulted with indigenous communities.
Senator Plett: Yes, confirming that and explaining to me what impact it could have on the Inuit and indigenous communities.
Mr. Burns: In terms of whether the department has consulted on Bill S-203 in any manner, I can confirm that we have not.
Senator Plett: You have not.
Mr. Burns: Correct.
In terms of the potential impact, I think the issue would be around the provisions of banning the import/export contained in the amendments to the legislation. It appears that could have an impact on the ability of Inuit to export products outside of Canada, which they currently do. Therefore there is potential for an impact on them as a result of that prohibition.
Senator Plett: "Appears.'' Either it does or it does not. Can they legally import/export if this bill passes or can they not?
Mr. Burns: I'm not a lawyer so I can't confirm the interpretation. I can state that on the surface that it appears the intent is to prevent that export. If that were to occur, it would have an impact on Inuit who currently do undertake that type of activity.
Senator Plett: Do you have any figures as to what the impact would be?
Mr. Burns: DFO doesn't track export dollars so I can't confirm the exact amount. Nor could I confirm whether they would be able to find other markets for these products elsewhere, but we do know the potential for that impact as a result of the provisions in the bill.
Senator Plett: Ms. Klineberg, do you see any issues with this legislation constitutionally? Do you know the legal impact this would have on the indigenous communities? In your opinion, is this entirely constitutional if we were to pass this legislation?
Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice: It's my understanding that any potential impact with respect to indigenous communities would come from amendments to the acts other than the Criminal Code. Unfortunately, I'm not really in a position to speak to any of those impacts. I can't readily see an impact in terms of the amendments under the Criminal Code, which all deal with cetaceans in captivity. If something specific has been raised with respect to that, then I would certainly be happy to answer a more specific question.
In terms of any other constitutional or legal issues, we're not really at liberty to disclose legal advice, the Department of Justice and the advice that it gives. I can say as a general matter we can certainly confirm a basic understanding. Again, unfortunately, I'm really only in a position to speak primarily to the amendments to the Criminal Code.
If the purpose is to suppress what is considered to be animal cruelty and if there is a valid scientific justification for thinking that these amendments will serve that purpose, then it's quite likely it would be constitutional as criminal law. That said, as I think I testified to when I was here a few months ago, the constitutional jurisdiction and the regulation of the management of animals is extremely complex. There is a lot of overlapping jurisdiction. It is also important to know that in the jurisdiction that perhaps matters the most, which is Ontario, the Ontario government does have legislation specifically dealing with the welfare of animals, including marine animals which include cetaceans that are in captivity.
I think you heard a lot about the recent Ontario legislation. If the Criminal Code amendments in this bill pass, they would be in conflict with the Ontario legislation, which prohibits only the keeping in captivity of orcas and not other types of cetaceans. A conflict doesn't necessarily mean that the federal law would be unconstitutional. In fact, the federal law would probably prevail over the provincial law.
These are just general considerations about the constitutional dimensions that I can share with you.
Senator Plett: Am I reading into that, that you don't think this particular piece of legislation is necessary since Ontario has fairly stringent laws and this is dealing mostly, although not entirely, with Ontario?
Ms. Klineberg: I'm really not in a position to answer that question, Senator Plett, unfortunately.
Senator Plett: Chair, we took grade strides in bringing people back again so we could get some answers that we're still not going to get today. Maybe we should look at bringing someone in at some point that will be able to answer our questions. I'll leave it at that for now.
Senator Gold: Good morning; welcome back. I fully appreciate that this is a private member's bill and that you are in different departments. I'll ask you one question and then follow up, if I may.
To what degree, if at all, are any of you able to give an opinion as to the desirability of this bill from your particular perspective? I'll respect whatever answers you give me, but given that it is a private member's bill we are keen to know what is the position of the government and the relevant government department. If any of you could help us with that, we would be grateful.
Mr. Burns: I can start. First, as public servants, we don't have the authority to speak as to what the minister, the cabinet and the government have as an opinion on this.
With respect specifically to the provisions related to the Fisheries Act and to the overall objective of ending the captivity of whales and dolphins, as we have previously noted with respect to DFO's regulatory policy framework, while the minister does have the authority to issue a licence for the public display of any aquatic species, including whales and dolphins, that has not occurred since the early 1990s.
From DFO's perspective, we don't authorize the capture of whales and dolphins for public display and haven't now for over 20 years. That speaks to our current policy stance related to the capture of these animals from Canadian waters, which is the area of our primary focus.
Senator Gold: Are you in a position to provide us with the rationale behind the 20-year failure to issue such permits?
Mr. Burns: I'm not in terms of what the decision of the minister at the time was based on other than to say that policy was put in place about 20 years ago and there have been no efforts, attempts, or any sort of movement away from that policy. It's a policy that has remained in place since then.
Ms. Klineberg: I'm happy to share a few more additional considerations that the Department of Justice generally applies when we're looking to criminal legislation, which I hope will be helpful to you.
The important thing to know about criminal law is that it tends to be general in nature. Criminal law is about setting down a basic minimum moral code for all society. It strives to do that by setting down rules that are specific enough so that we know when they are being breached and can be enforced but are general enough, because morality is general in nature, that we can describe what is wrong in a general way.
The Criminal Code does have animal cruelty offences. They are not specific as to certain types of animals. One rule: "Thou shall not cause unnecessary pain, suffering or injury to any animal.'' This is consistent with the way of the rest of criminal law works. We don't have different offences for assaults on different classes of people, generally speaking. We don't have offences for different frauds on different people. We have one description of what wrongdoing is and it applies generally across the board.
This might give you some understanding of why it's difficult for the Department of Justice to opine on this legislation. We have no expertise in cetaceans, what are the social needs of cetaceans and what are the needs with respect to the water and the materials in tanks that they are kept in. That's very specialized knowledge. In one sense, that's the kind of information and kind of subject that fall outside of what is already captured in the criminal law, which is more general in nature and sets down more general tests.
If the criminal law becomes overly specific and overly particularized, we try to think what it will look like five years or ten years from now. This is a policy question. It's not a constitutional question. Is the criminal law the right place to set down specific rules dealing with specific types of animals in specific circumstances held by specific people? These are some of the policy considerations that we would apply in advising the government.
Senator Gold: The Criminal Code, for example in law concerning mischief, distinguishes between mischief against property and particularly distinguishes between different kinds of property. Certain offences are more serious than others. The motivation behind the commission of mischief also matters.
Were Parliament to decide, through this bill, that there is a basis upon which to single out cetaceans for captivity, do I understand the criminal law correctly that it would likely be considered a reasonable basis upon which to conclude the criminal power has been engaged? In other words, if Parliament passes this law on the premise that keeping cetaceans in captivity causes harm to them, would that not be a reasonable invocation of the criminal power under the Constitution?
Ms. Klineberg: I think it would take more than merely the premise as in the idea of it, but there would have to be some confidence there was scientific grounding to the proposition that the mere fact of captivity is cruel to cetaceans. If that were so, it's entirely possible it would be valid criminal law from a constitutional point of view, yes.
Basile van Havre, Director General, Domestic and International Biodiversity Policy, Canadian Wildlife Service, Environment and Climate Change Canada: From Environment and Climate Change Canada perspective, as you heard me last time, our concern is about conservation of species in the wild. When it comes to trade we feel that WAPPRIITA is what we need to ensure we can meet our mandate.
Senator Gold: On a second round perhaps I'll have some other questions.
Senator Watt: Coming back to the issue raised by the first questioner on whether Bill S-203 would have an impact on the activities of the Inuit, one thing I know is that the beluga, for example in terms of byproducts, isn't being marketed out either internally or internationally, at least to my knowledge.
However, when it comes down to the narwhal tusk, that is something Inuit in the North very much enjoy by way of marketing it either internally or internationally. That is very important to them. At this point, I'm not entirely sure whether a piece of narwhal tusk that is marketed out would be prevented or considered criminal in this bill. That's one issue that I would like to know.
Another aspect is livestock being taken. To my knowledge, I don't think that has taken place. It was a sort of practice at one point in Churchill, Manitoba, by the Inuit who were able to harvest them in the water and in the wild. I don't think that practice is taking place any longer, to my knowledge. I know people who used to do that in Churchill, Manitoba, while I was in Churchill, Manitoba, back in, I would say, the early 1960s.
Unless you have new information that the practice is still taking place, I don't think it is. It would mean, then, that this bill would contradict the practice of the Inuit if they are still doing that. They would be classified as criminals if they practised what they used to do back in the early 1960s.
On those accounts, I guess I have two questions that I have already put forward. Is there anything that you can provide me with that would ease my mind in terms of this particular bill not hindering the practice of the Inuit? What is your opinion on that?
Mr. Burns: I think the department has previously stated to the committee with respect to indigenous export of certain byproducts that in particular clause 4 of the bill, the changes to the WAPPRIITA legislation, could have an impact on that.
On your specific question of whether the narwhal tusk that is being exported is covered in the language that's here, again that's a legal interpretation that I can't provide for you, but certainly on the surface there is the possibility that would be captured by the language of this clause. That would potentially have an impact therefore on indigenous communities. If they are currently exporting the product outside of Canada, that ability would cease. I think we have previously stated that, and that interpretation would remain.
Senator Watt: On the livestock side, do you have any knowledge of whether the old practice that used to be practised by the Inuit in the past is still going on, to your knowledge?
Mr. Burns: I don't know.
Senator Watt: To my knowledge, I don't think it is.
Mr. van Havre: I regularly travel to Churchill, mostly in relation to polar bears, and this is the first time I have heard about that. I will be very interested in discussing that with you further, Senator Watt.
Senator Watt: Like I said, it was a long time ago, but it did not take place for a long period of time. It probably was a practice within two or three years at the time when I was around and witnessing what was happening. I know the particular families that used to do that.
Then again, just like anybody else, if they are going to be exporting the species, they still have to get permits. They have to go through the authorities to be able to move the stocks. I'm not saying that they were breaking the law before. That's not what I'm saying here. It's just that I'm one of the people who is wondering whether that practice is still taking place. To my knowledge, it is not. Then, if it's not, I really don't have that much to worry about as to whether this piece of law would conflict with dealing with livestock.
The fact that you brought up the subject of the possibility that the narwhal tusk could be used to criminalize the people is something we need to come to grips with. What is it? We need an answer on that. Thank you.
The Acting Chair: You're not able to today, but will you be able to give an answer on that?
Ms. Klineberg: With the greatest of respect to this committee, I work directly for the Minister of Justice. I'm not a lawyer at Justice who serves the other departments. This question is about the pieces of legislation that would be amended that are not the Criminal Code.
It would be counsel for these departments here that would be in a better position to answer that question than I am. It's simply outside of anything that I have expertise in.
The Acting Chair: We appreciate that.
Senator Raine: My concern is the impact of a total ban of any export of cetaceans in captivity in Canada. I would be interested if Mr. van Havre could comment a bit.
On potential programs put in place internationally for the survival of endangered species, I have had some communications from a research facility in Germany. They are very concerned because the belugas and the bottlenose dolphins at Marineland are part of an international program, in case they need to re-establish some of these species.
They talk about Black Sea bottlenose dolphins needing captivity breeding urgently and reintroduction into the wild natural habitat in the Black Sea to survive. They state that the numbers are dramatically declining and that the genetics of the currently captive animals in Marineland are of huge importance to the survival of species in the wild. They mention the fact that these five bottlenose dolphins in Marineland are females and that there is no male to breed with them. They see that as pretty important.
I'm just wondering if you could comment on that and how this legislation would impact on moving animals around for the survival of the species.
Mr. van Havre: I will make some general remarks in terms of the importance of captive breeding for species survival. I will turn to my colleagues from Fisheries for some specifics on marine species if that's agreeable.
Generally speaking, the world community on conservation is using captive breeding in specific circumstances when there is a collapse of a species, and we do exchange between countries. As an example, the reintroduction of the black- footed ferrets in the Prairies was based on individuals coming from the U.S. side. They breed in captivity and we release them in the wild. That is a well-recognized tool for reintroduction when there is disappearance of a species.
There is exchange. In terms of international exchange, it really depends on the circumstance of each species and each ecosystem. I'll turn to Mr. Burns, who will be able to give you some remarks on specific marine species. My area of expertise is on the terrestrial and avian side.
Mr. Burns: I don't really have a particular knowledge around the particular case of restocking of that particular body of water. I work on the fisheries management side. I'm not a scientist, so I'm not aware of whether or not there is scientific literature related to the effectiveness of captive breeding for restocking purposes.
I can say, though, that the particular amendment to the Fisheries Act in this legislation would remove the minister's authority to issue a permit for the movement of a marine mammal, except for cases where that marine mammal was injured or in distress. The particular circumstance you were talking about, whether it's removing one of the females from Marineland or bringing in a male to Marineland, wouldn't be able to occur in the context of this legislation.
Senator Raine: I have a supplementary question for Mr. van Havre. Do you think it's wise for us to put in place legislation that would block scientific endeavours to ensure the survival of the species when it looks like we have enough laws in place to protect and have best practices for our captive cetaceans?
It seems like we are closing a door that we should leave open.
Mr. van Havre: It is not my place to advise you on what is wise or unwise. What I can tell you is that the use of captive breeding is an essential tool in the toolbox of wildlife managers.
Senator Raine: Whether it's mammals or cetaceans, it is the same principle.
Mr. van Havre: It is the same principle across all of the orders: avian, terrestrial or marine.
Senator Enverga: Thanks to the expert witnesses for coming here today. I assume you have read Bill S-203, which contains three main clauses on captivity, breeding and possession.
I want to get your opinion on what your idea is regarding the breeding or impregnating of cetaceans. Is it natural or does it include artificial insemination and those kinds of things? What are your ideas about that?
Ms. Klineberg: I heard the testimony from, I think it was Marineland. They were asked if they had a breeding program. My recollection of the answer they gave was that they don't take any activities whatsoever to cause or assist the belugas in captivity to breed with each other. All of the breeding that takes place was completely natural. I assume that's where your question is coming from.
The criminal law is concerned with human actions. It describes human conduct, so that a human being can be held accountable for doing something that the law says they're not allowed to do. When I interpret breeding or impregnating a cetacean through the lens of interpreting the criminal law, to me there would have to be some human agency or some human activity, because that's what the criminal law aims to prevent. It aims to stop people from doing things that society says we don't want you doing.
Also, there is an interpretation principle that the criminal law is to be interpreted narrowly or strictly, and in favour of an accused when there's a question about the scope of how far things go. I would have a hard time accepting that animals in captivity breeding on their own, without there being any sort of human intervention at all, would qualify as a person who breeds or impregnates. To me, I think there would have to be some human agency involved in the impregnation of the animals.
Senator Enverga: Does putting a male and female together constitute a human intervention?
Ms. Klineberg: In that particular case it would depend on what was the intention behind putting them together. If the routine is you have 50 of them altogether and then a choice is made one day to put a male and female in one chamber away from all of the others, one might wonder why that was done and if that was done for the purpose of giving the opportunity for them to breed. That might be the sort of human activity that could engage liability.
Senator Enverga: Would you say it's actually a slippery slope, because you will never know what will happen when you put two opposite sexes together?
Ms. Klineberg: Yes, we would call those proof problems. If you could imagine forward in time to an actual criminal prosecution where the Crown would have to prove that the accused had done something to facilitate impregnation or breeding, it might be difficult to prove. Whether something is difficult to prove is not the same as whether it is illegal. There would be issues.
Senator Enverga: Would there be constitutional issues? If you were prosecuting someone because of natural behaviour, that would be really hard, right?
Ms. Klineberg: That's exactly why the criminal law can only punish people for something they have done. It can't punish you because animals in your possession have done something in the absence of some relationship between what you've done and what they've done.
There would have to be some human agency involved in the impregnation, as a criminal law question.
Senator Enverga: Would you say this needs more study? Don't you think the law would need more detail to make more effective the way they intend it to be?
Ms. Klineberg: It has always been my view that more clarity is better than less clarity. I've described what I think would flow from a normal criminal law approach to these particular questions, but if this committee saw fit you could always include an interpretive clause that says, "for greater certainty, breeding or impregnating means or requires.'' I'm not going to speculate on what that would look like, but more clarity is better than less clarity.
Senator Enverga: Are you saying this has less clarity?
Ms. Klineberg: Not to me, specifically, but that's because I look at everything through the criminal law lens. To the general public, it might not be as well understood.
[Translation]
Senator Forest: Thank you for appearing before us. The various witnesses differ substantially in their positions. The waters can be murky and we do not know which way to turn. During the evidence we heard, I asked those who vigorously defend Bill S-203 whether it is an acceptable compromise to prohibit the capture of individual animals in the wild for the purposes of performance, as Marineland and the Vancouver Aquarium do. As I recall, I was told that might be an acceptable compromise.
On the other hand, you are saying that for nearly 20 years the departure has not authorized the capture of animals for those purposes. If the bill included an amendment that would prohibit the capture of animals for performance purposes and so forth — which has been the practice for 20 years —, do you think that would bring people of different views together so we would simply be recording in writing a practice that has in fact existed for 20 years now?
Mr. Burns: I do not understand your question entirely.
Senator Forest: In the past 20 years, the department has not issued a single permit to capture individual animals in the wild. Is that correct?
Mr. Burns: Yes, that is correct.
Senator Forest: I asked the following question: "If the bill prohibited the capture of individual animals in the wild, would that be an acceptable compromise?'' My recollection is that the vast majority of the witnesses said yes. We should put the current practice into effect officially.
I am concerned about the rights of Aboriginals. If the individual animals in captivity reproduce naturally, that would be allowed and would not be a crime. To my mind, that would be an acceptable compromise, since opinions are sharply divided.
Mr. Burns: It is not up to me to decide whether or not that is an acceptable compromise, but I can tell you that if. . .
Senator Forest: If I were the minister and I asked you the question, what would you answer?
Mr. Burns: We are not authorized to issue permits to capture cetaceans, and that has been the case since the 1990s, I believe.
Senator Forest: What would you recommend if I were the minister?
Mr. Burns: Removing that power would not change anything.
Senator Forest: Thank you.
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Senator Christmas: I'd like to pursue the whole issue of trying to achieve more clarity on the Crown's duty to consult.
I have before me a Government of Canada document dated March 2011. It's titled Aboriginal Consultation and Accommodation - Updated Guidelines for Federal Officials to Fulfill the Duty to Consult. Are you familiar with this document?
Mr. Burns: Yes.
Senator Christmas: Guiding Principle No. 1 says:
The Government of Canada, in carrying out its activities, will respect the potential or established Aboriginal or Treaty rights of First Nation, Métis and Inuit people by consulting with Aboriginal groups whose rights and related interests may be adversely impacted by a proposed Government of Canada activity.
Then it lists four steps. Phase 1 is called "Pre-Consultation Analysis and Planning.'' Given Bill S-203 may adversely impact an Aboriginal or treaty right, has Fisheries and Oceans Canada developed a consultation plan to deal with that impact?
Mr. Burns: Bill S-203 is not government legislation, so it's not our practice to undertake consultation with indigenous communities or with others with respect to private members' legislation.
Senator Christmas: My understanding is that the Nunavut Land Claims Agreement is protected under section 35 of the Constitution. The agreement gives the Inuit the right to sell, barter, exchange and give, inside or outside the Nunavut Settlement Area any wildlife lawfully harvested. It seems to me very clear that the harvesting of narwhal tusks would be a section 35 protected right. I don't think there is any ambiguity about that. Again, I'm pursuing clarity here.
If Bill S-203 has the potential of adversely impacting the harvesting of narwhal tusks by the Inuit, should Fisheries and Oceans Canada have a consultation plan? I'm not asking you to do a consultation now, pre-legislation, but I'm asking you to answer whether Fisheries and Oceans Canada has prepared a consultation plan in anticipation of the passing of this bill.
Mr. Burns: Again, it's not our practice to develop these things for private members' legislation. Certainly we would follow the full practice outlined in the document you're describing for government legislation, but we don't do that for each and every private member's bill that comes forward.
Senator Plett: I appreciate your indulgence in allowing me to make a couple of observations, and I apologize that I have to leave for a conflicting meeting.
I found interesting the observation Ms. Klineberg made. I certainly agree with her when she says more clarity is better than less clarity. I don't think we have achieved that purpose at all this morning. We have not got any more clarity from this meeting. I say that, with all due respect to our witnesses. They are obviously restricted by some things they can say and opinions they can form.
Chair, I have been involved, as you have and others, in many private members' bills, including one I just got passed through the Senate a month ago, where the government sent, not the minister in that case but the deputy minister. Senator Mitchell, I think, experienced the same.
We have not got more clarity today. Before I have to leave, I would simply like to suggest that before we can possibly go to clause by clause on this bill we have to have either the minister or the deputy minister come in and give us the political answer that we are looking for. We will look silly passing legislation that is clearly fundamentally flawed, if we don't have an opinion from the government as to what they're going to do with this legislation if they get it over there.
Mr. Burns says they're not in the habit of developing any consultation plans in answer to Senator Christmas on private members' bills. However, we have a private member's bill here that could well become law. I find it a little disconcerting that we can bring laws into place without the government having a plan for that. That being the case, I don't think we should allow private members' legislation to come forward at all anymore if we can't have a plan.
I'm not wanting in any way to be critical of the witnesses. They have done what they could here today, but as I leave, chair, I want to leave with you and the committee the fact that before we go to clause by clause on this legislation we have to have a political answer that has to come directly from the minister's office through either the minister or the deputy minister, not through the staff they send that are not able to give us a concrete answer.
I'll leave it at that, and I thank you for your indulgence. I thank the witnesses. I apologize, witnesses. It's not my intent to be critical of you. You've done what you've been able to do, so thank you for that.
The Acting Chair: Senator Plett, permit me to make a comment before we go to round two.
Mr. Burns, when you were here three or four weeks ago, I asked a question as to whether there were existing laws on the books, and you weren't sure. You didn't give a definitive answer, and I understood why that would be.
Since then I've been doing some work myself to determine the laws. I'm not complete yet. One of the difficulties with private members' bills, one of the things we're going to be looking at in terms of process at the Modernization Committee, is what checks and balances do we do before private members' bills are introduced?
First, are they Charter compliant? Second, are there existing laws on the books now in respect of departments in the Criminal Code that cover it already? Those are things we have to know. We don't want duplication all over the place.
I want to read in one of the reports that I got back with respect to what Senator Christmas was touching on and some others. If you will indulge me for a moment, it's a couple of short paragraphs on Aboriginal concerns.
"Under the Inuit Land Claims Agreement, Inuit have the right to sell, barter, exchange and give, inside or outside the Nunavut Settlement Area, any wildlife lawfully harvested, and the Nunavut agreement is protected under section 35 of the Constitution,'' as we have already heard.
"The Crown may have a legal duty to consult and where appropriate accommodate whenever it contemplates conduct that might adversely impact potential or establish Aboriginal or treaty rights. However, the issue of whether there may be a legal duty to consult prior to or upon introduction of legislation is an issue that is presently before the courts.''
My questions would be: Was this a reference? Is this clarification with respect to the Crown's duty to consult?
"This does not, however, preclude parliamentarians, your committee, from seeking the views of concerned indigenous groups regarding the bill. Narwhal products, including tusks, are traded and sold as a byproduct of the cetacean hunt in the Nunavut Settlement Agreement, and we do obviously issue licences for that purpose.''
This is the answer to the question that I posed to them: "The answer is that the question of whether such a duty to consult is triggered by the tabling of legislation in Parliament is something that is before the courts.''
I don't know how you pass this bill without our delving into what is before the courts and who commenced the action. If not an action, was it a reference for clarification? To me, it looks like that's what it was.
Those are some of my concerns. This will be part of the process when we delve into this in the Modernization Committee. Hopefully we'll do an analysis of the existing provincial and federal laws, whether or not they're concurrent with the province.
Those are some of my concerns with private members' bills coming through. That's not to interfere with this bill if the committee thinks it is worthy going clause by clause. That will be a decision of the committee, but it is something we have to be concerned about because there are a number of private members' bills that go through.
I just wanted to make those comments. Hopefully it has been helpful.
Senator Watt: Perhaps I could help draw the picture of the point you raised.
The Acting Chair: Yes, go ahead.
Senator Watt: I, for one, was involved at the beginning of the status of negotiating with the Crown with regard to certain activities that would be allowable on the Aboriginal side and on the Inuit side.
One thing that makes it very difficult for people at the stage of implementation is that the Government of Canada or provinces have not looked at their laws and policies to see whether they correspond with the modern treaty. That has still not taken place. I'm talking about agreements and treaties that were put together 40 years ago. Still, today, they have not reviewed their laws and policies. I believe it was only this year that several ministers were designated by the Prime Minister to review that. I have not seen any results of that yet.
Therefore, the point that you're raising is a legitimate issue to be concerned with. Before we pass the law, there are certain steps that have to be taken but they're not being followed. Maybe this is something that requires a strong message. This is the first time it is being dealt with in any form at committee the way it should be.
There was a treaty commitment made by the Government of Canada. The fact is that they have not aligned themselves with the modern set of laws that have to be recognized to override old existing laws. Unless that takes place, we're always going to be in the position of not being able to implement things properly.
I thought it might help to say we need a lot more information on this. I have to leave because I have another commitment but, if you don't mind, there is an issue I would like to raise.
Another issue that I'm concerned with is the byproduct of beluga bones and things of that nature. Inuit have utilized them in many ways for handicrafts, carvings and things of that nature. I'm concerned somewhere down the line those could be human activities, as the lawyers have mentioned. Maybe one day they could be considered and we might find one or two Inuit persons being taken to trial.
Those are the things we need to have clear answers on. We don't have clarity on our side. We need clarity as well as the government needs clarity.
The Acting Chair: Thank you, Senator Watt.
We will now go to the second round.
Senator Gold: I have a question for clarification. Might I say that I think you actually have provided some clarity? Sometimes it is helpful to know what we don't know and to know what answers we can get from whom and where we can't.
In that sense, I have a question for clarification for Mr. Burns and then a general legal question for you, Ms. Klineberg.
Vis-à-vis the current law about capturing cetaceans for captivity, do I understand correctly that our current laws and practices are restricted to Canadian waters?
Mr. Burns: Yes.
Senator Gold: Therefore, but for this law might it not still be possible, subject to licences, to import into Canada cetaceans that were captured elsewhere? This law would preclude it, but our current practice would not speak to the issue of the importation of live cetaceans to be placed in captivity in a Marineland-type facility, were those were captured in Russian waters, for example. Is that right?
Mr. Burns: Yes, the only other tool the minister would currently have would relate to the marine mammal transportation licences under the marine mammal regulations, which is required for interprovincial transportation of a marine mammal, but the transportation within a province would not be regulated by that licence. If the whale lands at Pearson and is transported to Marineland, it wouldn't be covered under that legislation.
Mr. van Havre: The CITES provisions will kick in as well. All species are either in appendix I or appendix II, so you need a CITES permit to import it into Canada.
Senator Gold: I think you spoke to that in your last testimony.
Mr. van Havre: Finally, there is currently discussion at the international level on a new regime for biodiversity in the high seas. We're still in early days. We're years away from an international treaty, but those are questions the international community is working on.
Senator Gold: I agree with the observations of my colleagues about the importance of consultation. I think you've helped us understand how the legislative process should be improved, even with regard to private members' bills. In that sense, it's helpful.
This is a general legal question. Were a provision of the Criminal Code to appear to infringe upon a recognized treaty or Aboriginal rights protected by section 35, would it not be sufficient, in an amendment to the Criminal Code or any bill, for example, to have a clause that says the particular suspect provision shall not abrogate or derogate from any rights guaranteed under section 35?
In other words, a general recognition, not that it's constitutionally necessary but to make it really clear that the treaty rights and recognized Aboriginal rights under section 35 of the Constitution Act would prevail or would operate notwithstanding this attempt.
It does not dispense with the need to consult, but would that not be an effective way to make it clear that whatever rights are protected in the land claim agreements or otherwise remain, notwithstanding the law? Would that be an effective legal way to address this?
Ms. Klineberg: Unfortunately, I have to start my answer by saying that although you've situated your question within the Criminal Code, it's actually more of a question or at least in part a question about Aboriginal rights under the Constitution.
I only want to say I'm not an expert in these matters, so I'm only to give you an answer based on past experience.
Senator Gold: It's a matter of statutory interpretation.
Ms. Klineberg: I know the issue of non-derogation clauses has come up in many different contexts. In some quarters concerns and questions are raised about saying in a regular statute that constitutional rights are protected, because, of course, constitutionally the Constitution is supreme to these other statutes. There is something a bit awkward about reproducing a constitutional protection in a statute that is already subordinate to the Constitution and must be interpreted in light of the Constitution.
Again, it's not dissimilar to the comments I made earlier. If this legislation were to pass, one might imagine where we would be in five years in terms of the detail in the Criminal Code. A question also arises: Will we find ourselves with a multiplicity of derogation clauses across federal statutes? What might be the implication of that?
To try to be helpful to you, my suggestion would be that rather than focus on codifying constitutional rights, which are there in the absence of their being codified, it might be preferable from a legislative point of view to focus on the conduct that you wish to exclude from the offences. This is rather than something at the level of constitutional principle. A legislative attempt could be specific about conduct that is excluded from the scope of an offence would strike me as perhaps more in line with how legislation is drafted.
Senator Gold: Thank you. That is helpful.
The Acting Chair: Senator Raine, did you have a supplementary question?
Senator Raine: I have a supplementary question for Mr. van Havre.
I'm very concerned that we as a country, we as a people, are interested in preserving species if we can and if we can help, we want to do that. I'm concerned that this legislation will not allow us to play the full role we could play when we have facilities and expertise in our country. We should be working with international partners.
I was interested to hear you say that there is a new international treaty under development. Could you give us more information on that?
Mr. van Havre: I'll start but colleagues in Fisheries are the principals in those negotiations. I hope I won't say anything that they will have to correct.
As you know, each country has its own regime for managing resources within national boundaries that extend to the edge of the economic zone and then there are the high seas. The primary regime for the high seas is the international Law of the Sea. A number of regional fisheries management bodies deal with certain issues of managing stocks, et cetera. My colleagues can talk at length about that.
It was felt that there was a need for a broader instrument to look at the management of biodiversity beyond what we call national jurisdiction. Preparatory talks are underway now. We are not yet into the negotiation phase of the treaties. The preparatory talks are exploring the arena that would be dealt with. There seems to be a lot of interest in ensuring an appropriate management of genetic knowledge and sharing; those kinds of issues.
I don't know if the issue of the management of cetaceans, and particularly provision for the management of live capture, will be part of it. It is still very much early days but I can assure you that the international community has conservation of the species and capacity to conduct research and recovery at the heart of their concern.
Senator Raine: Thank you.
Senator Enverga: My question is in line with the word "clarity.'' According to the bill, it says that captive cetaceans cannot be used for entertainment purposes.
Assuming everything has passed, assuming there is a precedent and somehow there is more support for conservation or more funding through the nation, and assuming people are attracted to the fish pen, somehow would you consider that as using it for entertainment? Assuming we have a hyperactive dolphin that is jumping in the fish pen and attracting a lot of people, would you consider that entertainment which is punishable by law, according to this bill?
Ms. Klineberg: If I understand correctly, are you asking merely having them on display?
Senator Enverga: Yes.
Ms. Klineberg: Is that the same as "meeting competition, exhibition, pastime?''
Senator Enverga: That is right, yes.
Ms. Klineberg: This particular section of the legislation does talk about use for performance for entertainment. I think perhaps the word "performance'' might suggest something a little more arranged than simply the natural behaviour of animals themselves.
This is a lengthy provision. It has a lot of words in it, so I'm just trying to take a look at all of them: "Takes part in any meeting, competition, exhibition, pastime practice, display or event at or in the course of which captive cetaceans are used for performance for entertainment purposes.''
The first thing I would note is this particular clause doesn't prohibit that. It only prohibits it in the absence of there being a licence that has been authorized by the relevant provincial government. This prohibits it in the absence of that licence but if the relevant provincial authority gives permission for that activity then it can still happen.
It's a good question, senator. What does "for performance for entertainment'' mean? Again, I would think it would have to involve something more than simply the animals engaging in their natural behaviour. If it only meant the animals engaging in their natural behaviour then you wouldn't actually need this clause. It speaks to something beyond the presence of the animals in their tanks.
Senator Enverga: But it's not clear.
Ms. Klineberg: Exactly what activity or what engaged criminal liability is not particularly clear.
Senator Enverga: Thank you.
[Translation]
Senator Forest: I think we have nonetheless learned some very important things today, especially from the comments of our colleague, Senator Christmas. Assuming that the Senate passes Bill S-203, which would then be referred to the House of Commons for consideration, could you then begin consultations since the bill would be under consideration by the House of Commons? Those consultations are mandated by section 35 of the Constitution.
[English]
Mr. Burns: I don't have a specific answer for you on that. All I can say is that typically the department does not engage in public consultations related to private members' business. That's not to say that we wouldn't, and depending on the nature of the bill when it leaves the Senate, that would obviously have to be something that we would look at.
[Translation]
Senator Forest: For the sake of consistency, I would imagine that a private bill would change the agreements, because it is an agreement between the Inuit nation and Canada that is guaranteed by the Constitution. It is a question of consistency and upholding the agreements. I have trouble believing that the meaning, letter and spirit of this agreement are not upheld.
[English]
Mr. Burns: The specific legal requirements of government to engage in consultation related to private members' legislation is something that is broader than what I could speak to, sitting here from the Department of Fisheries and Oceans. I don't know if my colleague from the Department of Justice has a view but I think there would be experts in the governments that could speak to that, but it would not be me.
[Translation]
Senator Forest: I have the following question. From the time it is tabled in the House of Commons, it becomes a private member's bill, but it is on the list of bills the House of Commons has to consider. So the idea of a "private'' bill becomes more or less public at that time.
Mr. Burns: It would still be a private member's bill, a private bill, but it is not clear, in my opinion, what the government has to do as regards consultations with the Aboriginal communities.
[English]
Ms. Klineberg: This again is not something that I have expertise in directly, but I have the same instinct. There is a difference between Parliament and the Government of Canada. The policy relates to activity of the Government of Canada. When the government initiates a bill or the government initiates a policy, the duty to consult arises. If individual members of Parliament want to bring forward legislation, I think this committee has hit upon a very challenging problem that probably has far broader implications than just in relation to this piece of legislation.
It would be my understanding from my experience that the government on the executive side does not engage in analysis and consultation on every piece of private members' legislation. Maybe that is something that should be looked at one day or maybe Parliament itself has to have a consultative body that can organize these sorts of consultations. It is an issue for which there needs to be a solution, but at present I don't think on the government side it's understood that's the responsibility.
[Translation]
Senator Forest: Mr. Chair, I think this new fact is very important. Not to make an awkward pun, but this is not an elephant in the room, but a whale, given this new duty to consult. Thank you.
[English]
Senator Christmas: I want to refer once again to the updated guidelines for federal officials for failure of duty to consult. I was looking for reference whether or not private members' bills were excluded from this policy. This is silent on both government bills and private member bills. It is just totally silent.
However, there is an interesting reference here page 20, under the heading of "Identified Crown conduct in relation to duty to consult.'' I know the document is not in front of you so I will take the liberty of quoting from it:
Crown conduct refers to the Crown's own activities, such as land disposal, park creation, infrastructure development, Treaty implementation, or to Crown activities and authorizations and permits for projects to be carried out by a third party.
Then the next paragraph says:
The duty extends to "strategic, higher level decisions'' that may have an impact on potential or established Aboriginal or Treaty Rights.
What is in quotes here is "strategic and higher level decisions.'' I would ask whether or not parliamentary activity, especially a bill within the Senate, would not be considered a strategic, higher level consideration?
Mr. Burns: Again, respectfully, the Department of Fisheries and Oceans wouldn't be the authority on government duty to consult policy. I wouldn't want to step outside of my bounds and attempt to interpret that on the fly.
The Acting Chair: There are no other comments?
Thank you very much for coming and, believe it or not, you were helpful. You may not think it but you were because you provoked a good, solid discussion this morning. I think it has been a bit of an eye-opener. Thank you for coming and thank you, members, for being here this morning.
I don't know if we will be meeting next week, but we stand adjourned now.
(The committee adjourned.)