Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 4 - Evidence of November 21, 2002
OTTAWA, Thursday, November 21, 2002
The Standing Senate Committee on Energy, the Environment and Natural Resources, to which was referred Bill C-
5, respecting the protection of wildlife species at risk in Canada, met this day at 8:35 a.m. to give consideration to the
Senator Tommy Banks (Chairman) in the Chair.
The Chairman: Good morning, honourable senators. We will be hearing from witnesses on Bill C-5 in about 40
minutes. First, however, we will hear from Senator Watt about a matter that has been concerning all of us for some
time now. The honourable senator has given notice of his intention to address this matter.
For the benefit of those who are not here with us, I wish to introduce members of the committee. On my far right is
Senator Spivak, a Conservative senator from Manitoba who is the Deputy Chair of the committee. Next to her is
Senator Cochrane. Next to her are Senator Milne, and Senator Kenny, who is a member of the steering committee of
this standing committee. On my left are Senators Christensen, Watt, Finnerty and Baker.
In the first part of our meeting we will hear from Senator Watt on various issues, including some concerning this
bill. Senator Watt wishes to make us aware of some continuing concerns that he has to which I, and I hope other
members, will respond when he has told us his intentions.
Senator Watt: Some time ago, I furnished members of this committee with some information in regard to some of
the correspondence we had with the Minister of Justice. To date, he has still not responded to the latest letter sent by
five Aboriginal senators. I spoke with him privately yesterday after the meeting of the Quebec caucus. I came away
from that encounter with the feeling that he had neither read the letter nor the interpretation of the proposed stand-
alone legislation that we attempted to introduce. Other than seeing the validity of coming up with something in the
Interpretation Act in regard to the non-derogation clause, he mentioned that he has not made up his mind as to what
he will do. However, he strongly believes that the non-derogation clause, which is found in section 25 of the
Constitution Act, 1982, is adequate. Therefore, there is no need to make further mention of it in the bill, since such
provisions are in the Constitution.
I agree with him on that point. However, the fact is that the Department of Justice has invented a new non-
derogation clause that is different from that found in the Constitution.
Eliminating the three words ``protection provided for,'' which words were added in this regard, would surely clarify
the meaning of the non-derogation clause. I believe I have provided all honourable senators of the committee with
information on that point.
If an adequate non-derogation clause reflects what is in the Constitution, then we do not have to play around with
what is already entrenched in it. Over the course of time, one never knows how interpretations can be whittled away,
leaving us with different meanings, especially when bureaucrats and administrators put their own spin on it from time
to time, making interpretations that are good only for them. This is one of the issues about which we are worried and
which I have been highlighting for some time.
Legislation that has been passed over the course of the last four or five years with the wording of this new non-
derogation clause must be revisited. I must always keep in mind that we are not dealing with just one bill, but that there
If a piece of stand-alone legislation or some type of interpretation clause were allowed, something that could act as a
catch-all, then that would do the trick and take care of not only this bill, but all the others that fall into the same
category. If I were to be asked, that would be my preference.
To date, we have not had a satisfactory response from the minister, other than the fact of his saying that he values
what is in the Interpretation Act and that he does not want to create another interpretation for every piece of
legislation. He would like that to be reflected in the Constitution. I agree with that. However, he is still coming up
short. We do not know where we are yet.
Since there is an absence of such information from the minister, sincerity is not prevailing at the moment. As I said
in caucus, I am prepared to move an amendment to the bill before this committee.
Clause 3 of the bill, which deals with Aboriginal and treaty rights, would have to be amended. I am asking for a
better interpretation of that clause and for removal of the words ``protection provided for.''
The second amendment I would propose pertains to additions to be inserted into clause 64(1). That clause deals with
compensation. Clause 64(1) states:
The Minister may, in accordance with the regulations, provide fair and reasonable compensation to any
person for losses suffered as a result of any extraordinary impact of the application of
(a) section 58, 60 or 61; or
(b) an emergency order in respect of habitat identified in the emergency order that is necessary for the
survival or recovery of a wildlife species.
First, an amendment to this clause is necessary in the absence of an adequate non-derogation clause.
Second, the present wording of clause 64 only provides protection for landowners. Inuit and other Aboriginals will
be excluded. When questioning the witnesses, we discovered that the compensation articles do not apply, especially in
regard to loss of livelihood.
Third, the compensation or development impact benefit is already provided for in the land claims agreement, that is,
the 1992 Nunavut claims agreement. As I mentioned earlier, our agreement is quite specific and detailed. For that
reason, whether I like it or not, I have no choice but to highlight the fact that there will be a potential impact on the
agreement arrived at between the two parties, that is, the Aboriginal people and the Crown.
The third one is dealing with the exemption, to insert clause 83(3), entitled ``exemption land claim agreement.''
Subclauses 32(1) and (2), clause 33, subclauses 36(1), 58(1), 60(1), 61(1) and regulation made under clauses 53, 59 and
71 do not apply to a person who is engaged in harvesting or other activities in accordance with the conservation
measures or any other measures for wildlife species under a land claim agreement.
Let me run through the three sets of comments I have on that.
This amendment is necessary, again, in the absence of any adequate non-derogation clause.
Second, the very fact that the draft required an exemption clause for a land claim agreement revealed the inadequacy
of the non-derogation clause provision at clause 3, as mentioned earlier.
The third comment is that the land claim agreement for Nunavut and Nunavik contains many complex
arrangements for wildlife management, including a balanced perspective on conservation and harvesting and the
related compensation issue. The conservation is one measure envisaged, among others, for the purpose of wildlife
Those are the three main areas that I felt would have to be taken into consideration, and I would like to move those
motions to make an attempt to amend the bill. I know for a fact that the orders we have from the House of Commons
are not to amend it and to send it back.
The Chairman: I would interrupt you there. The House of Commons does not order us to do anything.
Senator Watt: That is what I like to hear.
The Chairman: It is out of order to make actual motions of amendment at this point. We cannot do that until we are
in clause-by-clause consideration of the bill. However, the point that we wanted to make this morning was that Senator
Watt has been careful to bring his concerns to members of his caucus, and I wanted all members of this committee to
have an opportunity to hear Senator Watt and be aware of what he has in mind.
We have been joined by Senator Sibbeston, who is a member of the Liberal caucus from the Northwest Territories.
He also has a long-standing interest in this issue.
Senator Watt, I want to make sure you understand that the appropriate time to make amendments is during clause-
by-clause consideration of the bill. I anticipate that we will do that on November 28, 2002, if everything goes as
I wanted to make sure we were all aware of your concerns and your proposed actions.
Senator Spivak: I seek clarification, please, for the 83(3). There is an exception for a person who is engaging in
harvesting activities in accordance with conservation measures. What does this mean? I am not familiar with 83(3).
The Chairman: It means it is not there. What you are referring to is part of the proposed amendment, which is set
out in bold print.
Senator Spivak: What is the original?
The Chairman: The original simply omits those words.
Senator Spivak: It does not make any sense, though.
The Chairman: Actually, it does.
Senator Spivak: Could you just read the original?
The Chairman: Clause 83(3) now reads:
Subsections 32(1) and (2), section 33, subsections 36(1), 58(1), 60(1) and 61(1) and regulations made under section
53, 59 or 71 do not apply to a person who is engaging in activities in accordance with conservation measures for
wildlife species under a land claims agreement.
Senator Watt, if you were going to move this amendment at clause by clause, in order to keep in place the provisions
already in the clause and add the things you want to add, you should say, ``do not apply to a person who is engaging in
harvesting or other activities.'' We do not want to obviate the exception that is already there. I think that is your
intention, to add a class of exempted activities.
Senator Watt: Could you repeat that again?
The Chairman: Yes. Clause 83 (1) of the bill before us says, ``do not apply to a person who is engaging in (a)
activities related to public safety, health,'' et cetera. I think that it is not your intention to eliminate those, but to add to
that someone who is engaged in harvesting activities. The language of the amendment would have to be something like
``do not apply to a person who is engaging in harvesting and other activities related to public safety, health,'' et cetera.
You want to add an exemption, not take away an exemption.
Senator Spivak: I was confused, because in the first amendment, the words ``protection provided for'' are to be
The Chairman: The highlighted provisions are eliminated if there are brackets around them, and added if they are
Senator Kenny: I would like to pause for a minute and reflect on whether we are moving in the most effective way.
There is no question you are moving in the customary way procedurally, but are we proceeding in the most effective
way to achieve a result? We can wait until we get to the clause-by-clause process, have the amendments introduced and
then go through a prolonged discussion of them. Or, we could have the amendments drafted, send for the deputy
minister of Justice and the deputy minister of Environment, and have them join us here to discuss the amendments that
we are considering before we get to clause by clause. I have the sense that that might cause the system to refocus.
I have the impression from Senator Watt that there is a failure to communicate here somewhere. If we can get the
system to focus on the problem and understand that this bill could stay in this committee for a very long time, perhaps
the minister would then be reading his correspondence and we might receive an answer from the department, which is
what I think our colleague seeks.
The Chairman: That is a good thought. This airing was to not preclude or forestall anything, but simply to determine
the next step. I want everyone to understand that Senator Watt is considering introducing amendments. The next
question is, what do we do about it? Senator Kenny has made a sensible suggestion.
Senator Watt: If we want to go through that exercise, it would be a unique one. We have to make other information
available, if that is the case. We have also put forward a proposal to rectify the whole question of non-derogation by
way of coming up with a stand-alone statute.
The Chairman: We would do that in the context of this bill, which is the only reference we have.
Senator Watt: We would be asking deputy ministers to come here to focus on what they should have focused on
before. Through a lack of understanding of the differences out there, the matter was not well addressed. I should think
that it was accidental, Mr. Chairman.
The Chairman: You concur with Senator Kenny's suggestion?
Senator Watt: Yes.
Senator Eyton: As do I.
Senator Baker: As I understand, Senator Watt is saying that the government should make clear, or for us to be given
a clear reason, why the wording of section 25 of the Charter has been changed in this legislation. Certainly the Charter
takes precedence over legislation, we all know that. However, why has this wording changed? Who would object to
repeating the words of a section of the Charter in a bill instead of the changed wording that is presently here?
Senator Watt is alerting the committee that he would like to see harvesting activities included under the
compensation provisions, for greater clarity, because we had testimony from lawyers from the Department of Justice
saying that they were not covered. We had lawyers representing groups who appeared before the House of Commons
committee who claimed that it was covered. For greater clarity, Senator Watt is simply saying that we should get this
straight once and for all.
The minister in charge of this bill knows exactly what we are concerned about. Presumably, as Senator Kenny has
said, action will be taken so that what is unclear in the bill can be made clear, or perhaps further explained in
amendments by the committee.
Senator Milne: A letter from this committee, not from Senator Watt, to the minister saying that we —
The Chairman: Which minister?
Senator Milne: To the minister who is in charge of this bill and wants to see it passed. It would certainly gain his
attention. It would tell him that certain amendments will be proposed.
The need to propose them would be obviated by a letter from him saying that he intends to bring in omnibus
legislation to clear this up and all the other five or however many bills that Senator Watt mentioned.
Senator Sibbeston: Mr. Chairman, I appreciate the efforts made and I think the plan to have government officials
appear before us to deal with this matter is a good one. I was thinking it would also be helpful to have lawyers who
have been assisting us. The lawyer who represents the Inuit organization initially pointed out to us that the wording
could cause some serious problems. As we try to express the concerns or the constitutional reasons why we want the
original wording back, I think it would be helpful to have constitutional lawyers who are familiar with this area to
explain to us the issues in trying to return to the original non-derogation clause that existed in government legislation
from 1982 to 1996. I would suggest that if we are going to the extent of inviting government and Department of Justice
officials, who will try to rationalize why the wording should remain as is, then we should have the benefit of hearing
from lawyers who can give counter-arguments. I think it would provide for a fuller discussion if we had constitutional
lawyers who have aided us thus far in dealing with this issue.
The Chairman: I understand the logic of what you say, senator. I must tell you, though, that I am convinced that
members here have heard those lawyers and, to use the buzzword of the week, are ``seized'' of the issue and understand
it quite clearly, and understand, furthermore, why it was changed and when it was changed. We have had that
explained to us by phalanxes of lawyers from various departments. I think we understand it. I think we would be the
most effective questioners of ministers and/or deputy ministers because I think we understand precisely what you,
Senator Watt and others have been saying. The mills of the gods are grinding very slowly, and we would like them to
grind more quickly. I understand your point.
Senator Sibbeston: Mr. Chairman, when I first saw the wording, the change from the original seemed very slight. It
is just words like ``protection'', and there is another word that is used in the application. On the face of it, they do not
seem like big changes, but constitutional lawyers say it is really significant. I understand it now, but certainly not as
fully as constitutional lawyers, who could expound on it in depth.
The Chairman: However, we have asked lawyers on both sides of the fence those questions, and at length. I am a
newcomer here, but I can literally say ``for years,'' even since I have been here, and I think we have got it. I think we
understand why and where. However, it would be handy to have those people available if we need to ask a question.
Senator Christensen: First, it has been suggested that the minister whose bill this is be advised of the difficulties and
asked to either come before us or to write a letter to say that changes were made. This is a change that has to be made
by the Department of Justice, not the Minister of the Environment. I do not know that we can ask the minister, or any
other minister whose bill it is not, to come before us. I think that might be a problem. I do not know that we need a
letter from the Minister of the Environment saying these changes would be made when it is the Minister of Justice that
has to make them.
Second, for clarification, if the changes to clause 3 were made, then the other amendments would not be necessary
— is that correct? You say here, ``in the absence of an adequate non-derogation clause.''
Senator Watt: It does not take care of the compensation side.
Senator Christensen: That is what I thought. It says ``in the absence of a non-derogation clause.'' Even though the
non-derogation clause may be changed, you feel the other two changes also have to be made.
Senator Watt: Let me go back. If we are going to make a direct amendment to the bill itself in regards to non-
derogation, those have to go in
Senator Christensen: Sorry?
Senator Watt: If we are going to make a direct amendment to the bill itself, instead of doing it indirectly by way of
another statute, as I mentioned, all those are necessary.
Senator Christensen: What if you get a stand-alone piece of legislation?
Senator Watt: Then I do not need any of those, except a clarification in regard to the compensation. That is
Senator Christensen: Then you do need it.
Senator Kenny: I certainly understand where Senator Watt is coming from, and I am content to not have him
explain it any further. I am comfortable with where he is. I do not have any difficulty with the letter approach, because
I think it is important that the minister whose bill it is understand that it is in jeopardy, and the sooner the better. I like
the idea of having the two deputies here, because that will clear out a lot of errors, and it also means that the two
people who are going to be advising their ministers on the action we would like to see will be seized with it. It is
probably better than having the ministers appear before us. I would hope that the committee would give favourable
consideration to that if we are going to support Senator Watt on this issue.
The Chairman: Thank you.
Senator Milne: The Minister of the Environment is in charge of this bill, and you do not need the Minister of Justice
here. The Minister of Justice merely provides the lawyers who do the legal drafting, and how it is drafted is completely
up to the Minister of the Environment. He is the one you need to write to and call here, him and his deputy minister.
The Chairman: That is true with respect to this bill, but we must understand that Senator Watt's point is that if there
were to be an interpretation bill brought in that would affect not only this bill, but also many others in which the
Aboriginal people have a problem with the non-derogation clause, that would obviate the question on this bill. The
Minister of Justice is not divorced from the question. I would ask, based on the advice we have heard and the fact we
now must move along, that you allow the steering committee to determine what we should do next. Is that agreeable to
Hon Senators: Agreed.
The Chairman: I would ask that the witness join us at the table. It is my pleasure to say that Senator Trevor Eyton
has joined us, on my extreme right — in more ways than one.
Senator Eyton: And moving even further, and proud of it.
The Chairman: Happily so. We are also joined by our witness, Gwen Barlee. Welcome.
Ms. Gwen Barlee, Endangered Species Coordinator, Western Canada Wilderness Committee: I am here today to
speak on Bill C-5, the Species at Risk Act. I am here on behalf of our 25,000 members and 30,000 supporters —
Canadians who care passionately about the future of Canada's 402 species at risk, Canadians who want species at risk
such as the woodland caribou, wood bison, bowhead whale, coho salmon, swift fox and northern spotted owl to be
protected, now and into our future.
In 2002, the United Nations released a groundbreaking report stating that almost one quarter of the world's
mammals face extinction within the next 30 years. Imagine a world without Siberian tigers, black rhinoceros or
cheetahs. Imagine a Canada without grizzly bears, beluga whales or Vancouver Island marmots. It is staggering to
conceive of such a loss.
The UN report also confirmed that loss of habitat through human encroachment is responsible for 89 per cent of
threatened birds, 83 per cent of threatened mammals and 91 per cent of threatened plants. These same statistics hold
true in Canada, where over 80 per cent of our species at risk are at risk because of the human-caused loss and
degradation of the meadows, forest, tundra, wetlands, streams and oceans that these species call home.
The interconnection between wildlife and their habitat is both fundamental and fragile. For wild species to survive,
we need them to successfully live, breed and forage. A grizzly without a forest or a salmon without a stream is simply
destined to disappear.
Canada is envied around the world for its natural beauty and tremendous biodiversity. Globally, as a wealthy,
developed nation, people look to us for environmental leadership and vision. As stewards of this remarkable bounty,
we have both the responsibility and the moral obligation to plan for that future wisely and carefully.
In 1992, Canada became the first Western industrialized nation to ratify the UN Convention on Biological
Diversity. On ratification of that treaty, Canada pledged to provide effective protection for Canadian species at risk
and the critical habitat and ecosystems on which they depend. However, 10 years later, Canada has seen a 46 per cent
increase in the number of species that are at risk. Only two years ago, the federal report, ``Wild Species 2000: The
General Status of Species in Canada,'' identified that just 65 per cent of Canada's wild species were secure. Each year,
the Committee on the Status of Endangered Wildlife in Canada adds another 20 to 30 species to its ever-growing list,
with another 600 species feared to be at risk awaiting evaluation.
Species at risk need, and the vast majority of Canadians want, effective legislation that will protect these species
from coast to coast to coast — legislation that will fulfil our obligation under the UN Convention on Biological
Diversity, which requires the ``in situ conservation of ecosystems and natural habitats and the maintenance and
recovery of populations of species in their natural surroundings.''
Does the proposed Species at Risk Act, SARA, our third attempt at crafting endangered species legislation, honour
our international obligations? Does this proposed legislation meet national expectations? Most importantly, does this
proposed legislation fulfil the biological needs of Canada's 402 species at risk?
To talk about SARA in the abstract is sometimes a difficult exercise. Too often, I am sitting before my computer in
my downtown office, far removed from the realities of extirpation and extinction. As such, I would like to tell you
about a trip I took last summer near Yale, which is north of the small town of Hope in the southwest portion of British
Columbia. In July, Andy Miller, a bird biologist, and I were travelling to survey some recent clear-cuts in the area.
That afternoon, as we were bouncing and skidding along logging roads looking at kilometre after kilometre of the big
stumps and little seedlings that epitomize clear-cut logging, we became lost — not hopelessly so but lost, with only an
old forestry map that appeared to be out of date. Taking several detours, we eventually drove out of the clear-cuts and
travelled into stands of still-intact old-growth forests of hemlock, cedar and balsam. To pass the time, I asked Andy to
identify different species of birds that we saw in the remaining stands of old-growth. Jays, pygmy owls, rufous
hummingbirds and crows still populated these increasingly isolated stands of trees. Andy was impressive and could
identify birds by sight, call and even by wing-beat. Hours passed and, as we headed down yet another logging road, I
looked out the window and noticed a pair of birds sitting on a branch perhaps 100 feet from the road. As the truck
came closer, they swooped off the branch and disappeared into the forest. I asked Andy what kind of birds they were.
He had not seen them, but judging from the sounds of the raucous calls in the area, he presumed they were a pair of
jays. Although I am a novice birdwatcher, I knew the birds that I had seen were too big to be jays. Andy obligingly
pulled the truck over to the side of the road. The quiet of the forest soon enveloped us, with a small breeze lifting dust
from the logging road. Soon, however, the quiet was punctuated with the calls of jays. Andy turned to go back to the
truck and I, remaining convinced, asked him, ``Andy, I am really sure I saw something — don't jays sometimes bother
owls?'' Andy came back from the truck and said that he would give an owl call; and he gave a series of loud hoots. The
stillness of the forest echoed back as the jays fell silent. Time passed and then, out of the dark of the forest, an owl
hooted back. Andy froze, then said, ``It's a northern spotted owl; the male just called back.'' Andy called again. This
time, the call was a slightly higher, longer series of hoots. A few seconds passed before a succession of hoots came out
of the trees. I felt shivers going up and down my back. In getting lost on a logging road in the backwoods of B.C., we
had discovered a pair of northern spotted owls.
The northern spotted owl is one of the most critically endangered species in Canada. Due to ongoing logging in their
old-growth habitat, only 25 pairs of owls exist in Canada, all of which are found in the southwest corner of British
Columbia. A handsome, medium-sized owl with unusual chocolate brown eyes, they rely on old-growth forest to live,
breed, forage and raise their young.
In September of this year, the Wilderness Committee released a ground-breaking report that showed, using the
provincial government's own data, that the spotted owl would disappear from Canada within a decade because of
industrial logging of its habitat. Just two weeks after the release of our report, the B.C. government confirmed the
dramatic decline of the spotted owl and estimated that it would likely be extirpated from Canada not within one
decade, but within five years. In October, government scientists captured a single spotted owl chick for over-wintering.
It was one of four chicks, three of which were presumed dead, that were born this year to two breeding pairs of owls.
B.C. government biologists confirmed that, under the B.C. Spotted Owl Management Plan, which sanctions logging
in critical habitat, the owl population in British Columbia has declined by 70 per cent since 1994 — fives times faster
than optimistic government predictions. The Spotted Owl Management Plan, which government scientists refused to
sign off on because of the low probability of success, is based on the scientifically indefensible premise that industrial
logging can ``maintain or enhance'' old-growth owl habitat.
In reaction to this alarming development, the B.C. government has struck another Spotted Owl Recovery Team.
However, logging, the primary cause of the spotted owls' demise, continues. It should be noted that the top logger of
spotted owl habitat is the B.C. government, which is also in charge of protecting this critically endangered species. This
May, protection for spotted owls and other species at risk in B.C. was further eroded. This past summer, Premier
Gordon Campbell acknowledged in a letter to the wilderness committee that the provincial government now supports
``industry-led recovery strategies for species at risk'' in British Columbia. Provincially, we also have a new results-based
forestry practices code that no longer requires provincial biologists to sign off on logging operations that occur on
Crown land. Today in British Columbia, a province that has the greatest biodiversity in Canada, species at risk will
have to rely on the goodwill of mining and logging corporations, whose primary interest is efficiency in the search for
The northern spotted owl should be the perfect candidate for protection under the proposed SARA. Ranked as
endangered by COSEWIC in 1986 — meaning it is at risk of extinction or extirpation over a significant portion of its
original range — the owl is also red-listed provincially and has a global ranking of S1, which indicates extreme rarity
similar to that of white rhinos and Javan tigers. Additionally, in a draft copy of the national prioritization scheme for
recovery, produced in 2000 by Recovery of Nationally Endangered Wildlife, RENEW, the northern spotted owl was
the top species identified in Canada for recovery. The spotted owl was ranked ahead of such critically endangered
animals as the Vancouver Island marmot, the right whale and the woodland caribou.
We need to ask ourselves, as Canadians and as environmentalists: Does the proposed SARA apply to the spotted
owl? More importantly, the question should be: Given the complete lack of provincial leadership on this issue, will the
proposed SARA, once enacted, protect the critical habitat of the spotted owl? Given that SARA will apply to only one
per cent of the land base in B.C., the answer is no. Instead, we must rely on a provincial government that has no
interest in taking meaningful action. We must rely on a government that is content to hand over protection of the
spotted owl to the very timber companies that are logging it to extinction in Canada.
Given these circumstances, how will the proposed SARA apply to Canada's most critically endangered species?
Canadians and the environmental community have been told to rely on the discretionary safety net provision
contained in the bill. The Honourable David Anderson, Minister of Environment, has repeatedly assured us that
SARA will provide the necessary tools to protect all species in Canada, including the spotted owl. The environmental
community and the 94 per cent of Canadians who want effective endangered species legislation have been told that the
safety net provisions in the proposed SARA would ensure, in the case of provincial or territorial inaction, that the
federal government would step in to provide protection.
As much as I am an optimist, a requirement in my job, a discretionary safety net is simply insufficient for the
obvious reason that it is unlikely to be used. As the Sierra Legal Defence Fund observed, similar discretionary safety
net provisions in Canadian environmental legislation have not been used. In the Canada Wildlife Act, the Canadian
Environmental Assessment Act, the Canada Water Act and the Canadian Environmental Protection Act, comparable
discretionary safety nets have never been utilized. In light of this history of inaction, a mandatory safety net is required
to ensure protection for species that fall outside of areas of federal jurisdiction.
I would like to believe that the proposed SARA would protect the spotted owl and all of Canada's species at risk.
However, common sense tells me otherwise. I would love to be mistaken in this assumption and I hope that I am
proven wrong. I predict that when Bill C-5 is enacted, B.C. will continue to allow industrial logging in critical spotted
owl habitat. I also predict that the federal government will decline to use the discretionary safety net provision.
As I sit here today, I am acutely aware of the political realities of this bill. I am also aware that there is a concern
that if the Senate were to try to improve the bill, it would be killed in the House. I am also aware of the principled fight
by some Liberal members of Parliament, such as Charles Caccia, Karen Kraft Sloan and Clifford Lincoln, to improve
Notable improvements would include habitat protection in areas of limited federal jurisdiction and a more
scientifically based listing. However, ultimately I am aware that the bill, as written now, does not offer meaningful
protection to the vast majority of species listed as at risk in Canada.
SARA is a paper tiger. It is a bill that relies almost exclusively on discretionary language, political will and voluntary
measures. Its credibility requires an enormous leap of faith. Certainly the environmental community encourage
measures and cooperation to protect species at risk in Canada, but when, or if, these measures fail, it is necessary to
have effective legislation in place.
Significant amendments need to be made to enable this proposed legislation to protect species at risk in Canada. I
will not go into exhaustive detail here, because I am sure that others who are much better qualified have already done
so. However, I will say that for SARA to be credible, it must apply to all species at risk across Canada. SARA must
apply to transboundary species. These species clearly fall under federal jurisdiction and comprise 80 per cent of species
that are listed by COSEWIC.
Habitat protection, or lack thereof, is also a significant weakness of SARA. To be meaningful, habitat protection
must be comprehensive, timely and mandatory. As it stands now, protection of habitat does not start until a recovery
plan has identified it, which can take up to three years or more per species on the initial list. In addition, interim habitat
protection provisions must be strengthened.
SARA desperately needs a mandatory safety net and defined, explicit and compulsory timelines for implementation
of action plans. Without such timelines, there is a distinct likelihood of non-compliance.
Finally, SARA requires sufficient funding. After the first three years, funding will amount to literally less than a can
of beans, less than $1.50 per capita annually.
As a society, will we do that which is politically expedient, or will we do what needs to be done? The species at risk
bill is a step in the right direction, but at the end of the day, it will not stop species from disappearing in Canada.
We can try to convince ourselves that the proposed legislation will make a difference. However, a pragmatic
examination of the bill shows that it provides for political half-truths rather than meeting the fundamental biological
requirements of species at risk in Canada.
Canadians are looking to the Senate for leadership and vision on this issue. We live in an area where our action or
inaction will make a tremendous difference to all future generations of human beings, and all other species for all time.
I urge the Senate to do the right thing and provide for meaningful amendments to the species at risk bill.
The Chairman: Thank you. Are you prepared to accept questions?
Ms. Barlee: Yes, I am.
The Chairman: For the record, I need to observe that this is a confederation. The question of mandatory imposition
of things by the federal government upon provincial rights that are clearly set out in the Constitution must be dealt
with carefully and gingerly in order to ensure that it is done correctly.
We need also to observe, with respect, the difference between the carrot approach and the stick approach. We have
heard from the minister many examples of the stick approach not working very well in the U.S., with matters ending up
in court. Therefore, it is the intention to use the carrot approach and find out if it will work.
Senator Cochrane: In your brief, you note that species at risk will have to rely on the goodwill of logging and mining
corporations, whose primary interest is efficiency in search of quarterly profits. When the industry representatives were
here, I asked them how efficient the stewardship approach was from the business perspective. I received the response
that they favour such an approach as a smart one for the business community in the long term.
Perhaps you can tell the committee, from your experience, how often forestry companies and others take this
voluntary stewardship approach and how effective it has been?
Ms. Barlee: We do encourage voluntary stewardship. Some companies step up to the plate, and others do not. I will
give you an example.
We distributed the report entitled ``Logging to Extinction — The Last Stand of the Spotted Owl in Canada,'' to the
top 10 companies that were logging in critical owl habitat. One of them was Interfor. They decided that they did not
want to be a lightning rod for discontent in this country. They decided to withdraw until the provincial government
decided on a plan of action to save this critically endangered species. However, the other nine industry players have
chosen not to step up to the plate and continue to log in spotted owl habitat.
Some companies will step up to the plate, and we applaud them for doing that. However, in instances that they do
not, or other bottom-feeding companies arrive to take the cut, we need to have firm legislation in place. We cannot rely
on goodwill, although we encourage it.
Senator Cochrane: If SARA is so weak or toothless, is it worth having at all? Much has been said to suggest that C-5
will likely die if any amendments are made at this point. Is that a risk with which you could live?
Ms. Barlee: That is a difficult question to answer, because on one hand, it promotes public discussion and raises
public awareness. On the other hand, Bill C-5 is not being honest with the Canadian public. It purports to protect
endangered species, but people familiar with the bill know that it is merely the first step out of a hundred steps that
need to be taken.
The bill will not fulfil the intentions that it is set out to fulfil. I would like to see the bill strengthened, but if it is not,
then I do believe that it is so weak that it should not be enacted.
Senator Spivak: What is your knowledge of the legislation in the United States concerning the spotted owl? There
has been much discussion about it, and I am not sure of the results. Could you enlighten us as to the differences
between this bill and the legislation in the United States, and its impact?
Ms. Barlee: Yes, I am sure many people have heard of the spotted owl and the role it played as the flashpoint in the
discussion of environmental protection in the United States. The U.S. introduced in the mid-80s an option for the
protection of the spotted owl that was considerably more progressive and based on sound science than is the option of
the Spotted Owl Management Plan in British Columbia, which the government has been using for the past seven years.
The spotted owl is declining in the United States despite its having more progressive legislation; however, it is not
declining anywhere nearly as quickly as in Canada, and particularly British Columbia. Government scientists in B.C.
anticipate that the owl will be extirpated within five years because of ongoing logging of habitat.
We are calling for a moratorium on logging in critical spotted owl habitat in B.C. Anything less, and you will see
this owl extirpated from Canada.
Senator Spivak: The chairman pointed out that there are certainly provincial-jurisdiction considerations, as we all
Ms. Barlee: Yes.
Senator Spivak: However, it seems to me, with all due respect, Mr. Chairman, that if the federal government is
unable to act in those areas, there is no point in saying that the federal minister may intervene in the absence of a safety
net. It is obvious to me, and I would like your opinion, that the federal government has sufficient power in areas of
protection of endangered species and environmental degradation. The federal government is merely timid.
I beg to differ with our esteemed chair. It makes a mockery of this bill to say that the federal government cannot
intrude. In fact, they certainly can.
The Chairman: I certainly did not say that they cannot. I said we have to deal gingerly with those questions. The bill
clearly, as the witness has pointed out and as we have heard before, provides the Government of Canada with the
authority, if it has the will to invoke it, to oblige the provinces and territories, if they do not measure up to what needs
to be done, to do so. There is no question that the authority exists. The question is wielding it.
Ms. Barlee: That was also the opinion of the environmental community, at least in British Columbia. The protection
of endangered species can definitely be seen as a national concern. Given that it is a national concern — the federal
government legal experts have agreed on this — they could step in, and this would fall under areas of federal
jurisdiction. In particular, I have great concern about the federal government's unwillingness to recognize its authority
over transboundary species.
Senator Spivak: Would you comment on how this bill relates to protection of transboundary species? You
mentioned it in your brief.
Ms. Barlee: Transboundary species make up anywhere from 80 to 90 per cent of the species listed by COSEWIC, yet
they are not given meaningful protection under the species at risk bill, regardless of the fact that they clearly fall under
an area of federal jurisdiction. That is an enormous oversight, and if anything should be added to the bill, it should be
the inclusion of transboundary species. How woodland caribou and swift fox can fall outside of this bill or be given
secondary consideration bemuses me.
The Chairman: Would you let us know in what sense transboundary species are not included? For example, all
species are transboundary. The spotted owl is not, but it could be. Animals do not understand borders.
Ms. Barlee: No, they do not, and especially not arbitrary political or historical borders.
The Chairman: If province A and province B are failing to protect species X, the authority exists in this bill for the
Government of Canada to oblige province A and province B both to protect species X, does it not?
Ms. Barlee: The authority is there. However, the wording is problematic. It is discretionary. It is ``may,'' ``if,'' ``and''
and ``but.'' Looking at previous environmental legislation that I referred to in my brief, where there were similar
discretionary safety net provisions, they have not been utilized. I would be excited if the federal government stepped up
to the plate. You will see this shortly if SARA is enacted. I believe the B.C. government will not take adequate
measures to stop species from becoming extinct in Canada. I would love to see the federal government stepping up to
the plate, but looking historically at similar legislation, I do not believe that will be the case.
The Chairman: The bill uses ``may'' a lot and ``shall'' infrequently, but it is also not possible for a bill to determine
the courses of action that will be taken by subsequent governments. Bills cannot bind governments to take action; so
all bills depend, in the end, upon the will of the government, when they become acts, to exercise them.
Ms. Barlee: I am not sure if that is correct.
The Chairman: I think it is.
Ms. Barlee: If you look at previous drafts of the bill, the wording was stronger. I believe it is well within the
government's powers to step in on matters of national concern. This very weak wording is a key concern of the
environmental community, and especially the wilderness community.
Senator Milne: Mr. Chairman, the federal government has criminal law power. If this committee decided to
strengthen this bill, it could certainly do so and could, through the criminal law, make it apply to the provinces,
because the provinces have to apply the criminal law. They cannot ignore the criminal law. Therefore, there is strength
here in federal hands, even given provincial jurisdiction, through the criminal law.
Ms. Barlee, I am concerned, though, about what precisely you would like us to do to strengthen this bill. You have
given us marvellous anecdotes, but nothing in black and white as to what specific amendments, or additions or
removals, you would like to see the committee make.
Ms. Barlee: I would be pleased to follow up on my presentation and, time permitting, provide specific examples and
wording we would like to see implemented in the bill. I do not think I can do that from the table, but I will be happy to
do that later.
The Chairman: Would you send that to the clerk?
Ms. Barlee: Yes.
The Chairman: Senator Milne, you are right. Obviously the authority does exist. However, unless I misunderstand it,
if I, to be absurd, kill someone, the Criminal Code does not say that I ``shall'' be charged with murder. It says that I
``may'' be charged with murder, depending on many things. Attorneys General and prosecutors always have discretion
to determine whether there is the likelihood of obtaining a conviction. There is very little ``shall'' in terms of
government action. There is always discretion, and there are always the words ``normal'' and ``may,'' usually for good
reason, I think.
Senator Buchanan: Does B.C. have an endangered species act?
Ms. Barlee: It does not have stand-alone legislation. It has a piecemeal approach. The majority of the legislation is
constrained. You cannot have more than a one per cent impact on forestry in the area. Because of that, we have over
1,000 species at risk provincially, and just one or two receive habitat protection. The rest are left to fend for themselves.
Senator Buchanan: It is not an act on its own.
Ms. Barlee: It is not.
Senator Buchanan: Are you aware of the Nova Scotia Endangered Species Act?
Ms. Barlee: I have heard of it. I am not that familiar with it.
Senator Buchanan: It is the best in Canada. It is better than this one.
Ms. Barlee: I have read it over briefly, but I would not feel comfortable discussing it at length.
The Chairman: We will take notice of that and take it under advertisement.
Senator Buchanan: I am a little concerned. Senator Milne just talked about the Criminal Code. I had a meeting in
Halifax last week with the university group, as I mentioned to our committee, and we had quite a discussion about the
jurisdictional problem here. You hear people saying — and you said it — that the federal government has the authority
to move onto provincial grounds because this is criminal law. Why do you think this is criminal law?
Ms. Barlee: I am not a lawyer, and I would not be comfortable going into detail on this, but my understanding, from
the legal briefs I have read and the legal opinions that have been given, is that it could fall under ``prohibitions,'' and it
could also fall under ``areas of national concern.'' From the half-dozen or so political opinions that I have read, if the
federal government wanted to step in and exercise their authority over areas of federal jurisdiction, they could, and I do
not see them doing that.
Senator Buchanan: Over federal jurisdiction, but what about provincial jurisdiction?
Ms. Barlee: Transboundary species is an area that is definitely considered, in the legal opinions I have read, to fall
under federal jurisdiction, and the species at risk bill does not successfully address the concerns and needs.
Senator Buchanan: This is not an amendment to the Criminal Code of Canada.
Ms. Barlee: I realize that.
Senator Buchanan: This is stand-alone federal legislation. There is no mention anywhere here of the Criminal Code.
I have not read it. Anyway, this will end up in the courts sometime.
Ms. Barlee: That is very likely.
Senator Buchanan: I wonder why we in this country pass bills that we know very well will end up in the courts and
will be challenged. This one will be. The people we met with in Halifax last week were a very sophisticated university
group who had studied this bill inside out, and I thought they were going to be 100 per cent in favour, but maybe 70 per
cent would be in favour of some amendments. I asked a question of three of the professors. I said, ``Would you prefer
this bill to go through as is, or would you prefer that the Senate amend the bill, send it back to the House of Commons,
and have it sit there again for another three or four years?'' Every one of them agreed it should go through now rather
than have that happen. What do you think?
Ms. Barlee: As I mentioned earlier, I am really torn about this. On the one hand, I would love to see a meaningful
SARA, but I do not believe Bill C-5 is that. It would be dishonest toward the Canadian public to pass into law a bill
that will not do what it purports to do, which is to protect endangered species across Canada. Based on that, if the bill
cannot be improved, then perhaps it should not be enacted into legislation.
Senator Buchanan: That is very honest.
Senator Christensen: It is certainly interesting to hear our different witnesses. We have had one group of witnesses
saying that they would like changes, but get it through, because it is better than what exists now and we could work on
changes later. We have had another group that said that the bill is far too strong in giving powers to the government to
intrude on personal property that are out of line, and the bill should be killed.
You are saying that the powers are not nearly strong enough on the government side. It should be improved, and it
is not better than nothing.
Legislation is always a work in progress. We should be building upon it. We will never see a perfect bill. A bill can
always be improved. Through use, it becomes very obvious whether there is a need for changes.
The Senate is often accused of not changing many bills. However, there are addendums attached to almost every
bill, giving recommendations and follow-up as amendments are brought forward. That is certainly one of our jobs.
In your presentation, you said that there are safety nets that have never been used. Do you have any examples of
where the safety net provision should have been used and was not?
Ms. Barlee: This came from a discussion with Kate Smallwood of the Sierra Legal Defence Fund. We were talking
about the likelihood that a discretionary safety net would be used in a species at risk act. She mentioned that where
there were similar safety nets in this type legislation, they had not been utilized. I included that in my presentation as an
Senator Christensen: Perhaps there was provincial legislation that met the requirement, and the safety net was not
used for that reason.
Ms. Barlee: It is my understanding that there were instances, but I cannot give specifics at this time. I would be
happy to do that in my follow-up submission. There are instances where adequate legislation did not exist, and the
federal government did not step in.
Senator Christensen: You mentioned woodland caribou and grizzly bears. In the Yukon, we have very strong
legislation for protection of animals. We have healthy populations of woodland caribou and grizzlies. They are hunted.
When there are problems with a particular group, requirements are withdrawn.
If grizzlies and caribou were to be added to a list of endangered species, would you foresee that areas with numerous
such animals should be included?
Ms. Barlee: It is up to scientists and biologists to make that recommendation, based on the population or sub-
population. We have several sub-populations of woodland caribou and mountain caribou in British Columbia that are
acutely at risk. The provincial government started the grizzly bear hunt, which is a concern. There are a large number
of grizzlies in B.C, from 4,000 to 13,000. Again, I am not a biologist. I would leave it to those people to make those
Senator Christensen: Your membership is 25,000, with an additional 30,000 supporters? How did you arrive at the
Ms. Barlee: Yes. The 30,000 are people who are not members, but receive calendars. They send in a one-time
donation. We keep careful track of both the one-time donor and permanent member.
Senator Milne: I wanted to clarify something that Senator Buchanan said, because it is a matter of criminal law,
even if it is not in the Criminal Code, given the definition of the Supreme Court of criminal law.
The court has said that criminal law is more than the Criminal Code. It includes any law to protect the health, safety
and morality of Canadians. This bill could be classified as concerning the morality of Canadians.
Senator Buchanan: There are a few questions there.
Senator Milne: Ms. Barlee, in your opinion, would it strengthen this bill in relation to transboundary species if
clauses 34 and 35 were completely removed?
Ms. Barlee: I would not like to speak off the top of my head. I would like to give it further consideration. I will
comment on that when I present a more detailed written analysis to the Senate.
Senator Milne: Clause 34 applies to provincial lands and clause 35 to territorial.
Ms. Barlee: I would not feel comfortable speaking to that right now.
The Chairman: Would you send an answer to Senator Milne's question to the clerk?
Ms. Barlee: I will.
Senator Eyton: Your approach of ``all or nothing'' is different from that of the majority of witnesses who have
appeared before us. It may be laudable, but it is impractical.
Would it be helpful if it was acknowledged, plainly and publicly, that this bill was a first step, and if some process
were put in place that provided for mandatory review and an examination of the provisions?
Ms. Barlee: That would be a helpful step. I would like to clarify our hard line. We talked about this within the
committee and with our members. We have had more response from members on this piece of proposed legislation
than any other issue on which we have worked.
People ask us repeatedly why the government would introduce a bill for the protection of endangered species that
will not protect endangered species. We are taking this position in order to be honest with our members. People want
us to step up to the plate and represent their concerns.
I would not say, cavalierly, chuck the bill. I realize the amount of time and compromise that has gone into it.
However, our members have forwarded hundreds of letters and made hundreds of phone calls. I have had hundreds of
conversations with people. They are saying that they want a meaningful bill for species at risk across Canada.
If we could revisit the proposed legislation, meaningful amendments would be made. Why not have those
amendments there in the first place?
Senator Eyton: Partly because, as you yourself acknowledged earlier, if we were to do that, it is likely the bill will die,
and then we will have to start all over again.
Ms. Barlee: I have heard that concern for the last 18 months or so, and the bill has not died yet.
Senator Eyton: Does your organization ever look at the economic consequences of designating areas as protected
Ms. Barlee: We will be commissioning two reports on just that to do with the spotted owl. We are in the process.
The black eye that British Columbia will get, and Canada also, from having a species extirpated in Canada due to
logging will do far more damage than the cost of setting aside the habitat to protect this endangered species, and many
others that fall in the habitat area covered by the spotted owl. That is definitely a consideration, and I will tell you that
that report is going out internationally. We spoke with the New York Times last week. People are amazed and appalled
that the spotted owl will very likely be extirpated because it will be logged into extinction in Canada.
Senator Eyton: I was trying to be a little more direct than that. For example, there is a logging community of, say,
10,000 people who may be dramatically impacted by some declaration of a protected habitat and who may lose their
jobs, and that community will be badly hurt. Does that enter into your equation? That is an immediate impact, as
opposed to the longer-term consequence of which you speak.
Ms. Barlee: Our first priority, given our name, the Western Canada Wilderness Committee, is protecting endangered
habitat and the endangered species that rely upon this habitat. Your concern is obviously valid. I grew up in a small
community that was dependent on extraction industries, so I have seen it from a different perspective. That is one
reason we are also interested in commissioning these economic analyses.
Just to speak to this very briefly, and I am not an economist, there are many things that you could do in value
added, in tenure reform, in stock and raw log exports, that would dramatically improve employment.
Senator Eyton: Over time. I am talking about the immediate impact. There is another endangered species, and that is
people with jobs in the smaller logging communities in British Columbia.
Senator Watt: As to the spotted owl being logged to extinction, have studies been done? In regards to the
presentation that you have made, I think I understand your concern. You mostly focus on the fact that logging seems
to be having a great deal of impact on the spotted owls in the Vancouver area.
Ms. Barlee: Yes.
Senator Watt: You also touch upon the transboundary aspects of the matter. To what extent have surveys been
done? Have surveys only been done in the area where the logging is taking place? Have you ever taken a survey outside
of British Columbia? Let us say in the sub-Arctic, for example. This is not new to me. I have lived with spotted owls,
practically ever since I was very small. There are plenty of them in the sub-Arctic. Now you are talking about them
I never cease to be amused by the way we conduct business here in the Senate, and also within the Parliament.
Maybe the same thing applies in the legislatures or the lower houses. Whenever we begin to focus on what we consider
to be the essential thing, we slide away from what is causing it. The witness is raising the fact that logging is damaging
the habitat. In a sense, you are also citing other factors when you are formulating the law, because the law is so broad
that it has an impact on other matters. Does that concern you? You would like this bill to have more teeth in order for
you to be able to take action, or for the Criminal Code to kick in.
We have to be very careful here. I do agree with you in terms of wanting to protect the species, but do we know
whether it is really becoming extinct? Is it only within a geographical area?
Ms. Barlee: It is not the wilderness committee that takes surveys; it is government biologists. COSEWIC has done
previous surveys, and according to their information, which has been thoroughly examined, the spotted owl only exists
in a very small portion of south-western British Columbia. It does not exist beyond those boundaries. I am not using
the wilderness committee's own data. This is provincial government data and national data, and this is something that
has been evaluated for approximately 15 years. It is my firm understanding that the spotted owl does not exist in the
sub-Arctic, only in this precise geographic area.
Senator Watt: Only in that area?
Ms. Barlee: Yes. Again, that is based on provincial government data and national data.
Senator Watt: Therefore, I am not seeing the spotted owl.
Ms. Barlee: I can nearly guarantee that, unless it was stuffed.
Senator Watt: We will have to call it something else, then. I do not know what.
The Chairman: It may be an owl with spots, but it may not be a spotted owl. We should check that out, Senator
Ms. Barlee: I would be happy to provide information on that.
The Chairman: Would you, please? We will promise to have Senator Watt's eyes checked as well, to see where those
spots are coming from.
As Senator Buchanan pointed out, the Nova Scotia legislation, the free-standing provincial legislation, is very highly
regarded. My understanding is that it was modelled very carefully in consultation with the federal government —
Senator Buchanan: I am sure it was.
The Chairman: — while the previous SARA was being considered a long time ago, in order to ensure they
complemented each other, that there was a great synergy between them and that two plus two equals six.
Senator Buchanan: It was also to avoid possible conflicts between federal and provincial governments over the
jurisdiction issue. There will be no conflicts in Nova Scotia because the act is very comprehensive and put together in
synergy with the federal people who were working this out. However, it was a long time coming. It has been a little
while since I was premier, but even then we were talking about it. Over the years, it evolved into the act that was passed
about seven years ago.
The Chairman: In some sense, at least, and using the witness's optimism, that might augur well for this bill, because
it is something that the provinces can refer to in order to see, as Nova Scotia has, how what they do will fit nicely and
be synergistic with this proposed legislation.
Senator Buchanan: Is the Sierra Legal Defence Fund the same as the Sierra Club?
Ms. Barlee: No. There is great confusion over that. They are completely separate. Way back, they had a common
root, but now they are totally separate entities.
Senator Buchanan: We heard from Elizabeth May.
Ms. Barlee: She is with the Sierra Club.
Senator Buchanan: She is a great Nova Scotian, with whom I agree totally.
The Chairman: The senator never fails to make the Nova Scotia point, which is part of all our jobs.
I know that all comparisons of this kind are odious, but you mentioned that 94 per cent of Canadians want species
at risk to be protected. That is a motherhood statement. It is also the case that 80 per cent of Canadians live in large
urban regions. I know this does not fairly indicate interest — people who walk on pavement all the time do not
necessarily lack legitimacy in their concern for endangered species — however, as Senator Eyton pointed out, they do
not walk in those particular shoes. Do you know what proportion of your 25,000 members and 30,000 supporters live
in major urban regions in Western Canada — not that that will be a determining factor?
Ms. Barlee: I do not have that information handy, but I will obtain it for you.
The Chairman: In answer to an earlier question from a senator, you said that you would rather, in light of the fact
that you think this bill lacks teeth, it were not passed into law at all. That is a distinct possibility if it were amended,
because of the time constraints and what may happen in the other place. You also said that British Columbia presently
has no stand-alone species at risk legislation. With respect to the spotted owl and other species in British Columbia,
because the province does not seem likely to enact legislation, and if the federal government were not to enact any
legislation, however inadequate you believe it to be, they would be left with no protection whatsoever.
Ms. Barlee: That is the impression that I have.
The Chairman: You would prefer that they were left with no protection at all rather than the hope of some
Ms. Barlee: It is not that I would prefer no protection for them, but rather that I would prefer meaningful
protection. I hope I am mistaken in this, but if the B.C. government does not take action to protect its more than 1,000
species at risk, I do not see the federal government doing so. That is why I would like to see amendments, on behalf of
our members, so that there would be meaningful legislation in place to protect species at risk in British Columbia, and
other provinces in Canada, that fall outside the area of federal jurisdiction.
The Chairman: The hammer rather than the carrot.
Ms. Barlee: By all means, I encourage the carrot, but there needs to be something in place if the carrot does not
The Chairman: Would you comment on clause 129 of the current bill, which says that at a time specified, the bill will
be re-examined and its efficacy reconsidered to find out from Canadians what they think about how it is going?
Ms. Barlee: If the bill is enacted, it is important that it be re-examined. However, it is not sufficient to do so only
once. For some species in British Columbia, five years will be too long to wait.
The Chairman: Ms. Barlee, you talked about B.C.'s spotted owl only as an example, and about the lack of teeth in
the proposed legislation as it applies in British Columbia. However, you are the Western Canada Wilderness
Committee, so I presume that your bailiwick would reach as far as Manitoba?
Ms. Barlee: Yes.
The Chairman: Does it stop there?
Ms. Barlee: It does not stop there, but that is the area on which we concentrate.
The Chairman: Would you let us have your thoughts on Alberta, Saskatchewan and Manitoba?
Ms. Barlee: It would be unwise for me to speak to that today, but I will send you detailed information on Alberta,
Saskatchewan and Manitoba.
The Chairman: Your office is in British Columbia.
The Acting Chairman: Yes, in Vancouver.
The Chairman: Does your organization have offices in other provinces?
The Acting Chairman: We have offices in Alberta and Manitoba.
Senator Spivak: In Manitoba, the woodland caribou in Nopiming Provincial Park, where logging is allowed, is at
risk. The question of logging is interesting. Senator Eyton talked about the elimination of jobs, which is not the case in
this park. If the federal government were to take action, what kind of action could be taken against the logging
Ms. Barlee: Are you talking about Manitoba or British Columbia?
Senator Spivak: I am talking about the spotted owl, the woodland caribou and other species. If these species were to
disappear, we might be next. It is not only a matter of economics; it is also a matter of long-term survival. There is such
an economic cost/benefit issue, and there are people who have looked at that angle. What action do you think the
federal government could take? What do you think that a minister's course of action might be?
Ms. Barlee: There was an older economic analysis of jobs that could potentially be lost if spotted owl habitats were
protected. My recollection is that it would involve approximately 75 full-time positions. I am not sure if that is still
true. We would like to see federal monies spent on preservation and protection of the spotted owl, taking into account
the jobs that could be lost due to that protection. That is a consideration.
Senator Spivak: It seems to me that the federal government has to stop the logging in those areas.
Ms. Barlee: In British Columbia, we are logging at a rate of anywhere from 20 to 25 per cent above the sustainable
rate. There will be a huge reduction in the amount of timber cut in 40 years time because there will be a gap between
reforested plantation timber and old-growth. At a rate of 20 per cent above sustainable, that would mean turning every
stick of merchantable wood into a tree farm. That is a problem. We have repeatedly attempted to have meetings with
the Minister of Forests in British Columbia, but to date we have been rebuffed.
Yes, it may mean that there will be no logging in these areas. As I mentioned earlier, things could be done to offset
job losses in the British Columbia logging community. The number one objective of logging companies is to realize
profits, not to provide jobs. Royal commissions have met and made recommendations, but thus far, those
recommendations have been ignored.
Senator Spivak: How likely is it that the federal government would state to a provincial government that logging
must end in a certain area?
Ms. Barlee: It is unlikely because logging falls under provincial jurisdiction; however, endangered species fall under
federal jurisdiction. The federal government could say that a species must be protected and, in this case, that would
mean no logging. We are not opposed to logging and would like to see it continue in B.C., on a sustainable basis, for
The first priority of the federal government should be recovery and protection of the species.
However that is achieved, it is unlikely that the federal government would want to step in and stop the logging.
The Chairman: As we said earlier, things move slowly. At the moment, Canada has no stand-alone endangered
Ms. Barlee: Yes.
The Chairman: To my knowledge, it has taken eight or nine years to get to the point we are at now. As Senator
Christensen said earlier, legislation is often a case of negotiation. We have heard from people with differing opinions. It
could be argued that good contract negotiation and good legislation come from situations in which everybody comes
to the table and gives up a little more than they wished, and leaves with less than they wished, but they can live with it.
Very often, that results in good legislation and contracts. If some people are jumping up and down with glee on one
side and others are hanging their heads on the other side, it is bad contract negotiation and law.
We have here a balance, which to some degree dissatisfies everyone at every point of the spectrum. If we make
everyone equally angry, we have done the right thing. With this bill, we will at last have legislation in Canada that is
subject to a mandatory review. That is a start.
I want you to tell us again that you would prefer, all things considered, that we defeat the bill, in effect.
Ms. Barlee: I would like to say something first. I do not think the fact that all sides disagree is a sign of good
legislation. It is not that I want Bill C-5 defeated or destroyed. I want the bill to take into account the biological
requirements of species at risk in Canada. I want the bill to protect them. I would ask that there be amendments.
However, it is dishonest to introduce a bill that offers no meaningful protection to the vast majority of Canadian
species at risk. We are making this representation on behalf of our members. It is not an arbitrary or capricious
position that we are taking.
As I mentioned earlier, the question I received again and again from Canadians coast to coast was, ``Why is the
federal government introducing legislation that will not protect Canada's species at risk?'' We are here to represent
The Chairman: You said earlier that you would prefer that this bill not be passed in its present state. Did I
understand you correctly.
Ms. Barlee: If you boil it down to that, yes, but several important additions that I mentioned previously are left out.
I would like to see amendments that make for meaningful protection.
Senator Buchanan: I do not want to push this point any more. I believe the bill will pass.
Ms. Barlee: I do too.
Senator Buchanan: I am going to vote for the bill, even though I believe that somewhere down the line, contrary to
what Senator Milne said, it will be challenged. It has happened before between federal and provincial governments.
However, I will vote for the bill in spite of that, because I know damn well if this bill goes back to the House of
Commons, it is going to be there a long time.
Would your group be better off by opposing only certain portions of this bill and working to make it better? You
oppose this bill primarily because there is no stand-alone endangered species act in British Columbia. Why would you
not do as Nova Scotians and Newfoundlanders have done in the past, and identify constitutional jurisdictional
conflicts and sign agreements with the federal government to set those things aside and not go to court over them?
We did it in Nova Scotia with the Canada-Nova Scotia Offshore Agreement. I negotiated that with the federal
government. In Newfoundland there is the Canada-Newfoundland agreement. There have been no jurisdictional
disputes. There are problems, but they will not be court problems.
Nova Scotia has endangered species legislation. The federal and provincial governments worked it out so there will
be no provincial-federal conflict over that. Why would you not spend all your energy now on urging the Government
of B.C. to pass stand-alone legislation and work in synergy with the federal government?
Ms. Barlee: We have sent briefs to and have met with the current provincial government in British Columbia. We
provided them with educational material. They have said that they have no intention of introducing stand-alone
endangered species legislation. We have not given up. We will continue to persevere.
The Government of B.C. has not only said that they are not interested in introducing provincial endangered species
legislation, but also they have eroded environmental standards, particularly with the Forest Practices Code.
We have submitted briefs to the federal government because there is legislation in the works. Of course, we realize
the importance of working closely with the provincial government.
Senator Buchanan: What about the former provincial government?
Ms. Barlee: That was before my time with the Wilderness Committee. You have different levels of friendliness
within provincial governments. The NDP Clark government called the environmental movement ``enemies of B.C.''
That government worked very closely with the IWA, the Industrial, Wood and Allied Workers of Canada.
I realize your point, and I agree that it is important to work closely with the provincial government.
The Chairman: For those matters that fall under provincial jurisdiction, the fact of this act looming on the horizon
might help persuade the provincial government to take action.
Ms. Barlee: I will refer again to the spotted owl situation. The government has struck a recovery team; however,
there has been exhaustive research on the spotted owl. Although the province has struck a recovery team and said that
they will work quickly on the issue, they continue to allow logging in spotted owl habitat.
One must wonder how serious the Government of B.C. is about this initiative when they continue to allow logging
in the spotted owl habitat. The provincial government is the number-one logger of owl habitat.
The Chairman: When the provincial government knows that there is a hammer that can be applied by the federal
government, their attention to that question might be directed differently, might it not? If this proposed legislation
were not to pass, there would be no such possibility.
Ms. Barlee: I think that they consider the hammer to be spongy. They do not anticipate any fallout.
Senior bureaucrats have said that this government is considering letting species become extinct in British Columbia.
They tell us that we must provide an economic argument to show why they should not become extinct.
The Chairman: You are talking about the provincial government.
Ms. Barlee: Yes. They are in the process of repealing the Forest Practices Code and revoking the very flimsy
environmental legislation that was to protect endangered species under that code. I think if there were a legitimate
hammer hanging over their heads, you would see movement. I do not see that movement.
The Chairman: I do not want to characterize it as a hammer hanging over anyone's head, although those were my
words. The intent is that there will be a certain amount of weight brought to bear, and perhaps coercion in some cases.
The information for which we have asked, and which you have undertaken to send to the clerk, needs to be sent
Ms. Barlee: How many days would that be?
The Chairman: Three.
Ms. Barlee: I am not back in British Columbia for three days.
The Chairman: By next Tuesday?
Ms. Barlee: I will do my very best.
The Chairman: Failing that, next Thursday.
Ms. Barlee: Next Thursday is much better. Thank you.
Senator Baker: I would note that the former Premier of Nova Scotia, Senator Buchanan, who was speaking a
moment ago, passed various pieces of legislation, not only on provincial jurisdiction matters but also federal
jurisdiction matters, all having to do with conservation. I hate saying this because it was a Tory government, Mr.
Chairman, but he deserves it. It was one of the first governments that actually passed legislation to protect against
destruction of birds by aerial sprays in our woodlands. This proposed legislation, Mr. Chairman, is now doing what
Senator Buchanan did when he was the premier. It is encroaching, yes — he is right — on provincial jurisdiction, but,
as you say, it is needed.
The Chairman: Thank you, senators. Thank you very much, Ms. Barlee. I am grateful, as we all are, for your having
accepted the number of questions that you did and for answering them as clearly as you did. We look forward to
getting the other information.
Ms. Barlee: Yes. It will be there on Thursday.
Senator Milne: Will the steering committee put together a letter?
The Chairman: Yes. I will ask you and Senator Spivak to have a short discussion right now, since we have a few
Senator Christensen: In our report, if in fact we do attach an addendum, we should highlight provinces that do not
have strong or matching legislation. Those provinces would be subject to ongoing scrutiny.
The Chairman: We have, I think, a consensus that there will be observations along with the bill, whatever its