Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 5 - Evidence of November 26, 2002
OTTAWA, Tuesday, November 26, 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 6:30 p.m. to give consideration to the bill.
Senator Ione Christensen (Acting Chairman) in the Chair.
[English]
The Acting Chairman: We welcome our witnesses. Thank you very much for waiting. We apologize for the delay. We have been sitting in the Senate and have just now received permission to come over here to hear your presentation. I would ask you to start your presentation.
Mr. Pierre J. Beauchamp, Chief Executive Officer, Canadian Real Estate Association: The Canadian Real Estate Association represents more than 65,000 members who practice real estate in all parts of Canada and approximately 100 real estate boards at the local level. Many of those real estate boards cover vast territory, and our members list property for sale in rural and wilderness areas.
The Canadian Real Estate Association owns and operates the multiple listing service, perhaps better known as MLS, in this country. MLS is a cooperative listing system that is used exclusively by the members of the Canadian Real Estate Association who are realtors. Last year, there were more than 421,000 transactions through MLS, representing $73 billion in economic activity.
We know that land is important to Canadians. By extension, respect for their land, usually known as property rights, is also important to Canadians. In fact, in the past, we have commissioned opinion polls that show that more than 80 per cent of Canadians believe protection of property rights to be very or fairly important. Realtors have supported the strengthening of property rights for more than 20 years. For most of that time, political leaders have told us the absence of property rights in the Canadian Charter of Rights and Freedoms is not a cause for concern. They have told us that property rights are well established in the common law and well protected in our statutes.
Property rights, in our view, are not well protected in Bill C-5 the legislation you are now studying. That is unfortunate. It is unfortunate because we believe that the general approach the government is taking is the right one. Our members support legislation to protect endangered species. They also agree, for the most part, with the cooperative approach to stewardship and cooperation. The problem is that, on the occasion when cooperation fails, this bill clearly says a landowner can no longer use his or her own land. We make no distinction between a partial taking of property and outright expropriation. Our expert advice tells us that restricted land use is expropriation in law.
Let us be clear: In this bill, we are giving the white-headed woodpecker very specific rights, but the rights of the landowner are vague and lacking in definition. Clause 64(1) says that the Environment Minister ``... may... provide fair and reasonable compensation to any person for losses as a result of any extraordinary impact...'' caused by the act. In other sections, the bill uses the phrase ``the minister must'' to describe actions that are required to be carried out under our legislation.
Despite repeated representations by our membership and many others to change the word ``may'' to ``must'' in clause 64(1), the government has so far declined to act. Instead, the government has agreed to alter the language of clause 64(2) to require the making of regulation for the administration of compensation. The draft before you states that the Governor in Council shall make regulations. Previously, this clause also used the term ``may'' for the making of regulations.
Senators, the House of Commons has amended the wrong section. The guarantee that regulations will be in place is not an assurance at all that an owner deprived of the use of property will be compensated. The amendment that should have been made is the changing of ``may'' to ``must'' or ``shall'' in clause 64(1). That would have guaranteed compensation.
The House of Commons did amend the section by adding the qualification that any compensation paid would have to be ``fair and reasonable.'' The level of compensation must be appropriate to the loss suffered. That is why the addition of ``fair and reasonable'' was a good amendment. That is why we actually support the minister's new policy of applying a flexible approach to determining compensation based on experience. We opposed the arbitrary formula that had previously been proposed. We welcome the change.
In Canada, we have a body of expertise experienced in qualifying loss and value. The House of Commons committee heard from a specialist appraiser who stated that there are already well-defined and tested approaches to the valuation problem associated with the measurement of compensation for loss of value. These approaches are already being applied for lands donated for tax purposes under the ecological gift program operated by Environment Canada.
From our perspective, the missing link is the guarantee in the legislation that compensation shall be paid. From the very beginning, clause 64(1) has stipulated that any compensation will be paid only where there is ``extraordinary impact.'' That has not changed. What does ``extraordinary impact'' mean? It has never been defined. Presumably the definition will be left to the bureaucrats who will draft the regulations, and we believe that that is not good enough.
We are trying to ensure that under this bill, the landowner is not left with only one right — that is the right to battle in a closed bureaucratic process at his or her expense for some measure of compensation, with no assurance of success and no means to appeal.
Madam Chair, we all have a responsibility to the land. Realtors who are members of our associations are the first to support that. However, we think that you as legislators also have responsibility to people who live on the land. It is about balance. Just as the environment has to be about balance, there should be balance and fair dealing with people's rights. If you take away people's rights, compensate them fairly. That is all that we ask.
Mr. Mike Buis, Co-Chair, Environment Committee, Canadian Cattlemen's Association: Thank you. My name is Mike Buis, and I am a beef producer from southwestern Ontario. Today I want to present our position as Canadian cattlemen on this bill.
The cattlemen have been involved in the evolution of this legislation since the first consultations about eight years ago. We were then and are now very concerned that the legislation provide for the protection of species at risk in Canada and also provide assurances that Canadian cattle producers will not be unfairly disadvantaged by that legislative protection.
The brief we submitted includes a summary of the state of the cattle industry in Canada to provide an understanding of the scope and challenges we face as an industry. It also gives an overview of some of the voluntary conservation efforts that are already underway in the cattle business.
However, in this presentation I will concentrate on the legislation itself.
This is a complex bill. There are many areas where we have suggested changes. There are also areas where we have commended Minister Anderson for innovative and made-in-Canada approaches — two of which in particular are the recognition of stewardship activities that are important to the conservation of species and should be supported, and the removal of the civil suits act section.
In stewardship, we are pleased to see the provision for conservation agreements for both the species at risk and other species, as well as funding agreements for some cost-sharing programs. This appears to be a mechanism to use public dollars to assist producers to make management changes that may be necessary for the protection of a species.
There must also be adequate financial support to prevent species from becoming at risk. These resources need to be available outside the species at risk effort. The financial support is necessary not only at the level of government administration, but also at the grassroots level for local conservation groups, landowners and landholders. Changing management practices and attitudes requires resources and a concerted national effort.
The potential impact of this legislation is causing considerable anxiety in the rural community. It is difficult to make good business decisions in an environment of uncertainty. Agriculture is going through a difficult time. Hard decisions are being forced on many producers. This legislation should not add an extra burden. To mitigate that anxiety, the Canadian Cattlemen's Association is asking for the following amendments to the legislation: To assure 100 per cent compensation for losses of normal expected uses and for loss in market value; add ``knowingly'' or ``with intent'' to the prohibition against killing, harming, harassing, capturing or taking an individual listed as endangered or threatened; add a species notification process prior to potential charges; and, decrease the amount of fines to match the severity of the offence.
As clause 32(1) on generality prohibitions is written, it is strictly a liability offence. That means the Crown must only prove that the offence occurred. The accused must then prove due diligence. It could mean that cattle producers would have to conduct environmental assessments on their land so that they could prove that they knew what was there and that they were managing it accordingly. This is not a reasonable burden for the landowner to bear. In many cases, what we know about these species is very limited. In many cases, biologists may not be sure what to recommend as management practices or changes to improve the situation for a species.
The defence of due diligence is an expensive one. The cost of an environmental assessment would bankrupt many farms and ranches even without the current difficult economic times. As you are no doubt aware, we have no way to pass our costs back to our consumers.
Cattle producers have demonstrated their willingness to participate in projects and programs that benefit biodiversity and wildlife species. Maintaining the unduly strict and punitive nature of this prohibition threatens the goodwill and cooperative spirit that has developed. Cattle producers do appreciate the need to penalize people who deliberately set out to kill, harm or harass wildlife. ``Knowingly'' or ``with intent'' must be added to this prohibition. That change would make the offence mens rea, meaning it has been done with intent.
To assure landowners and landholders that their participation is indeed valuable and recognized, we suggest removing the phrase ``to the extent possible'' in clause 39(1). Although we support the need for the minister to maintain flexibility in his approach, we also believe the minister has been very clear in his attempt to have landowners and landholders involved in the recovery planning. The language of this legislation should reflect that.
It is important that the act recognize leaseholders or renters as having status to participate in the recovery strategy planning and in development of action plans. Millions of acres in agricultural land owned by provinces and absentee landowners are managed by leaseholders.
We commend the government for its decision to recognize the principle of compensation and to include the enabling language in Bill C-5. It is critical to the success of efforts to protect species at risk when those species depend on private land. Because of the importance of compensation to cattle producers, we have asked the government to change the word ``may'' to ``must.'' We also strongly suggest removal of the word ``extraordinary.'' We recommend that any losses on normal expected uses and loss in market value as a result of the implementation of this act be eligible for compensation.
It is reasonable to assume that the types of restrictions that the Species at Risk Act, SARA, may impose on ranchers and farmers will prevent any agriculture or other economical use of this land. If this occurs, landowners will lose virtually all rights associated with property-holder interests on their land and it could be rendered worthless.
In the key decision of Regina v. Tener, these very circumstances led the Supreme Court of Canada to a finding of expropriation and a ruling that required government to pay full compensation. Land owned by the federal or provincial government plays an important role in agriculture economy, particularly in the Prairie provinces. There is significant potential for negative impact on cattle producers who hold leases on provincial or federal land should the land be designated as habitat under the recovery program without being eligible for potential compensation. Long- term leases of government land, often with accompanying tradition of renewal, have made leased government land an integral part of these ranches, as far as farm planning and capital budget. Loss of access to this rented land may impose greater losses on the lessee than simply the present value of retaining rental payments on the land in question. It could threaten the financial viability of the family ranch or farm.
We do, however, strongly encourage the government to ensure that stewardship programs and incentives are properly supported. If that is done, we believe there will be a minimum call for compensation. However, having access to full compensation is very important to landowners and land managers to assure that their livelihood will not be threatened.
The proposed fines are excessive, particularly in relation to the crime. To maintain a tone of cooperation in this legislation, several changes are required. One is to closely match the degree of penalty to the severity of the offence. Many family farms and ranches are incorporated, but their income or profits certainly do not match the perception of a corporately run business. That differentiation should be made. There are almost 29,000 farms in Canada classified as family corporations. The cumulative nature of the fines is inappropriate and should be removed.
We recognize that the approach to prosecution in this act is similar to that in most other wildlife acts, be they federal or provincial; that is, that the offences are strictly liability offences. We do, however, believe that a new approach should be taken in this legislation. We believe the Crown should be required to prove that the accused intentionally and with malicious aforethought killed or harmed an individually listed species.
We have also asked that the Crown be required to notify landowners or landholders of the presence of a species at risk on their property, and of actions that could be taken that would be of benefit to the species. Carrying out normal agricultural practices should not leave the cattle producer open to charges under this act. We do agree that where a person has acted negligently or recklessly or with intent, he or she should face charges under this bill.
In conclusion, it is important that this act is written to effectively protect the species, but also so that it does not threaten legitimate industries such as cattle production. Cattle producers will certainly work to help the species, but we will need help to do that. Rural families cannot be expected to take this burden alone.
Senator Banks: I apologize profusely for having kept you waiting so long. The rules of the Senate, unlike the rules of the other place, require that Senate committees may not sit while the Senate is sitting. Although I managed to obtain permission from the Senate to come here before the Senate actually rose for the day, we kept you waiting unfairly. I apologize profusely on behalf of myself in particular and other members.
I am delighted at the initiative of having heard the evidence before we all got here.
I will preface my question by telling you that I am the sponsor in the Senate of this bill and so I have a bias. It is my job as the sponsor in the Senate of this bill to pass it, so I do not pretend complete objectivity here. I wanted you to know that.
We have had assurances from the minister and others, which are on the record. Among other things, Mr. Buis, you mentioned a moment ago things for which you might come under some kind of penalty for the normal conduct of your business. We have had assurances that anything that is now not against the law will not be against the law after the passage of this bill, in terms of the normal operation of a business.
We have heard the same thing applies to the Cruelty to Animals Act, Bill C-10, which is another bill that is coming down the line that will concern your business.
I would like to ask each of you the same question. I know that both of you are supportive of the objects of this bill, that is to say, increasing the penalties for people who are wilfully cruel to animals and to slightly expand the circumstances in which those charges could be brought.
The Senate can do three things with a bill before it becomes law if it comes from the other place. We can pass it, amend it or defeat it. The Senate rarely does the third thing. More often than people know, it does the second thing and sometimes does the first thing. As soon as we amend a bill, we must send it back to the House of Commons, since it is now a different bill and nothing can become law until both Houses approve it in its present form. In the area addressed by that amendment, the other place can also start tinkering and amend the amendment, in effect.
I am sure that you are at least as aware as we are of the arguments and the discussion that went on in the House of Commons with respect to the evolution of this bill into its present form. You should therefore be aware that there are folks who think this bill extreme about one matter or another. If we amend a bill, it will go back to the House of Commons and there is a very good chance that the area that we have amended could be driven in exactly the opposite direction from the one in which we amend it.
There is that danger if we amend what you are talking about. There is a danger that if it went back to the other place that in respect of compensation, for example, that could be made less clear, have less teeth and be less certain than it is now. There is also the possibility — and we know that you are opposed to cruelty to animals — that the thing would become so bogged down in the other place that we would lose it.
I hate it when someone says, I am her from the government to help you.'' I hate it more when someone says, ``trust me.'' Given the possibilities I have mentioned, and given the bill as it currently stands, and, given the reasonableness with which most prosecutors approach questions — even in respect of strict liability — is it still your wish that we should seriously consider amending this bill?
Mr. Beauchamp: You raise an interesting question of process and procedure. The reason we are here today has nothing to do with process, but rather to the commitment that realtors — the people I represent here today — have to the protection of property rights in this country. We see this as a fundamental right of Canadians and we feel that it is almost imperative that the small change that we are recommending occurs. You know that in the first part of my presentation, I pointed out that realtors in Canada support the context of what is being done here.
However, we are also concerned that the rights of Canadians may not be preserved. The Canadian Constitution does not provide the protection. We have to do it piece of legislation by piece of legislation. I understand the process and the procedural problems that you point out. They are very clear and I understand them very well. At the same time, it may have been a mistake that ``may'' was not changed to ``shall.'' I think the intent may have been to have it as ``shall'' and maybe it would not be as complex a modification, because that is all that we are asking.
Everything is not perfect; there are other changes that we might like to see, however, we are not going to waste time about other things. In this case, however, we feel that it would be important for this committee to give serious consideration to changing that one word, which in our view would have very important impact for Canadians.
Senator Banks: Of course, I got talking so fast my mouth was going faster than my head. I am not talking about cruelty, but rather about the extirpation of animals. However, the same arguments apply and the same question.
Mr. Buis: I am not here as a representative of the Cattlemen's Association to decide how the house might vote one way or another. I am also not here to tell you how to do your job. I am here to present what we, as cattle producers, feel are important changes. I suppose we would ask you to act as you see fit. However, our proposed changes are important enough to merit a serious consideration of them.
The Acting Chairman: There being no further questions, thank you very much gentlemen.
Senator Tommy Banks (Chairman) in the Chair.
Mr. Stewart Elgie, Environmental Lawyer: Thank you for inviting me to appear before the committee. It is a tremendous relief and pleasure to appear before the Senate committee on this issue. I have appeared before the House of Commons Environment Committee seven times in the past 10 years on proposed endangered species legislation. I spoke to three different bills that have become tantalizingly close to making it to this chamber but were snatched away at the last minute. Therefore there may be a tendency to think that there has been much debate about this bill for years and although it is not perfect, perhaps we should pass it and review it in five years.
That line of thinking may be true for many bills before this chamber but I would suggest that in this bill, the stakes are somewhat higher. If you make a mistake in the bill, you end up with more pollution and you may have greater effect on habitat. Those are serious consequences. The consequence of mistakes in Bill C-5 is extinction.
There is nothing more irreversible than extinction; it means not just impacts to health or the loss of an individual animal's life. It means the end of a species that has been evolving for millions of years on earth; a species whose DNA — one single strand — is more complex than all the volumes of the (Encyclopaedia Britannica( ever published.
The consequences of imperfection are high and for that reason, I would urge the committee to take close look at this bill. If you hold the view that there are things that need to be fixed, I would encourage you to go forward and fix them, notwithstanding the comments that Senator Banks has made. Few people in this country are more anxious to see this bill passed than I. I had less grey hair when this thing was first incubated and I would like to see this come into effect.
I suggest that this bill requires serious changes to ensure that five years from now we do not have more extinct Canadian species. Worldwide, we are in the middle of the largest extinction epidemic since the time of dinosaurs. The current rate of extinction is approximately ten thousand times the natural rate of extinction. Historically over geological times, scientists estimate that an average of two or three species went extinct each year. Currently, conservative scientists estimate that two to three species go extinct each hour, around the world. The culprit for 99 per cent of that acceleration is human activity. Canada is not immune to the problem. We have 402 species at risk — double the number since I first began testifying on this issue 10 years ago.
Why does it matter? I was asked that the first time I testified before a Commons committee. It is hard to give a complete answer. There are some practical reasons. Over 40 per cent of the medicines that we find in our pharmacies are derived from natural species, such as the Pacific yew in B.C. — which we used to cut indiscriminately as a weed — was found to contain Taxol, which is now one of the leading drugs for fighting ovarian cancer. I could go on and give you many more examples.
Wildlife is an integral part of our national identity as Canadians. It is deeply rooted in us as a sense of pride and as something that unites us all from coast to coast. Canadians spend $9 billion per year for wildlife-related activities, according to Statistics Canada, generating 200,000 jobs.
For me, the real reason goes deeper than that. Simply put, endangered species are nature's warning system. They represent the canary in the coalmine — indicative that the larger ecosystem is showing signs of collapse. When a beluga whale washes up on the shore of the St. Lawrence River in Quebec, so full of poisons that legally it must be disposed of as toxic waste, that is an indication that the St. Lawrence River and Great Lakes ecosystem that our children play in, from which we feed our cattle and near which humans live, is becoming too poisoned. We have to do something about it.
Endangered species are an indication of the ecosystem that ultimately supports our lives and that is the most compelling reason. The single biggest reason that we are losing species is not that we are killing them directly but that we are destroying their habitats — fields, forests and wetlands. It is estimated that we lose about 240 acres of habitat every hour in Canada — approximately 200 football fields.
I will advocate several key changes that enjoy broad base support, not only as you might expect by every wildlife organization in Canada but also by a broad spectrum of natural resource industries that have also joined hands to recommend reasonable changes. You have heard from some of them. More than 1,000 university scientists in Canada signed a joint letter on this issue to the Prime Minister. Members of the different political parties who are part of the House of Commons Environment Committee voted for the key changes that I will speak to today.
I have submitted a brief to leave with you. I have also submitted a documents package. Having met with literally hundreds of people about this bill, I found that a flow chart explaining what is going on with this bill has been helpful for putting some of the changes that are needed in context because it is a complex bill.
Tab 1 of that package has a simplified chart. The left-hand column shows the basic contents of the bill, listing, prohibiting direct harm, killing, recovery planning, and protection of habitat, which happens in a time sequence. You will see on the bottom that we separated species considered to federal jurisdiction from those considered to be under the safety net.
I will talk about a couple of key points. Obviously, the initiation of the bill is the listing process. I will not speak to this today, Ms. Smallwood will. If you go to the left of the chart, you will see what happens when species are considered federal species. Immediately after listing, there is a ban on killing a species on federal lands, an aquatic species or a migratory bird. There is also a ban on destroying a nest or a den of any of these species.
Following that, a recovery plan is initiated. The initial plan must be completed in one year. The House committee added that there must be a time limit for the action plan phase of the recovery plan. That time limit was taken out. To me it is contradictory to set an action plan with no time limits.
Another crucial aspect is that while the recovery plan is underway there would be ideally a negotiation of stewardship agreements private landowners and companies that would avoid the need for prohibitions.
Next is the most critical issue that I will talk about today. Habitat protection is the real thrust of the bill. Species on federal lands and aquatic species do get their habitat protected. However, there is nor requirement for habitat protection for migratory birds. Despite the fact that they are acknowledged to be a species within federal responsibility, the bill takes an anomalous approach and says that cabinet may elect to protect them in the future, but unlike area of federal jurisdiction, there is no requirement for habitat protection.
I submit that that is the single most important weakness in this bill, and one that will likely lead to many migratory birds moving towards the brink of extinction, and some beyond the brink of extinction.
I totally support the idea of the stewardship and cooperative approach in this bill. One needs both carrots and sticks in order for legislation to be successful. One hopes that the carrots do most of the work. Without the stick, the certainty that legal protection will apply, the incentives and the carrot part of bill will not work as well.
The migratory birds section of the bill has only discretionary protection. There is very little doubt that the federal government has jurisdiction over migratory birds and their habitat. In this package you will see that we went to the highest source in the land. We retained the former Supreme Court Justice Gerard LaForest had written the court's last three judgments on the subject of the Constitution and the environment. I will not read it to you now but you could flip to tab 10 at some point. Mr. LaForest, and his colleague, Mr. Dale Gibson, one of the top constitutional scholars, noted that parliament's jurisdiction to deal with migratory birds and habitat is extensive and almost undoubted. They support that at length. The Canadian Bar Association agrees with that view. The federal government has taken a different approach in the act.
The federal government has provided protection for the nest or den of the migratory bird, but not for the other habitat areas on which it depends. On this slide you will see that a species called a ``marbled murrelet,'' which is a threatened bird species, spends the daytime on the water of Pacific coast. It has an odd life cycle. It nests on mossy limbs several hundred feet up old growth forest trees. At the first light of dawn, it flies out from that limb to the water and flies back just after sunset.
The only way to find the nest of one of these birds is to peer up at sunrise into the canopy of an old-growth forest and hope to see a small silhouette off a tree, guess from which tree it flew, shimmy up that tree and look for a teacup- sized impression in the moss. After years of looking, one had not been found until 1989. However, we knew that their numbers were dropping because their number on the waters was dropping.
Researchers at the University of Victoria spent the summer of 1989 looking for these birds. You can see the rope they were using to climb up a tree in the early morning. Can you see that little depression with the white ring around it? That is the first marbled murrelet nest found in Canada. They saw dozens of other marbled murrelets circling in the treetops above the nest, but they could not find the nest. They kept missing the nests, but they knew they were nesting there.
The company, under law, only protected the nesting tree and a small buffer around it. They clear-cut much of the remaining area although it was known that these endangered birds were nesting. Fortunately the area was turned into a park, and the murrelet is surviving in that area.
The story made the front page of the New York Times two years ago. That article is at tab 12 of my document. The article noted Canada's failure to protect migratory birds that are endangered and shared with the United States. It shows a photograph of a solitary marbled murrelet nest in a clear-cut area. This is ``protection'' of a nest. This is what this bill is requiring for Canada's 20 endangered and threatened migratory bird species, which we all recognize are on the path to extinction. I can assure you that such protection will not prevent them from going over the brink.
I urge you to think seriously about that and take into consideration that not only I, but the Forest Products Association of Canada, the Mining Association of Canada and the members of the Endangered Species Task Force — including the Federation of Agriculture, the Association of Petroleum Producers and the Fisheries Council — have all recommended that migratory bird habitat protection be dealt with as a federal matter.
This bill will not have significant impact. It is similar to the Fisheries Act whereby the federal government has responsibility over fish under the Constitution. That responsibility extends to the habitat of the fish — when that habitat includes shoreside areas that may be provincial or private lands. That provision has been in the Fisheries Act since 1977 and it has not brought the world to a grinding halt.
The same thing is needed for migratory birds. If we do not do this, that Canada will be the weak link in the NAFTA countries. Both the Mexican and American endangered species acts include mandatory protection for the habitats of migratory species that we share with those other countries. Canada will be failing to meet its ethical and legal obligations to our North American partners.
I am conscious of the time, so I will wrap up quickly. I talked about other issues in my brief.
The Chairman: Nobody would want you to leave out anything because of the time. I promise you.
Mr. Elgie: I appreciate that, and I recognize it is getting late for all of us. The chair of the committee in the other place is more direct than you in indicating that witnesses should move on.
The Chairman: In the Senate, we want to hear what you have to say.
Mr. Elgie: I will oblige then. Thank you very much sir.
The second issue is that of the safety net. If you refer to the chart at tab 1, you will appreciate the critical importance of the safety net.
The safety net is doing most of the work in this bill. Migratory birds represent about 10 per cent of the listed species that we have. The safety net deals with approximately 60 per cent of Canada's 402 endangered and threatened species at risk. These are species that are not on federal land or considered aquatic or migratory birds. In such case, the approach taken is to make the provinces primarily responsible for dealing with the species — which in Canadian federation is a defensible approach. However, I submit that the weakness is that the safety net is so unclear and so lacking in strength that there is very little chance it will ever be invoked. We run the real risk that neither order of government will protect endangered species. They will be caught in a shell game or turf war of who has the right to protect them as opposed to the real issue, which is who is going to protect them.
I can assure you that most Canadians and certainly the wildlife do not care whether that person protecting them has a provincial or federal flag. They want to know that this bill ensures that one way or another, these species will be protected. This bill does not provide that insurance.
This bill notes that if a province is not effectively protecting the endangered species or its habitat, the federal minister shall recommend that cabinet bring in a regulation applying federal protection. However, cabinet has complete discretion on whether to act on that recommendation.
Perhaps you have seen this chart before. I am the author of it. At tab 3 our research on how similar powers in other federal statutes have been used taking a similar approach. Canada Wildlife Act, the Canadian Environment Assessment Act, the Canada Water Act, and the Clean Air Act all have similar provisions saying that where there is an interprovincial or an international environmental issue, the federal cabinet has discretionary authority to bring in measures in the absence of provincial effective action. What you see going back 27 years for the Wildlife Act and 30 years for the Water Act and Clean Air Act is that these provisions have never been used.
I can assure you that a number of serious interprovincial and international air quality, water quality and environmental assessment issues have occurred. I would be happy to give examples if anyone wants to know.
Under the Wildlife Act, for the past 27 years, they had the discretionary power to bring in protection for endangered species. This committee will by now be aware that there have been some problems facing endangered species during those 27 years, and no action has been taken.
The track record of action in these discretionary federal-provincial clauses has been very weak. I submit that if the federal government currently lacks the will to indicate that it will act when difficult issues are to arise, it is much less likely that when those issues actually arise that they will have the will at that time.
Whether the provinces are, in fact, effectively protecting endangered species is a huge and complex issue. The fact that the list is growing longer and that more species are being lost indicates that collectively we are not doing a good enough job. However, at tab 4 you see one issue alone — and that is how they have done on listing.
In the left-hand column you see the number of species in each province that COSEWIC — the federal-provincial body of science experts that lists our species at risk — has identified as endangered or threatened. You then see the percentage of species that have been legally listed in those provinces' endangered species acts. You see there is a range, but only one is over 50 per cent, which is New Brunswick. Collectively, the total is about one-third. Nova Scotia will be the one exception, because its act says that any species COSEWIC lists will be listed under its act automatically.
My point is that the provinces have not even listed two-thirds of the species that COSEWIC tells us are endangered, which forecloses any possibility of protective action.
I will not take you through it, but if you are interested, there is a federal-provincial agreement where all jurisdictions commit to passing endangered species legislation with 12 minimum elements. Tab 8 there is a report card ranking how each jurisdiction has done in meeting each of those commitments. You will notice that the best grade of all is a C plus. British Columbia has no endangered species legislation and has indicated it will not pass such legislation. Alberta has no endangered species legislation other than a very discretionary single clause in the Wildlife Act, and will not change that. Only 6 of 13 provinces and territories have endangered species laws, even though they signed an accord in 1996 committing that all of them would have such legislation, and four had signed already at that point.
Therefore, to say that we will leave it up to the provinces to take care of endangered species protection, I believe all the evidence suggests that that is just not going to happen. I hope it happens. There is nothing I would like more than for the federal government never to have to invoke the safety net; however, the realist in me says that will not happen.
There are really three changes required now to make the bill effective. The first one is very simple: When a province is not protecting an endangered species or its habitat, it should say the safety net ``must'' be invoked, not ``may.'' Even if you do not want to go that far, there are two simple changes that would at least build in greater accountability. The house committee tried to make one, and that is to indicate criteria for measuring whether or not a province is, in fact, effectively protecting endangered species habitat. This helps everyone because it means that the safety net will not be applied arbitrarily. It will be consistent, because there will be criteria.
The second change is a requirement for accountability: That the minister must give reasons for his or her determination as to whether or not the province is, in fact, protecting habitat. Therefore, at least the reasons will be out in the open.
As I say, the real concern is not undue intrusion; the real concern is neither level of government protecting a species that is on its way to extinction. That is a very hard thing to explain to Canadians.
I will not go further. I would like to talk about compensation; however, I suspect that there may well be some questions on that issue. Let me leave that because it is an issue, I suspect, that is of interest to folks, and I do not want to take up Ms. Smallwood's time.
Those are the two mains points. There are two or three others that are in my brief on page 1, and I am happy to entertain questions on them.
I will finish by saying that this bill presents a remarkable opportunity to do something good for Canadians — something that will unite us. It is one of those rare things that will make us feel pride in a way that we all do about our wild places and wild species. It is an investment in the future of Canada and in a future that still has grizzly bears, Beluga whales and marbled murrelets living in the wild.
You have an opportunity and a responsibility to do all that you can ensure that that future vision is realized. If I can be of any assistance, I would be happy to.
The Chairman: Thank you, Mr. Elgie.
Would you prefer Ms. Smallwod to speak and then do questions?
Mr. Elgie: By all means, I believe that I have intruded on her time as it is.
Ms. Kate Smallwood, Director, Endangered Species Programme, Sierra Legal Defence Fund: I am absolutely delighted to be here before the Senate on a Canadian endangered species bill. I have been working on this since 1996, and as with Mr. Elgie, have testified before the House Environment Committee on each of the other bills. I am delighted to be here.
Today, I want to briefly focus on two things. First, I would like to respond to two issues that have been front-and- centre before this committee, and we have heard both of them in the earlier panel. Second, I would like to propose the limited changes we are seeking to this bill that we feel, if made, will significantly improve the bill as it now stands.
Dealing first with the two key issues that have been put before this committee, the first one I would like to respond to is compensation, and the second one, which Senator Banks raised earlier, is that if the Senate makes any changes to this bill, the government will kill it.
I know from the earlier transcripts that the issue of compensation has been significant in particular for Senator Spivak, Senator Milne, Senator Kenny, and Senator Baker. What I am deeply concerned about is that the Senate's heavy focus on compensation is based on a significant misunderstanding of how Bill C-5 will actually work on the ground.
In particular, I am concerned with three key things. The first one, as Peter Pearce outlined in great detail ad nauseam in his report on compensation, is that the whole bill is structured around an approach of voluntary collaborative efforts first followed by the limited federal regulation in federal jurisdiction. In other words, the approach is heavily weighted to the carrot.
The second key thing to focus on is that the basic prohibitions in the bill, clauses 32 and 33, you cannot harm the species or its residents, and the critical habitat prohibition in clause 58, are limited to federal jurisdiction only. The chances of this bill ever applying on private land are remote in the extreme, unless the subject is on federal lands, in federal waters, an aquatic species or one of the species of migratory birds protected under the Migratory Bird Convention Act. There are 35 species of migratory birds under Migratory Bird Convention Act that are on the COSEWIC list, 20 of those are in a category that the prohibitions will apply to under the bill.
We are talking in terms of the basic prohibitions of application to private land only if it is an aquatic species or 20 species of migratory bird. When you get to critical habitat, as Mr. Elgie said, there is no mandatory protection for those 20 birds species off federal land. When will this bill apply with the key prohibitions? It will apply federal land, federal lands, aquatic species and, in the case of critical habitat, that is it.
Third, if you go down the tier, the overall approach is collaborative first, regulatory second. Second tier is if it is regulatory. It is very limited; it is federal jurisdiction only. If you get to that rare occasion when this bill does apply on private land, the bill has adopted a ``no-surprises'' approach to critical habitat. You will not have a landowner that gets surprised that critical habitat is protected on his property. Why? Because of the approach under the bill.
``Critical habitat'' as defined in clause 2, means a critical habitat that is identified in a recovery strategy or an action plan. What is involved in the identification of that habitat is a mandatory consultation process with landowners. Landowners, if they are directly affected, will be involved in defining that critical habitat.
Additionally, once that critical habitat has been defined, if on the very rare situation it applies on their land, the landowner has a three-month window before the prohibitions in clause 58 kick in. There is a 180-day process that applies on the various categories of federal jurisdiction in that section before critical habitat will be protected. You would have to be fast asleep or virtually dead as a landowner to miss out on the fact that critical habitat is going to be protected on your land.
I would be happy to elaborate on any of these points further.
Another matter that was very heavily emphasized in Peter Pearce's report is that if you change the compensation provision in this bill from a discretionary provision to a mandatory one, so that you extend mandatory compensation to a regulatory restriction versus actual expropriation, we are looking at a substantial shift in Canadian policy around compensation.
Currently — as was acknowledged by the Cattlemen's Association, and I believe the Real Estate Association as well — for offences of strict liability in Canadian environmental law, it is standard practice that compensation is applied only in cases of expropriation; it is not applied in cases of regulatory restriction. Peter Pearce goes into the reasons for that. He documents clearly that, if you change that with this bill, it will be a substantial and fundamental shift in Canadian policy, and one certainly that we are opposed to.
Again, I am happy to elaborate on any aspects related to compensation further.
Dealing with the second issue that Senator Banks raised earlier, which is that this Senate committee cannot consider any changes to this bill because, if you make any changes, the bill would be killed, I have but two words to say to you on that, and they are these: Bah, humbug!
I have been working on endangered species legislation since 1996. We have heard this argument from Minister David Anderson or David Anderson's office since what was originally Bill C-33 and now is Bill C-5 began. I have got quotes here, if you want me to go through them, from Minister Anderson both prior to and after the House of Commons Environment Committee amended the bill, and now you are hearing the same argument.
To say that the government is crying wolf on this issue is an understatement. Minister Anderson went on the record saying that the bill could not be destabilized. For example, before the House of Commons Environment Committee on September 19, 2000 he said, ``What I said — and I stand by every bit of what I said — is that I cannot allow this bill to be destabilized by amendments that will destroy the intention of the bill.'' Then he elaborated on some of that.
The House of Commons Environment Committee, as you know, made extensive amendments to this bill. We had heard that if any amendments were made the sky would fall and the bill would die. Not only did the bill not die, the government itself proactively made amendments to the bill — for example, the National Aboriginal Council, the listing amendment, and amendments related to federal jurisdiction.
The government is crying wolf. My advice to you is not to be suckered. Even if you buy the argument that the government will kill the bill, I now approach this committee as senators. The Senate is the house of sober second thought. It is the house of review. You have a job to do. Canadians are looking to the Senate to exercise their role as senators in relation to this bill.
Noël Kinsella, the Tory Deputy Leader of the Opposition in the Senate, said at the second reading of this bill on June 13, 2002, which was the first second reading in the Senate:
``In terms of our role, honourable senators, it is the responsibility of this house to review and scrutinize this legislation as thoroughly as possible. In other words, we cannot be pressured to do a second-rate job on scrutinizing this piece of legislation simply because the government is under a tight legislative agenda and it is the bill's third time at the plate. If there is a way to strengthen and improve this bill, we should.''
Mr. Elgie has very eloquently outlined for you why, given the extinction decisions that follow from inaction or succumbing to the cry wolf argument, the Senate should exercise a role here. Along with other Canadians, I actively urge you to exercise your role as senators and review what is for this government its major piece of environmental legislation.
Finally, on that point, I would like to say in response to those who still cry ``amend this bill and it will die,'' look at the priority the Chrétien government has placed on this bill. It has been included as a priority in numerous Speeches from the Throne, including the last one. It was publicly touted by the Prime Minister as a major environmental initiative of Canada at Johannesburg. Make no mistake about it, the government is not going to kill this bill if you review it properly and make some key amendments.
This then leads me on to the four key amendments we are seeking from the Senate.
We believe if these four priority amendments are passed, it will substantially improve the bill. None of the amendments I am seeking from you are amendments that were not supported by the House of Commons Environment Committee.
As I presume the Senate is aware, the House of Commons Environment Committee — and I was there for all weeks of the hearing except one — reached a historic compromise on amending the bill. All the key amendments, including the four I am about to ask for, had all-party or multi-party support around the table. To say that that is historic is an understatement.
The first amendment we are seeking Stewart Elgie has already elaborated on, and that is to expand habitat protection for migratory birds beyond federal lands. The federal government has the constitutional jurisdiction to do this unequivocally. It should be setting an example for the provinces on full exercise of constitutional responsibility within federal jurisdiction. It is a major abdication of responsibility that the federal government is not protecting migratory birds off federal lands as they are with aquatic species.
The second amendment we are seeking is to include a timeline for the completion of action plans. Under the act, there is a two-stage recovery process: First, a requirement within a prescribed time period to complete a recovery strategy and, second, there is the broad-brush scientific framework to protect the species. The second stage is the action plan that sets out the actual specific action measures to protect the species. The fundamental deficiency is that the government has deleted the House of Commons Environment Committee's time line for completion of an action plan.
Why is that problematic? We currently have an open-ended approach for recovery and action measures to protect species at risk. There are 402 species listed at risk by COSEWIC. On how many of those do we have recovery actions underway? Sixty-four. How many recovery action plans are actually approved? Only nineteen. The track record is there.
If you fail to amend the bill to include a time line for action plans, we will have more of the same process we are seeing now, which is a substantial number of listed species and not enough done on the ground.
The third amendment we are seeking is provision for interim habitat protection between listing a species at risk and protection of critical habitat through the recovery process. As Mr. Elgie has outlined, habitat loss is the number one threat to species at risk. To put it simply, if we are going save species, we have to save spaces for them. Between the time of listing and the two to three to four to five years it takes to complete a recovery strategy, this bill is not providing a measure to address the fundamental threat to those species at risk, which is habitat loss. You have a huge time lag between listing and then actual protection of critical habitat.
Having heard testimony on that, the House of Commons Environment Committee supported a discretionary interim habitat provision so that the minister could, in appropriate circumstances, take action to protect the species including protection of habitat. We support reinstatement of that provision.
The final key amendment we are seeking is provision for an ongoing, five-yearly review of the act. Again, that was the amendment passed by the House Environment Committee, and the government has now altered that amount and cut it back to a once-only review of the bill.
Most of the recovery efforts under this bill will only just be starting or slightly underway, if that, in five years. The recovery process under the bill is the major mechanism to bring species off the brink of extinction and down to a lower level of risk. We are not going to know in five years how this act is really going. We will have an idea, but we will not have a full picture. This is a fundamental piece of Canadian environmental legislation, and there should be an ongoing five-yearly review, not a once-only ``is it working, is it not?''
As an example of the importance the government has attached to ongoing assessment of whether this bill is working or not, there is an actual legislated, mandated requirement in the act to do an ongoing five-yearly assessment of the status of wild species at risk. In the same way that assessment is to be done every five years, we should be looking at how this bill is going every five years.
I have also outlined in my brief, which I will not go to into detail here, a series of minor amendments we feel would certainly improve some key areas and inconsistencies in the bill. One of those that I know has been raised before you is the inclusion of all reassessed species on the legal list of species at risk. Minister Anderson has committed to this publicly and yet has still to include the species reassessed by COSEWIC at the May 2002 meeting. Two species that have been emergency listed in October, and COSEWIC will release its latest list this Friday. All species that are reassessed by COSEWIC this year and also the species that are assessed on the new criteria should be included on the legal list.
Finally, I will briefly touch on the issue of transboundary species. I have outlined in detail in my brief why, based on Gerard LaForest's and Dale Gibson's opinion, the federal government does have constitutional authority to address these species. In recognition of this Constitutional jurisdiction Bill C-65, the Canadian Endangered Species Protection Act, contained a specific provision addressing transboundary species. Between 80 per cent to 90 per cent of all species listed by COSEWIC — and I have included in my brief for you a table from COSEWIC confirming this — are transboundary species. In failing to address species that range or migrate between Canada and the U.S., we are seeing a huge abdication of federal responsibility. We would have preferred to see that issue addressed.
I will conclude there, and I am happy to take any questions on that testimony.
The Chairman: Before we go to questions, could you go back to the bah-humbug part a bit?
Ms. Smallwood: Given that it is Christmas, ``bah-humbug'' seemed appropriate.
The Chairman: It is. Would you tell us if you have any concerns about the areas that we might amend being re- amended when the bill would go back to the House of Commons?
Ms. Smallwood: You raise that as a reason, Senator Banks, why it should not go back to the House. The amendments made by the House Environment Committee were hotly debated, as I am sure you are aware, within Liberal caucus. After extensive debate within Liberal caucus, the government accepted two of the key amendments in particular of the House Environment Committee. One was to improve the listing process, so that it is a negative option listing, which is the scientific list stays unless within nine months cabinet takes contrary action. That was the first step forward. The second thing they did is they improved habitat protection within federal jurisdiction.
I think the Liberal caucus has a clear idea what the areas of debate were. They have thrashed this out extensively and have agreed to the parameters that would be accepted for this bill. Contrary to what was suggested earlier by Senator Banks, I think it is appropriate to make the further limited four amendments we are after. I am not concerned that by doing that we would then open up the rest of the bill to major amendment by the government.
The Chairman: It is not the rest of the bill; it is those areas. Whatever area we might amend, when it goes back to the Commons, that area can be re-amended. An amendment that we make can be re-amended, so if we go this way with an amendment, then, only in respect of that area which we have amended, the House can re-amend.
Ms. Smallwood: If the Senate is clear as to why they are making the amendments they are, and if that is made clear to the government, I am not concerned that there would be a major overhaul and a backwards movement from the government on this.
I think they have been fairly clear on what their level of support is for the bill, as has been Liberal caucus. For the four amendments I am asking from the Senate, four priority amendments have already been endorsed by the House Environment Committee. I think a long-winded answer is that I am not worried that if you amend this bill, we will face a level of tinkering with the amendments I would find problematic or a major overhaul.
The Chairman: I just wanted to remind you that many of the amendments that were introduced in the report by the House committee were overturned and defeated.
Mr. Elgie: I would not add much except to say that from my at-a-distance observation of the Senate, I have rarely seen them deterred by the fact that members in the other place may not share their views. Expressing wisdom when you feel they have some to offer is a good part about our system of parliamentary democracy.
I am sure you have thought about this, but as a safety or backup measure, the committee could put out a report that went with any recommended amendments so that there would be a record of the areas and the reasoning why you thought some changes were necessary so that those could be judged in five years. At least that would survive, if some of your changes did not. I share Ms. Smallwood's view. I think there is very little risk that the amendment areas would actually go backwards, because where they are at now is where the government introduced them initially.
The Chairman: I asked the same question, incidentally, of the witnesses who preceded you. You will be happy to know that before we began the deliberations on this bill, we determined that however we reported it, it would be accompanied by some significant observations.
Senator Spivak: I will make a comment before I ask my question. If the majority in the Senate were convinced to make amendments, remember that a bold strategy is that we are the last to either amend or support the bill. The House can do whatever it wants. When it came back here, we could simply stand firm. That is the ``hammer.'' It needs the assumption that the majority in the Senate are agreeable to amending the bill.
I have read Judge LaForest's remarks, and I am wondering about something. He says, of course, that the migratory birds convention — and he goes into quite an argument — is extensive and not narrow. He also goes into a very detailed explanation about peace, order and good government. He says federal legislation under the POGG power is available to protect not only all migratory birds, but all endangered species that migrate or range across national or provincial borders.
The whole attitude of the federal government in recent years is one of extreme fear or timidity in the face of provincial powers. I am wondering whether the provision in this legislation restricting the scope of the Migratory Birds Act is justiciable. Is the federal government, in narrowing the scope the way it has, doing something that is either constitutionally or in whatever sense justiciable? Could someone go before the courts and present all the precedents setting out their power? Furthermore, in restricting that power are they setting a precedent for restricting it for some time? Is the provincial government then able to enter the field? If so, is that not a very dangerous thing?
Mr. Elgie: I am sympathetic to those questions. I would not pretend to elaborate on what probably the most respected environmental jurist in Canada said. If you have read it, you will recognize that he has made a thorough and compelling case for why this is clearly federal jurisdiction.
The lawyers in the room will know well that it is not possible to bring a constitutional challenge against the government for failing to exercise jurisdiction that it might have. You can only bring a challenge against the government for exceeding the jurisdiction it has. There is no legal duty to legislate to the full extent of its authority.
There are some fairly ineffective ways under international law or international agreements whereby one can raise a claim that a country is failing to honour its international obligations. Perhaps something like that will come out if this bill goes forward in this state because, as I said, Canada is not living up to its part of the bargain with our NAFTA partners under the migratory birds treaty and the biodiversity convention. However, those remedies do not have any weight in domestic court.
To me, the precedent set is the biggest issue. It is of real concern. In the 1970s, when we became more aware of environmental issues, the government of the day looked at the Fisheries Act and said, ``We are protecting fish, as we have been doing for 90 years, but we now realize that the biggest threat to fish is destruction of the habitat they depend on.'' They then extended the Fisheries Act so that it actually dealt with the habitat and not just the taking of fish. At the time, provincial governments said that would bring a disruption to federal-provincial relations and would cause chaos, and of course none of that happened.
We are in the same situation now with migratory birds, as Justice LaForest pointed out well. If the government has the authority to protect the bird, and it has the authority to protect the nest that the bird raises its young in, it is ludicrous to suggest that some other government protects the trees that surround that nest or the wetland if it is a nest in a marsh. This does not mean this land will be federalized any more than fish habitat is federalized. If there is fish habitat in a provincial forest or on private land that does not mean that Ottawa has somehow acquired ownership of that fish habitat, it is just that there is a legitimate federal interest in how that is managed. In the same way as the federal government says you cannot build a nuclear reactor in your backyard, there are things that are federal interests that we restrict uses of.
Senator Spivak: Justice La Forest makes an even more fundamental point. He says that if you put a net into the water and there are no fish, you cannot protect fish. It is the same with birds. If there are no birds to protect, you cannot protect the birds.
I will go to another issue. Why do you suppose the government spent so much time on landowners' compensation and penalty when, as you have pointed out, it probably will not apply, and ignored Crown lands, which is where most of the animals are? Why the emphasis in this bill on compensation and penalties when one could have, I suppose, thought of all kinds of cooperative measures with the provinces, or compensation and penalties for the provinces, where the vast majority of land is? I find that very puzzling.
Mr. Elgie: That is a good question. Under the American endangered species act, one the most successful provisions that has led the way to federal-state agreements has been federal cost-sharing in situations where states pass legislation or agree to implement the federal legislation. That carrot has resulted in 49 of the 50 states signing federal-state agreements to take responsibility for implementing the federal endangered species act on their lands. I do not pretend to have been in the cabinet room on that issue. I know federal-provincial financial discussions are not easy discussions.
You are right to say that the majority of species at risk in Canada live on public lands. In Canada, 80 per cent or more of the lands are public lands and most of the species at risk live there. There are a lot on private lands, but most are on public lands or waters.
The provisions in the bill promoting cooperation, and particularly the creation of a stewardship fund, are tremendous steps forward. In many ways, those will be some of the most important provisions in encouraging those who want to do the right thing to not have to bear a heavy burden themselves. I agree with Ms. Smallwood that compensation will almost never arise under this bill, and I am happy to explain why. However, that provision, which focuses on cooperation incentives, is great, and you do not see it to that extent in other federal environmental legislation.
Senator Spivak: You were consulting on this bill with government in the first round, were you not?
Mr. Elgie: Yes.
Senator Spivak: There has been a change through the bills to emphasize compensation and penalties to landowners, which was not emphasized in the beginning, has there not?
Mr. Elgie: That is true. Those are positive changes because you really do need the carrot and the stick to make something work. The first bill focused mainly on the stick. Folks who want to do the right thing rightly said, ``You are treating us all like bad guys. I do not want to be a bad guy. Encourage me to be a good guy before you punish me for potentially being a bad guy,'' which is a smart approach. However, that does not work. Landowners have told me that they are afraid of entering into a stewardship agreement to manage their land or forest differently, while their neighbour may decide to roll the dice and bet that the federal government will not have the courage to invoke the safety net and will do nothing to protect species on their land. Farmer A or Forester A then faces a competitive disadvantage, which is part of the reason the Canadian Forestry Association supports many of the same things we are supporting. Having the certainty that the bill will apply — not might, but will — when cooperative approaches do not work actually helps those who take cooperative approaches. They are not punished for good deeds by running the risk of being competitively undercut by a neighbour who says, based on history, he does not think Ottawa has the courage to impose its safety net regulations on their land, or on provincial land.
Senator Kenny: Welcome. I am prepared to concede that both of you know a fair bit about the environment, perhaps more than any of us here, certainly more than I. However, I would like to know what qualifies you in terms of the political process. Could you tell the committee what qualifications you have to make judgments about what is likely to pass or not pass Parliament?
Ms. Smallwood: Would I be as qualified as Senator Kenny or any other senator in this room to comment on political matters? No. However, I can comment on the basis that I have heard the argument raised consistently that any changes will lead to this bill being killed and then seeing exactly the opposite happen. In terms of actual personal experience with the threat — ``do not touch it or we will kill it'' — and then the contrary happening where there were significant amendments which were kept, even amendments made by the government, yes, I can speak to that.
Senator Kenny: So you have had experience once?
Ms. Smallwood: Actually twice.
Senator Kenny: But with one bill?
Ms. Smallwood: With this bill, that is correct.
Senator Kenny: How many bills have you seen that have failed in Parliament?
Ms. Smallwood: My focus has been primarily with this bill. In terms of your concern that this potentially could fail, this bill is a major priority for the Chrétien government, and that has been put forward both nationally and internationally.
Senator Kenny: Can you tell this committee that you have researched over the last couple of decades and you have seen the number of bills that the government has said are priorities that have not seen the light of day? Do you have that expertise?
Ms. Smallwood: I do not have that expertise, but due to the level of priority that this bill has been given by the Chrétien government, I would be astounded if the government killed the bill.
Senator Kenny: The government does not have to kill the bill. There could be a dissolution. We have heard speculation about the possibility of a dissolution. It could happen. Would you think that your advice to us was reckless if the bill failed and you had to wait another 10 years and the species that might be protected under this bill were not protected for another 10 years? How would you deal with your colleagues?
Ms. Smallwood: What I would say is rather than look to my advice, look to history on this bill. The government has consistently pursued Canadian environmental legislation as a priority for nearly the last decade, and this bill in particular has been a priority in terms of budget allocation, Throne Speech priority and international commitment. You can disregard my personal opinion, but you cannot disregard the fact Canadian endangered species legislation has been a priority for this government over the past decade, and this bill in particular.
Senator Kenny: What are your views on this, Mr. Elgie?
Mr. Elgie: I have wrestled with this question often. I have had that experience. In late 1996, the first bill was tabled, and partly at my urging, a number of changes were suggested by the committee to improve the bill, and an election was called at three and a half years and it died. In hindsight, I think it was the right thing to do, partly because of all the financial provisions that have been added to it, it is a significantly better bill than the bill that was before us back then.
I do not pretend to be an expert on this, you are right. You try to make your best guess, and you weigh it. You look at where you are on the mandate of a government. You are right, anything could happen, but it is not likely that we are facing an election. However, the passage of the Endangered Species Bill has been the single best predictor of an upcoming election for the last two elections. If one were to look at a scientific method, one would predict that this bill coming close to passage is probably the predictor of an upcoming election.
The Chairman: Despite the priority that Ms. Smallwood has suggested, the fact is, as Senator Kenny has pointed out, that given the machinations of parliament and despite the fact of it being a priority and the way parliament works, this bill has never yet made it to the end of a parliament. It has never been put into force. It is that kind of thing that I want you to be aware of. A bill may be studied forever.
Mr. Elgie: I have wrestled with it a lot. I am glad the senators are wrestling with it, too. It is a question that should be asked. I will give you my analysis of it as it comes out.
The amendments that we are proposing are suggested with that in mind. We are not proposing things that we know are non-starters and that, if passed, the government would say, ``the federal government takes responsibility for every species and every habitat in Canada;'' which it could do. We are not recommending that because we know that is not in the realm of the politically possible.
We are talking about issues that have such broad base support among industry, among opposition parties on the house committee, among scientists and the public that we think that there is a reasonable chance that they may actually be sustained. To say they will be, obviously would be foolish, but certainly they are all ones that are a reasonable chance. They are not ``no hopers.''
Senator Kenny: The point I am trying to make back is that the committee values your expertise on environmental matters, both of you, and that is important. However, to come and say, ``bah humbug'' does not impress me very much. Frankly, you might have said that you understood how fragile bills are and how difficult it is when one puts in a lot of time to get a bill through. Unfortunately you implied a sort of dare to this committee — ``if you are really going to do your job, you will get it in there and you will shove it back at the commons because that is the good and politically correct thing to do.''
I think you must trust that we care about the bill as much as anyone else does. We have to make judgments about whether we have made some yards or not. I would like your answer about what you would say to your colleagues if this bill fails and you have to go back to them and say, well, I said, ``bah humbug'' to the senators. I got them worked up. They went charging back with the amendments. As a result of those amendments, we lost the bill. What are you going to say to your colleagues, Ms. Smallwood?
Ms. Smallwood: My colleagues and I discussed this before I appeared here today. We asked, ``What do we feel,'' recognizing, as Mr. Elgie said, recognizing that I would like a much stronger endangered species bill. However, our view of what is politically feasible and what is reasonable, and at the same time will significantly improve the bill are the four amendments I put before you today and in greater detail in my brief. I have their support to seek those changes. Is it a balance? Yes. Do we feel what we are asking for is inherently reasonable and supportable? Absolutely.
Senator Kenny: Without looking at the merits of the amendments, and we will look at the merits of them, but the purpose of the question without dealing with the merits of the amendments, are you prepared to roll the dice and take your chance on losing the bill?
Ms. Smallwood: Absolutely.
Senator Kenny: Fair enough. I want you to know what you are playing with, and you will see when we respond whether we agree with your judgment.
Mr. Elgie: Senator, to me the answer would be it depends on the issue. We faced that every step of the way. Going back to 1996, I could point to five different junctures where that same warning has been given, that if there is significant criticism, we will lose all the funding associated with this. This bill will get backlogged and never pass. You worry about that and you decide which issue you would be willing to see lost.
From my perspective, the issue of habitat protection for migratory birds is one. I do not want to see this bill die, but if it died on that issue, I could talk to my friends and colleagues and scientists and say it was worth it. That would be one of the most important advancements for Canada and North America. Species are not going extinct in national parks and national wildlife areas, which is where federal lands mostly are south of 60 degrees. It is great that the law is mandatory there and it has some symbolic importance and some practical importance. However, the real reach will be what effect it has on areas of federal authority outside of national parks and national wildlife areas.
Senator Kenny: Just to be clear, because you seem to be changing your position, Mr. Elgie. I thought you had a fairly balanced perspective at first, that said, at least put forward a report that makes a landmark so that the next time this comes around, we will know what to shoot at. I can understand that. That seemed to me to say that I am going to take my winnings, pocket them and not gamble any more. Now you seem to be saying, no, I think I want to roll the dice, and I am back in Ms. Smallwood's camp.
Mr. Elgie: I am only in my own camp, really. What I look at is we have had a migratory birds treaty with the U.S. since 1916. It is pretty hard to have a better established area of federal authority than that. This is not simply some speculative opinion of some constitutional expert that the federal government might be able to occupy this field. This is something going back to the days of Roosevelt and Laurier. For the federal government not to take a leadership role and set a good example in one of its own core areas, to me passes my litmus test of something that really is fundamental, not just to mention the 20 migratory birds that may go extinct if we do not have that.
Senator Kenny: You are saying, ``shame, shame if they do not do it.'' How many birds go extinct if the bill fails? You are making a political judgment based on your experience with one bill that you have worked with over 10 years. We have seen bills go under all over the place for many bizarre reasons that we could not predict. I have had private member's bills disappear into ether, and they were important to me. I spent a lot of time working on them, and something came out of left field, and they just disappeared.
Mr. Elgie: I would certainly defer to the Senate. The Honourable Senators will be in a better position than us to make that calculation. I do not think we are suggesting that. We are offering our thoughts and hope you give them the weight you think they deserve.
Senator Buchanan: I have a different attack here.
I have a great interest in this bill as an environmentalist. Let us get into the federal-provincial jurisdiction situation here. For a period of 13 years, I was premier of the most progressive province in Canada — you will agree with that because Nova Scotia, of course, is the only province to pass the Endangered Species Act with the full COSEWIC species list included. We are very progressive in Nova Scotia. I cannot foresee any constitutional federal-provincial conflict here vis-à-vis Nova Scotia. However, let me ask you a question.
I have been witness to and have been involved in constitutional matters involving the federal and provincial governments over a long period of time. I remember back in 1978 to 1981 the comments made by certain politicians that the provincial governments really have no say in the Constitution of Canada, and changes in the Constitution of Canada. Of course that was a lot of nonsense because the Supreme Court threw that one out.
Over the years, federal-provincial conferences on education, health, welfare, environment, and trade have always dealt with matters of concern between federal and provincial governments and many ended up in the courts over jurisdictional matters. We settled a big constitutional jurisdictional problem on the offshore, where we set aside the constitutional jurisdictional problem. Mr. Trudeau and I signed Canada's first offshore natural gas and oil agreement. We set everything aside and it has worked well.
Therefore, I suspect that in provinces where they have an agreement on endangered species and an endangered species act, have probably set aside any constitutional jurisdictional problems in the future.
What I do not understand is how you and others can say there is no jurisdictional problem here, and that the federal government has 100 per cent jurisdiction over endangered species. How can you possibly come to that conclusion? Migratory birds, perhaps; fish, fine. However, what about all the other endangered species provincial governments have for decades regarded as provincial jurisdiction? Are you saying that the federal government has constitutional jurisdiction over any endangered species on provincial lands?
Mr. Elgie: You and I could, and perhaps others will, have the chance to spend a lot of time discussing that. It is a good question and a big one. I have had either the good fortune — or misfortune — to be counsel on at least the last four or five constitutional environment cases to go to the Supreme Court. I have had to think about these issues a lot. No lawyer would ever say with 100 per cent certainty because you would need to get your retainer quickly once you said that because you will be embarrassed later.
My view would go along the lines of Justice La Forest's. We have asked one of the most respected environmental constitutional jurists and one of the most respected environmental constitutional professors to put their minds to this issue and give us their thoughts. Neither of them is considered a radical, as you well know. Their thoughts were that there is a high degree of likelihood that for the federal government to have the power to deal with all species the authority is found under the criminal law power. That is not the power to take comprehensive measures dealing with all regulatory aspects of an issue. It is the power simply to set national standards with some degree of exemption or exceptions built into them — the same authority the Food and Drug Act rests on, the same authority the Canadian Environmental Protection Act rests on — is the ability to set national standards on matters of overarching importance. Clearly, extinction would be such a matters.
The ``criminal power'' is an unfortunate use of words because it conjures up ideas of crimes and being thrown in jail. However, their view is that there is a high degree of likelihood that the federal government is on good ground there. I am sure you appreciate that does not mean the federal government takes over responsibility for wildlife, forest or wetland management in a province. It is in the same way that the federal Fisheries Act overlaps with provincial water quality laws, and in the same way provinces have ownership rights about what pollution is put into their waters and have comprehensive codes about what you may and may not pollute. The federal government has the Fisheries Act that says similar things about what you may put into water that affects fish.
Senator Buchanan: Under the Constitution, fisheries is a federal responsibility inland and offshore.
Mr. Elgie: Exactly. It would have to be found that preventing the extinction of a species is a valid object under the criminal law power before you even got to that point.
Senator Buchanan: What I do not follow here is how can you invoke criminal law on matters of moose, deer, fox, and all of the kinds of species that are on the land? I am not talking about fish or migratory birds. How does that endanger the safety and the well-being of Canadians?
Mr. Elgie: In 1998, there was a case in which the Supreme Court of Canada found the Canadian Environmental Protection Act to be valid federal legislation under the Criminal Code law power. They expanded the power and said that legislation dealing with environmental issues of fundamental importance is also a valid object under the criminal law power. Therefore you are right. Traditionally it has been health, public welfare, morality, and safety.
However, all nine of the members of the Supreme Court agreed that dealing with significant environmental issues in modern times is now a matter of sufficient weight that it is a valid criminal law object on which the federal government may legislate. However, they were quick to point out that that does not preclude provincial governments from continuing to legislate in overlapping areas of responsibility.
Senator Buchanan: I have been involved in all those things concerning what you are talking about and I have no problem with that. Environmental matters affecting the safety and welfare of Canadians are not what I am talking about here. I cannot see how this act — not migratory birds, not fish, et cetera — has anything to do with the criminal law. I have heard someone say that there is no problem here; this is definitely totally federal jurisdiction. I have heard that so many times on other matters and then we end up in court over jurisdiction to agree to set it aside.
Are you saying that you do not believe any province, when this bill becomes law, will challenge the constitutionality of the federal government moving in on provincial lands?
Mr. Elgie: Virtually every federal environmental law passed since 1970 has been subject to constitutional challenge and, having taught it, the only one I am aware of where the federal government failed was one section of the Fisheries Act dealing with debris from logging waste. Aside from that, the federal government has prevailed in all of those constitutional challenges dealing with environmental legislation since the early 1970s.
I can say as counsel I would feel a lot more confident of winning the federal argument on this bill than I did on CEPA. I believe CEPA was much closer to the line because it dealt with any kind of contaminant that you could imagine. Discarded refrigerators could have been toxic substances under CEPA and water could have been toxic.
I think you are right, if this bill purported to deal with deer, moose and fox it would be well beyond federal jurisdiction. They need to craft it in a way that says this is a bill about species facing a real threat of going extinct. It is not about wildlife management; it is the problem of extinction, which in some ways is a moral and an ecological one and is grounded in a global treaty, the biodiversity convention, because the nations of the world saw it as sufficiently weighty that they got together and decided that it required a global treaty to deal with.
Senator Buchanan: It would be an interesting case.
Mr. Elgie: It will eventually happen. All these things get challenged.
Senator Spivak: You have mostly answered my question, but I have to say that I find this definition of the Senate role as one that is being hard-nosed about whether or not a bill could pass in the house a bit foreign to the experience that we have had here in the Senate. We have proposed amendments. Since 1993 only one minor amendment has been accepted. I believe that had to do with the Nunavut water bill. It seems to me the Senate has a responsibility — I would not go so far as to say to defeat bills, except on the odd occasion, and I have been involved in that — to correct and amend legislation. I must say that I am disheartened. There is no will in the Senate to do that. This is kind of a sad situation. The idea of being hard-nosed about whether the bill is lost or not is something that happens every time. People in the Senate who review bills understand that that is the way things go. We are just looking at the ethics bill and we are not accepting what the House says.
I have to say very strongly that to simply base your calculations on the speculation of what will happen in the other House is not the proper thing to do. The real issue is this: What do you really think here in the Senate? If you think here in the Senate that the bill is all right, then that is perfectly legitimate. That is my lecture.
You have answered the question. I wanted to ask why you avoided the issue of habitat protection, generally. That is not one of your amendments. I presume you have done that because you feel that that is going above and beyond what could be acceptable.
Mr. Elgie: The safety net would deal with it. It gives the federal government a residual power to protect habitat. There are three options. One is the federal bill simply says, ``We protect all species and habitat everywhere.'' That would have a certain amount of controversy associated with it. The second would be an equivalency approach, which is an approach that they took with CEPA, which says that the federal bill applies, but when a province has equivalent legislation, our bill goes dormant. The weakest one is the approach they have taken here, which is to say that the federal government will have the residual power to step into an area of authority where a province is not acting. That approach could work provided there are clear criteria for when they will step in, and a clear commitment in law that they will indeed step in when the province is not acting. The residual approach they have taken through this safety net to address habitat protection could work, if those two things were present, and they are not.
Ms. Smallwood: I apologize in particular to Senator Kenny if my flippant ``bah humbug'' remark was seen as a bit presumptuous. Obviously, we do not have your extensive period with bills. It reflected my frustration with hearing that argument consistently from David Anderson, and then seeing the opposite happen.
Obviously, I am strongly urging that you amend the bill at least in the four key areas we have advocated. However, if you do just one amendment, as Mr. Elgie has argued, then we would feel that should be extension of habitat protection for migratory birds off federal lands. If you do nothing else, that would be the priority.
If, however, despite that plea and our testimony, you decide not to amend the bill, then it will still make a substantial difference if you attach a report outlining your areas of concern for the five-year review. Obviously, that is not our preferred option. . It will not be as strong. We prefer that you amend the bill.
The Chairman: Honourable senators, I shall point out that in the Thirty-sixth Session of Parliament, the Senate made 79 amendments to bills that they sent back to the House of Commons, and 77 were approved exactly as they were sent back. The other two were approved for all intents and purposes with a couple of word changes.
In the last session, before the last prorogation, there were 50-some amendments.
Senator Kenny: What we have here are conflicting political judgments. I have difficulty with those who characterize themselves as being the true light, the truth and the holders of all virtue. I would argue that people who want to protect endangered species should pass this bill now and move to improve the legislation at a later date. I can be just as virtuous as someone saying, ``Well, the bill is not perfect. Let us amend it now and make it better,'' to which I respond, ``Yes, and you may lose everything you have here.''
I only take offence when people imply that those who have a different judgment about what will and will not work in this case and suggest that someone who says it will not work are not as keen about the subject matter. That is why I did not like your bah, humbug comment because it implies that there are people around this table who are less committed than you, which is something you do not know.
Ms. Smallwood: That was not the intention of the comment. It is my personal frustration at having heard this argument from the minister's office since this bill hit the table.
There is clear commitment around the table that we want this bill to pass in some form or another. As Mr. Elgie has said, it has been a difficult political choice — certainly for the environmental and scientific community each time. Do you accept this as it is or do you push for changes? Because of the four amendments that we are asking for, which we feel are inherently reasonable — especially the one related to migratory birds — we think it is worth taking that level of risk for that amendment.
Senator Spivak: Everyone here knows that Senator Kenny is one of the most courageous advocates. He is defiant of government and everybody. He works his head off on issues he thinks are important. I have to say that I happen to value his opinion highly, but in this case I differ.
Senator Christensen: We all have been working on this legislation. You have been working on it for 10 years, and you continue to do so. Have you any idea of how many species have been lost in those 10 years in which there has been no protection?
Mr. Elgie: I think only one has actually been lost, and it was lost in a national park. It was lost under a pretty protective regime in the Banff hot springs. A number have been added to the list, but they are documenting ones that are older. A number of species have moved closer to the brink of extinction during that time. I started to measure in 1997. In 1992, a treaty was signed. In 1997, there was a bill close to passage when an election was called at three and one half years. Dozens have moved closer to the brink since then.
Senator Christensen: In your estimation, only one in 10 years has been lost.
Mr. Elgie: That is what we know. At most, we are probably aware of only 10 per cent or 15 per cent of the total species that are out there. We have to admit to a certain amount of ignorance on that subject. That I am aware of there has only been one that scientists have documented as having been lost during that period.
However, the number listed in the endangered category, which means that, typically, only a few hundred of them are left and they are on a downward spiral, has grown substantially. It has more than doubled.
Ms. Smallwood: It is estimated that there are 140,000 species in Canada. That is a guess. Some 70,000 of those species are known to science. We cannot assertively say what we have lost and what we have not, if we do not yet know half the species that are out there. That is from the status of wild species in Canada report.
Although you have focused, Senator Christensen, on those we know have gone extinct, it is also significant that the number listed at risk and that creep up the ladder has basically doubled. That is a serious indictment of Canada's non- performance at conserving biodiversity. As I outlined in my brief, what COSEWIC has identified is that, yes, they have listed 402 species at risk, but that does not come close to the number that actually are at risk. Those are ones for which they have had the resources and the time to address.
On the snapshot of biodiversity knowledge we have before us, we can say that we do not think we have lost one, but we can point to serious decline in biodiversity in Canada and a clear need to research and inventory the rest of the species out there.
Senator Christensen: There are species that are going extinct through natural selection constantly. However, there are also those species that are going extinct because of things we are doing to them and we are trying to put legislation and abilities to stop that from happening.
Mr. Elgie: On its face, the bill says that it only applies to species that are threatened due to human activity. If a species is not threatened because of human activity, this bill will not apply.
The Chairman: Do you mean that the punishments under the bill would not apply?
Mr. Elgie: The bill could not be listed in the first place. The species would have to be at risk due to human activity.
The Chairman: In order for COSEWIC to list it?
Mr. Elgie: Yes, that is correct.
I was hoping someone would throw me a lob about compensation. One or two things may not have come up and may be valuable for the committee to reflect upon.
I am a landowner and I share the concern expressed by others that if someone came in and told me that I could not use half my land, I would be darn angry and I would want to ensure that someone else paid for it. When this bill works real hardship on people, I share the sentiment that they should not be left to bear that burden alone.
As with any new bill, much of what you are hearing is based on fear of the unknown and speculation as to what might happen. What people have not pointed you to, as far as I am aware, is the known. That is, we have four endangered species laws in Canada that have been on the books in two cases going back to the early 1970s that do provide mandatory protection for all habitat of a listed species. Ontario has been on the books since 1972; Manitoba has been on the books since 1989. Under those acts, there are literally dozens of listed species living on farms, fields, wetlands and forests. There have been virtually no examples of those laws working significant hardships on people because of it.
I would urge honourable senators to look to the real experience of what has happened in Canada going back 30 years, rather than to speculation as to what a worst-case scenario of what someone might think might happen. Simply, it has not been a problem. That is not to say that there have not been one or two instances. The House committee asked for examples of evidence and none was forthcoming.
Honourable senators, look at what has really happened. The reality is that most endangered species do not require 30 acres banned to human to survive. They require that you keep the hedge row intact; do not drain the wet land in the back 40; keep a grove where they are nesting during certain parts of the year; turn your plough to go around a burrowing owl nest. Few species actually require wide reaching no-action on significant and valuable habitat.
In almost all cases, through careful advance planning and with minor adjustments one can manage lands in a way that is consistent with the survival of a species. We have seen that experience in Ontario, Manitoba, New Brunswick and PEI. All those provinces have mandatory habitat protection; none of them have provisions for compensation in their endangered species acts. It has not been a problem. Honourable senators, think about whether you are responding to something real.
To build on Ms. Smallwood's precedent point, if the government were to set a precedent that there is a right to compensation for restrictions on land use, one would not want to be passing municipal zoning laws in this country. It would become an expensive proposition to pass municipal zoning laws if restrictions on land use entitled one to full dollar value compensation.
The Fisheries Act will be crippled every time logging companies in B.C. must stay away from those 100 metres next to a salmon stream — which is where the biggest and most valuable timber is found — to prevent the extinction of salmon runs. If they can send the bill to Ottawa and say, ``There we go, that is our opportunity cost, you pay for the cost of complying with environmental legislation,'' it will bankrupt environmental policy. It will not just be the ``mom and pop'' farmers who are the ones we all care about. Next time we ban something like PCBs, the company that manufactures PCBs will say, ``I have a right to be paid for the cost of complying with that law, because you set the precedent on endangered species legislation.''
I do not wish to be painted as someone who does not agree with the principle that where a law works real injustice on people they should be treated fairly; they should. This bill goes further than any other environmental statute in Canada to provide for fair and reasonable compensation for people who are significantly affected by environmental legislation.
I would urge honourable senators to think carefully about taking the matter further than that and to think about not just the immediate effects, but also the Pandora's box that would be opened.
The Chairman: Thank you for your presentation.
The committee continued in camera.